CAUSE NO. 07-15-00004-CV 

 

IN THE COURT OF APPEALS

SEVENTH DISTRICT OF TEXAS

AT AMARILLO

 

ROBBYN ELIZABETH COY ARRIOLA, 

JOEY ARRIOLA, JACK HENRY LAWSON, 

and RAVEN JONAE PRITCHETT, 

 Appellants 

v.

TOMMY KUTSCHEROUSKY, SR., ET AL., 

d/b/a KUTSCHEROUSKY FARMS,

 Appellee

 

Appealed from the 87th Judicial District, Tarrant County

Cause No. 30,122-B, the Honorable Patrick Simmons, Judge the 77th Judicial 

District Court, sitting as Judge of the 87th Judicial District Court

 

APPELLANTS’ BRIEF 

THOMAS M. MICHEL

State Bar No. 14009480

GRIFFITH, JAY & MICHEL, LLP 

2200 Forest Park Blvd.

Fort Worth, Texas 76110

(817) 926-2500 (Telephone)

(817) 926-2505 (Facsimile)

thomasm@lawgjm.com 

ATTORNEYS FOR APPELLANTS 

ORAL ARGUMENT REQUESTED

ACCEPTED

07-15-00004-cv

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

5/1/2015 10:03:30 PM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 5/1/2015 10:03:30 PM VIVIAN LONG CLERK
i

IDENTITY OF PARTIES AND COUNSEL

Appellant submits the following list of names and address of all parties and 

counsel pursuant to Tex. R. App. P. 38.1 (a): 

1. Robbyn Elizabeth Coy Arriola, Joey 

Arriola, Jack Henry Lawson, and Raven 

Jonae Pritchett

Appellants

2. Rodney Pat Ramsey

201 East Main Street, Suite 203

Waxahachie, Texas 75165

Trial counsel for Appellant

3. Thomas M. Michel 

Griffith, Jay & Michel, LLP

2200 Forest Park Blvd.

Fort Worth, Texas 76110

(817) 926-2500 (Telephone)

(817) 926-2505 (Facsimile)

Appellate counsel for Appellant

4. Tommy Kutscherousky, Sr., et al., 

d/b/a Kutscherousky Farms

Appellee

5. James Showers

Martin, Showers, Smith & McDonald

P.O. Box 257

Hillsboro, TX 76645

(254) 582-2536

Trial counsel for Appellee

6. Greg White 

4300 West Waco Drive, Suite B2-293

Waco, Texas 76710

(254) 307-0097

(866) 521-5569

Appellate counsel for Appellee
ii

TABLE OF CONTENTS

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

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

INDEX OF AUTHORITIES......................................................................................v

STATEMENT OF THE CASE..................................................................................x

ISSUES PRESENTED............................................................................................. xi

STATEMENT OF FACTS ........................................................................................1

I. The Lawson Farm and the three siblings inherit the Farm. ..........................1

II. Robbyn’s decision to lease the property, and the introduction to Eric 

Kutscherousky by a mutual friend. ...............................................................2

III. The May 26, 2011 one sentence document...................................................3

IV. The July 6, 2011 Lease Agreement...............................................................4

A. Robbyn wanted some very specific provisions in the Lease and was 

not an ordinary farm lessor. .......................................................................6

1. No hunting of any kind was allowed on the Farm. ....................................6

2. Specific people were prohibited from being on the Farm..........................7

3.Tommy Jr. “kills [hogs] whenever he can, and Eric is a competition 

winning hog hunter.....................................................................................7

4. Rent was required for 2011........................................................................7

5. Lessee was required to maintain the fences...............................................8

6. The Lease was for a five year term. ...........................................................8

7.The Lease provided for automatic termination for violating the 

terms. ..........................................................................................................9
iii

8. The Lease was given at a lower rate to clean up the farm. ........................9

V. The Kutscherouskys admitted that they placed traps, put corn in traps to 

lure and capture the hogs, and did not pay rent for 2011 ................................9

VI. The Kutscherouskys hunt on the farm, do not pay rent, and do not 

maintain the fences as required by the Lease..............................................10

VII. Robbyn decides to sell the Farm because the Lease did not work out 

and would not be fair to her siblings...........................................................10

A. Robbyn and the siblings agree to let the Farm go....................................10

B. All parties agreed the Lease would still go with the Farm if it were 

sold. ..........................................................................................................11

VIII. After termination, Tommy Kutscherousky executed an affidavit under 

oath swearing the Lease was a five year lease and that rent was due for 

the year 2011 and files it in the Limestone County Deed records. .............11

A. After the Notice of Termination, the parties unsuccessfully 

attempted to negotiate the purchase and a sale of the Farm. ...................12

IX. Raven and Jack had no involvement in the Lease Agreement....................12

X. The case proceeded to trial and the Kutscherouskys obtain a judgment 

against the Appellees so large that it basically awards them a large 

portion of the value of Lawson Farm..........................................................13

SUMMARY OF ARGUMENT...............................................................................14

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

I. The jury’s verdict fails to find what the agreement between the parties 

was and therefore does not support the trial court’s judgment. ..................16

II. The trial court erred in entering judgment against Raven and Jack............17

A. There is no evidence or insufficient evidence to support the jury’s 

finding that Joey or Robbyn had authority or apparent authority 

from Raven and Jack to lease the Farm to Eric........................................19
iv

B. There is no evidence to support the jury’s finding that Pritchett and 

Lawson ratified the lease, either...............................................................22

III. The July 6, 2011 Lease constitutes the entire agreement between the 

parties as a matter of law because the parol evidence rule precludes 

the consideration of the May 26, 2011 document and any prior oral 

agreement. ...................................................................................................23

IV. The Kutscherouskys breached the lease as a matter of law. .......................30

A. Standard of Review. .................................................................................30

B. The evidence conclusively established that the Kutscherouskys 

breached the lease by trapping feral hogs. ...............................................31

i. It is undisputed that the Kutscherouskys engaged in trapping feral 

hogs, which constitutes “hunting.”...........................................................31

ii.The trial court erred in refusing to instruct the jury as to the 

definition of “hunting.” ............................................................................36

C. It is undisputed that the Kutscherouskys failed to pay rent. ....................38

D. The Kutscherouskys failed to maintain the fence line as required by 

the Lease...................................................................................................39

V. The evidence is insufficient to show that the Appellants breached the 

lease. ..............................................................................................................40

A. Standard of Review. .................................................................................40

B. The Arriolas did not breach the lease by terminating it...........................41

PRAYER..................................................................................................................43

CERTIFICATE OF SERVICE ................................................................................44

CERTIFICATE OF COMPLIANCE.......................................................................44

APPENDIX..............................................................................................................45
v

INDEX OF AUTHORITIES

Cases

Allegiance Hillview, L.P. v. Range Texas Production LLC, 

347 S.W.3d 855 (Tex. App.—Fort Worth 2011, no pet.)....................... 18, 19, 40

Bockelmann v. Marynick,

788 S.W.2d 569 (Tex. 1990)...............................................................................20

Cameron County v. Velasquez,

668 S.W.2d 776 (Tex. App. – Corpus Christi 1984, writ ref’d n.r.e.)................16

Cent. Ready Mix Concrete Co. v. Islas, 

228 S.W.3d 649 (Tex. 2007)................................................................................18

Chastain v. Cooper & Reed, 

152 S.W.2d 422 (Tex. 1953)................................................................................21

City of Keller v. Wilson, 

168 S.W.3d 802 (Tex. 2005)................................................................................31

City of The Colony v. N. Tex. Mun. Water Dist., 

272 S.W.3d 699 (Tex. App. – Fort Worth 2008, pet. denied).............................22

DeClaire v. G & B McIntosh Family Limited Partnership, 

260 S.W.3d 34 (Tex.App.—Houston [1st Dist.] 2008, no pet.)..........................25

Dow Chemicals v. Francis,

46 S.W.3d 237 (Tex. 2001).......................................................................... 30, 31

Dyer v. Cotton, 

333 S.W.3d 703 (Tex. App.—Houston [1st Dist.] 2010, no pet.).......................20

Edascio, L.L.C. v. NextiraOne L.L.C., 

264 S.W.3d 786 (Tex.App—Houston [1st Dist.] 2008, pet. filed)......................24

First Valley Bank of Los Fresnos v. Martin, 

144 S.W.3d 466 (Tex. 2004)................................................................................21
vi

Gaines v. Kelly,

235 S.W.3d 179 (Tex. 2007)........................................................................ 20, 21

Garner v. Fidelity Bank, N.A., 

244 S.W.3d 855 (Tex.App.—Dallas 2008, no pet.) ............................................25

Gary E. Patterson & Associates, P.C. v. Holub, 

264 S.W.3d 180 (Tex.App.—Houston [1st Dist.] 2008, pet. denied) .......... 25, 28

Hancock v. Variyam, 

2013 WL 2150468 (Tex. 2013) ...........................................................................19

Hester Int’l Corp. v. Fed. Republic of Nig.,

879 F.2d 170 (5th Cir. 1989) ..............................................................................20

Horlock v. Horlock, 

614 S.W.2d 478 (Tex. Civ. App. – Houston [14th Dist.] 1981, 

writ ref’d n.r.e.)....................................................................................................20

Hubacek v. Ennis State Bank, 

159 Tex. 166. 317 S.W.2d 30 (1958)...................................................................25

In re Green Tree Servicing LLC, 

275 S.W.3d 592 (Tex. App. – Texarkana 2008, no pet.).....................................29

In re Lyon Financial Services, Inc., 

257 S.W.3d 228 (Tex. 2008)................................................................................29

ISG State Operations, Inc. v. National Heritage Insurance Company, 

234 S.W.3d 711 (Tex.App.—Eastland 2007, pet. denied)..................................24

Kindred v. Con/Chem, Inc., 

650 S.W.2d 61 (Tex. 1983)..................................................................................19

Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 

925 S.W.2d 565 (Tex. 1996)................................................................................23

Magee v. Hambleton, 

No. 2-08-441-CV, 2009 Tex. App. LEXIS 6778 

(Tex. App. – Fort Worth August 25, 2009, pet. denied)......................................23
vii

Miller v. Kennedy & Minshew, Prof’l. Corp., 

142 S.W.3d 325 (Tex. App. – Fort Worth 2003, pet. denied).............................22

Minyard Food Stores v. Goodman, 

80 S.W.3d 573 (Tex. 2002)..................................................................................30

Morgan Buildings and Spas, Inc. v. Humane Society of Southeast Texas, 

249 S.W.2d 480 (Tex.App.—Beaumont 2008. no pet.)......................................26

Nations Bank, N.A. v. Dilling, 

922 S.W.2d 950 (Tex. 1996)................................................................................20

Pinehurst v. Spooner Addition Water Co., 

432 S.W.2d 515 (Tex. 1968)................................................................................24

Plas-Tex, Inc. v. U.S. Steel Corp.,

772 S.W.2d 442 (Tex. 1989)...............................................................................31

Puckett v. U.S. Fire Ins. Co.,

678 S.W.2d 936 (Tex. 1984)...............................................................................31

Rao v. Rodriguez, 

923 S.W.2d 176 (Tex. App. – Beaumont 1996, no pet.).....................................16

Rourke v. Garza, 

530 S.W.2d 794 (Tex. 1975)................................................................................20

Shrieve v. Tex. Parks & Wildlife Dept., 

No. 03-04-00640-CV, 2005 Tex. App. LEXIS 3406 

(Tex. App. – Austin May 5, 2005, no pet.)..........................................................34

Southwestern Bell Co. v. Wilson, 

768 S.W.2d 755 (Tex. App.—Corpus Christi 1988, no pet.)..............................18

Star Enterprise v. Marze, 

61 S.W.3d 449 (Tex. App.—San Antonio 2001, pet. denied)................ 19, 40, 41

Sterner v. Marathon Oil Co.,

767 S.W.2d 686 (Tex. 1989)...............................................................................30
viii

T.O. Stanley Boot Co. v. Bank of El Paso, 

847 S.W.2d 218 (Tex. 1992)................................................................................16

Tawes v. Barnes,

340 S.w.3d 419 (Tex. 2011)................................................................................32

Texas Pacific Coal & Oil Co. v. Smith, 

130 S.W.2d 425 (Tex. Civ. App. – Eastland 139, writ dism’d, judgm’t cor.) ....23

Thota v. Young, 

366 S.W.3d 678 (Tex. 2012)................................................................................36

Union Pac. R.R. Co. v. Williams, 

85 S.W.3d 162 (Tex. 2002)..................................................................................37

Uniroyal Goodrich Tire Co. v. Martinez, 

977 S.W.3d 328 (Tex. 1998)................................................................................18

Valence Operating Co. v. Dorsett,

164 S.W.3d 656 (Tex. 2005)...............................................................................32

Verizon Corporate Services Corp. v. Kan-Pak Systems, Inc., 

290 S.W.3d 899 (Tex. App. – Amarillo 2009, no pet.).......................................17

Willson v. Superior Oil Co., 

274 S.W.2d 947 (Tex. App. – Texarkana 1954, no writ)....................................22

Wilson v. Wagner,

211 S.W.2d 241 (Tex. Civ. App. – San Antonio 1948, writ ref’d n.r.e.)...........26

Winegar v. Martin, 

304 S.W.3d 661 (Tex. App.—Fort Worth 2010, no pet.)....................................19

Statutes

Alaska Stat. §16.05.940 (21)....................................................................................32

Conn. Gen. Stat. Ann. § 26-1. (12)...........................................................................32

Ga. Code Ann. § 27-1-2. (39) ..................................................................................32

Iowa Code Ann. 481A.1 (32 ....................................................................................33

Ky. Rev. Stat. Ann. § 150.010 (12)...........................................................................33
ix

La. Rev. Stat. Ann. § 56:116.1..................................................................................33

Me. Rev. Stat. Ann. Tit. 12, § 7001 ..........................................................................33

Mont. Code. Ann. § 87-2-101 ((8)............................................................................33

Neb. Rev. Stat. § 37-232...........................................................................................33

Ohio Rev. Code Ann. § 1531.01...............................................................................33

Pa. Consol. Stat. Ann. § 102 ....................................................................................33

TEX. BUS. & COMM. CODE § 26.01(a)(5)..........................................................28

TEX. GOVT. CODE § 312.002...............................................................................32

TEX. PARKS & WILD. CODE § 1.101(1).............................................................32

TEX. PARKS & WILD. CODE § 1.101(5).............................................................32

Wash. Rev. Code Ann. § 77.08.010 (7)....................................................................33

Other Authorities

Jared Timmons, Feral Hog Laws and Regulations in Texas, AgriLIFE 

Extension, Texas A&M System feralhogs.tamu.edu/files/2011/08/

Feral-Hog-Laws-and-Regulations-in-Texas.pdf (April 30, 2015) ......................34

Wikipedia, Hunting, http://en.wikipedia/wiki/Hunting...........................................34

Rules

TEX. R. CIV. P. 278 ................................................................................................36

TEX. R. CIV. P. 279 ................................................................................................16
x

STATEMENT OF THE CASE

1. Nature of the proceedings: 

This was a lawsuit over a breach of a farm lease.1

2. Course of the proceedings: 

The case came on for jury trial on October 13-15, 2014.2

3. Trial court’s disposition: 

On October 31, 2014, the trial court entered a money judgment in favor of 

the Plaintiff and against the Defendants.3

 1 CR 7-31. 

2 RR 1-7. 

3 CR 679. 
xi

ISSUES PRESENTED

1. Whether the jury’s verdict supports the judgment that the Appellants 

breached the lease because the jury failed to determine the essential terms of 

the agreement?

2. Whether the jury’s finding that the Arriolas had authority or apparent 

authority to bind Jack and Raven to the lease is supported legally or factually 

sufficient evidence where Jack and Raven did not even know about the 

lease? 

3. Whether the jury’s finding that Jack and Raven ratified the lease is 

supported by legally or factually sufficient evidence where Jack and Raven 

did not know about the Lease and were not parties to the Lease? 

4. Whether the parol evidence rule precludes consideration of the May 26, 

2011 document and the alleged oral agreement regarding rent for 2011? 

5. Whether the Kutscherouskys breached the lease by trapping feral hogs when 

the lease expressly prohibits “hunting of any kind?”

6. Whether the Kutscherouskys breached the lease by failing to pay rent?

7. Whether the Kutscherouskys breached the lease by failing to maintain the 

fence line as required by the lease? 

8. Whether the Appellants breached the lease by terminating it as a result of the 

Kutscherouskys hunting on the lease property, failure to pay rent, and failure 

to maintain the fence line?
1

STATEMENT OF FACTS

I. The Lawson Farm and the three siblings inherit the Farm. 

Henry Lawson owned a 205 acre farm in Limestone County.4

 When he 

passed away, his son, Larry Lawson, moved to the Farm.5

 In 2009, when Larry 

passed away, he left the farm to his three children, Robbyn Arriola, Raven Pritchett 

and Jack Lawson.6

After their father passed away, the three children were not certain what to do 

with the property.7 At first, they all had sentimental attachment to the property but 

knew that logically it may have to be sold and move on.8 They knew it was not 

going to work if no one was living down there.9

So they decided that Robbyn would move to the farm. Robbyn was the one 

who had the “greatest passion for animals,” most love of animals, and was 

interested in farm life.10

In 2009, Robbyn moved to the Farm. She was there to take care of the 

animals and for the sentimental reason that her father loved the farm.11 Later Joey,

 4 P’s Ex. 1. 

5 3 RR 176-179.

6 Robbyn was not Larry’s biological child, but he raised her since she was of 18 months of age. 4 

RR 20-21; P’s Ex. 4, pgs. 40-45. 

7 4 RR 75.

8 4 RR 75.

9 4 RR 75.

10 4 RR 28; 4 RR 179

11 4 RR 48. 
2

her husband, joined her. Joey had known Robbyn her whole life.12 Later, Robbyn 

became pregnant and could not help out as much. Their son was born on 

November 16, 2011.13

Robbyn enjoyed their many animals on the Farm. They had horses, donkeys, 

ducks, turkeys, dogs, chickens, and goats.14 Robbyn was concerned about the 

fences because the animals could get out, or they could get trapped.15

II. Robbyn’s decision to lease the property, and the introduction to Eric 

Kutscherousky by a mutual friend. 

Robbyn and Joey were introduced to Eric Kutscherousky by a mutual friend

for possibly leasing the form.

16 When Robbyn decided to lease the property, she 

knew she would not be the “traditional” farm lessor. She explained to Eric that she

was interested in farming and wanted to learn. She also thought her interest in 

leasing to be more “emotional.”17

Eric said the he would be more than happy to tell Robbyn what he was 

planting and the processes of farming and things of that nature.18 Joey told Eric 

that Robbyn liked to walk the farm.19

 12 4 RR 129.

13 4 RR 130.

14 4 RR 120; 3 RR 213.

15 4 RR 228-229.

16 3 RR 228. 

17 4 RR 180. 

18 4 RR 180

19 3 RR 245. 
3

III. The May 26, 2011 one sentence document.

On May 26, 2011 Eric and Joey signed a one sentence document that 

provided as follows: 

May 26, 2011

Tommy Kutscherousky Sr., Tommy Kutscherousky Jr. and Eric 

Kutscherousky has my farm #4888, leased from January 1, 2011 to 

December 31, 2016.

Joey and Robbyn Arriola20

It is undisputed that this document was only signed by Joey Arriola, who 

had no ownership interest in the Farm. It was not signed by Eric. It was not singed 

by Robbyn. At trial, Tommy admitted that the May 26, 2011 Lease did not say 

how many acres were leased, did not say how much per acre, and did not include 

the other terms and conditions that were agreed to by Eric.21 Eric asserted that 

Robbyn and Joey owned the farm.22

Apparently on the same day, Eric Jr. then took this document to the FSA 

who advised him that the FSA wanted to know if it was a “cash lease” or a “share 

crop” agreement.23

Tommy then returned to Joey who modified the document to include the 

word “cash” in front of the word lease, so the document now read as follows:

 20 P’s Ex. 2. 

21 3 RR 92-93. 

22 3 RR 228. 

23 3 RR 247.
4

May 26, 2011

Tommy Kutscherousky Sr., Tommy Kutscherousky Jr. and Eric 

Kutscherousky has my farm #4888, leased from January 1, 2011 to 

December 31, 2016.

Joey and Robbyn Arriola24

Once again, it is undisputed that only Joey signed this document. This time, 

though, he signed it as “Joey & Robbyn Arriola.”25

The May 26, 2011 document did not mention that the Kutscherouskys got 

seven months free rent.26 In fact, there is no written document that says they do not 

have to pay rent.27 Further, the May 26, 2011 document has no terms to it all.28 It 

did not state the number of acres to be leased; it did not state price per acre.29

IV. The July 6, 2011 Lease Agreement.

On July 6, 201l, Eric, Joey and Robbyn signed the one page Lease 

Agreement.30 It was undisputed at trial by Kutscherousky that Eric had the 

authority to sign the Lease Agreement on behalf of his father, Tommy Sr. and his 

brother Tommy, Jr.

 24 P’s Ex. 2. 

25 7 RR; P’s Ex. 2

26 7 RR; P’s 2.

27 3 RR 282.

28 3 RR 283-284; P’s Ex. 2.

29 P’s Ex. 2. 

30 P’s Ex. 6.
5

Eric admitted at trial that he read the Lease Agreement before he signed it.31

Eric admitted that the May 26, 2011 document is not attached to or referenced in 

the July 6, 2011 Lease Agreement.32 Eric admitted that he had read the whole 

Lease Agreement when he signed it.33 Eric admitted at trial that he believes it is 

important to read a lease contract he was signing.34 When Eric took the Lease 

Agreement he could have looked at it every day.35 He agrees if the fence line was 

bad, he should have fixed it.36 Eric admitted at trial the Lease Agreement did not 

provide that oral agreements are part of the Lease.37

Eric admitted at trial that the Arriolas provided him a copy of the Lease 

Agreement, and offered the opportunity to read it and sign it, that he agreed to it,

and signed it.38 Eric testified that the jury should just ignore the fact that he signed 

the Lease Agreement to pay rent for 2011 even though he signed the agreement.39

Eric testified that he did not want the jury to believe parts of the Lease 

Agreement that are not good for his case.40 Tommy Jr. testified that Eric signed 

 31 3 RR 286

32 3 RR 291

33 3 RR 289.

34 3 RR 287.

35 Id.

36 3 RR 288

37 3 RR 291.

38 3 RR 296.

39 3 RR 297

40 3 RR 295.
6

the Lease Agreement on behalf of Tommy Sr., Tommy Jr., Eric, and 

Kutscherousky Farms.

41

A. Robbyn wanted some very specific provisions in the Lease and 

was not an ordinary farm lessor.

1. No hunting of any kind was allowed on the Farm.

As mentioned above, of the three children, Robbyn was the one who most 

liked animals and had sentimental feelings with regard to the Farm. Eric knew 

Robbyn liked to walk the Farm and did not want there to be any hunting.42 Eric had 

specifically discussed with Joey that “Lessee agrees that there will be no hunting of 

any kind on the property.”43 Eric agreed.44

Robbyn had made this as a special request.45 Robbyn did not want hunting 

of any kind. She did not want traps on her property because of her many other 

animals on the farms that might get caught in the traps, as well as migratory deer.46

Robbyn also liked to walk the farm.47 If the fences had been maintained, this may 

not have been such a big issue, but Eric never fixed the fences.48

Mr. Erskin, a neighbor, would shoot or troop feral hogs.49

 41 3 RR 95. 

42 3 RR 245; 4 RR 95.

43 3 RR 245.

44 3 RR 245.

45 4 RR 95.

46 4 RR 228-229.

47 3 RR 245. 

48 4 RR 184-186; D’s Ex. 10.

49 3 RR 200.
7

2. Specific people were prohibited from being on the Farm.

Robbyn had specifically requested that three people not be permitted on the 

property: 1) Bill (Clyde) Woodard, Carl Erskin, and Joy Erskin. 

Carl Erskin shot and killed Robbyn’s dog and had tried to run Robbyn off 

the road when she was walking.50 As such, Robbyn did not want Mr. Erskin or his 

wife on the Farm.

Robbyn did not want Mr. Woodard on the property because she felt that he 

had made unwanted advances on Robbyn.51

3. Tommy Jr. “kills [hogs] whenever he can, and Eric is a 

competition winning hog hunter.

Tommy testified at trial that he tries to kill as many hogs as he can.52 His 

brother Eric is a competition winning hog hunter and kills hogs.53

4. Rent was required for 2011.

As with any lease, the lessee was required to pay rent. The rent was for each 

year of the 5 year lease, starting 2011 and ending in 2015.

Tommy Jr. testified at trial that he cannot pick and choose the provisions of 

the July 2011 Lease he will follow.54 Tommy agreed the July 2011 Lease 

 50 3 RR 202-206

51 3 RR 216

52 2 RR 77-78; 3 RR 74.

53 3 RR 273-278; 4 RR 98-99

54 3 RR 96. 
8

Agreement required rent to be paid for 2011.55 He also testified that the July 2011 

Lease Agreement required rent to be paid, or if Eric disagreed, he should not have 

signed it. Tommy further admitted that he was obligated to pay rent for 2011 “Due 

to that contract, yes.”56 Finally, Tommy conceded:

Q. But as that contract was written, [Eric] either should 

have not signed it, or they should have paid rent for 

2011. Is that correct?

A. Yes.

5. Lessee was required to maintain the fences.

The fences were in poor shape and Eric agreed that he would maintain the 

fences.57

6. The Lease was for a five year term.

The Lease Agreement specifically provided that it was for a five year term.58

The May 26, 2011 document provided that there would be a lease for six 

years. Joey testified that was a mistake because the Lease was supposed to be for 

five years. So they corrected it to make the Lease a five year lease which Eric 

signed and agreed to.59

 55 3 RR 97. 

56 3 RR 97. 

57 3 RR 147-148; 298.

58 P’s Ex. 6.

59 4 RR 114; 3 RR286-292.
9

7. The Lease provided for automatic termination for violating 

the terms. 

The Lease provided: 

It shall be agreed upon by signature below that all terms listed 

above shall be adhered to throughout the terms of this contract, 

failure to follow these terms will result in automatic termination 

of this contract, (with a 30 day notice of termination), without any 

refund of monies previously paid to date.60

8. The Lease was given at a lower rate to clean up the farm. 

At trial, Tommy Jr. admitted they got a reduced rate to do clean up.61

Tommy, Jr. testified that not only were they getting a reduced rate, but free rent.62

But this free rent was not in writing and not in the signed Lease Agreement.

V. The Kutscherouskys admitted that they placed traps, put corn in traps 

to lure and capture the hogs, and did not pay rent for 2011

The Kutscherousky admitted that they placed traps, and put corn in traps to 

lure the hogs and capture the hogs.63

Robbyn found out that the Kutscherouskys had placed traps on the property 

when she was walking the Farm with her husband’s son.64 She found the traps with 

 60 P’s Ex. 6. 

61 3 RR 281. 

62 3 RR 281. 

63 3 RR 278; 270-71.

64 4 RR 97; 4 RR 221.
10

corn in them.

65 Joey had advised Eric that the traps were a violation of the Lease 

Agreement.66

VI. The Kutscherouskys hunt on the farm, do not pay rent, and do not 

maintain the fences as required by the Lease. 

At trial, the Kutscherouskys admitted that they did not pay rent for 2011. 

They admitted that they placed traps with corn, and trapped hogs. Finally, the jury 

heard evidence that the Kutscherouskys failed to maintain the fences. As such, on 

January 11, 2013, Joey and Robbyn sent a Notice of Termination.67

On March 8, 2013, well after 30 days, they gave the Kutscherouskys Notice 

to Vacate.68

VII. Robbyn decides to sell the Farm because the Lease did not work out and 

would not be fair to her siblings.

A. Robbyn and the siblings agree to let the Farm go.

Robbyn decided to sell the Farm because the Lease did not work out and 

would not be fair to her siblings.69 Although torn, Robbyn decided that it was time 

to let the sentiments go and to be realistic about the Farm that could be a tangible 

asset for all them and then the siblings could be going on their own way.70

 65 4 RR 221.

66 4 RR 223.

67 P’s Ex. 14. 

68 P’s Ex. 19. 

69 4 RR 234-235.

70 4 RR 235.
11

Raven also agreed that it may be time to stop holding onto the Farm for 

sentimental reasons and Jack agreed.71

B. All parties agreed the Lease would still go with the Farm if it were 

sold.

At trial, all parties agreed that if the Farm was sold, the lease would go with 

the Farm to the new purchaser.72

VIII. After termination, Tommy Kutscherousky executed an affidavit under 

oath swearing the Lease was a five year lease and that rent was due for 

the year 2011 and files it in the Limestone County Deed records.

On February 16th, 2013, after the Kutscherousky Lease had been terminated, 

Tommy Kutscherousky executed an AFFIDAVIT AS TO LEASE OF REAL 

PROPERTY under oath, swearing the Lease was a five year lease and that rent 

was owed for the year 2011 (emphasis original). He specifically attached the July 

6, 2011 Lease Agreement that provided that rent was due for 2011 and that the 

lease was a five year lease. He also filed the Affidavit with the Limestone County 

deed records. Specifically, the Affidavit provided, in relevant part, as follows:

Lease: That certain five (5) year Lease Agreement from January 

1, 2011 through December 31, 2015 reduced to writing in 

three documents dated May 26, 2011 and July 6, 2011, 

attached hereto, marked Exhibit A, and made a part hereof 

for all purposes.

Affiant on oath swears that the following statements are true:

 71 4 RR 34, 38, 46, 75. 

72 3 RR 266; 3 RR 289; 3 RR 60. 
12

1. That Lessor leased to Lessee effective January 1, 2011, the 

Property, for a term of five (5) years in accordance with the 

lease documents attached hereto, marked Exhibit A, and made a 

part hereof for all purposes.73

Tommy specifically referenced and attached the July 6, 2011 Lease Agreement to 

his Affidavit as well as other documents.

A. After the Notice of Termination, the parties unsuccessfully 

attempted to negotiate the purchase and a sale of the Farm.

After the Notice of Termination, the parties attempted to negotiate a buyout 

of the Farm, but could not reach an agreement.74 In fact, Robbyn and Joey offered 

to pay the Kutscherouskys the $16,800 they claimed they incurred in clearing the 

land, but they refused.75

IX. Raven and Jack had no involvement in the Lease Agreement.

Interestingly, during their case in chief, the Kutscherouskys put on no 

evidence of Raven or Jack’s liability on the Lease Agreement, other than they 

inherited their ownership interest from their father after he passed away.76

The record below is undisputed that neither Raven nor Jack were parties to 

the Lease Agreement.77 It was undisputed that Raven and Jack did not know about 

the Lease Agreement.78 It was undisputed that Raven and Jack did to give Robbyn 

 73 P’s Ex. 17.

74 3 RR 54; 4 RR 204, 201. 

75 4 RR 242. 

76 P’s Ex. 4, pgs. 40-45. 77 P’s Ex. 6. 

78 4 RR 10, 11, 12, 13, 17, 19, 44, 45, 63, 64, 65, 67, 68 
13

and Joey authority to bind them to a lease agreement.79 It was undisputed that 

neither Robbyn nor Jack received any payment from the lease.80 It is undisputed 

that none of the Kutscherouskys met or spoke to either Raven or Jack.

X. The case proceeded to trial and the Kutscherouskys obtain a judgment 

against the Appellees so large that it basically awards them a large 

portion of the value of Lawson Farm. 

The case proceeded to trial on October 13-15, 2014. At the conclusion of 

the jury trial, the Kutscherouskys prevail on the jury questions that were submitted 

to the jury. A total of 15 questions were submitted. Although there were disputes 

regarding the terms of the Lease, no jury questions were submitted as to the 

disputed lease terms, except whether the lease term included the year 2016. 

On October 31, 2014, the trial court entered a Final Judgment in favor of the 

Kutscherouskys in the total amount of $262,113, which is a large portion of the 

entire value of Lawson Farm.81

This appeal follows. 

 79 Id. 

80 Id. 

81 P’s Ex. 15.
14

SUMMARY OF ARGUMENT

Texans take pride in their ability to hunt, and the Kutscherouskys are no 

exception to that rule. The Kutscherouskys are self-professed champions at hunting 

feral hogs, and took advantage of the farm property they leased from the Arriolas 

to lay traps to lure and capture feral hogs despite the fact that the lease expressly 

prohibited hunting of any kind. 

Hunting in Texas, as recognized by the Texas Parks and Wildlife Code, 

naturally encompasses a variety of methods used to capture a wide array of 

animals, specifically including trapping. Even common reference tools such as 

Wikipedia and other states define hunting as including any means that captures or 

kills animals.

This case centers upon an agreement to lease the Lawson family farm to the 

Kutscherouskys for farming. When Robbyn Arriola was considering leasing her 

family’s farm to Eric Kutscherousky in 2011, she required that the lease contain a 

provision that “no hunting of any kind” will be allowed on the farm. Robbyn liked 

to walk the farm and had a number of animals including horses, chickens, ducks, 

and donkeys. Robbyn did not want hunting of any kind to protect her own animals 

as well as the migratory deer that pass through. Robbyn knew that the farm’s fence 

was old and needed to be repaired to protect both animals from getting out but also 

from keeping other animals from getting onto the farm. Finally, Robbyn gave Eric 
15

Kutscherousky a reduced rental rate to clear the farm for farming, but specifically 

required in writing that they pay rent for 2011 through 2015, the five year term of 

the lease. 

In short, Eric Kutscherousky breached almost every component of the lease. 

First, the Kutscherouskys testified at trial that they did not pay rent for 2011 

despite the Lease Agreement’s specific requirement that they pay rent. Second, it 

was undisputed at trial that the Kutscherouskys placed traps stocked with corn to 

lure hogs into them and trapped hogs, all in violation of the specific prohibition 

that there was to be no hunting of any kind on the farm. Finally, the 

Kutscherouskys failed to maintain the fences. 

On appeal, Appellants contend that the Appellees breached the Lease 

Agreement as a matter of law and should reverse and render judgment against the 

Appellees. 

To make matters worse, the jury made findings that Robbyn’s siblings, Jack 

and Raven, authorized or ratified the lease. The record is undisputed that Jack and 

Raven were not parties to the Lease Agreement and did not know about the Lease 

Agreement and did not receive any payment on the Lease. Simply being a cotenant does not make you liable for a lease signed by another co-tenant. 
16

ARGUMENT

I. The jury’s verdict fails to find what the agreement between the parties 

was and therefore does not support the trial court’s judgment. 

“It is the duty of the one who has the burden of proof on a ground of 

recovery or defense to see that all essential elements of his cause of action are 

submitted to the jury, or the ground of recovery is waived.” Rao v. Rodriguez, 923 

S.W.2d 176, 180 (Tex. App. – Beaumont 1996, no pet.), citing TEX. R. CIV. P.

279, Cameron County v. Velasquez, 668 S.W.2d 776, 781 (Tex. App. – Corpus 

Christi 1984, writ ref’d n.r.e.). 

To be enforceable, a contract must be reasonably definite and certain. T.O. 

Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). Failure to 

agree on or include an essential term renders a contract unenforceable. Id. Texas 

Pattern Jury Charge 101.1 submits the question of existence of an agreement and 

the essential terms to the jury. The comments to PJC 101.1 provide, “The court 

should include in PJC 101.1 all disputed terms essential to create an enforceable 

agreement. A disputed nonessential term should also be included if it is the basis of 

the plaintiff’s claim for damages.”

The Kutscherouskys obtained a finding that they reached an agreement with 

Joey and Robbyn Arriola to lease the Lawson Farm, and a finding that the July 6, 

2011 “Lease Contract for Farm 4888” did not constitute the entire agreement of the 
17

parties as to the lease.82 Other than the jury’s finding that the lease was to go 

through December 31, 2016, but they did not obtain findings of the essential terms 

of the contract.83 In particular, they did not obtain a finding to support their 

argument that they did not have to pay rent in 2011, or any finding as to the rent 

due under the lease or whether their trapping was hunting. The trial court’s 

judgment is therefore unsupported by the findings because they fail to establish the 

terms of payment of rent under the lease or whether trapping is hunting. 

The jury’s answers do not tell us what the lease agreement was. If we don’t 

know what the lease agreement terms are, how do we know whether the Appellants 

or the Kutscherouskys breached the lease? The answer is we don’t. How do we 

know if the jury found that the lease agreement required rent for 2011? We don’t. 

Thus, this Court should therefore reverse and render judgment that the Appellees 

take nothing by their lawsuit. 

II. The trial court erred in entering judgment against Raven and Jack.

It is undisputed that Raven and Jack did not sign the lease. The 

Kutscherouskys had the burden to show that Joey or Robbyn Arriola had authority 

or the apparent authority from Raven and to Jack bind them to the terms of the 

Lease. See, Verizon Corporate Services Corp. v. Kan-Pak Systems, Inc., 290 

S.W.3d 899 (Tex. App. – Amarillo 2009, no pet.) (party alleging agency has the 

 82 CR 634, 638.

83 CR 642.
18

burden to prove its existence). The Kutscherouskys also had the burden to show 

that Raven and Jack Lawson ratified the actions of Joey and Robbyn Arriola. See, 

Southwestern Bell Co. v. Wilson, 768 S.W.2d 755, 764 (Tex. App.—Corpus Christi 

1988, no pet.) (burden of proof is on the party asserting ratification). 

In evaluating the sufficiency of the evidence where the other party had the 

burden of proof at trial, the evidence is legally insufficient when (1) the record 

discloses a complete absence of evidence of a vital fact; (2) the court is barred by 

rules of law or evidence from giving weight to the only evidence offered to prove a 

vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; 

or (4) the evidence establishes conclusively the opposite of a vital fact. Allegiance 

Hillview, L.P. v. Range Texas Production LLC, 347 S.W.3d 855, 864 (Tex. App.—

Fort Worth 2011, no pet.) (citing, in part, Uniroyal Goodrich Tire Co. v. Martinez, 

977 S.W.3d 328, 334 (Tex. 1998)). This Court reviews the evidence as a 

reasonable factfinder would that is favorable to the finding and disregards evidence 

contrary to the finding unless a reasonable factfinder could not. Id. at 864-65

(citing, in part, Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 

2007)). 

A scintilla of evidence is that evidence offered to prove a vital fact that does 

no more than create a mere surmise or suspicion of its existence and, in legal 

effect, constitutes no evidence. Id. at 865 (citing Kindred v. Con/Chem, Inc., 650 
19

S.W.2d 61, 63 (Tex. 1983)). More than a scintilla exists if the evidence furnishes 

some reasonable basis for differing conclusions by reasonable minds about the 

existence of a vital fact. Id. However, a jury may not infer a vital fact from 

“meager circumstantial evidence which could give rise to any number of 

inferences, none more probably than another.” Hancock v. Variyam, 2013 WL 

2150468, at *9 (Tex. 2013); Winegar v. Martin, 304 S.W.3d 661, 668 (Tex. 

App.—Fort Worth 2010, no pet.) (“Any plausible inference would be a guess; 

consequently, ‘neither fact may be inferred’”).

When reviewing the factual sufficiency of the evidence to support a jury 

finding on an issue on which the other party has the burden of proof, the attacking 

party must demonstrate there is insufficient evidence to support the adverse 

finding. Star Enterprise v. Marze, 61 S.W.3d 449, 462 (Tex. App.—San Antonio 

2001, pet. denied). This Court must consider, weigh, and examine all of the 

evidence which supports and which is contrary to the jury’s determination. Id. If 

the evidence supporting the jury’s decision is so weak as to be clearly wrong and 

manifestly unjust, the decision must be reversed. Id.

A. There is no evidence or insufficient evidence to support the jury’s 

finding that Joey or Robbyn had authority or apparent authority 

from Raven and Jack to lease the Farm to Eric.

An agent’s authority to act on behalf of a principal depends on some 

communication by the principal either to the agent (actual or express authority) or 
20

to the third party (apparent or implied authority). Gaines v. Kelly, 235 S.W.3d 179, 

182 (Tex. 2007), citing Hester Int’l Corp. v. Fed. Republic of Nig., 879 F.2d 170, 

181 (5th Cir. 1989). 

The fact that the Arriolas, Jack, and Raven are co-tenants is of no effect. 

Cotenants are not partners, nor is one co-tenant an agent of another co-tenant. See, 

Horlock v. Horlock, 614 S.W.2d 478 (Tex. Civ. App. – Houston [14th Dist.] 1981, 

writ ref’d n.r.e.) (“A co-tenant is neither a partner with nor an agent of the other 

cotenant”); Dyer v. Cotton, 333 S.W.3d 703 (Tex. App.—Houston [1st Dist.] 2010, 

no pet.) (“co-tenants are not agents”). A co-tenant cannot act for another co-tenant 

in the absence of express authority and does not have authority to bind another cotenant simply because of the relationship. Horlock, 614 S.W.2d at 485 (“[I]t is the 

general rule that in the absence of express authority [one co-tenant] cannot act for 

another co-tenant.”); Bockelmann v. Marynick, 788 S.W.2d 569, 572 (Tex. 1990)

(“each owner in a co-tenancy acts for himself”).

The Supreme Court has also held that it is essential to show that the 

principal had full knowledge of all material facts in order to establish a claim based 

on apparent authority, and only the conduct of the principal is relevant. Gaines, 

182 S.W.3d at 182, citing Rourke v. Garza, 530 S.W.2d 794, 803 (Tex. 1975), 

Nations Bank, N.A. v. Dilling, 922 S.W.2d 950, 953 (Tex. 1996) (per curiam). The 

determination of apparent authority is measured by the reasonably prudent person, 
21

“using diligence and discretion to ascertain the agent’s authority.” Gaines, 182 

S.W.3d at 183, citing Chastain v. Cooper & Reed, 152 S.W.2d 422, 427 (Tex.

1953). Apparent authority must be based on the acts of the principal. Gaines, 253 

S.W.3d at 184, citing First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 

471 (Tex. 2004). 

In this case, there is absolutely no evidence that Pritchett or Lawson

authorized the lease with Eric. Lawson testified: 

I’m telling the jury that I was fine with Robbyn and her husband 

living down there. I had no problem with that. But I gave them no 

specific permission to enter into any business negotiations or dealings 

on my behalf or represent me.84

In fact, Raven and Jack were oblivious to the fact that the Arriolas had leased the 

property to Eric.85 Joey never told them about the lease, did not tell them when a 

check came in, and Raven and Jack never received any of the money paid on the 

lease.86

Eric contracted with Joey and Robbyn, assuming that they owned the farm.

87

He did not contract with Jack or Raven and did not have any evidence that Jack or 

Raven consented to the lease or authorized Robbyn to act on their behalf in 

entering into the lease. Robyn’s lease of the property does not bind Jack and Raven 

 84 4 RR 74.

85 4 RR 10, 11, 12, 13, 17, 19, 44, 45, 63, 64, 65, 67, 68.

86 4 RR 104-105.

87 3 RR 229.
22

simply because they are cotenants. See, e.g., Willson v. Superior Oil Co., 274 

S.W.2d 947, 951 (Tex. App. – Texarkana 1954, no writ) (A lease executed by one 

co-tenant is valid as between the parties, but ineffectual as to the co-tenant of the 

grantor.”). 

There is no evidence to support the jury’s finding, and this Court should 

reverse and render in favor of Raven and Jack on this point. In the alternative, there 

is insufficient evidence to support the jury’s finding and this Court should reverse 

and remand for a new trial on this issue.

B. There is no evidence to support the jury’s finding that Pritchett

and Lawson ratified the lease, either.

Ratification is the adoption or confirmation by a person with knowledge of 

all material facts, of a prior act that did not then legally bind that person and which 

that person had a right to repudiate. City of The Colony v. N. Tex. Mun. Water 

Dist., 272 S.W.3d 699, 732 (Tex. App. – Fort Worth 2008, pet. denied); See also, 

Miller v. Kennedy & Minshew, Prof’l. Corp., 142 S.W.3d 325, 342 (Tex. App. –

Fort Worth 2003, pet. denied) (stating that a person ratifies an unauthorized act if, 

by word or conduct, with knowledge of all material facts, he confirms or 

recognizes the act as valid). If the evidence is uncontroverted, whether a principal 

has ratified the conduct of an agent may be determined as a matter of law. The 

Colony, 272 S.W.3d at 732. The factfinder cannot infer ratification from acts that 

the principal has the right to do, independently and without knowledge of the 
23

unauthorized transaction in question. Texas Pacific Coal & Oil Co. v. Smith, 130 

S.W.2d 425 (Tex. Civ. App. – Eastland 139, writ dism’d, judgm’t cor.). This is no 

different in the context of a cotenancy – a cotenant must have knowledge of the 

material facts in order to ratify the action of another cotenant. Magee v. 

Hambleton, No. 2-08-441-CV, 2009 Tex. App. LEXIS 6778 (Tex. App. – Fort 

Worth August 25, 2009, pet. denied).

Raven and Jack could not have known the material facts in connection with 

the Lease because they had no idea the land had even been leased.88 They did not 

give the Arriolas permission to bind them to the terms of the Lease at any point.89

There is simply no evidence that Raven or Jack ratified the Lease, and as such this 

Court should reverse the judgment and render in their favor. 

III. The July 6, 2011 Lease constitutes the entire agreement between the 

parties as a matter of law because the parol evidence rule precludes the 

consideration of the May 26, 2011 document and any prior oral 

agreement. 

The primary concern in construing a written agreement is to ascertain and 

give effect to the true intent of the contracting parties as expressed in the written 

instruments. Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 

565, 574 (Tex. 1996).It was the Kutscherouskys’ burden to plead, prove, and 

obtain a favorable finding of ambiguity, mistake, or any other basis to invalidate 

 88 4 RR 10, 11, 12, 13, 17, 19, 44, 45, 63, 64, 65, 67, 68.

89 Id. 
24

the lease in order to look beyond the four corners of the Lease to the oral 

agreements and the May 2011 statement. They did not do so. The jury was not 

asked to and did not find that the Lease was ambiguous or that mutual mistake 

belied the terms of the Lease.

Where a contract is unambiguous, like the Lease in this case, the court will 

give effect to the intention of the parties as expressed or apparent in the writing. 

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

the usual case, the instrument alone will be deemed to express the intention of the 

parties for it is objective, not subjective, intent that controls.” Id.

When the parties have entered into a valid integrated agreement, the parol 

evidence rule precludes enforcement of a prior or contemporaneous inconsistent 

agreement. Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 796 

(Tex.App—Houston [1st Dist.] 2008, pet. filed); ISG State Operations, Inc. v. 

National Heritage Insurance Company, 234 S.W.3d 711,719 (Tex.App.—Eastland 

2007, pet. denied). The execution of a written contract presumes that all prior 

negotiations and agreements relating to the transaction have been merged into the 

written contract. Edascio, 264 S.W.3d at 796; ISG State Operations, 234 S.W.3d at 

719. Consequently, the agreement will be enforced as written and cannot be added 

to, varied, or contradicted by parol evidence. Edascio, 264 S.W.3d at 796; ISG 

State Operations, 234 S.W.3d at 719.
25

The parol evidence rule is not just a rule about the admissibility of testimony 

and extraneous evidence. The parol evidence rule is a rule of substantive contract 

law, not evidence. Hubacek v. Ennis State Bank, 159 Tex. 166. 317 S.W.2d 30, 31 

(1958); DeClaire v. G & B McIntosh Family Limited Partnership, 260 S.W.3d 34, 

45 (Tex.App.—Houston [1st Dist.] 2008, no pet.).

Evidence that violates the rule is incompetent and without probative force, 

and cannot properly be given legal effect. Garner v. Fidelity Bank, N.A., 244 

S.W.3d 855, 859 (Tex.App.—Dallas 2008, no pet.). Parol evidence may be 

admissible to show collateral, contemporaneous agreements that are consistent 

with the underlying agreement. Gary E. Patterson & Associates, P.C. v. Holub, 

264 S.W.3d 180, 197 (Tex.App.—Houston [1st Dist.] 2008, pet. denied); 

DeClaire, 260 S.W.3d at 45. But this exception does not permit parol evidence that 

varies or contradicts either the express terms or the implied terms of the written 

agreement. Gary E. Patterson, 264 S.W.3d at 197; DeClaire, 260 S.W.3d at 45.

A collateral agreement is one the parties might naturally make separately, 

i.e., one not ordinarily expected to be embodied in, or integrated with the written 

agreement and not so clearly connected with the principal transaction as to be part 

and parcel of it. Garner, 244 S.W.3d at 859. An agreement is integrated if the 

parties intended a writing to be a final and complete expression of agreed terms. 

Morgan Buildings and Spas, Inc. v. Humane Society of Southeast Texas, 249 
26

S.W.2d 480,486 (Tex.App.—Beaumont 2008. no pet.). The inclusion of a merger 

or integration clause does not conclusively establish that the written contract is 

fully integrated. Id. A fully integrated written agreement is a final and complete 

expression of all the terms agreed upon by the parties. Id. A court considers the 

surrounding circumstances in determining whether, and to what degree, an 

agreement is integrated. Id.

In this case, the Kutscherouskys claimed that the statements signed on May 

26, 2011 constituted an enforceable agreement between the parties. Specifically, 

Joey and Robbyn Arriola signed a document which stated:

Tommy Kutscherousky, Sr., Tommy Kutscherousky, Jr. and Eric 

Kutscherousky has my farm #4888, leased from January 1, 2011 to 

December 31, 2016.90

This document could not possibly constitute a lease because it has no terms. It has

no rental rate for the lease. The amount of rent to be paid is a material term of the 

lease without which there is no lease. See, Wilson v. Wagner, 211 S.W.2d 241, 

243-244 (Tex. Civ. App. – San Antonio 1948, writ ref’d n.r.e.) (holding that “a 

definite and agreed price of rental” is one of the few essential terms necessary to 

create a valid lease.). 

 90 7 RR PX2. 
27

The Kutscherouskys claimed that this document reflected a term of six years 

for the lease, which conflicts with the duration provision provided in the July 2011 

Lease. The July 2011 Lease provides that it will run through December 31, 2015.91

The second piece of parol evidence relied upon by the Kutscherouskys is an 

alleged oral agreement, also before July 2011, that the Kutscherouskys did not 

have to pay any rent in 2011 because they would be “restoring” the farm.92 In 

support, they relied upon an unsigned piece of paper that listed purported rental 

amounts for the Lease.93 Not only is this piece of paper unsigned, but it too states 

that it was “AGREED UPON ON MAY 26, 2011” – before the July 6, 2011 

Lease.94 Further, there is no evidence of when this document was actually typed. 

Tommy Jr. testified that the rent provision was written in the contract, and 

that Eric did not object to signing the July 2011 Lease, and if he did object to it he 

should not have signed it: 

Q: That’s what’s written in the contract. 

A: It’s in the contract. I agree. 

Q: Okay. And if it’s written on the contract, and it’s signed 

by your brother, he should have paid rent for 2011. 

A: That’s what it says. 

 91 7 RR PX6. 

92 See, 7 RR PX2a.

93 7 RR PX2a. 

94 Id. 
28

Q: Or he should have said, “I’m not signing it.” 

A: Correct. 

Q: But he did sign it. 

A: Yes.

Q: Now, because he signed it, my question is: Do you 

believe that you were obligated to pay rent for 2011?

A: Yes.95

[...]

Q: But as that contract was written, he either should not 

have signed it, or they should have paid rent for 2011. Is that correct? 

A: Yes.96

In any event, the oral agreement would violate the Statute of Frauds, which 

requires all agreements regarding land to be in writing. TEX. BUS. & COMM. 

CODE § 26.01(a)(5).

These agreements would have been admissible but only to the extent they 

were consistent with the final Lease. See, Holub, 264 S.W.3d at 197. Texas law is 

clear that such prior agreements cannot contradict the express or implied terms of 

the written agreement. Id. 

 95 3 RR 97. See also, 3RR 53 (Q: Where is the rental payment from January 1st, 2011 to 

December 31st, 2011? A: There’s not one. Q: Does the lease say that that money is owed for that 

period? A: The second lease does. [...] Q: Well would you agree that [the rent provision is] in 

this lease? A: Yes.)

96 3 RR 99. 
29

Eric admitted at trial that the Arriolas presented the lease to him, offered him 

the opportunity to read it, that he read it, and that he signed it after he read it.97 He 

acknowledged that he read the lease term that required payment of $10 per acre for 

182 acres for 2011, but testified that the jury should just ignore that.98 It is well 

established under Texas law that parties are bound by written contracts even if they

fail to read the contracts, and will not be relieved from the contract’s terms and 

provisions unless they provide some legal excuse (such as fraud, accident, or 

mistake) for failing to read and understand the contract before signing it. In re 

Lyon Financial Services, Inc., 257 S.W.3d 228 (Tex. 2008); In re Green Tree 

Servicing LLC, 275 S.W.3d 592 (Tex. App. – Texarkana 2008, no pet.) (“every 

person who has the capacity to enter into a contract is held to know what words 

were used in the contract, to know their meaning, and to understand their legal 

effect.”). Eric did not allege or prove any fraud, mistake, or other circumstance that 

would excuse him from his obligations under the Lease. 

Further, in February of 2013, Tommy Jr. filed in the public records an 

Affidavit as to Lease of Real Property that states “Lessor leased to Lessee effective 

January 1, 201, the Property, for a term of five (5) years.”99 Tommy also swore 

 97 3 RR 296.

98 Id.

99 7 RR PX 17.
30

under oath that rent was due in 2011 by attaching the July 2011 Lease to that 

affidavit. 

The Lease entered into between Eric, Robbyn Arriola, and Joey Arriola was 

the complete understanding of the terms and conditions between the parties on the 

date it was signed in July of 2011. Any introduction of prior understandings, 

agreements, or oral contracts that contradict the final terms memorialized in the 

written contract violate the parol evidence rule.

IV. The Kutscherouskys breached the lease as a matter of law.

A. Standard of Review.

The Appellants had the burden of proving the Kutscherouskys breached the 

lease. Where the challenging party had the burden of proof, they must demonstrate 

on appeal that the evidence conclusively established, as a matter of law, all vital 

facts in support of the issue. Dow Chemicals v. Francis, 46 S.W.3d 237, 241 (Tex. 

2001). The reviewing court first examines the record for evidence in support of the 

finding while ignoring all evidence to the contrary. Minyard Food Stores v. 

Goodman, 80 S.W.3d 573, 577 (Tex. 2002). If there is no evidence to support the 

finding, the reviewing court will then examine the entire record to determine if the 

contrary proposition is established as a matter of law. Sterner v. Marathon Oil Co., 

767 S.W.2d 686, 690 (Tex. 1989). A matter is conclusively established if 
31

reasonable people could not differ as to their conclusions. City of Keller v. Wilson, 

168 S.W.3d 802, 816 (Tex. 2005). 

In order to set aside an adverse finding where the challenging party had the 

burden of proof, the finding must be against the great weight and preponderance of 

the evidence. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989), 

Dow, 46 S.W.3d at 242. The court of appeals must consider and weigh all of the 

evidence, and can set aside the jury’s verdict where the evidence is so weak or the 

finding is so against the great weight and preponderance of the evidence that it is 

clearly wrong and unjust. Id. 

B. The evidence conclusively established that the Kutscherouskys

breached the lease by trapping feral hogs. 

i. It is undisputed that the Kutscherouskys engaged in 

trapping feral hogs, which constitutes “hunting.” 

The Kutscherouskys do not dispute that they engaged in trapping feral hogs 

on the lease property, nor is it disputed that the lease prohibits hunting of any kind 

on the lease property. Instead, the Kutscherouskys have defended their hunting of 

the feral hogs by arguing that it did not constitute hunting. But this is contrary to 

Texas law, as well as to common usage of the term “hunting.”

The Kutscherouskys did not obtain a finding that the lease was ambiguous, so the 

terms of the lease must be enforced as written. Puckett v. U.S. Fire Ins. Co., 678 

S.W.2d 936, 938 (Tex. 1984). The construction of an unambiguous contract is a 
32

question of law, which the appellate court reviews de novo. Tawes v. Barnes, 340 

S.w.3d 419, 425 (Tex. 2011). 

The term “no hunting of any kind” is unambiguous and the Kutscherouskys’ 

trapping of feral hogs violates this provision. 

Texas has defined the term “hunt” as “capture, trap, take, or kill, or an 

attempt to capture, trap, take, or kill.” TEX. PARKS & WILD. CODE § 1.101(1)

(emphasis added). The same section defines “Take” as a means to “collect, hook, 

hunt, net, shoot, or snare, by any means or device, and includes an attempt to take 

or to pursue in order to take.” TEX. PARKS & WILD. CODE § 1.101(5). In 

construing words used in a contract or in a statute, the court is to give such terms 

their ordinary meaning. See, Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 

662 (Tex. 2005) (“Contract terms are given their plain, ordinary, and generally 

accepted meanings unless the contract itself shows them to be used in a technical 

or different sense.”), TEX. GOVT. CODE § 312.002 (words shall be given their 

ordinary meaning). In fact, many states have defined hunting as including any 

means of killing or capturing animals, such as trapping, snaring, netting, hooking 

or otherwise trapping or otherwise pursuing an animal.100 For example, Louisiana 

 100 See, e.g., Alaska Stat. §16.05.940 (21) (“hunting” means the taking of game ...); Conn. Gen.

Stat. Ann. § 26-1. (12) ("Hunting" means pursuing, shooting, killing and capturing [...] and 

attempting to pursue, shoot, kill and capture” [...] whether such act results in taking or not, 

including any act of assistance to any other person in taking or attempting to take any such 

animal.); Ga. Code Ann. § 27-1-2. (39) "Hunting" means pursuing, shooting, killing, taking, or 

capturing wildlife or feral hogs. This term also includes acts such as placing, setting, drawing, 
33

statute defines “hunt” in reference to “take,” and take include terms such as 

attempt to trap, shoot, hunt, wound, kill, hook, pursue, net, capture, and snare. La.

Rev. Stat. Ann. § 56:116.1 (emphasis added).

Whether the Kutscherouskys were trapping the hogs in order to prevent 

degradation of the land and crops does not remove these activities from the 

 

or using any device used to take wildlife or feral hogs, whether any such act results in taking 

or not, and includes every act of assistance to any person in taking or attempting to take such 

wildlife or feral hogs.); Iowa Code Ann. 481A.1 (32. "Take" or "taking" or "attempting to 

take" or "hunt" is any pursuing, or any hunting, fishing, killing, trapping, snaring, netting,

searching for or shooting at, stalking or lying in wait for any game, animal, bird, or fish protected 

by the state laws or rules adopted by the commission whether or not such animal be then 

subsequently captured, killed, or injured.); Ky. Rev. Stat. Ann. § 150.010 ((12)"Hunting" means 

to take or attempt to take in any manner, whether the hunter has game in possession or not;);

Me. Rev. Stat. Ann. Tit. 12, § 7001(To "hunt" means to pursue, catch, take, kill or harvest wild 

animals or wild birds or to attempt to catch, take, kill or harvest wild animals or wild 

birds.); Minn. Stat. Ann. § 97A.015 ("Hunting" means taking birds or mammals.); Mont. Code.

Ann. § 87-2-101 ((8) "Hunt" means to pursue, shoot, wound, kill, chase, lure, possess, or 

capture or the act of a person possessing a weapon, as defined in 45-2-101, or using a dog or a 

bird of prey for the purpose of shooting, wounding, killing, possessing, or capturing wildlife 

protected by the laws of this state in any location that wildlife may inhabit, whether or not the 

wildlife is then or subsequently taken. The term includes an attempt to take by any means, 

including but not limited to pursuing, shooting, wounding, killing, chasing, luring, possessing, or 

capturing); Neb. Rev. Stat. § 37-232(Hunt means to pursue, shoot, catch, capture, collect, 

harvest, kill, destroy, or attempt to pursue, shoot, catch, capture, collect, harvest, kill, or 

destroy.); Ohio Rev. Code Ann. § 1531.01 ((Y)(H) "Hunting" means pursuing, shooting, killing, 

following after or on the trail of, lying in wait for, shooting at, or wounding wild birds or wild 

quadrupeds while employing any device commonly used to kill or wound wild birds or wild 

quadrupeds whether or not the acts result in killing or wounding. "Hunting" includes every 

attempt to kill or wound and every act of assistance to any other person in killing or wounding or 

attempting to kill or wound wild birds or wild quadrupeds.);34 Pa. Consol. Stat. Ann. §

102 ("Hunt" or "hunting." Any act or furtherance of the taking or killing of any game or wildlife, 

or any part or product thereof, and includes, but is not limited to, chasing, tracking, calling, 

pursuing, lying in wait, trapping, shooting at, including shooting at a game or wildlife facsimile, 

or wounding with any weapon or implement, or using any personal property, including dogs, or 

the property of others, of any nature, in furtherance of any of these purposes, or aiding, abetting 

or conspiring with another person in that purpose.);Wash. Rev. Code Ann. § 77.08.010 ((7) "To 

hunt" and its derivatives means an effort to kill, injure, capture, or harass a wild animal or wild 

bird.).
34

provision of the Lease prohibiting “hunting of any kind.” The parties expressly 

used the most encompassing term of hunting possible by using the phrase “hunting 

of any kind.” Hunting is not limited to recreational or commercial activities, but is 

also promoted by the State as a means to prevent overpopulation of wild game, 

with deer as perhaps the most notable example. See, e.g., Shrieve v. Tex. Parks & 

Wildlife Dept., No. 03-04-00640-CV, 2005 Tex. App. LEXIS 3406 *2 (Tex. App. 

– Austin May 5, 2005, no pet.) (“An important aspect of deer population 

management is hunting.”). Trapping hogs to prevent damage to crops as a sort of 

“pest control” does not remove them from the umbrella of “hunting” activities. 

See, e.g., See also, Wikipedia, Hunting, http://en.wikipedia/wiki/Hunting

(“Hunting is the process of killing or trapping any animal [...] Hunting can also be 

a means of pest control.”) (as of April 30, 2015); Jared Timmons, Feral Hog Laws 

and Regulations in Texas, AgriLIFE Extension, Texas A&M System 

feralhogs.tamu.edu/files/2011/08/Feral-Hog-Laws-and-Regulations-in-Texas.pdf 

(April 30, 2015) (“[A]ny landowner that plans to trap or snare hogs should have a 

valid Texas hunting license, since these activities could affect other wildlife 

species.”).

Like a deer hunter might lay out corn to await a deer in the early morning 

hours, the Kutscherouskys laid out corn and placed traps to ensnare feral hogs on 
35

the lease property with corn.

101 Tommy Jr. testified at trial that he tries to kill as 

many hogs as he can, and Eric is a competition winning hog hunter and kills 

hogs.102 Whether they were doing so for recreation or in order to prevent feral 

hogs from damaging the crops does not matter; they were still engaged in the 

practice of “hunting” in violation of the express terms of the Lease. Robbyn 

wanted that provision in the lease because she has horses, donkeys, goats, a duck, 

and other animals on the property.103 Eric knew that Robbyn liked to walk the 

Farm and did not want there to be any hunting.104 Robbyn did not want any traps 

on her property because she did not want any of her animals to get caught in them, 

but also did not want any migratory deer to get caught in the traps, either.105 This is 

also why she insisted on a provision that the Kutscherouskys maintain the fence 

line.

The evidence conclusively establishes as a matter of law that the 

Kutscherouskys violated the lease by hunting feral hogs on the property, and as 

such this Court should reverse and render judgment that the Appellees take nothing 

and remand this matter to the trial court for Appellant’s attorney’s fees. In the 

alternative, the jury’s failure to find that the Kutscherouskys’ trapping of feral hogs 

 101 2 RR 77-78

102 3 RR 74; 3 RR 273-278; 4 RR 98-99.

103 See, 4 RR 120, 7 RR DX 7 (photos of the animals).

104 3 R 245.

105 4 RR 228-229.
36

did not breach the release is against the great weight and preponderance of the 

evidence and this Court should reverse and remand this case for a new trial. 

ii. The trial court erred in refusing to instruct the jury as to 

the definition of “hunting.” 

The trial court has broad discretion in submitting jury instructions, but Rule 

278 of the Texas Rules of Civil Procedure requires the trial court to submit such 

instructions as are raised by the written pleadings and the evidence. TEX. R. CIV. 

P. 278. The trial court’s rejection of a jury instruction is reviewed for abuse of 

discretion and will be reversed if the complaining party shows the instruction 

amounted to such a denial of the complaining party’s rights that it probably caused 

the rendition of an improper judgment. Thota v. Young, 366 S.W.3d 678 (Tex. 

2012). The appellate court must consider the pleadings of the parties, the evidence 

presented at trial, and the charge in its entirety in determining whether the rejection 

of a proposed instruction constituted error. Id. 

The Defendants requested the following definition be included in the jury 

instructions: 

Sect. 1.101 Definitions: 

(1) “Hunt” means capture, trap, take or kill, or attempt to capture, trap, 

take or kill.

And the Defendants requested the following question be included: 
37

Do you find that the Plaintiffs engaged in hunting as defined in the 

Texas Parks and Wildlife Code, as defined in Sect. 1.01(1) during the 

term of the lease?106

“An instruction is proper if it (1) assists the jury, (2) accurately states the 

law, and (3) finds support in the pleadings and the evidence.” Union Pac. R.R. Co. 

v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). In Williams, the Supreme Court held 

that it was improper for the trial court to refusal to submit an instruction as to 

“foreseeability” in a case under the Federal Employers Liability Act because 

giving the instruction would have enabled the jury to determine whether Union 

Pacific owed a duty to its employee to use reasonable care at a derailment site. Id. 

at 170. Without that instruction, the court reasoned, the jury made a liability 

finding without first determining whether Union Pacific owed a duty to its 

employee. Id. 

The jury charge is already deficient in its failure to define the essential terms 

of the lease. See, Section I., supra. Without these essential terms, and especially in 

light of the jury’s finding that the Lease does not constitute the full agreement of 

the parties, the refusal to submit the requested instruction and question is especially 

harmful. It leaves open the reasoning for why the jury found that the 

Kutscherouskys did not fail to comply with the terms of the lease.107 We do not 

know if the jury determined that the Kutscherouskys did not hunt on the land, or 

 106 CR 652.

107 5 RR 10.
38

that trapping feral hogs is not hunting, or if they found that the “no hunting of any 

kind” provision was not a term in the agreement. Without knowing this, the failure 

to submit the above requested instruction and question constitutes error and 

probably resulted in the rendition of an improper judgment. This Court should 

reverse the trial court’s judgment on this basis and remand this case to the trial 

court. 

C. It is undisputed that the Kutscherouskys failed to pay rent. 

Eric wrote a check for $1,820 to Joey in May of 2011 for payment of rent on 

the Lease.108 The Kutscherouskys claim that the parties agreed that no rent would 

be due under the Lease for the year of 2011. Their claim is barred by the parole 

evidence rule, as the Lease clearly states that Lessee agrees to pay $10 per acre for 

182 acres for period of Jan. 1, 2011-Dec. 31, 2011.”109 See, Section III, regarding 

the application of the parole evidence rule. Furthermore, Tommy Jr. admitted that 

the rent term was “in the contract” and that they were obligated to pay rent for 

2011 under the contract.110

The parties claim that no rent for 2011 was received and that they made no 

payment of rent for 2011. Therefore, as a matter of law the Kutscherouskys did not 

pay rent and they also as a matter of law breached the lease.

 108 7 RR PX3.

109 7 RR PX6.

110 3 RR 97.
39

Additionally, whether the May 2011 check is applied to 2011 or 2012, the

Kutscherouskys failed to pay the rent due under the lease. If we were to accept the 

Kutscherouskys argument that the May 2011 check applied to 2012, they failed to 

pay for 2011. If the May 2011 check is applied to 2011, they failed to pay rent for 

2012. Either way, it is established as a matter of law that they failed to pay rent and 

therefore breached the Lease. This Court should reverse and render judgment in 

favor of the Appellants. In the alternative, the jury’s finding is so against the great 

weight and preponderance of the evidence that it warrants remand. 

D. The Kutscherouskys failed to maintain the fence line as required 

by the Lease. 

The Arriolas provided notice to Eric on January 11, 2013 that the Lease had 

been breached by the failure to maintain the fence line around the property as 

agreed: 

Reason #1 for termination is failure to maintain the fence line around 

said property as stipulated on Term 2 of signed lease dated July 6, 

2011. Specifically, it was agreed that you would provide the materials. 

The fence lines have not been even minimally maintained. Further, the 

back gate has been extensively damaged by your usage; it has not 

been repaired. We were very clear that fence maintenance was 

extremely important to us, and one motivation to lease at such a 

reduced rate.111

 111 7 RR PX14.
40

The Lease requires that the Kutscherouskys “do all maintenance to the 

fenceline surrounding said property.”112 Photos of the fence in disrepair were 

admitted before the trial court.113 At one point, trees had fallen onto the fence and 

there were broken fences.114 Joey testified that he asked Eric to help repair the 

fence line and he didn’t.115 Photos of the fence gate at the back of the pasture also 

showed that it was broken.116 When asked about the gate, Tommy admitted that it did 

not look like a properly-maintained gate.117

V. The evidence is insufficient to show that the Appellants breached the 

lease.

A. Standard of Review.

Because the Kutscherouskys had the burden to show that the Appellants 

breached their lease, this Court reviews the evidence as a reasonable factfinder 

would that is favorable to the finding and disregards evidence contrary to the 

finding unless a reasonable factfinder could not in order to determine if the 

evidence is legally sufficient. Allegiance Hillview, 347 S.W. at 864-65. In 

determining the factual sufficiency, this Court must consider, weigh, and examine 

all of the evidence which supports and which is contrary to the jury’s 

determination. Star Enterprise, 61 S.W.3d at 462. If the evidence supporting the 

 112 7 RR PX6.

113 7 RR DX10.

114 7 RR DX10; 4 RR 91-92.

115 4 RR 9.

116 7 RR DX10, page 13; 4 RR 91-93.

117 3 RR 79.
41

jury’s decision is so weak as to be clearly wrong and manifestly unjust, the 

decision must be reversed. Id.

B. The Arriolas did not breach the lease by terminating it. 

The Lease provided that “failure to follow these terms will result in 

automatic termination of this contract, (with a 30 day notice of termination), 

without any refund of the monies previously paid to date.”118 The Arriolas 

provided notice of termination on January 11, 2013, and although the Lease 

provided that noncompliance would result in automatic termination of the Lease, a 

Notice to Vacate was issued on March 8, 2013.119

The Lease automatically terminated for three reasons: 

1) The Kutscherouskys did not pay rent for 2012;

2) The Kutscherouskys were hunting on the lease by trapping feral hogs; 

and, 

3) The Kutscherouskys did not maintain the fence line around the property. 

It is undisputed that the Kutscherouskys did not pay rent. See, Section V.B.

above. It is also undisputed that the Kutscherouskys were trapping hogs on the 

property, and that constitutes “hunting” in violation of the terms of the Lease. See, 

Section V.C., above. And the evidence showed that the Kutscherouskys were not 

 118 7 RR PX 6. 

119 7 RR PX 14, 19.
42

maintaining the fence line around the property as required. See, Section V.D., 

above. 

The July 2011 Lease states that failure to follow its terms will result in 

“automatic termination.”120 On January 11, 2013, Joey and Robbyn wrote to Eric 

to inform him that the lease was being terminated.121 And even though the lease 

automatically terminated when they failed to comply with its terms, the Arriolas 

waited almost two months before issuing a notice to vacate.122 The evidence 

established that the Kutscherouskys breached the lease as a matter of law through 

their failure to pay rent, and also establishes that they breached the lease by 

hunting feral hogs on the property and failing to maintain the fence line.123

Because it was established as a matter of law that the Kutscherouskys 

breached the lease as a matter of law, this Court should reverse the trial court’s 

judgment and render judgment that the Kutscherouskys take nothing. Alternatively, 

because the jury’s finding that the Appellants breached the lease is so against the 

great weight and preponderance of the evidence, this Court should reverse the 

judgment and remand to the trial court for further proceedings.

 120 7 RR PX6.

121 7 RR PX14.

122 7 RR PX 19. 

123 See, Section V, above.
43

PRAYER

WHEREFORE PREMISES CONSIDERED, Appellants Robbyn Elizabeth 

Coy Arriola, Joey Arriola, Jack Henry Lawson and Raven Jonae Pritchett 

respectfully request that the Court reverse the judgment of the trial court, render 

that Appellees take nothing, render that Appellees breached the Lease, remand this 

matter to the trial court for the consideration of Appellants’ attorney’s fees; or, in 

the alternative, remand this matter to the trial court for a new trial, and all other 

relief to which they are justly entitled. 

Respectfully submitted,

/s/ Thomas M. Michel 

Thomas M. Michel

State Bar No. 14009480

Thomasm@lawgjm.com

Robley E. Sicard 

State Bar No. 24075074

robleys@lawgjm.com

GRIFFITH,JAY & MICHEL, LLP

2200 Forest Park Blvd.

Fort Worth, Texas 76110

(817) 926-2500 (Telephone)

(817) 926-2505 (Facsimile)

ATTORNEYS FOR APPELLANT 
44

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing document has 

been forwarded to the following attorney of record via E-service on the 1st 

day of May, 2015. 

Greg White

4300 West Waco Drive, Suite B2-293

Waco, Texas 76710

greg.white@texapplaw.com

/s/ Thomas M. Michel 

CERTIFICATE OF COMPLIANCE

This is to certify that according to the word count on Microsoft Word 2010 

used to prepare this brief, the foregoing brief contains 10,148 words exclusive of 

the portions exempted by 9.4(i)(1).

/s/ Thomas M. Michel 
45

APPENDIX

A. Judgment signed on October 31, 2014 

B. Court’s Charge to the Jury filed October 16, 2014

C. Exhibit 6 – July 6, 2011 Lease Contract for Farm #4888
APPENDIX A

vs. 

ROBBYN ELIZABETH COY ARRIOLA, 

ETAL, 

Defendant 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

COURT OF 

LIMESTONE COUNTY, TEXAS 

JUDGMENT 

At the conclusion of the evidence, the Com1 submitted the case to the jury. The charge of 

the Court and the verdict of the jury are incorporated for all purposes by reference. After the jury 

returned its verdict, Plaintiffs moved for judgment on the verdict. The Comi, having considered the 

motions of Plaintiffs and Defendants and because it appears to the Comi that the verdict of the jury 

was totally for the Plaintiffs and against the Defendants, judgment should be rendered on the verdict 

in favor of the Plaintiffs and against the Defendants. 

IT IS THEREFORE ORDERED by the Court that the Motion of Plaintiffs for Judgment On 

The Verdict, as amended, is granted and any relief sought by the Defendants is denied. 

It is accordingly ADJUDGED that Tommy Kutscherousky, Sr., Tommy Kutscherousky, Jr., 

and Eric Kutscherousky, cVb/a Kutscherousky Farms, a general partnership, Plaintiffs, recover from 

Robbyn Elizabeth Coy Arriola, Joey Arriola, Jack Hemy Lawson, Raven Jonae Pritchett, Defendru1ts, 

Judgment for the following: 

JUDGMENT 

K : \A JAS\Kutscherousky 13 . 124 \jdgmnt. I"IJld\lOs Page 1 
(a) $177,687.70 as the total damages awarded by the jury; 

(b) Pr~judgment interest in the amount of $7,925.84; 

(c) $76,500.00 as attorney's fees through trial; 

(d) Total judgment in the amount of $262,113 .54; 

(e) Additional attorneys fees in the event of appeal of the judgment by the 

Defendants; $10,000 for representation through appeal to the Court of 

Appeals; $3,000 for representation at the petition for review stage in the 

Supreme Court of Texas; $7,500 for representation at the merits briefing 

stage in the Supreme Comt of Texas; and, $5,000 for representation tlu·ough 

oral argument and the completion of proceedings in the Supreme Court of 

Texas; 

( t) All costs of Court; and, 

(g) Interest at the rate of five percent (5.00%) per year, compounded ruumally, 

on the total judgment of $262,113.54 from the date of Judgment until paid. 

It is ORDERED that Plaintiffs shall have all writs of execution and other process necessary 

to enforce this judgment. 

All relief not expressly granted herein is denied. 

$\-

SIGNED on this ~ day of__;::::__-L_.::...z;,pL--

JUDGMENT 

K: \ AJAS\Kutscherousky-13 . 124 \jdgmnt . 1·1pd\ lOs 

Patrick Simmons, 

Judge of the 77th Judicial District Com1 of 

Limestone County, Texas, sitting as the Judge 

of the 87th Judicial District Court 

Page 2 
APPENDIX B

NO. 30,122·B ~/LEO 

TOMMY KUTSCHEROUSKY, SR., ET AL, 

DBA KUTSCHEROUSKY F~S. 

vs. 

ROBBYN ELIZABETH COY ARRIOLA, 

ETAL, 

Defendants 

2Dl4 OCT 15 Ali IO: 56 

§ 

§ INniB87TIIJUD~#;~~y § 

§ COURTOF 

§ 

§ 

§ 

§ 

§ LIMESTONE COUNTY, TEXAS 

COURT'S CHARGE TO THE JURY 

MEMBERS OF THE JURY: 

After the closing argwnents. you will go to the jury room to decide the case, answer the 

questions that are attached, and reach a verdict. You may discuss the case with other jW'Ors only 

when you are all together in the jury room. 

Remember my previous instructions: Do not discuss the case with anyone else, either in 

person or by any other means. Do not do any independent investigation about the case or conduct 

any research. Do not look up any words in dictionaries or on the Internet. Do not post 

information about the case on the Internet. Do not share any special knowledge or experiences 

with the other jurors. Do not use your phone or any other electronic device during your 

deliberations for any reason. 

Any notes you have taken are for your own personal use. You may take your notes back 

into the jury room and consult them during deUberations, but do not show or read your notes to 

your fellow jurorS during your deliberations. Your notes are not evidence. Each of you should 

rely on your independent recollection of the evidence and not be influenced by the fact that 

another juror has or has not taken notes. 

You must leave your notes with the bailiff when ybu are not deliberating. The bailiff will 

give your notes to me promptly after collecting them from you. I will make sure your notes are 

kept in a safe, secure location and not disclosed to anyone. After you complete your 

deliberations, the bailiff will collect your notes. When you are released from jury duty, the bailiff 

will promptly destroy your notes so that nobody can read what you wrote. 

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Here are the instructions for answering the questions. 

1. Do not let bias, prejudice. or sympathy play any part in your decision. 

2. Base your answ~rs only on the evidence admitted in court and on the law that is in 

these instructions and questions. Do not consider or discuss any evidence that was not admitted 

in the courtroom. 

3. You are to make up your own minds about the facts. You are the sole judges of 

the credibility of the witnesses and the weight to give their testimony. But on matters oflaw, you 

must follow all of my instructions. 

4. If my instructions use a word in a way that is different from its ordinary meaning, 

use the meaning I give you, wbich will be a proper legal definition. 

5. All the questions and answers are important No one should say that any question 

or answer is not important. 

6. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" 

answer must be based on a preponderance of the evidence unless you are told otherwise. 

Whenever a question requires an answer other than "yes" or "no," your answer must be based on 

a preponderance of the evidence unless you are told otherwise. 

The term "preponderance of the evidence" means the greater weight of credible evidence 

presented in this case. If you do not find that a preponderance of the evidence supports a "yes" 

answer, then answer "no.'' A preponderance of the evidence is not measured by the number of 

witnesses or by the nwnbcr of documents admitted in evidence. For a fact to be proved by a 

preponderance of the evidence, you must find that the fact is more likely true than not true. 

7. Do not decide who you think should win before you answer the questions and 

then just answer the questions to match your decision. Answer each question carefully without 

considering who will win. Do not discuss or consider the effect your answers will have. 

8. Do not answer questions by drawing straws or by any method of chance. 

9. Some questions might ask you for a dollar amount. Do not agree in advance to 

decide on a dollar amount by adding up each juror's amount and then figuring the average. 

10. Do not trade your answers. For example, do not say, "I will answer this question 

your way if you answer another question my way." 

11. Unless otherwise instructed the answers to the questions must be based on the 

decision of at least ten of the twelve jurors. The same ten jurors must agree on every answer. Do 

not agree to be bound by a vote of anything less than ten jurors, even if it would be a majority. 

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As I have said before, if you do not follow these instructions, you will be guilty of juror 

misconduct. and I might have to order a new trial and start this process over again. This would 

waste your time and the parties1 money, and would require the taxpayers of this county to pay for 

another 1rial. If a juror breaks any of these rules, tell that person to stop and report it to me 

immediately. 

INSTRUCTIONS 

1. The property which is the snbject of this suit is approximately 205 acres in 

Limestone County, Texas, known as Farm #4888 in the records of the U.S. Fann Service Agency 

ofLimestone County, Texas. It is hereinafter referred to as the "Fann". 

2. The Plaintiffs in this case, Tommy Kutscherousky, Sr., Tommy Kutseherousky, 

Jr., and Eric Kutscherousky, dlb/a Kutscherousky Fanns are refen-ed to herein collectively as the 

"~utscherouskys" or the '

1

Lessees". 

3. The Defendants in this case Robbyn Elizabeth Coy Arriola, Joey Arriola, Jack 

Henry Lawson, Raven Jonae Pritchett are referred to herein collectively as the "Lessors". 

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QUESTIONS 

Question _1_. 

Do you find there was an agreement between Plaintiffs and Joey and Robbyn Elizabetli Aniola 

to lease the "Fann"? 

In deciding whether the parties reached an agreement you may cousider what they said 

and did in light of the surrounding circumstances, including any earlier course of dealing. 

You may not consider the parties unexpressed thoughts or intentions. 

Answer "Yes" or "No" 

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If you answered "Yes" to Question 1. then answer Question 2. If you answered "No, to 

Question I, then you do not need to answer furlher questions. 

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Question 2 

Do you find that Joey Arriola or Robbyn Elizabeth Arriola had authority or apparent authority 

from Raven Jonae Pritchett and Jack Henry Lawson to lease the Farm to the Plaintiffs? 

A party's conduct includes the conduct of another who acts with the party's authority or 

apparent authority. 

Authority for another to act for a party must arise from the party's agreement that the 

other act on behalf and for the benefit of the party. If a party so authorizes another to 

perform an act, that other party is also authorized to do whatever else is proper, usual, 

and necessary to perform the act expressly authorized. 

Apparent authority exists if a party (1} knowingly permits another to hold himself out as 

having authority or, (2) through lack of ordinary care, bestows on another such 

indications of authority that lead a reasonably prudent person to rely on the appalfellt 

existence of authority to his detriment. Only the acts of the party sought to be charged 

with responsibility for the conduct of another may be considered in determining whether 

apparent authority exists. 

Answer .. Yes" or ''No" 

Answer: \,J f. S 

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Question 3. 

Do you find Raven Joane Pritchett and Jack Henry Lawson ratified the lease agreentent between 

the Plaintiffs and Joey and Robbyn Elizabeth Arriola? 

A party's conduct includes conduct of others that the party has ratified. Ratification may 

be expressed or implied. 

Implied ratification occurs if a party, though he may have been unaware of unauthorized 

conduct taken on his behalf at the time it occurred, retains lhe benefitS of the transaction 

involving the unauthorized conduct after he acqui~ full knowledge of the unauthorized 

conduct. Implied ratification result in the ratification of the entire transaction . 

Answer .. Yes" or "No" 

Answer: 

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Question 4. 

Do you find that the written agreement signed by Eric Kutscherosky, Robbyn Elilzabeth Aniola 

and Joey Arriola titled as .. Lease Contract for Farm 4888", dated July 6, 2011 was intended by 

Eric Kutscherosky, Robbyn Elizabeth Arriola and 1oe Arriola to be the entire agreement of the 

parties as regards the lease of the Farm? 

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Answer "Yes" or ~'No" 

Answer: N 0 

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If you answered ''No'' to Question_4_, then you must determine the relevant terms of the 

agreement of the parties. Consider all the facts and circumstances surrounding the making of the 

agreement, any agreed changes or amendments, any memorialized writings, the interpretation 

placed on the agreement by the parties, and the conduct of the parties. 

Ifyou answered "Yes .. to Question __ 4 then you must consider only the terms of the 

written agreement titled "Lease Contract for Fann 4888" dated July 6, 2011. 

You are instructed that a writing is construed most strictly against its author and in such a 

manner as to reach a reasonable result consistent with the apparent intent of the parties. 

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Question: _5_ 

Do you find that the Defendants failed to comply with a material obligation of the lease 

agreement? 

A failure to comply must be material. The circumstances to consider in determining 

whether a failure to comply is material include: 

a. The extent to which the injured party will be deprived of the benefit which he 

reasonably expected; 

b. the extent to which the injured party can be adequately compensated for the pan 

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of that benefit of which he will be deprived; 

c. the extent to which the party failing to perform or to offer to perform will suff-:r 

forfeiture; 

d. the likelihood that the party failing to perfonn or to offer to perfonn wiU cure his 

failure, taking into aceount the circumstances including any reasonable assurances; 

e. the extent to which the behavioi of the party failing to perfonn or to ofl'er to 

perform comports with standards of good faith and fair dealing. 

Answer "Yes" or "No" 

Answer: \j f: 5 

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Question __ 6 __ __ 

Do you find that the Plaintiffs failed to comply with a material obligation of the lease agreement? 

A failure to comply must be material. The circumstances to consider in determining whether a 

failure to comply is material include: 

a. The extent to which the injured party will be deprived of the benefit which he 

reasonably expected; 

b. the extent to which the injured party can be adequately compensated for the part 

of that benefit of which he will be deprived; 

c. the extent to which the party failing to perfonn or to offer to perfonn will suffer 

forfeiture; 

d. the likelihood that the party failing to perfonn or to offer to perform will cure his 

failure, taking into account the circumstances including any reasonable assurances; 

e. the extent to which the behaviorofthe party failing to perform or to offer to 

perform comports with standards of good faith and fair dealing. 

Answer "Yes" or "No" 

Answer: NO 

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Question: _7 __ 

Do you find the Defendants terminated the lease agreement with Plaintiffs for reasons other than 

Plaintiffs' failure to comply with the lease agreement? 

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Answer "Yesn or "No" 

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Question __ 8. __ . 

Do you find that the lease agreement provided for the lease to conclude on 

December 31, 2015 or December 31, 2016? 

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Answer "December\ 2015" or "December 31, 20 16" 

Answer: Dece.robe r 3l. ~0 I L, I 

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If you answered '•Yes" to Questions 5 or 7, then answer the following Questions 9~ 10 

and 11. 

Question 9. What do you find, if any, was the probable profit loss by the 

Kutscherouskys for the 2013 crop year? 

Answer in dollars and cents, if any: $ 5 ; ) 1 j 3 . J. S 

Question 10. What do you fmd, if any, was the probable profit loss by the 

Kutscherouskys for the 2014 crop year? 

Answer in dollars and cents, if any: $ t; j , t, 55 . 1 ~ 

Question 11. What do you find, if any, was the probable profit loss by the 

Kutscberouskys for the 2015 crop year? 

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Answer in dollars and cents, if any: $_-=30-S--+-l ...;.3.....;.1~1_ . ...;:,.~_l_ 

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If you answered "Yes" to Questions 5 or 7 and if you answered December 31, 2016 to · 

Question 8, then also answer the following Question 12. 

Question 12. 

Question 12. What do you find, if any, was the probable profit loss by the 

Kutscherouskys for the 2016 crop year? 

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Answer in dollars and cents, if any: $ 1:1 3 1 q \ 0 . 9 ~ 

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If you answered "Yes, to Question 6 above, then answer question 13. 

Question 13. What do you find, if any, was the probable amount of loss by the 

Defendants for lost rents for the term of the lease? 

Answer in dollars and cents if any: S -----------

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If you answered "Yes11 to either Question S or Question 7, then answer Question 14. 

Question 14. What is a reasonable fee for the necessary services of the attorneys for the 

Kutscherouskys stated in dollars and cents? 

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Answer with an amount for each of the following: 

a. 

b. 

c. 

For representation in tb~aJ court. 

Answer: S 1 6 ~ 

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For representation through appeal to the Court of Appeal. 

Answer: S l D , DO¢ · 00 

For representation at the petition for review stage in the Supreme Cou11 of 

Texas. 

Answer. 

d. For representation at the merits briefing stage in the Supreme Court of 

Texas. 

Answer: 

e. For representation through oral argwnent and the completion of 

proceedings in the Supreme Court of Texas. 

Answer: 

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If you answered "Yes" to Question 6, then answer Question 15. 

Question 1 S. 

What do you find, if any amowtt, is a reasonable fee for the necessary services of the 

attorney for the Defendants, stated in dollars and cents? 

Answer with an amount for each of the following: 

a. For representation in the trial court. 

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~s~er: $ 

-------- b. For representation through appeal to the Court of Appeal. 

Answer: $·----~....,...-- c. For representation at the petition for review stage in the Supreme Court of 

Texas. 

~swer: $ _______ _ 

d. For representation at the merits briefmg stage in the Supreme Court of 

Texas. 

Ans~er: $ 

-------- e. For representation through oral argument and the completion of 

proceedings in the Supreme Court of Texas. 

Answer: $. _______ _ 

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Presiding Juror 

1. When you go into the jury room to answer the questions. the frrst thing you will 

need to do is choose a presiding juror. 

2. The presiding juror has these duties: 

a. have the complete charge read aloud if it will be helpful to your 

deliberations; 

b. preside over your deliberations, meaning manage the discussions, and see 

that you follow these instructions; 

c. give written questions or comments to the bailiff who will give them tc• the 

judge; 

d. write down the answers you agree on; 

e. get the signatures for the verdict certificate; and 

f. notify the bailiff that you have reached a verdict 

Do you understand the duties of the presiding juror? If you do not, please tell me now. 

Instructions for Signing the Verdict Certificate: 

1. Unless otherwise instructed you may answer the questions on a vote of ten jw·ors. 

The same ten jurors must agree on every answer in the charge. This means you may not have one 

group of ten jW'Ors agree on one answer and a different group of ten jurors agree on another 

answer. 

2. If ten jurors agree on every answer, those ten jurors sign the verdict. 

If eleven jurors agree on every answer, those eleven jurors sign the verdict. 

If all twelve of you agree on every answer, you are tmanimous and only the presiding 

juror signs the verdict. 

3. All jurors should deliberate on every question. You may end up with all twelve of 

you agreeing on some answers, while only ten or eleven of you agree on other answers. But 

when you sign the verdict, only those ten who agree on every answer will sign the verdict. 

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4. There are some special instructions beforevQuestions 2, 4, 9, 10, 11, 12. 13, 14, 

and explaining how to answer those questions. Please follow the instructions 

Do you understand these instructions? If you do not, please tell me now. 

M\11 A3SW\1~ 

Patrick 

~<I~ Sirrunons, 

Judge of the 77th Judicial District Court ,lf 

Limestone County, Texas sitting as the 

Judge of the 87th Judicial District Court 

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Verdict Certificate 

Check one: 

/Our verdict is unanimous. All twelve of us have agreed to each and every answer. The 

presiding juror has signed the certificate for all twelve of us. 

De.e&\ v a.. W \\,Son 

Signature of Presiding Juror Printed Name of Presiding Juror 

_ Our verdict is not unanimous. Eleven of us have agreed to each and every answer and 

have signed.the certificate below. 

~ Om verdict is not unanimous. Ten of us have agreed to each and every answer and have 

signed the certificate below. 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

Signature 

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APPENDIX C

-

lease Contract for Farm # -888 

538LCR 184, CooUdgeu TX 76 35 

Eric Kutsc:taerousky (Lesee). has the land listed above leased from Janua 1- 2011 thru 

December 31, 2015 for crops and cattle under the terms listed below. m Joey & Robbyn 

Arriola (Lesser) . 

1.) Lesee agrees to pay $10 per acre for 182 aaes foB' period of Jan. 

$10 per acre for 182 acres for period of Jan. 1, 2012- Dec. 31, · U; $12 per acre for 

182 aCI"'!S for period of Jan. 1, 2013 -Dec. 31, 2013: $14 per for 182 acres for 

period of Jan.1. 2014- Dec. 31, 2014: $1.6 per acre iar 182 acres period of Jan. 1, 

2015- Dec. 31, 2015. 

2.) Lesee agrees to do all fi1i!illrb!nance to the fencellne surrounding ldi property. 

3.) Lessor, 100 pereent, probBbits the following people: Bnl (f;Jyde) OOdard, Carl Erskin and 

Joy Ersldn from said property for any l'ei!SOft without~~~ pe~ 

of Lessor. 

4.) l.esee asrees that there will ba no lumtlng of any kind on said 

It shall be agreed upon by sfsna!Ure below that all terms Histed above 

thoughout the terms of 'this contract, failure to foUBow these terms wftl It fn automatic 

termination ofth1s contract, (wtth a 30 day notice oftemllfnatiort), with ut any refund of 

montes previously paid to date. 

(Lessor) (Lese e) 

0:1 /o ~ /toil 

I 

Date: -Gz--1! 

Solo 

' '·