CASE NO. 13-14-00623-CV

 

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI, TEXAS

 

G. W. KOLSTAD AND WILLIAM FRASER,

APPELLANTS

v.

MARY JUNE OWEN MERRELL,

APPELLEE

 

APPEAL FROM THE

156TH JUDICIAL DISTRICT COURT

LIVE OAK COUNTY, TEXAS

Cause No. L-13-0197-CV-B

 

BRIEF OF APPELLEE, MARY JUNE OWEN MERRELL

 

Michael C. Sartori

Texas State Bar No. 17655500

502A Houston Street

P. O. Box 1222

George West, TX 78022

Tel. (361) 449-2691

Fax. (361) 449-2380

michael@msartori.com

Attorney for Appellee

Mary June Owen Merrell

ACCEPTED

13-14-00623-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/16/2015 5:20:29 PM

CECILE FOY GSANGER

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/16/2015 5:20:29 PM CECILE FOY GSANGER Clerk
CASE NO. 13-14-00623-CV

 

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI, TEXAS

 

G. W. KOLSTAD AND WILLIAM FRASER,

APPELLANTS

v.

MARY JUNE OWEN MERRELL,

APPELLEE

 

APPEAL FROM THE

156

TH

JUDICIAL DISTRICT COURT

LIVE OAK COUNTY, TEXAS

Cause No. L-13-0197-CV-B

 

________________________________________________________________

 

BRIEF OF APPELLEE, MARY JUNE OWEN MERRELL

 

Michael C. Sartori

Texas State Bar No. 17655500

502A Houston Street

P. O. Box 1222

George West, TX 78022

Tel. (361) 449-2691

Fax. (361) 449-2380

michael@msartori.com

Attorney for Appellee

Mary June Owen Merrell

Page -1-
IDENTITY OF PARTIES AND COUNSEL

Parties:

G. W. KOLSTAD and WILLIAM FRASER Plaintiffs/Appellants

MARY JUNE MERRELL Defendant/Appellee

Counsel:

S. Tim Yusuf Counsel for

Pearland Town Center Plaintiffs/Appellants

11200 Broadway, Suite 2743

Pearland, Texas 77584

tyusuf@yusuflegal.com

M. Ryan Kirby

Counsel for

Esperson Bldg. Plaintiffs/Appellants

815 Walker St., Suite 240

Houston Texas 77002

rkirby@kmwenergylaw.com

Michael C. Sartori Counsel for

502A Houston Street Defendant/Appellee

P.O. Box 1222

George West, Texas 78022-1222

michael@msartori.com

Trial Court Judge:

Honorable Joel B. Johnson

156

th

Judicial District Court

Live Oak County, Texas

Page -2-
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PARTY AND PROPERTY ABBREVIATIONS AND RECORD REFERENCES. . 11

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

KOLSTAD’S AND FRASER’S ISSUES PRESENTED FOR REVIEW. . . . . . . . . 15

STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

MERRELL’S STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1. Kolstad and Fraser waived all Appellate Issues. . . . . . . . . . . . . . . . . 23

2. Kolstad and Fraser failed to bring forth

any summary judgment evidence

raising a fact issue to defeat Merrell’s

Traditional Summary Judgment Motion.. . . . . . . . . . . . . . . . . . . . . . 24

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

1. Kolstad and Fraser waived all Appellate Issues. . . . . . . . . . . . . . . . . 24

2. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Page -3-
3. The Trial Court Correctly Granted Summary Judgment

on the affirmative defense of Res Judicata... . . . . . . . . . . . . . . . . . . 29

PRAYER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Page -4-
INDEX OF AUTHORITIES

Texas State Cases:

Am. Tobacco Co. v. Grinnell,

951 S.W.2d 420, 425 (Tex. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Amedisys, Inc. v. Kingwood Home

Health Care, LLC, 437 S.W.3d 507,

512, 57 Tex.Sup.Ct.J. 547 (Tex. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

Amstadt v. U.S. Brass Corp.,

919 S.W.2d 644, 652 (Tex.1996)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Appelton v. Appelton, 76 S.W.3d 78, 86

(Tex.App. - Houston [14

th Dist] 2002, no pet.).. . . . . . . . . . . . . . . . . . . . . . . .37, 38

Armentor v. Kern, 178 S.W.3d 147, 149

(Tex.App.-Houston [1

st Dist.] 2005, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex.1990). . . . . . . . . . . . . . . . . . . . . . . .41

Bolling v. Farmers Branch Ind. School Dist., 315

S.W.3d 893, 896 (Tex.App.-Dallas 2010, rehng.

overruled, rule 53.7(f) mot. granted).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16, 17

Bomar Oil and Gas, Inc. v. Loyd, 381 S.W.3d 689,

693 (Tex. App.—Amarillo 2012, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).. . . . . . . . . . . . . . . . . . . . . . . . 27

Cedars Treatment Ctr. Of DeSoto, Tex. Inc.

v. Mason, 143 S.W.3d 794, 798 (Tex.2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Citizens Ins. Co. of America v. Daccach,

217 S.W.3d 430, 449 (Tex. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Page -5-
City of Houston v. Clear Creek Basin Authority,

589 S.W.2d 671, 678, 679 (Tex. 1979). . . . . . . . . . . . . . . . . . . . . . . . . .16, 24, 26, 27

Coker v. Coker, 650 S.W.2d at 391, 393,

394 (Tex.1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Cook v. Cameron, 733 S.W.2d 137,

140 (Tex.1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40, 41

Crithfield v. Boothe, 343 S.W.3d 274, 289

(Tex.App.-Dallas 2011 no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

Dow Chem. Co., v. Francis, 46 S.W.3d 237,

242 (Tex. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

El Paso Pipe & Supply Co. v. Mountain

States Leasing, Inc., 617 S.W.2d 189 (Tex.1981). . . . . . . . . . . . . . . . . . . . . . . . .40

Ellis v. Mortgage & Trust, Inc., 751 S.W.2d 721,

723 (Tex. App.-Fort Worth 1988, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

Farm & Ranch Investors, Ltd., v. Titan Operating,

LLC, 369 S.W.3d 679, 681 (Tex.App.-Fort Worth,

2013, rev. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132,

134 (Tex.1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

Fredonia State Bank v. General American

Life Ins. Co., 881 SW2d 279, 284 (Tex. 1994)... . . . . . . . . . . . . . . . . . . . . . . . . . .17

Frost Nat'l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

Glunz v. Hernandez, 908 S.W.2d 253, 255

(Tex.App.-San Antonio 1995, writ overruled).. . . . . . . . . . . . . . . . . . . . . . . . . . .36

Page -6-
Goodson v. Castellanos, 214 S.W.3d 741,

750, 751 (Tex.Civ.App.-Austin 2007,

reh’g overruled and rev. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

Great Am. Reserve Ins. Co. v. San

Antonio Plumbing Supply Co., 391

S.W.2d 41, 47 (Tex.1965)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26, 27

Hagan v. Hagan, 282 S.W.3d 899, 901 (Tex, 2009). . . . . . . . . . . . . . . . . . . . . . .39

Harris v. Currie, 142 Tex. 93, 98-99,

176 S.W.2d 302 (Tex., 1943). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Heirs v. Bouligny, 2009 WL 781860,

(Tex.App-Corpus Christi 2009, reh’ng

overruled, rev. denied, reh’ng pet. for rev. denied).. . . . . . . . . . . . . . . . . . . . . . .27

Henning v. OneWest Bank FSB, 405 S.W.3d 950,

955 (Tex.App.-Dallas 2013, jud. affrm’d)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Hesser v. Hesser, 842 S.W.2d 759, 764

(Tex.App.-Houston [1st Dist.] 1992, writ denied).. . . . . . . . . . . . . . . . . . . . . . . . .40

HMS Aviation v. Layale Enterprises, S.A., 149

S.W.3d 182, 196 (Tex.App,-Ft. Worth 2004,

rehearing overruled). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

Igal v. Brightstar Information Tech.

Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

In I.L., 389 S.W. 3d 445, Tex.Civ.App.

- (El Paso 2005, no writ)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

In re Guardianship of Onyebuchi, 2014

WL 4463114, (Tex.App.-Fort Worth, 2014,

reh’ng overruled, rev. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Page -7-
John P. Maguire & Co., Inc. v. Hannon,

563 S.W.2d. 844, 845 (Tex. Civ. App.

-Houston [14th Dist.] 1978, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

Johnson v. Blount, 48 Tex. 38, (Tex. 1877).. . . . . . . . . . . . . . . . . . . . . . . . . . . . .46

Knoll v. Neblett, 966 S.W.2d 622, 639

(Tex. App. -Houston [14th Dist.] 1998, pet. denied).. . . . . . . . . . . . . . . . . . . . . . .25

Lone Star Cement Corp. v. Fair, 467 S.W.2d

402, 404–05 (Tex.1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990).. . . . . . . . . . . . . . . .40, 41

Matter of H.V.R., 974 S.W.2d 213, 215

(Tex.App.-San Antonio 1998 reh’ng overruled). . . . . . . . . . . . . . . . . . . . . . . . . . 42

McConnell v. Southside Indep. Sch. Dist.,

858 S.W.2d 337, 343 (Tex.1993)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16, 27

Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.1985).. . . . . . . . . . . . . . . . . . . . . .40

National Union Fire Insurance Company

v. CBI, 907 SW2d 517, 520 (Tex. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546, 548, 549 (Tex.1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

Permian Oil Co. v. Smith, 129 Tex. 413,

107 S.W.2d 564, 597 (Tex. 1937).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37, 45

Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982).. . . . . . . . . . . . . . . . . . . . . . .41

Prairie View A&M Univ. v. Chatha,

381 S.W.3d 500 (Tex. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Page -8-
Pulley v. Milberger, 198 S.W.3d 418, 425

(Tex. App.--Dallas 2006, pet. denied)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Reiss v. Reiss, 118 SW3d 439, 443 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . .39, 40, 41

Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217,

222–23 (Tex.1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17, 27

Stoner v. Thompson, 578 S.W. 2d 679 (Tex. 1979). . . . . . . . . . . . . . . . . . . . . . . .38

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860,

862 (Tex.2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28, 29

Trenholm v. Ratcliff, 646 S.W.2d 927, 934

(Tex.1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

Valadez v. Avitia, 238 S.W.3d 843, 845

(Tex.App.-El Paso 2007 no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

Vela v. City of McAllen, 894 S.W.2d

836 (Tex. App.-Corpus Christi 1995, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . .34

Vickery v. Commission for Lawyer Discipline,

5 S.W.3d 241, 251 (Tex. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45, 46

Wal-Mart Stores, Inc. v. Alexander,

868 S.W.2d 322 (Tex. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

Welch v. Hrabar, 110S.W.3d 601,611

(Tex. App. -Houston [14th Dist.] 2003, pet. denied). . . . . . . . . . . . . . . . . . . . . . .25

Withers v. Republic Nat. Bank, et al,

248 S.W.2d 271, 281 (Tex. 1952).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43

Page -9-
Constitution:

Tex. Const. Art. V, §8.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32, 36, 41

Statutes:

Tex.Civ.Prac. & Rem. Code, §§16.025,

et seq. (Vernon 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46

Tex.Civ.P.Stat.&Rem. Code, §§16.027. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Tex.Civ.P.Stat.&Rem. Code, §§ 16.028.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Tex. Gov. Code §24.007... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 36, 41

Rules:

Tex.R.App.P. 9.4(i)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49

Tex.R.App.P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

Tex.R.App.P. 38.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Tex.R.App.P. 38.1(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16, 23, 25

Tex.R.App.P. 38.1(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17, 18, 23, 25

Tex.R.App.P. 38.1(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

Tex.R.App.P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16, 17, 23, 25

Tex.R.App.P. 38.2(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 17

Tex.R.Civ.P. 166a(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15, 17, 26

Tex.R.Civ.P. 296. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

Page -10-
PARTY AND PROPERTY ABBREVIATIONS AND RECORD REFERENCES

1. Plaintiff/Appellant G. W. Kolstad is abbreviated as “Kolstad” in this brief.

2. Plaintiff/Appellant William Kolstad is abbreiated as “Fraser” in this brief.

3. Doris Fraser, a named Defendant in the Prior Case and predecessor in interest

to Fraser, is abbreviated as “Doris Fraser” in this brief.

4. Defendant/Appellee Mary June Owen Merrell is abbreviated as “Merrell” in this

brief.

5. The Prior Case. Cause No. 6990-A, In the 36

th

Judicial District Court of Live

Oak County, Texas, and styled “Charles R. Merrell and wife, Margie L. Merrell,

Plaintiffs, vs. Mrs. Henrietta Williman, et al,” filed March 29, 1989, is

abbreviated as “the Prior Case” in this brief.

6. The Final Judgment in the Prior Case, signed by District Judge Ronald M.

Yeager, in the 36

th

 Judicial District Court of Live Oak County, Texas, on May

24, 1993, is abbreviated as ”“the Judgment” in this brief.

7. The Case on Appeal. The case on appeal, Cause No. L-13-0197, CVB, In the

156

th

Judicial District Court of Live Oak County, Texas, and styled “G.W.

Kolstad and William Fraser v. Mary June Owen Merrell, filed October 18, 2013,

and Cause No. 13-14-00623-CV in the 13

th District Court of Appeals, Corpus

Christi-Edinburg, Texas, on appeal, is abbreviated “ theCase on Appeal” in this

Page -11-
brief.

8. The Summary Judgment. The Judgment granted on Merrell’s motion for a

traditional summary judgment, and on appeal in this Court, and signed and

entered by Live Oak County 156

th

Judicial District Judge Joel B. Johnson on

September 24, 2014, is referred to as “the Summary Judgment” in this brief.

9. Real Property Interest that is the subject of the Case on Appeal:

Undivided one-half (1⁄2) interest in the oil, gas and other minerals, in, on

and under 62.42 acres of land, in the name of Charles R. Merrell and

wife, Margie L. Merrell and having 0.09 acres in Tract 188, 25.20 acres

in Tract 191, 16.09 acres in Tract 192, 13.75 acres in Tract 193, 1.47

acres in Old abandoned roadway, 5.82 acres in Tract 171, all in Block 16

of the Live Bee Subdivision No. 4, of record in Vol. 1, Page 24 of the Plat

Records of Live Oak County, Texas, also being within the Festus Doyle

Survey No. 4, Abstract No. 6, Live Oak County, Texas;

is abbreviated as “the Disputed Interest” in this brief. 

10. Citations to theClerk's Record. Citation to the Clerk’s Record are noted by the

abbreviation “CR”, followed by a colon, followed by the page number. (CR: 1)

11. Citations to Appellee’s Motion for Summary Judgment Exhibits. Citations to

Motion for Summary Judgment exhibits are noted bytheirCitation in theClerk’s

Record and the alphabetical reference number attached to Defendant’s Motion

for Summary Judgment filed August 15, 2014, as follows: (CR: 111 Ex-A, et

seq.)

Page -12-
12. Citations to the Appellants’ Brief. Citation to the Appellants’ Brief filed June

16, 2015, is noted by the abbreviation “AB:”, followed by a colon, followed by

the page number. (AB: 1).

STATEMENT OF THE CASE

This Statement of the Case is filed pursuant to Tex.R.App.P. 38.2(a)(1)(B)

because of Merrell’s dissatisfaction with the Kolstad’s and Fraser's Statement of the

Case.

This is an affirmative defense of res judicata case. The case is on appeal from

a traditionalsummary Judgment granted by Judge JoelB.Johnson, Presiding Judge of

the 156th Judicial District Court of Live Oak County, Texas, in favor of Mary June

Owen Merrell, Appellee, on September 24, 2014. (CR: 358).

Prior Case. The Prior Case is the first action in Merrell’s res judicata defense,

Cause No. 6990, “Charles R. Merrerll, and wife, Margie L. Merrell v. Mrs. Henrietta,

et al,” 36

th

Judicial District of Live Oak County, Texas, filed March 29, 1989. The

Prior Case was a Trespass to Try Title and Adverse Possession suit (CR: 219, Ex. C).

Kolstad, Appellant/Plaintiff, was a party Defendant in the Prior Case. Fraser,

Appellant/Plaintiff, was the successor in interest to Doris Fraser, a Defendant in the

Prior Case (CR: 8, 85, 312, 315). The property that is the subject of the Case on

Appeal (Disputed Interest) was carved out of the property that was the subject of the

Page -13-
Prior Case (CR: 219, CR: 5). Kolstad and Doris Fraser made an identical claim to the

Disputed Interest in the Prior Case that Kolstad and Fraser are making in the Case on

Appeal (CR: 5, CR: 239). 

Case on Appeal. On October 28, 2013, Kolstad and Fraser filed a Suit to Quiet

Title, Trespass to Try Title and Declaratory Judgment, against Merrell (CR: 5).

Kolstad and Fraser claimed ownership of the Disputed Interest (CR: 5, 8). Merrell

answered and, on August 15, 2014, filed a traditional motion for summary judgment

based solely on the affirmative defense of res judicata (CR:126). On September 24,

2014, Judge Johnson granted Merrell’s Motion for Summary Judgment (CR: 357).

ISSUES PRESENTED FOR REVIEW

Kolstad and Fraser waived all appellate issues by failing to refer to the record

or to cite any case law in their brief relative to their “Issues Presented for Review”(AB:

7). Without waiving her argument that Kolstad and Fraser have waived their appellate

issues because their brief does notcomplyTex.R.App.P. 38.1,the only issue left before

this Court is Judge Johnson's granting of the summary judgment in favor of Merrell

(CR: 357). Should it be determined that Merrell is in error as to Kolstad’s and

Fraser’s waiver of appellate issues,she will hereinafter address Kolstad’s and Fraser’s

Issues Presented for Review, as best she understands them.

Page -14-
KOLSTAD’S AND FRASER’S ISSUES PRESENTED FOR REVIEW

• Does the conveyance of mineral rights by record title owner negate the element

of exclusivity prerequisite to a claim for adverse possession?

• Does the conveyance of mineral rights by record title owner constitute the

exercise dominion over property?

• Does the execution of a mineral lease constitute the exercise of dominion?

• Does ambiguity in a judgment preclude res judicata?

• Does ambiguity in a judgment create a genuine issue of material fact precluding

summary judgment based upon res judicata?

• Does res judicata allow a prevailing party to define an ambiguous judgment to

include relief contrary to substantive law?

• Does prior litigation between parties serve as a bar to claims outside the scope

of the prior judgment?

• Can an incorrect finding of fact or conclusion of law result in a void judgment

immune from subsequent challenges?

• Can the improper application of res judicata deprive a party from an adequate

remedy at law?

Merrellspecifically objects to the unnumbered Issues Presented for Review as

follows:

1. None of these Issues were raised by Kolstad and Fraser either before the

trial court or in response to Merrell’s Motion for Summary Judgment. (CR: 347)

Tex.R.Civ.P. 166a(c).

Page -15-
To preserve an error on appeal, Kolstad and Fraser were required to present to

the trial court, by written response, any issue defeating Merrell’s motion for summary

judgment, raising of an issue of material fact based upon insufficiency of evidence

could be raised for the first time on appeal. McConnell v. Southside Indep. Sch. Dist.,

858 S.W.2d 337, 343 (Tex.1993); Henning v. OneWest Bank FSB, 405 S.W.3d 950,

955 (Tex.App.-Dallas 2013, jud. affrm’d). The above listed “Issues Presented for

Review” neither raise a material fact issue questioning Merrell’s affirmative defense,

nor, attack the sufficiency of Merrell’s summary judgment evidence. Cedars

Treatment Ctr. Of DeSoto, Tex. Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004); See,

City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979)

2. The above issues were not “stated concisely”. Tex.R.App.P 38.1(f)

“Stated Concisely” is not satisfied by merely uttering brief conclusory statements

unsupported by legal citations. Id., City of Houston at 678 (Tex.1979); Valadez v.

Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007 no pet.)

3. A succinct, clear and accurate statement of the arguments on said issues

must be made in the body of the brief, but it was not. Tex.R.App.P 38.1(i);Bolling v.

Farmers Branch Ind. School Dist., 315 S.W.3d 893, 896 (Tex.App.-Dallas 2010,

rehng. overruled, rule 53.7(f) mot. granted).

4. The argument on the issues must be supported by appropriate citations to

Page -16-
the authority and to a record reference. It was not. Tex.R.App.P 38.1(i), Id., Bolling

at 896.

5. No issue raised an objection to the sufficiency of Merrell’s summary

judgment evidence, thus, the elements of res judicata were proved as a matter of law,

and Judge Johnson’s Judgmentshould be affirmed. Rhone-Poulenc, Inc. v. Steel, 997

S.W.2d 217 (Tex, 1999); Tex.R.Civ. P. 166a(c).

Courts do not have to attempt to re-draft and articulate what issues the Court

believes Kolstad and Fraser may have intended to raise as error on appeal. Due to

Kolstad’s and Fraser’s failure to comply with the requirements of Tex.R.App. P. 38,

they have waived their issues on appeal. Fredonia State Bank v. General American

Life Ins. Co., 881 SW2d 279, 284 (Tex. 1994); Trenholm v. Ratcliff, 646 S.W.2d 927,

934 (Tex.1983).

STATEMENT OF FACTS

Merrell’s Statement of Facts is filed pursuant to Tex.R.App.P. 38.2(a)(1)(B)

because of Merrell’s dissatisfaction with Kolstad’s and Fraser's Statement of Facts,

and subject to the hereinafter set forth objections. Kolstad’s and Fraser's Statement of

Facts is incomplete, unsupported by any evidence in the record, and is factually

misleading.

Specific objections to Kolstad and Fraser’s statement of facts:

Page -17-
Kolstad’s and Fraser’s Statement of Facts does not comply with Tex.R.App.P.

38.1(g) (AB: 8). A brief shall contain a concise, non-argumentative statement of the

facts supported by record references. In re Guardianship of Onyebuchi, 2014 WL

4463114, (Tex.App.-Fort Worth, Sep. 11, 2014, reh’ng overruled, rev. denied). In

Kolstad’s and Fraser’s brief they have referred to facts and documents that were never

part of the court’s record below, were facts that were not true, and law that was

misapplied. Moreover, Kolstad and Merrell have referenced theClerk’s Record all but

a few times in their Statement of Facts. Accordingly, Merrell challenges the Statement

of Facts set out in Kolstad and Fraser’s brief.

While neither material, nor subject to being corrected by the Clerk’s Record,

Merrell specifically objects to, and disputes, the following conclusory statements and

incorrect fact statements set forth in Kolstad and Fraser’s Statement of Facts:

a. Statement of Facts, line 1, page 8, (AB: 8) Merrell does not agree nor has

Merrell agreed with the statement “Parties agree to the following facts regarding the

title history....”

b. The fact recited in the first sentence of the second paragraph of the

Kolstad and Fraser Statement of Facts (AB: 8) is a misstatement asto the facts setforth

on page 235 of the Clerk’s Record. (CR: 235) Kolstad and Fraser’s version of the

Statement of Facts states, in pertinent part: “In January 1989, Charles R. and Margie

Page -18-
L. Merrell, husband and wife, unlawfully entered, occupied and sought to adversely

possess the subject property. (AB 8)”. Page 235 of the Clerk’s Record is page 17 of

Merrell’s predecessor in interest’s Original Petition in the Prior Case (CR: 235). The

portion of the Original Petition to which Kolstad and Fraser refer, provides, in fact,

verbatim and correctly, as follows:

“A. Thaton or about the first day ofJanuary, 1989, Plaintiffs (Merrell’s

predecessors in interest) were in actual possession of the abovedescribed property. On this date, Defendants (Appellant G. W.

Kolstad and Doris Fraser) unlawfully entered upon said lands

and premises and withheld from Plaintiffs the possession thereof.

Defendants continue to withhold the possession of the above

described property.”

MERRELL’S STATEMENT OF FACTS

Before the Court is an appeal of the lower Court’s ruling granting Merrell’s

Motion for Summary Judgment on the affirmative defense of res judicata (CR 358).

AllofMerrell’s evidence submittedwith herMotion forSummary Judgmentwas

competent summary judgment evidence, consisting of certified and/or authenticated

copies, and sworn affidavits, as follows:

1. CertifiedCopyof Plaintiffs'OriginalPetition,G.W.Kolstad and WilliamFraser

V. Mary Jane Owen Merrell, Cause No. L-13-0197-CV-B, 156

th

Judicial

District Court, Live Oak County, Texas; (CR: 126, Ex. A. CR: 135)

2. Certified Copy of Defendant’s Second Amended Original Answer, G. W.

Kolstad and William Fraser V. Mary Jane Owen Merrell, Cause No. L-13-

0197-CV-B, 156

th

Judicial District Court, Live Oak County, Texas;(CR: 126,

Page -19-
Ex. B, CR: 144)

3. Certified Copy of Plaintiffs' Original Petition, Charles R. Merrell and Wife,

Margie L. Merrell V. Mrs. Henrietta Willimann, et al, Cause No. 6990-A, 36

th

Judicial District Court, Live Oak County, Texas, filed March 29, 1989; (CR:

126, Ex. C, CR: 218)

4. Certified Copy of Plaintiffs' First Amended Petition, Charles R. Merrell and

Wife, Margie L. Merrell V. Mrs. Henrietta Willimann, et al, Cause No. 6990-A,

36

th

Judicial District Court, Live Oak County, Texas, filed October 23, 1991;

(CR: 126, Ex. D, CR: 238)

5. Certified Copy of Citation served upon G. W. Kolstad, Charles R. Merrell and

Wife, Margie L. Merrell V. Mrs. Henrietta Willimann, et al, Cause No. 6990-A,

36

th

Judicial District Court, Live Oak County, Texas, filed April 5, 1989; (CR:

126, Ex. E, CR: 258)

6. Certified Copy of Citation served upon Doris Fraser, Charles R. Merrell and

Wife, Margie L. Merrell V. Mrs. Henrietta Willimann, et al, Cause No. 6990-A,

36

th

Judicial District Court, Live Oak County, Texas, filed April 7, 1989; (CR:

126, Ex. F, CR: 261)

7. Certified Copy of Answers of Defendants G. W. Kolstad and Doris Fraser to

Plaintiff’s Original Petition, Charles R. Merrell and Wife, Margie L. Merrell V.

Mrs.Henrietta Willimann, et al, Cause No. 6990-A, 36

th

Judicial DistrictCourt,

Live Oak County, Texas, filed April 21, 1989;(CR: 126, Ex. G, CR: 264)

8. Certified Copy of Statement of Facts, Charles R. Merrell and Wife, Margie L.

Merrell V. Mrs. Henrietta Willimann, et al, Cause No. 6990-A, 36

th

Judicial

District Court, Live Oak County, Texas, signed May 12, 1993; (CR: 126, Ex.

H, CR: 280)

9. Certified Copy of Judgment, Charles R. Merrell and wife, Margie L. Merrell V.

Mrs. Henrietta Willimann, et al, Cause No. 6990-A, 36

th

Judicial DistrictCourt,

Live Oak County, Texas, rendered, signed and entered May 12, 1993;(CR: 126,

Ex. I, CR: 293)

Page -20-
10. Affidavit of IdentityCharles R. Merrell, Margie L. Merrell and Mary June Owen

Merrell, by Mary June Owen Merrell, Affiant, dated August 8, 2014; (CR: 126,

Ex. J, CR: 311)

11. Affidavit of Michael C. Sartori, dated August 13, 2014; (CR: 126, Ex. K, CR:

314)

12. Certified Copy of the Probate in Cause No. 12635, Estate of Charles Roy

Merrell, Deceased, In the County Court of San Patricio County, Texas; (CR:

126, Ex. L, CR: 317, 318)

13. Copy of Plaintiffs’ Answers to Disclosures, G. W. Kolstad and William Fraser

V. Mary Jane Owen Merrell, Cause No. L-13-0197-CV-B, 156

th

Judicial

District Court, Live Oak County, Texas, dated June 26, 2014;(CR: 126, Ex. M,

CR: 326), and

14. Certified Copy of Spanish Land Grant to Festus Doyle dated June 23, 1835, and

recorded in Vol. Tr A, Page 131 of the Deed Records of Live Oak County,

Texas, and in Vol. 19, Page 378 of the Deed Records of Live Oak County,

Texas. (CR: 126, Ex. N, CR: 332).

Prior Case: On March 29, 1989, Charles R. Merrell and wife, Margie L.

Merrell, filed a Trespass to Try Title and Adverse Possession suit, in Cause No. 6990-

A, In the 36

th

Judicial District Court of Live Oak County, Texas (“ the Prior Case”)

(CR: 218, Ex. C). A total of 141 Defendants were named in the Prior Case, which

included Kolstad and Doris Fraser, plus an additionalnumber of unknown Defendants

(CR: 219-231, Ex C). The subject of the Prior Case was title to a 367.95 acre tract of

land of out which the Disputed Interest is carved (CR: 231-234, Ex. C, CR 137-141

Ex. A). Both Kolstad and Doris Fraser were served and both filed Answersin the Prior

Page -21-
Case (CR: 258, Ex. E, CR: 261, Ex. F, CR: 264, Ex. G). During the pendency of the

Prior Case Charles R. Merrell’s wife, Margie L. Merrell, died. Charles R. Merrell

continued as the sole Plaintiff (CR: 304). On May 12, 1993. a trial was held, evidence

heard, and judgment entered in favor of Charles R. Merrell (CR: 293, Ex. I). The

Court found that Merrell had been in actual, notorious, exclusive, hostile and adverse

possession of the Property for periods of more than 5, 10 and 25 years prior to the

commencement of the Prior Case (CR: 280, Ex. H, CR: 293, Ex. I). The Judgment

incorporated all of the facts set out in the Statement of Facts signed and entered by the

Court (CR: 280, Exc. H). Kolstad and Doris Fraser, after notice, did not appear at

trial. The Judgment as to Kolstad and Fraser was a “post answer default judgment”

(CR: 293, Ex. I), entered after a trial, hearing of evidence and the Plaintiff proving his

case. The Judgment is a final judgment, it was neither appealed nor was a bill of

review filed.

Case on Appeal: Twenty years later, and three years after the discovery of the

existence of the Eagle Ford Shale sands underlying the Disputed Interest, Kolstad and

Fraser filed the Case on Appeal, a Trespass to Try Title and Suit to Quiet Title action,

against Merrell (CR: 5). The Case on Appeal alleges a title dispute over the Disputed

Interest, carved out of the property in the Prior Case; the Prior Case being where the

Plaintiff, Kolstad was a Defendant, and Plaintiff Fraser, a successor in interest to Doris

Page -22-
Fraser, a Defendant in the Prior Case(CR: 6, CR: 230, Ex. C). TheCase on Appeal has

been brought in the 156

th District Court of Live Oak County, Texas, a sister Court to

the Court in the Prior Case, the 36

th District Court of Live Oak County, Texas (CR: 5).

In the Case on Appeal Kolstad and Fraser claim that the Prior Case had not divested

Kolstad and Fraser of title to the Disputed Interest because the Judgment did not

extend back to a time prior to an alleged 1970 severance of the surface and mineral

estates (CR: 8) This is an incorrect statement of fact, not supported by summary

judgment evidence nor the Statement of Facts (CR: 281).

Merrell answered the Case on Appeal raising, numerous defenses and denials,

including, the affirmative defense of res judicata based on the Prior Case(CR: 53).

Merrell filed a Motion for a Traditional Summary Judgment. Judge Johnson

heard the motion on submission (CR: 126). Kolstad and Fraser filed a Response to

Merrell’s motion (CR: 341) and Merrell, a reply to such responise. (CR: 347). The

Court granted Merrell’s motion for summary judgment (CR: 357).

SUMMARY OF THE ARGUMENT

1. Kolstad and Fraser waived all Appellate Issues.

Kolstad and Fraser failed to comply with the Tex.R.App.P, Rule 38.1(f)(g)(i),

by failing to state the issues presented concisely; by failing to concisely and without

argumentstate the facts pertinent to the issues presented;by not containing a succinct,

Page -23-
clear and accurate statement of the argument made in the body of the brief; notstating

a clear and concise argument for the contentions made; and by failing to include

appropriate citations to authorities and the record. Accordingly, Kolstad and Fraser

waived all appellate issues leaving nothing for this Court to consider.

2. Kolstad and Fraser failed to bring forth any summary judgment evidence

raising a fact issue to defeat Merrell’s Traditional Summary Judgment

Motion.

Alternatively, and without waiving the foregoing, the Trial Court did not err in

granting Merrell's motion for summary judgment. Merrell proved all elements of her

affirmative defense ofres judicata, and thatthere areno genuine issues of materialfact,

as a matter of law. Kolstad and Fraser failed to bring forth any summary judgment

evidence to raise, nor did they ever raise, an issue of material fact to defeat Merrell's

traditional summary judgment. When Merrell proves as a matter of law, all of the

elements of her affirmativedefenseand there are no issues of materialfact, and Kolstad

and Fraser fails to raise a genuine material fact issue, including insufficiency of the

evidence, the trial court had no choice but to grant Merrell's traditional summary

judgment. Id., City of Houston at 678.

ARGUMENT

1. Kolstad and Fraser waived all Appellate Issues.

Kolstad’s and Fraser's brief does not comply with Texas Rules of Appellate

Page -24-
Procedure. Kolstad and Fraser failed to state a clear and concise argument for the

contentions they made and failed to include an argument, appropriate citations to

authorities and the record, on the issues that they claimed to have raised in their brief;

their issues, as presented, do not comply with Tex.R.App.P. 38.1(f); their Statement

of Facts references documents that do not qualify as summary judgment evidence; are

not material to the Case on Appeal; the majority are without record references

reference;and failed to complywith Tex.R.App.P, Rule 38.1(g). Theirsummary of the

argument does not comply with Tex.R.App.P. Rule 38.1(h), since it does not make

succinct, clear and accurately, the arguments made in the body of the brief. The

Argument is notsupported by a clear and concise for the contentions made and does

not comply with Tex.R.App.P. Rule 38.1(i). Accordingly, Kolstad and Fraser have

waived all appellate issues and there is nothing for this Court to consider.

For an issue to be properly before the court on appeal, it must be supported by

argument and authorities. Welch v. Hrabar, 110S.W.3d 601,611 (Tex. App. -Houston

[14th Dist.] 2003, pet. denied), citing Knoll v. Neblett, 966 S.W.2d 622, 639 (Tex.

App. -Houston [14th Dist.] 1998, pet. denied). The Issues Presented for Review by

Kolstad and Fraser are not supported by any argument or authorities (AB: 7, 11).

Failure to cite any casesto support an issue is improper, is not condoned, and the issue

is waived. John P. Maguire & Co., Inc. v. Hannon, 563 S.W.2d. 844, 845 (Tex. Civ.

Page -25-
App. -Houston [14th Dist.] 1978, no writ). Not one issue presented for review by

Kolstad and Fraser has been supported by any case law(AB: 7, 11).

2. Standard of Review

Appellate courts review a trial court's ruling on a traditional motion for summary

judgment de novo. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010);

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The movant for

a traditionalsummary judgment has the burden ofshowing that there is no genuine issue

of material fact and is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c);

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). To be entitled to

summary judgment based on an affirmative defense, as in this case, the movant must

establish each element of the affirmative defense as a matter of law. Am. Tobacco Co.

v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Once a right to summary judgment has

been established as a matter of law, the burden of proof shifts to the non-movant to

respond to the motion and present to the trial court any issues that would preclude

summary judgment. See Id., City of Houston, at 678–79. Summary judgment evidence

is considered in the lightmostfavorable to the non-movant, allreasonable inferences are

indulged, and all doubts are resolved in favor of the non-movant. Id., at 678;Id., Nixon,

at 548-49. “Evidence favorable to the movant, however, will not be considered unless

it is uncontroverted.” Great Am. Reserve Ins. Co. v. San Antonio Plumbing SupplyCo.,

Page -26-
391 S.W.2d 41, 47 (Tex.1965); Heirs v. Bouligny, 2009 WL 781860, (Tex.App-Corpus

Christi 2009, reh’ng overruled, rev. denied, reh’ing of pet. for rev. denied). When the

summaryjudgmentorder does notspecify the grounds on which it was granted, as in this

case (CR: 357), the “summary judgment will be affirmed on appeal if any of the theories

advanced are meritorious.”Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). The sole

basis for the motion for summary judgment in the Case on Appeal is the affirmative

defense ofres judicata. (CR:26) Anon-movant who fails to raise any issues in response

to a summary judgment motion may still challenge, on appeal, “the legalsufficiency of

the grounds presented by themovant.” See, Id., City of Houston, at 678-79; McConnell

v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.1993). “The non-movant has

no burden to respond to a summary judgment motion unless the movant conclusively

establishes its cause of action or defense. The trial court may not grant summary

judgment by default because the non-movant did notrespond to the summary judgment

motion when the movant's summary judgment proof is legally insufficient.” Amedisys,

Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 512, 57 Tex.Sup.Ct.J. 547

(Tex. 2014);Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex.1999). In the

case at bar, Merrell proves all of the elements of the affirmative defense of res judicata

as a matter of law. Kolstad and Fraser offered no summary judgment evidence. In the

trial court and in the appeal Kolstatd and Fraser have not raised any issue of fact,

Page -27-
including insufficiency of evidence, as to Merrell’s proof.

Kolstad and Fraser appear to be retrying and trying the issues raised in the Prior

Case and the Case on Appeal and ignore the issues of the affirmative defense of res

judicata. Their arguments do not appear to recognize that an affirmative defense is a

matter asserted in avoidance of a party's argument or position, rather than a matter

asserted in denial of that party's position. Pulley v. Milberger, 198 S.W.3d 418, 425

(Tex. App.--Dallas 2006, pet. denied). “Pleading an affirmative defense permits the

introduction of evidence, which does not tend to rebut the factual propositions asserted

in the plaintiff's case, but seeks to establish an independent reason why the plaintiff

should not recover.” Id.

To be entitled to summary judgment on the affirmativedefenseofres judicata,the

movant must establish as a matter of law: (1) a prior final judgment on the merits by a

courtof competentjurisdiction;(2) that involved the same parties or those in privitywith

them as the second action; and (3) a second action based on the same claims as were

raised or could have been raised in the first action. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex.2010); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652

(Tex.1996). “The judgment in the firstsuit precludes a second action by the parties and

their privies on matters actually litigated and on causes of action or defenses arising out

of the same subject matter that might have been litigated in the first suit .” Id.,

Page -28-
Travelvers, at 862.

3. The Trial Court Correctly Granted Summary Judgment on the affirmative

defense of Res Judicata.

Twenty years ago Merrell’s predecessor in interest obtained Judgment in fee

simple title to the Disputed Interest, as well as to that of the lands surrounding the

Disputed Interest. (CR: 293, Ex. I) G. W. Kolstad and Doris Fraser filed answers in the

Prior Case claiming title to the Disputed Interest being the same interest they claim on

the Case on Appeal. (CR: 264, Ex. G) G. W. Kolstad and Doris Fraser did not appear

at trial and the Judgment was entered, made final, in Plaintiff’s favor (CR: Ex. I, 293).

The Judgment is final and no appeal was taken and no bill of review sought. No

reservations or exceptions appear in the Judgment, it included both the surface and the

mineral estate. Harris v. Currie, 142 Tex. 93, 98-99, 176 S.W.2d 302, Farm & Ranch

Investors, Ltd., v. Titan Operating, LLC, 369 S.W.3d 679, 681 (Tex.App.-Fort Worth,

2013, rev. denied). In October of 2013, Kolstad and Fraser filed suit against Merrell

claiming title to the Disputed Interest (CR: 5). Merrell answered, and raised, amongst

others, the affirmative defense of “res judicata” (CR: 53).

Merrell’s burden is to prove the three (3) elements of res judicata, as well as the

absence of an issue of materialfact, all as amatter of law. Igal v. Brightstar Information

Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008), abrogated by statute on other

Page -29-
grounds as stated in Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500 (Tex. 2012);

see also Citizens Ins. Co. of America v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007).

Neither Kolstad and Fraser’s Response to Merrell’s Motion for Summary

Judgment (CR: 347), nor Appellate Brief (AB: 11) contradict or even address Merrell’s

evidence proving the three (3) elements of res judicata, nor that the summary judgment

evidence is lacking in sufficiency, as a matter of law. Regardless, Merrell will, in an

abundance of caution, and in order to provide a clear analysis ofthe facts and application

of the law to the facts, and address the possible issues raised by Kolstad and Fraser in

their response to Merrell’s Motion for Summary Judgment and/or brief, and discuss the

elements of res judicata and the evidence supporting their proof as a matter of law.

1. A prior final judgment on the merits by a court of competent

jurisdiction.

The Judgment of the 36

th

Judicial DistrictCourt of Live Oak County, Texas, dated

May 12, 1993, is a prior final judgment on the merits by a court of competent jurisdiction

(CR: 293, Ex. I). A certified copy of the Judgment was filed by Merrell and attached to

her Motion for Traditional Summary Judgment (CR: 126, Ex. I). The Judgment was

authenticated by the Affidavit of Michael C. Sartori dated August 8, 2014 (CR: 193, Ex.

I, CR: 314, Ex. K). In response to Merrell’s Motion for Traditional Summary Judgment

(CR:341),Kolstad and Fraser appear to question the jurisdiction of theCourt in thePrior

Page -30-
Case, and claim that without jurisdiction, the Court’s Judgment was void and subject to

collateral attack, as follows:

a. “Introduction ...the Judgmentcould nothavedisposed of Plaintiffs' mineral

rights without being void as a matter of law.” (CR: 341)

b. “....For the doctrineofres judicata to applyin a subsequent proceeding, the

original judgment must not be void nor contain fundamental error.” (CR: 344)

c. “if Defendant(Merrell) alleges that the prior Judgment granted mineral

rights, the judgment would be void because it granted property upon which it did not

have in rem jurisdiction.” (CR: 344)

d. “If the court rendering the original judgment lacked jurisdiction or power

to issue the judgment rendered as to the parties, the judgment is void and cannot operate

as res judicata in a subsequent proceeding.” (CR: 344)

e. “Such judgment can be collaterally attacked.” (CR: 344)

f. “Ajudgmentis voidwhen the courtrendering judgment had no jurisdiction

of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter

the particular judgment, or no capacity to act.” (CR: 344-345)

Kolstad and Fraser have not raised the issues of jurisdiction, or void judgment,

in their Response to Merrell’s Motion for Summary Judgment or in their “Issues

Presented for Review” above. But they do mention and imply a “void judgment” once

Page -31-
in their Summary of the Argument (AB 11); and once in their Argument (AB 15).

Kolstad and Fraser also claim that the Judgment contained “Fundamental Error”, and,

therefore, can be collaterally attacked (AB 15).

Jurisdiction

The District Court in the Prior Case (36

th

Judicial District Court of Live Oak

County, Texas), had subject matter jurisdiction under the Texas Constitution and the

Texas Government Code. Tex. Const. Art. V, §8; Tex. Gov. Code §24.007.

The Court had in rem jurisdiction of the property in dispute in the Prior Case, the

property being located in Live Oak County, Texas, (CR: 159, 170, 179, 228) Crithfield

v. Boothe, 343 S.W.3d 274 (Tex.App.-Dallas 2011 no writ); HMS Aviation v. Layale

Enterprises, S.A., 149 S.W.3d 182 (Tex.App,-Ft. Worth 2004, rehearing overruled).

In their jurisdictional arguments, Kolstad and Fraser repeatedly have raised the

issue of whether the Disputed Interest was included in the Judgment, the time of

severance of the mineral estate, and whether the Court in the Prior Case had in rem

jurisdiction over the the mineral estate in and to the lands covered by the Judgment in the

Prior Case. (CR: 7). Kolstad and Fraser have provided no summary judgment evidence

proving or contradictingMerrell’s claimto ownership of the Disputed Interest by reason

of the Judgment in the Prior Case. Kolstad and Fraser no not address the issues of res

judicata, but rather, whether or not the title awarded by the Judgment included the

Page -32-
mineral estate. There is no summary judgment as to severance, nor is their any issue of

mineral reservations or exceptions, nor is this issue properly raised in any manner by

Kolstad and Fraser. Kolstad and Fraser have provided no argument, no authority of

summary judgment evidence that would, in any manner, raise the issue as to whether the

36

th

Judicial District Court of Live Oak County, Texas, did or did not have in rem

jurisdiction over the Disputed Interest, especially in that the Disputed Interest was an

undivided interestin aportion ofthe property that was the subject of the Prior Case. (CR:

238, Ex.D).

In that Merrell has the burden of proof to prove this first element of res judicata

and a lack of any material issue of fact, as a matter of law, Merrell would bring the

reviewing Court’s attention to the following:

1. TheCourt in the Prior Case found that“TheCourt, afterreceivingevidence,

finds that it has jurisdiction over this cause of action and the parties.” (CR: 293, Ex. I)

2. Kolstad and Fraser judicially admitted that in the Case on Appeal, as to the

Disputed Interest, “This Court has subject matter jurisdiction because this suit seeks to

establish title on real property” (the Disputed Interest located in Live Oak County,

Texas), that is the subject of theCase on Appeal and also the same property that was the

subject of the Prior Case (CR: 6). Bomar Oil and Gas, Inc. v. Loyd, 381 S.W.3d 689,

693 (Tex. App.—Amarillo 2012, pet. denied); Vela v. City of McAllen, 894 S.W.2d 836

Page -33-
(Tex. App.-Corpus Christi 1995, no pet.)

3. Kolstad and Fraser offered no summary judgment evidence to support any

of the jurisdictional claims made in their Argument. They do argue, without competent

summary judgment evidence, the claim that the Disputed Interest was severed from the

surface estate in 1970, in their response to Merrell’s summary judgment motion. (CR:

347, 343). On this issue, the Judgment in the Prior Case, whose contents have not been

challenged, speaks for itself, in pertinent part (CR: 341)(CR: 293, 304-306, Ex. I), as

follows:

“2. As to Plaintiffs' claim of ownership the Court finds that:

a. At all times mentioned and relevant to this action Plaintiff

was and is now, lawfully ceased and possessed of the Property owning

and claiming the same in fee simple.

b. Plaintiff has been in actual, open, peaceable notorious,

exclusive,hostileand adversepossession oftheProperty, claiming under

Deed dated October 31, 1975, and duly registered and recorded in Vol.

265, Page 436 of the Deed Records of Live Oak County, Texas, for more

than five (5) years preceding the commencement of this action. During

this period, Plaintiff has continuously cultivated, used or enjoyed these

premises and paid the taxes on the Property as they became due, and

before delinquency.

c. Plaintiff has been in actual, open, peaceable, notorious,

exclusive, hostile and adverse possession of the Property for more than

ten (10) years preceding the commencement of this action. During this

period Plaintiff's possession has been continuous and not interrupted by

adverse suit to recover the same. Plaintiff has cultivated, fenced, used

and enjoyed these premises continuously during the entire period of his

Page -34-
possession.

d. Plaintiff and Plaintiffs' predecessors in interest have been

in actual, open, peaceable, notorious, exclusive, and adverse possession

of the Property for a period of more than twenty-five (25) years

preceding the commencement of this action. During such period

Plaintiff and his predecessors in interest have held the Property under

claim ofright, in good faith and under duly recorded deed purporting to

convey the Property.

e. Plaintiff and Plaintiffs' predecessors in interest have been

in actual, open, peaceable, notorious, exclusive, and adversepossession

of the Property for a period of more than twenty-five (25) years

preceding the commencement of this action. Plaintiff has been and now

is cultivating, using and enjoying thesepremises continuouslyduring the

entire period of Plaintiff's possession.

f. PlaintiffandPlaintiffs' predecessors in interest have openly

exercised dominion over and asserted claim to the Property, paying

taxes on these premises annually before such taxes become delinquent,

for over twenty-five (25) years before the commencement of this action.

The persons holding the apparent record title to the Property, or

portions thereof, have not exercised dominion over the property and

have not paid taxes on the property at any time or for one or more years 

during the twenty-five (25) years preceding the commencement of this

action.

3. That the ownership of the Property which is the subject of

Plaintiff's suit is vested one hundred percent (100%) in the Plaintiff.

Kolstad and Fraser ignored all parts of the foregoing provisions of the Judgment with

the exception of, and limited to subparagraph 2.(b), above, and paying particular

attention to the time set out in such finding: “Plaintiff has been in actual, open,

peaceable notorious, exclusive, hostile and adverse possession of the Property,

Page -35-
claiming under Deed dated October 31, 1975, and duly registered and recorded in

Vol. 265, Page 436 of the Deed Records of Live Oak County, Texas” (CR: 342, 345).

Kolstad and Fraser, citing to this subparagraph claim that Merrell’s predecessor in

interest did notmake any adverse possession claim to the property prior to the October

31, 1975, date ofsaid deed, but totally ignore the remaining findings of the Court. The

Judgment speaks for itself. The Judgment included the Disputed Interest. As state

above, when a summary judgment Judgment, as here, does notspecify the ground or

grounds relied upon forits ruling,summary judgment will be affirmed on appeal if any

of the summary judgment grounds advanced by the movant are meritorious. Dow

Chem. Co., v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). Merrell’s predecessor in

interest’s Judgment in the Prior Case was based upon all grounds, including, but not

limited to the 25-Yearlimitation period statues, Tex.Civ.P.Stat.&Rem. Code, §§16.027

and 16.028, and their predecessors.

The District Court had personal jurisdiction over both G. W. Kolstad and Doris

Fraser, two of the Defendants in the Prior Case. Both G. W. Kolstad and Doris Fraser

were served with citation and voluntarily filed answers in the Prior Case, and made no

special appearance nor object to the jurisdiction of the Court (CR: 258-279, Ex. E, F

and G).

The Judicial District Courts of Live Oak County had jurisdiction to act as a

Page -36-
court in Trespass to Try Title suits. Glunz v. Hernandez, 908 S.W.2d 253, (Tex.App.-

San Antonio 1995, hearing of writ of error overruled); Tex. Const. Art. V, §8; Tex.

Gov. Code §24.007.

Kolstad and Fraser in the above fourth (4

th

), fifth (5

th

) and sixth (6

th

) of their

unnumbered “Issues Presented for Review”, appear to collaterally attack the Judgment

in the Prior Case based upon “ambiguity,” which unless the Judgment is void, they

cannot do.” Armentor v. Kern, 178 S.W.3d 147, 149 (Tex.App.-Houston [1

st Dist.]

2005, no pet.) These issues read as follows:

“4. Does ambiguity in a judgment preclude res judicata?

5. Does ambiguity in a judgment create a genuine issue of material fact

precluding summary judgment based upon res judicata?

6. Does res judicata allow a prevailing party to define an ambiguous

judgment to include relief contrary to substantive law?”

In interpreting a judgment as to the issue of ambiguity, courts treat a judgment

like a written contract. Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564, 597

(Tex. 1937) Whether a judgment is ambiguous or not is a question of law. Coker v.

Coker, 650 S.W.2d at 391, 393 (Tex.1983). If a judgment is so worded that it can be

given a definite or certain legalmeaning, then it is notambiguous.National Union Fire

Insurance Company v. CBI, 907 SW2d 517, 520 (Tex. 1995); Coker, at 394

Page -37-
(Tex.1983). The 14

th District Court of Houston, in Appelton v. Appelton, 76 S.W.3d

78, 86 (Tex.App. - Houston [14

th Dist] 2002, no pet.), was faced with the question as

to whether or not ambiguity in a judgment would preclude the bar ofres judicata. Just

because the parties disagree about the proper construction of the judgment does not

mean the judgment is ambiguous. Conflicting interpretations of a judgment, and even

unclear or uncertain language, do not necessarily mean a judgment is ambiguous.

There was no issue of ambiguity raised in the trial court nor is the issue directly or

indirectlymentioned or raised in Kolstad’s and Fraser’s Response of Merrell’s Motion

for Summary Judgment or any other answer or motion before the trial court. It is

mentioned only in Kolstad’s and Fraser’s brief (AB 7), where there is no cite to any

authority nor record reference supporting an ambiguity issue. TheCourt in Forbau v.

Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex.1994), having noted that the issue of

ambiguity had not been raised in the trial of the prior case, and that no summary

judgment evidence had been offered in eithertheResponse to the Motion for Summary

Judgment nor in any summary judgment brief that raised a genuine issue of material

fact of ambiguity to the affirmative defense of res judicata overruled the issue raised

by the Appellant. Id, Appelton, at 86.

As to Kolstad and Fraser, itshould be noted that the Judgment is a “post answer

default judgment”, that is a judgment where the Defendant’s appeared and answered

Page -38-
but did not appear at trial. Stoner v. Thompson, 578 S.W. 2d 679 (Tex. 1979), (CR:

293, Ex. I). According to the Statement of Facts and the Judgment it is clear that the

Judgment was not based upon the pleadings but upon evidence presented to theCourt,

the Judgment covered all of the issues raised at the trial, the same being the issues

encompassing all of the Plaintiff’s claims in the Prior Case (CR: 293, Ex. I). Kolstad

and Fraser have tendered no summary judgment evidence, nor raised any fact issue of

ambiguity, nor cited any record reference to ambiguity, nor cited to any cases

supporting a claim of ambiguity, the issue of ambiguity, having never been raised, is

waived and cannot be used to collateral attack the Judgment. Hagan v. Hagan, 282

S.W.3d 899, 901 (Tex, 2009); Reiss v. Reiss 118 S.W.3d 439, 443 (Tex, 2003).

Kolstad and Fraser, in the eighth (8

th

) of their unnumbered Issues Presented for

Review, question as whether or not the Judgment is void, as follows:

“Can an incorrectfinding of fact or conclusion of law result in a void judgment

immune from subsequent challenges?”

Tex.R.Civ.P. 296, entitled “Requests for Findings of Facts and Conclusions of

Law” provides in pertinent part as follows: “...any party may request the court to state

in writing its findings of fact and conclusions of law.” No such request is found in the

record before the Court in the Prior Case. There is, however, a Statement of Facts,

signed by the Court and incorporated verbatim into the Judgment in the Prior Case.

Page -39-
(CR: 280, Ex. H, 293, Ex. I). No objection was made in the Prior Case nor in the

Kolstad’s and Fraser’s Response to Merrell’s Motion for Summary Judgment to any

factset out in the Judgment or Statement of Facts in the Prior Case (CR: 341). Kolstad

and Fraser have notreferred to any portion of the record nor cited to anylegal authority

in regard to all or any part of the Statement of Facts that contains an error. This being

so, any claim of a void judgment, has been waived. 

However, if the Court had erred in its Statement of Facts, and if Kolstad and

Fraswer’s predecessor in interest, had raised the issue in the Prior Case, such error

would not have resulted in a void judgement but at most, if proven true, would have

only resulted in a voidable judgment. In a case where the trial court had mischaracterized the Husband’s retirement benefits as community property, on appeal the

Supreme Court in Reiss v. Reiss, 118 SW3d 439, 443 (Tex. 2003) held as to such issue,

as follows:

“In general, as long as the court entering a judgment has jurisdiction of

the parties and the subject matter and does not act outside its capacity as

a court, the judgment is not void. Mapco, Inc. v. Forrest, 795 S.W.2d

700, 703 (Tex.1990) (per curiam) (citing Cook v. Cameron, 733 S.W.2d

137, 140 (Tex.1987)). Errors other than lack of jurisdiction, such as “a

court's action contrary to a statute or statutory equivalent,” merely render

the judgment voidable so that it may be “corrected through the ordinary

appellate process or other proper proceedings.” Id. (citing El Paso Pipe

& Supply Co. v. Mountain States Leasing, Inc., 617 S.W.2d 189

(Tex.1981) and Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.1985)).

Page -40-
“The trial court in this case incorrectly characterized all of the benefits

accrued under the pension plan as community property in the Reisses'

divorce decree, and the judgment was voidable if properly appealed.

Mapco, Inc., 795 S.W.2d at 703. But the judgment is not void because a

court has jurisdiction to characterize community property-even if it does

so incorrectly. See Hesser v. Hesser, 842 S.W.2d 759, 764

(Tex.App.-Houston [1st Dist.] 1992, writ denied). Absent an appeal, the

judgment became final, and Edwin may not now collaterally attack the

court's division of property in the decree. Cook, 733 S.W.2d at 140;

Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex.1990).”

Kolstad and Fraser have made numerous allegations that the Judgment in the

Prior Case is void. As is quoted above, “In general, as long as the court entering a

judgment has jurisdiction of the parties and the subjectmatter and does not act outside

its capacity as a court, the judgment is not void.” Id., Reiss at 443; Mapco, Inc. v.

Forrest, 795 S.W.2d 700, 703 (Tex.1990). Kolstad and Fraser have failed to provide

any summary judgment evidence or raised any valid issue or claim that theCourt in the

Prior Case had no jurisdiction over: (a) the persons before the Court, all of whom

appeared voluntarily;(CR: 293, Ex. I) (b) the property covered by the Prior Case, the

same being in Live Oak County, Texas;(CR: 293, Ex. I) ( c) and the subject matter of

the Prior Case being a Trespass to Try Title action. (CR: 293, Ex. I);Tex, Const. Art.

V, §8, Tex. Gov. Code §24.007.

However, Kolstad and Fraser have attempted to raise the issue of “Fundamental

Error”. In 1982, the SupremeCourtheld that a judgment which involved Fundamental

Page -41-
Error created a jurisdictional issue and could be asserted and used to collaterally attack

a judgment. Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982). Fundamental Error

has been described in several ways, for example:

(1) “An error is fundamental only if it was so egregious and created such harm

that the appellant was denied a fair and impartial trial; In I.L., 389 S.W. 3d 445,

Tex.Civ.App. - (El Paso 2005, no writ).

(2) “the public interest is directly and adversely affected as that interest is

declared in the statutes or the Texas Constitution; Wal-Mart Stores, Inc. v. Alexander,

868 S.W.2d 322 (Tex. 1993) or

(3) “an error in a divorce case which has the effect of placing the stigma of

illegitimacy upon a minor child; Matter of H.V.R., 974 S.W.2d 213, 215 (Tex.App.-

San Antonio 1998 rehearing overruled).

Due to courts favoring preservation of error during trial or during appeal, the

“fundamental error” doctrine has been discredited and is used only in rare

circumstances only. Goodson v. Castellanos, 214 S.W.3d 741 (Tex.Civ.App.-Austin

2007, reh’ng overruled and review denied.) The case at bar is not a rare circumstance.

The Judgment in the Prior Case contains a final decision on the merits, made by

the 36

th

Judicial DistrictCourt of Live Oak County, Texas, in its judicial capacity. The

trial court properly granted summary judgment to the extent required of the first

Page -42-
element of res judicata. The first element was proven as a matter of law. Merrell has

shown that there are no questions of material fact as to such element. Kolstad and

Fraser have not raised any issues of material facts, including a claim of insufficiency

of evidence, as to such element.

2. The same parties or those in privity with them.

a. Merrell is the successor in interest to Charles R. Merrell, the sole Plaintiff

in the Prior Case at the time of Judgment. (CR: 189, CR: 293, 304, Ex. I, CR: 311, Ex.

J, CR: 314, Ex. K, CR: 317, Ex. M)

b. Kolstad is the same person as G. W. Kolstad, a Defendant in the Prior

Case. (CR: 6)

c. Fraser isthe same person as William Fraser,successor in interest to Doris

Fraser, a Defendant in the Prior Case. (CR: 6)

Kolstad and Fraser have made no objection to the fact that they or either of them

are, as to the Disputed Interest, the same parties as or in privity with G. W. Kolstad

and Doris Fraser, Defendants in the Prior Case. Based upon the summary judgment

evidence provided byMerrell,she has proven the second element of res judicata as to

parties and privitywith parties and the absenceof questions of materialfact, as a matter

of law. See, Withers v. Republic Nat. Bank, et al, 248 S.W.2d 271, 281 (Tex. 1952)

(CR 6, 312, AB 2, 3).

Page -43-
3. Asecond action based on the same claims as were raised or could have been

raised in the first action.

Kolstad’s and Fraser’s Original Petition in the Case on Appeal is a Suit to Quiet

Title, a Trespass to Try Title suit, a Declaratory Judgment, and damages, in reference

to the Disputed Interest. In such case Kolstad and Fraser are making the same claims

as Kolstad and Doris Fraser made or could have been raised by them in the Prior Case.

The Prior Case was a Trespass to Try Title Suit covering lands of which the Disputed

Interest is a part. (CR: 5, CR: 238, Ex. D)

Kolstad and Doris Fraser in the Prior Case claimed an undivided one-half (1⁄2)

mineral interest, the Disputed Interest, asis claimed by Kolstad and Fraser in the Case

on Appeal. (CR: 264, 266, Ex. G, CR: 5, 7).

Kolstad and Fraser appear to claim without summary judgment evidence the

severance of the surface estate and the mineral estate took place in 1970, as to the

Disputed Interest, prior to what they appear to claim is the commencement of adverse

possession by Merrell’s predecessor in interest in order to have the Court declare that

the Judgment in the prior case did not divest Kolstad and Doris Fraser of their claimed

Disputed Interest, and that such claim be quieted by removing Merrell’s claim to the

Disputed Interest. Without ruling on whether or not these facts are true and correct,

Kolstad and Fraser have offered no competentsummaryjudgmentevidence to support

Page -44-
such facts, regardless of whether they raise a material fact question or not, and

regardless of any effect they might or might not have on the third (3) element of res

judicata. These issues have not been property raised. Further, the claims as to

severance of the surface and mineral estate are barred by the doctrine of res judicata

because the issues of severance, when, if, etc., are all claims that Kolstad and Doris

Fraser could have raised and did make in the Prior Case. The Judgment reads:

“The Court, after hearing the evidence and arguments of counsel, finds that:

...

“2. As to Plaintiff’s claim of ownership the Court finds that:

...

“Plaintiff and Plaintiffs' predecessors in interesthavebeen in actual, open,

peaceable, notorious, exclusive, and adverse possession of the Property for a period of

more than twenty-five (25) years preceding the commencement of this action.”

The same rules of interpretation apply in construing a Judgment as in construing other

written instruments. Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404–05

(Tex.1971)(If a judgmentis unambiguous with no roomforinterpretation,itis our duty

to declare its effect in light of the literal language used); Permian Oil Co. v. Smith, 129

Tex. 413, 107 S.W.2d 564 (Tex. 1937); Ellis v. Mortgage & Trust, Inc., 751 S.W.2d

721 (Tex. App.-Fort Worth 1988, no writ). As a matter of law, there is no ambiguity

in the Judgment. The Property in issue in both cases is contained within the Festus

Doyle Survey No. 4, Abstract No. 6. The Festus Doyle Abstract was conveyed by

Spanish Grant to Festus Doyle on June 23, 1835. There is a presumption of facts in

Page -45-
existence to support the Judgment. Vickery v. Commission for Lawyer Discipline, 5

S.W.3d 241 (Tex. 1999). The presumption of validitywillsupply by implication every

proof, element, factual finding, or proper application of the law needed to support the

judgment, and no presumption will be indulged against the validity of the judgment.

Johnson v. Blount, 48 Tex. 38, (Tex. 1877); Vickery v. Commission for Lawyer

Discipline, 5 S.W.3d 241, 251 (Tex.Civ.App.-Houston (14

th Dist.)1999, rehrg.

overruled, rev. denied). As to judgments the Texas Supreme Court has stated:

“Moreover, thepresumption of validityextends to judgments derivedwith

or without the benefit of a jury. In fact, the presumption of validity is

perhaps even stronger in a bench trial where an experienced judge

exercises the functions of a jury and is charged with the responsibility of

assessing the credibility of the witnesses, logically evaluating the

evidence, rationally resolving factual disputes on the basis of such

evidence, and correctly applying the law to the facts.... These things the

trial court is presumed to have done because the judge is assumed to have

conscientiously done his duty.”

The Merrell’s predecessor in interest in the Prior Case claimed title to the

Property by adverse possession under Tex.Civ.Prac.&Rem. Code, Limitations of Real

Property Actions, §§16.025, et seq. The Judgment entered May 12, 1993, recited that

the Court read and considered all of pleadings filed in the case, including the

Defendants’, G. W. Kolstad and Doris Fraser’s, Original Answer, and heard all of the

evidence and found all of the facts as set out in the Plaintiff’s pleadings as true and

correct and entered in favor of the Plaintiff, Charles R. Merrell, all of the relief as

Page -46-
requested by Plaintiff. The Judgment and Statement of Facts clearly do not support

Kolstad’s and Fraser’s contention as to the time of the severance of the surface and

mineral estate.

Kolstad and Fraser have made no claim thattheCaseonAppealdoes not involve

same claims as were raised or could have been raised in the Prior Case, in fact, they

claim that the same issues were involved (CR: 5, 265).

Merrell has, by the submission of competent summary judgment evidence,

proven as a matter of law, without the existence of any material fact including the

insufficiency of evidence, thethird element, as wellas allof elements, ofthe affirmative

defense of res judicata.

Prayer

The doctrine of res judicata bars all of Appellants' causes of actions and claims

in the instant case. Appellants' current claims and issues were litigated in the Prior Case

or, alternatively, could have been litigated in the earlier lawsuit as they arose from the

same subject matter. Therefore, the Courtshould affirm in all respects the trial court's

grant of summary judgment and overrule the Appellants issues for review. Merrell

also prays for any further relief , both general and specific, at law or in equity to which

she may be entitled.

/s/ Michael C. Sartori

Page -47-
_______________________________

Michael C. Sartori

Texas State Bar No. 17655500

502A Houston Street

P. O. Box 1222

George West, TX 78022

Tel. (361) 449-2691

Fax. (361) 449-2380

michael@msartori.com

Attorney for Appellee

Mary June Owen Merrell

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 16

th

 day of July 2015, a true and

correct copy of the attached and foregoing Appellee’s Brief was electronically filed

with the Clerk of the Court for the 13th Circuit Court of Appeals, and a copy of the

foregoing Appellee’s Brief electronically served upon Counsel for Appellants.

Counsel or Appellants G. W. Kolstad and William Fraser.

S. Tim Yusuf

State Bar No. 50511534

Pearland Town Center

11200 Broadway, Suite 2743

Pearland, Texas 77584

Telephone: 866-249-7633

Facsimile: 866-249-7635

tyusuf@yusuflegal.com

KIRBY, MATHEWS & WALRATH, PLLC

M. Ryan Kirby

State Bar No. 24036915

Esperson Building

Page -48-
815 Walker St., Suite 240

Houston, TX 77002

Telephone: (713) 489-4620

Telecopier: (713) 489-4619

Rkiby@kmwenergylaw.com

/s/ Michael C. Sartori

_____________________________________

MICHAEL C. SARTORI

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Corel,

WordPerfect 7 and contains 8,488 words as determined by the computer software’s

word-count function and complies with Tex.R.APP.P 9.4(i)(3).

/s/ Michael C. Sartori

_____________________________________

MICHAEL C. SARTORI

Page -49-