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)
�;;/1�';;{::�'![;;�fre� The information contained in or attached to thh, transrnission is attorney prMleged and cont'idential inforrnation
; only for the use of the person narned above. Any copying. distribution, or other dissemination of this rnateriaf is "';'.;t;:i��:�9'.;':
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
��������;!/;� Al rnenos que se indfque de otra rnanera o que se derive de fa nafurafeza de esta transmfsi6n. la informacf6n contenida en
Oste correo es confidenciaf para uso exciusivo def destinatario sefla!ado. Si et iector de este mensaje no es ef destinatario indicacio, ni
ernpleado o agente responsable de entregar este correo a SU destfnatarfo, se ie hace saber quo la distribucic>n o copia de esta comunicaci6n esta
estrictamente prahibida. Si Usted recfbf6 esta cornunicaci6n par error, por favor notiffque fnmedfatamente a quien lo env/6 y destruya dicho correo.
Gracias,
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
used, for the purpose of (ij avoiding tax-related penalties under the Infernal R,wenu, Code or (ii) promoting, marketing or recomrnending to another
par�v any tax-related matter(~1 addressed herein
No email from this sender sho!f constitute a binding "signature" under the Uniform Electronic Transfer Act unless expressly stated otherv.tise in the body
hereof.
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