                                                                                                                       ACCEPTED
                                                                                                                   06-14-00100-CV
                                                                                                       SIXTH COURT OF APPEALS
                                                                                                              TEXARKANA, TEXAS
                                                                                           GASLIGHT SQ:.JAPE 11/11/2015 3:55:23 PM
                                                 ANDERSON
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                                                   ARRE
                                                            AN
                                                                                 1001 THIRD STREET, SU/TC: i
                                                                              CORPUS C--!RfSTI, TEXAS 78404
                                                                                  TELEPHONE [361) 884-4E81
                                                                                  TELECOPJEO (361) 684-9618
                                                                                                                  DEBBIE AUTREY
                                                                                                                            CLERK


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                                                                                                    RECEIVED
                                                                                                   *Nt;W.             IN
                                                                                                          MEX~CO OFF\Qf;:
ANDREW J, LEHRMAN*                                                                      6th COURT OF               APPEALS
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                                                                                          SANTA FE, .\l~W h.10x,c:: 87507
                                                                                            :'EL;;;FHONE [505) 424-4881
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*/\DM'TTED 1:-J rtcXAS & 'NEW MEX/CC                                                    11/12/2015          8:52:00 AM
                                                                                               DOUGLAS 0. MCL<LLEN
                                                                                                  DEBBIE        AUTREY
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                                                                                                JEFFREY    J. LEHRMAN**
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ROBERT ANDERSON
                                                                                                         Clerk
DENNY BARRE                                                                                               OF COUNSE\,:
                                                                                               DOUGLAS  E. BIRCHER
KEVIN M. MARAIST
BOARD CE,;,nnco 8USNESS BAt!K!l:,FfC'( LAW
                                                                                                 MARVIN J, WANNER
TEX;>E BOARD CF ll:GAL SPE:)AUZATiON
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                                                                                 TEXAS 8GAR'.J OF l.EGAc_ 5PfJ>;\U7A71CI\
                                                                                               T!MOThY P. DOWLING
                                                                           f:lOAR'.J '.:'.ERTlf'll'.D 8~$t,F5S BANi<RJ;:;7 LAW
                                                                                  TEXAS BC.AHO CF LEGAL S=EC:lt.L:ZAi10/',

                                             November 11, 2015

Sixth Court of Appeals
I 00 N. State Line Ave., Ste. 20
Texarkana, Texas 75501

               Re:         No. 06-14-00100-CV; Atueller v. Davis, et al.; Letter Brief of
                           Appellees

Dear Honorable Justices:

      Appe!lees, James H. Davis, Individually and James H. Davis d/b/a J.D.
Minerals and JDMI, LLC ("Appellees"), subject to leave of Court, file this Letter
Brief and Response to "Appellant's Reply to Sur-Reply Brief of Appellee and
Response to Motion for Sanctions" filed on November 2, 2015 ("Appellant's Sur-
Reply Brief').

1.)            Agreement Regarding Appellant's Reply Brief

      In accordance with the Rules of Appellate Procedure, Appellant's counsel
conferred with counsel for Appellees regarding the filing of additional briefs to assist
the Court. Counsel for Appel!ees agreed to not to oppose Appellant's reply brief with
the caveat that Appellees would not waive any objections in accordance with Texas
Rules of Appellant Procedure. See Exhibit "A", Letter and email regarding
Appellant's reply Brief, and expressly reserving the right to object to filings 111
derogation of the Texas Rules of Appellate Procedure.


                                                   Page I of 7
2.)   Appellant Improperly Raises a New Issue in His Second Reply Brief Not
      Raised in His Opening Brief

       Texas Rule of Appellate Procedure 3 8.3 does not permit Appellant to include
in a reply brief a new issue in response to a matter pointed out in Appellees' brief but
not raised by Appellant's original brief. Tex. R. App. P. 38.3; U.S. Lawns, Inc. v.
Castillo, 347 S.W.3d 844, 849 (Tex. App. - Corpus Christi 2011, pet. denied).
Appellant's Sur-Reply Brief raises, for the first time, a new argument by asserting that
Appellees did not preserve objections to summary judgment evidence offered by
Appellant. (Appellant's Sur-Reply Brief, p. 3).

3.)   The Issue of the Trial Court's Evidentiary Ruling (or Lack Thereof) Is Not
      Properly Before the Court

       Appellant argues now for the first time that the trial court did not rule on
objections made by Appellees to the parol evidence offered by Appellant in the trial
court. As stated above, Appeiiant is not permitted to raise a new issue for the first
time in a reply brief. Tex. R. App. P. 38.3. Appellees object to Appellant's Sur-
Reply Brief to the extent it raises new issues in violation of Tex. R. App. P. 38.3.

      A.)    No Objection or Trial Court Ruling is Required to Challenge Parol
             Evidence

       Without waiving its objection to Appellant's new issue, but relying expressly
thereon, Appellant confuses the so-called "parol evidence rule" with an ordinary rule
of evidence. The parol evidence rule is not a rule of evidence as it's name might
indicates, but rather is a rule of substantive law. Tuttle v. Simpson, 735 S.W.2d 539,
541-42 (Tex. App.-Texarkana 1987, no writ); Arkansas Oak Flooring Company v.
Mixon, 369 S.W.2d 804 (Tex.Civ.App.-Texarkana 1963, no writ); Pac. Fin. Corp. v.
Crouch, 243 S.W.2d 432, 436 (Tex. Civ. App.-Texarkana 1951, no writ).

       The parol evidence rule is a substantive rule of law because evidence of oral
or written expressions, prior to or contemporary with a written instrument, are
excluded from evidence not because of any rule of evidence, but because such
evidence merely constitutes proof of facts that are immaterial and inoperative. Piper,
Stiles & Ladd v. Fid. & Deposit Co. of Md., 435 S.W.2d 934, 940 (Tex. Civ.

                                      Page 2 of 7
App.-Houston [1st Dist.] 1968, writ ref'd n.r.e.).

       A litigant does not waive his rights under the parol evidence rule merely by
failing to object to or obtain a ruling on the introduction of parol evidence at trial
(though Appellees did object. CR 408, CR 1035-1050). State Nat'! Bank v.
Academia, Inc., 802 S.W.2d 282,291 (Tex. App.-Corpus Christi 1990, writ denied).
See Tuttle, 735 S.W.2d at 541-42; Arkansas Oak Flooring Company, 369 S.W.2d
804; Pac. Fin. Corp. 243 S.W.2d at 436 (Tex. Civ. App.-Texarkana 1951, no writ).
Paro! evidence, objected to or not, is without probative force and will not support any
finding made by the finder of fact. Hartford Ins. Co. v. Commerce & Indus. Ins. Co.,
864 S.W.2d 648, 650 (Tex. App. - Houston [l st Dist.] 1993, writ denied).

       B.)    Appellant, not Appellees, waived Error Associated with Trial
              Court's Treatment of Appellant's Paro! Evidence

        Contrary to Appellant's untimely assertion, it is Appellant who has waived any
issue regarding the trial court's consideration ( or disregard of) parol evidence
attached to Appeilant's summary judgment responses. In RK Greenery, Inc, RI(
Greenery appealed summary judgments on the ground that the trial court
"improperly disregarded parol evidence", just as Appellant argues. RK Greenery
Inc. v. Texoma Plant & Tree Farms, LLC, 06-08-00126-CV, 2009 WL 1514927, at
* l (Tex. App.-Texarkana June 2, 2009, no pet.) (emphasis supplied). See
Appellant's Sur-Reply Brief, p. 3. The trial court granted summary judgment against
RK Greenery summary judgment without ruling on the admissibility of the parol
evidence proffered by RK Greenery. RK Greenery, 2009 WL 1514927 at *2 1• This
Court held that RK Greenery failed to preserve error, stating," ... as a prerequisite
to presenting a complaint for appellate review, the record must show that ... the trial
court: (A) ruled on the request, objection, or motion, either expressly or implicitly;
or (B) refused to rule ... and the complaining party, Appellant, objected to the
refusal." Tex.R.App. P. 33. l(a)(2)(B)". In this case, the record does not demonstrate
that the trial court ruled on the parol evidence issue expressly or implicitly, that it
refused to rule, or that Appellant objected to the trial court's failure or refusal to rule.
See RK Greenery Inc., 2009 WL 1514927, at *2. Accordingly, it is Appellant who


       'The Summary Judgment order appealed by Appellant states "After considering the
Motion, Plaintiffs Responses and timely filed summa,y judgment proof .. " (CR 2064)
(emphasis supplied).

                                        Page 3 of 7
has failed to preserve this issue for appellate review.

           C.)   Paro! Evidence is Immaterial and Inoperative, Even if Not Objected
                 to or Ruled Upon

       Even if Appellant had not failed to preserve error, the evidence still is not
probative, is without weight, and constitutes "no evidence." Evidence that violates
the parol evidence rule "has no legal effect and merely constitutes proofoffacts that
are immaterial and inoperative." Edascio, L.L. C. v. NextiraOne L.L. C., 264 S.W.3d
786, 796 (Tex. App. - Houston [1st Dist.] 2008, pet. denied) (emphasis supplied);
Piper, Stiles & Ladd, 435 S.W.2d at 940.

       Accordingly, Appellant's belated attempt bolster his parol evidence by
observing that the trial court made no ruling is ofno moment, because parol is "no
evidence" absent an exception to the parol evidence rule2, even in the absence of an
objection or ruling in the trial court. Edascio, L.L. C., 264 S.W.3d at 796, Piper, Stiles
& Ladd, 435 S.W.2d at 940. Given its ruling, the trial court either properly
disregarded the extrinsic parol evidence upon its finding that the deeds are
unambiguous, or it found an ambiguity, it upheld the deeds in spite of the parol
evidence and ruled in favor of the deeds' enforceability 3. In any event, Appellant has
waived the argument. Additionally, because the trial court did not explicitly state the
basis of its granting of Appellees' summary judgment, this Court can affirm the trial
comi's summary judgment if any of the theories advanced by Appellees are
meritorious. RK Greenery Inc. , 2009 WL 1514927, at *2 citing Hill v. Bartlette, 181
S.W.3d 541, 544 (Tex.App.-Texarkana 2005, no pet.) (citing StarTelegram, Inc. v.
Doe, 915 S.W.2d 471,473 (Tex.1995)).

4.)    Additional Authority -The 1991 County-Wide Grants in the Deeds are
       Not Void Under the Statute of Frauds

      In a new case out of the United State District Comi, Western District of Texas,
the court rejected the same argument made by Appellant regarding blanket property
descriptions. Huggins v. Royalty Clearinghouse, Ltd.,_ F. Supp. 3d _, Case No.

       2
       Appellant can show no exception because the conveyances are unambiguous and
Appellant has no standing to assert fraud claims. See Appellees' Brief at pages 43-49.
       3
       See fn 1 at p. 3.

                                         Page 4 of 7
A-14-CA-1058-SS, 2015 WL 4637630, *5 (W.D. Tex. July 31, 2015) citing Tex.
Consol. Oils v. Bartels, 270 S.W.2d 708, 711 (Tex.Civ.App.-Eastland 1954, writ
refd) (citing Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949); Sanderson v.
Sanderson, 130 Tex. 264, 109 S. W2d 744 (Tex.Com.App.1937); Smith v. Westall, 76
Tex. 509, 13 S.W. 540 (1890)). The Court rejected Appellant Huggins' contention
that the blanket description is void under the statute of frauds, stating, "According to
more than a century of Texas law, Huggins is incorrect." Huggins, Case No. A-14-
CA-1058-SS, 2015 WL 4637630, *5.

       The Huggins Comi, quoting from Texas Consolidated Oils v. Bartels, held:

       "[i}t has long been the rule that a deed purporting to convey all
       lands owned by the grantor in a State or in a named county is
       sufficient description to effect a conveyance. "

       The l{uggins court ruled that a deed conveying all of grantor's interest in a
named survey within a named county "is sufficient to reasonably identify the land"
arid satisfies tl1e state of frauds. }Juggirzs, 2015 'v1/I"' 463 7630 at * 5; citirzg Bartels,
270 S.W.2d at 711 (emphasis supplied).

5.)    Sanctions -Appellees' Belated Recognition of the Validity of Blanket
       Grants in His Most Recent "Reply to Sur-Reply" Brief is Too Little,
       Too Late

        Appellant's Sur-Reply Brief,/or the first time, acknowledges that county-wide
or blanket grants are "legitimate. See Appellant's Sur-Reply Brief, p. 14. This is in
direct conflict with Appellant's prior briefs, which persisted in the incorrect
argument, in the face of overwhelming precedent to the contrary, that a conveyance
must contain a metes and bounds description or reference to a prior document
containing same which is filed in the public record. (See Appellant's opening brief
at pp 8-13 and Appellant's Reply Brief at p. 3). Appellees respectfully submit that
after the filing of two appellate briefs and in response to a motion for sanctions for
frivolous appeal on this issue, Appellant's late reversal on this inarguable point oflaw
is too little, too late. Much time and resources have already been committed to
responding to Appellant's baseless arguments and turning a blind eye to the
overwhelming authority on this point. Accordingly, sanctions are appropriate
pursuant to Tex. R. App. P. 45.


                                         Page 5 of 7
      In light of the foregoing, Appellee prays that the trial comi's judgment be
affirmed and that the Court grant sanctions for frivolous appeal pursuant to Tex. R.
App. P. 45.

                                   Respectfully submitted,

                                     ANDERSON, LEHRMAN, BARRE &
                                         MARAIST, L.L.P.
                                     Gaslight Square
                                     1001 Third Street, Suite 1
                                     Corpus Christi, Texas 78404
                                     Telephone: (361) 884-4981
                                     Telecopier: (361) 883-4079
                                     Email: dmclallen@albmlaw.com


                                By: Isl Douglas D. McLallen
                                    Douglas D. iv1cLallen
                                    State Bar No. 00788025

                                    Marshall C. Wood
                                    State Bar No. 00797690
                                    NORTON & Woon, LLP
                                    315 Main Street
                                    Post Office Box 1808
                                    Texarkana, Texas 75504
                                    Telephone: (903) 823-1321
                                    Facsimile: (903) 823-1325
                                    Email: marshall@n01ionandwood.com

                                    Attorneys for Appellees




                                    Page 6 of 7
                        CERTIFICATE OF SERVICE

       I certify that on November 11, 2015, a true and correct copy of Appellees'
Letter Brief was served on counsel of record as indicated below.

Mr. Bob Whitehurst                       Via Electronic Delivery: whitelturstlawfirn1(iiJyahoo.com
Whitehurst & Whitehurst
Attorneys at Law
5380 Old Bullard Road, Suite 600, #363
Tyler, Texas 75703




                                   Isl Douglas D. McLallen
                                   Douglas D. McLallen




                                   Page 7 of 7
     !"Page 1 of 1                                      2015-10-29 21 :1917 (GMT)                                               Frorr:


!::-::•
II   8




                                   WHITEHURST & WHITEHURST
                                                       ATTORNEYS AT LAW

                5380 OLD Ill!l,LARD ROAD, SUITE 61/U, #363                                  (903) 5.93-5588
                TYLER, TKXAS 7:i7113                                                        (214) 853-9382 (FAX)


                .Mr. Douglas McLallen                                              October 29, 2015
                Attorney at Law
                 1001 Third St., Suite I
                Corpus Christi, Texas 78404
                {l-]61-884-9618 fax)

                        Re: Mueller v, Jd Minerals et al

                Dear Doug:

                       To insure that I umlerstand your position, you are not opposed to me a filing reply lo your
                snr-reply motion, in that you will probably file a letter reply to that reply by appc!lant.

                        l will also probably iile a reply to that letter.

                        As stated previously, I would think that the appeals court will allow both parties to present
                "H issnes to the court.

                        ff you will let me know if you are oppo,ed or unopposed to snid motion,

                        If there are any problems or questions, do not hesitate to contact my oflfoe.

                                                                  Sincerdy,

                                                                  {)-Jr/; 1:J:fft11c/wrdt
                                                                  nob Whitehurst
                                                                                                                   t'   ~   ;
                                                      l:-,: )<;,cl' ""' t le a:t\t;c(p...f. 'c.. '(: G,'(o.'-!--    A- ·




                                                         EXHIBIT "A"
Douglas Mclallen
From:                                Douglas McLallen
Sent:                                Thursday, October 29, 2015 4:53 PM
To:                                  'Bob Whitehurst'; 13618849618@efaxsend.com
Cc:                                  Marshall Wood; Robert Anderson; Douglas McLallen; Laura Morris; Chelo Flores
Subject:                             RE: Mueller v. Jd Minerals
Attachments:                         dougreplybriefletter2.pdf

Importance:                           High


Bob,

I agree to the contents of your attached letter the extent all subseqUN'lt filings are compltmt with the Tex. R. App P.

I do not believe any new matters I arguments may be raised by either of us, but we can flesh out existing t heories I
arguments to assist the Court.

i do not plan on addir12 anything outside of what was in our opening brief's Points.

                                                                0Sc•n,uentiy raised matter was waived if it was not raised in
          ! am not agreeing to 'Naive the argument that any s11l___
the trial court -which is a standard I shall adhere to .

Best regards,

.Douglas I). M.cLallen., Sr
ANDE:R,,0/,. LEHRMAN, BARRE & MARAIS"!, LLP
Gaslight Square
100 I Third Street, Suite l
Corpus Christi, Texas 78404
361 -884-4981
361-884-9618 (Fax)
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                                                                                                                                            o                  /OU
have received this transaction in error, please not!(v the sender by phone ancl return the original transmission to us via U.S. A1aff. Your cooperation is
appreciated

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Disclosure Pursuant to Treasury Regulations in Circular 230: To ensure compliance with requirernents fmposedby the fnlernaf Revenue Service,
vve inform you that any tax advice contained in this cornmunlcation (lnciuding any attachments) was not intended or written to be used. and cannot be
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From: Bob Whitehurst [mailto:whitehurstlawfirm@yahoo.com]
Sent: Thursday, October 29, 2015 4:19 PM
To: 136188496l8@efaxsend.com; Douglas McLallen
Subject: Mueller v. Jd Minerals
                                                                                 1
