Johannes B. Massar v. Pegasus Pain Management, PLLC

ACCEPTED
15-25-00054-cv
ORAL ARGUMENT CONDITIONALLY
FIFTEENTH REQUESTED
COURT OF APPEALS
AUSTIN, TEXAS
1/6/2026 4:25 PM
No. 15-25-00054-CV CHRISTOPHER A. PRINE
CLERK
IN THE COURT OF APPEALS FOR THE FIFTEENTH DISTRICT
FILED IN
15th COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
1/6/2026 4:25:30 PM
CHRISTOPHER A. PRINE
JOHANNES B. MASSAR, Clerk
Appellant

v.

PEGASUS PAIN MANAGEMENT, PLLC,
Appellee

From Cause No. CC-22-00078-B in the County Court at Law No. 2, Dallas
County, Texas, Honorable Melissa Bellan, Presiding

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO
STRIKE REPLY BRIEF OR ALTERNATIVELY MOTION FOR LEAVE TO
FILE SUR-REPLY

Mark A. Ticer
State Bar No. 20018900
mticer@ticerlaw.com
Jennifer W. Johnson
State Bar No. 24060029
jjohnson@ticerlaw.com
LAW OFFICE OF MARK A. TICER
10440 N. Central Expressway, Suite 600
Dallas, Texas 75231
214-219-4220 – Telephone
214-219-4218 – Facsimile

ATTORNEYS FOR APPELLEE
TABLE OF CONTENTS

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

INDEX OF AUTHORITIES.................................................................................... ii

I. INTRODUCTION ................................................................................................ 1

II. MASSAR’S REPLY BRIEF SHOULD BE STRICKEN .................................... 2

A. Massar’s Reply Brief Concerning Conditions Precedent Comes Too Late ..... 2

B. Massar’s Reply Brief Does Not Provide a Cure for Other Inadequate Briefing5

III. ALTERNATIVELY, PEGASUS SHOULD BE PERMITTED A SUR-REPLY
TO RESPOND TO MASSAR’S NEW ARGUMENT ............................................ 7

A. Massar’s Trial By Consent Fails ...................................................................... 8

B. Massar’s Other New Arguments Equally Fail................................................ 14

CONCLUSION ...................................................................................................... 16

CERTIFICATE OF SERVICE .............................................................................. 17

CERTIFICATE OF CONFERENCE..................................................................... 17

CERTIFICATE OF COMPLIANCE ..................................................................... 18

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
MOTION FOR LEAVE TO FILE SUR-REPLY PAGE i
INDEX OF AUTHORITIES

Cases

Bankhead v. Maddox,
135 S.W.3d 162 (Tex. App. – Tyler 2004, no pet.)....................................... 2, 3, 5

Bennett v. Cochran,
96 S.W.3d 227 (Tex. 2002) ..................................................................................15

Betty Leavell Rlty. Co. v. Raggio,
669 S.W.2d 102 (Tex. 1984) ..................................................................................4

Brown v. Green,
302 S.W.3d 1 (Tex. App. – Houston [14th Dist.] 2009, no pet.) ...........................2

Case Corp. v. Hi-Class Business Systems of America, Inc.,
184 S.W.3d 760 (Tex. App. – Dallas 2005, pet. denied) .......................................8

City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) ..................................................................................3

Dallas County v. Gonzalez,
183 S.W.3d 94 (Tex. App. – Dallas 2006, pet. denied) .........................................2

Fort Worth Transp. Auth. v. Rodriguez,
547 S.W.3d 830 (Tex. 2018) ................................................................................14

Greathouse v. Charter Nat’l Bank-Sw,
851 S.W.2d 173 (Tex. 1992) ..................................................................................4

In re KFC U.S.A., Inc.,
No. 05-98-01116-CV, 1998 WL 427284 (Tex. App. – Dallas Jul. 30, 1999, orig.
proceeding) .............................................................................................................7

Richey v. Brouse,
No. 03-23-00544-CV, 2024 WL 5241049 (Tex. App. – Austin Dec. 20, 2024,
pet. filed) (mem. op.) ................................................................................. 2, 3, 5, 6

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
MOTION FOR LEAVE TO FILE SUR-REPLY PAGE ii
Trimcos, LLC v. Compass Bank,
649 S.W.3d 907 (Tex. App. – Houston [1st Dist.] 2022, pet. denied) ...................5

Valadez v. Avitia,
238 S.W.3d 843 (Tex. App. – El Paso 2007, no pet.) ............................................5

Rules

Tex. R. App. P. 34.6(c)(4) ........................................................................................15

Tex. R. App. P. 38.3................................................................................................2, 3

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
MOTION FOR LEAVE TO FILE SUR-REPLY PAGE iii
Pegasus Pain Management, PLLC (“Pegasus”), Appellee herein, files

Appellee Pegasus Pain Management, PLLC’s Motion to Strike Reply Brief or

Alternatively Motion for Leave to File Sur-Reply and would show the Honorable

Court as follows:

I.
INTRODUCTION

Pegasus timely filed Appellee’s Brief on December 1, 2025. As part of

Appellee’s Brief, Pegasus argued that Appellant Johannes Massar (“Massar”) has

waived his appeal to the judgment obtained by Pegasus due to inadequate briefing.

For example, Massar did not address the standard of review for his challenge to the

breach of contract claim in the judgment – that is whether Massar is making a legal

or factual sufficiency of evidence challenge and what that standard requires.

Compounding the absence of any standard of review in his opening brief,

Massar has failed to explain how the evidence falls within any standard of review

including any analysis for satisfying any standard. At best, Massar’s briefing is

conclusionary and suffers from a systematic absence of analysis.

Massar has obviously recognized his inadequate briefing and lack of analysis

when he filed his reply brief. Massar is using his reply brief in an attempt to avoid

waiver by inadequate briefing by identifying several standards of review for the first

time and offering new arguments and analysis. Massar’s reply brief confirms that his

opening brief was deficient.

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
MOTION FOR LEAVE TO FILE SUR-REPLY PAGE 1
Because Massar’s opening briefing is legally deficient and cannot be cured by

his reply brief in identifying standards of review and new arguments and analysis,

Massar’s Reply Brief of Appellant (“Reply Brief”) should be stricken or alternatively

Pegasus should be permitted to file a sur-reply.

II.
MASSAR’S REPLY BRIEF SHOULD BE STRICKEN

An appellant may not use a reply brief to make new arguments and/or interject

new matters not raised in the opening brief. Tex. R. App. P. 38.3; Brown v. Green,

302 S.W.3d 1, 15 n. 17 (Tex. App. – Houston [14th Dist.] 2009, no pet.); Dallas

County v. Gonzalez, 183 S.W.3d 94, 104 (Tex. App. – Dallas 2006, pet. denied).

Thus, a reply brief may not be used to cure or address deficiencies in an opening

brief. Richey v. Brouse, No. 03-23-00544-CV, 2024 WL 5241049, at *4 (Tex. App.

– Austin Dec. 20, 2024, pet. filed) (mem. op.); Bankhead v. Maddox, 135 S.W.3d

162, 163-65 (Tex. App. – Tyler 2004, no pet.).

A. Massar’s Reply Brief Concerning Conditions Precedent Comes Too Late

For the first time in his Reply Brief, Massar contends the evidence is “legally

insufficient” to support Pegasus’ recovery for breach of contract. Reply Brief, p. 4.

Not only did Massar fail to identify this standard of review and make this argument

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
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in his opening brief1, but he does not provide any of the four grounds2 for legally

insufficient evidence as well as how these grounds may apply to his new argument.

By not identifying any standard of review regarding his conditions precedent

defense – specifically legal insufficiency – and providing no actual analysis, Massar

has waived the issue through inadequate briefing. Permitting Massar to raise legal

insufficiency in a reply brief for the first time not only violates Tex. R. App. P. 38.3

and well-settled authority regarding this issue, but prevents Pegasus from responding

to this new issue and argument. Richey, 2024 WL 5241049, at *4 (failure to attack

the legal sufficiency of the evidence in opening brief waived issue); Bankhead, 135

S.W.3d at 164-65 (appellant may not use a reply brief to salvage issues waived in

opening brief).

Additionally, Massar completely disregarded Rule 54 in the trial court,

precluding consideration of Massar’s conditions precedent defense. In his Reply

Brief, Massar contends, again for the first time, that the conditions precedent issue

was tried by consent. This new argument was not preserved in the trial court, was

not made in the opening brief, and cannot be offered for the first time in his Reply

1
Massar did not identify any standard of review for his challenge to breach of contract and
provided no analysis based on “legally insufficient” evidence.
2
Legal insufficiency occurs when: (1) there is a complete absence of evidence of a vital fact; (2)
a court is barred by the 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 mere scintilla;
or (4) the evidence establishes conclusively the opposite of a vital fact. City of Keller v. Wilson,
168 S.W.3d 802, 810 (Tex. 2005).

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
MOTION FOR LEAVE TO FILE SUR-REPLY PAGE 3
Brief.

Massar’s failure to deny Pegasus’ compliance with any conditions precedent

means Pegasus was not required to establish that it satisfied any conditions

precedent. Greathouse v. Charter Nat’l Bank-Sw, 851 S.W.2d 173, 174 (Tex. 1992);

Betty Leavell Rlty. Co. v. Raggio, 669 S.W.2d 102, 104 (Tex. 1984). Massar’s failure

to comply with Rule 54 and/or plead conditions precedent as an affirmative defense

means all conditions precedent have occurred.

But even assuming Massar could challenge conditions precedent, he failed to

adequately brief the issue in his opening brief. When preparing his opening brief,

Massar was obviously aware that he had not satisfied Rule 54 and/or pled any

affirmative defense relating to conditions precedent. Thus, the only available

argument to Massar was trial of the issue by consent3; nevertheless, Massar ignored

this argument altogether and only raised it for the first time in a reply, which comes

too late.

To reiterate, a reply brief may not be used to compensate for inadequate

briefing. Massar’s opening brief does not raise, much less identify, any factual or

legal insufficiency challenge; Massar’s brief, as Pegasus has demonstrated, does not

3
Massar may not credibly claim that trial by consent is only being raised in response to Pegasus’
brief when Massar was obviously aware of his own waivers when he filed his opening brief and
his only available argument was trial by consent. Moreover, given Massar’s overwhelming
inadequate briefing in his opening brief, it is no surprise that Massar waived any trial by consent
argument.

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
MOTION FOR LEAVE TO FILE SUR-REPLY PAGE 4
identify or analyze any standard of review, provide any analysis of any standard of

review, and/or explain why any standard of review entitles Massar to reversal. See

Trimcos, LLC v. Compass Bank, 649 S.W.3d 907, 921 (Tex. App. – Houston [1st

Dist.] 2022, pet. denied); Valadez v. Avitia, 238 S.W.3d 843, 843 (Tex. App. – El

Paso 2007, no pet.). Likewise, Massar’s opening brief did not address any trial by

consent.

Massar may not use a reply brief to cure his inadequate briefing in his opening

brief. Richey, 2024 WL 5241049, at *4 (failure to identify and analyze the factual

insufficiency in a judgment in the initial brief cannot be cured in a reply brief);

Bankhead, 135 S.W.3d at 164-65. Yet this is precisely what Massar tries to do in his

Reply Brief, which this Court should not allow.

B. Massar’s Reply Brief Does Not Provide a Cure for Other Inadequate
Briefing

Massar’s other arguments/issues were inadequately briefed and his Reply

Brief likewise may not be used to overcome these deficiencies. In his Reply Brief,

Massar provides new arguments and spends several pages arguing why the

disciplinary rules apply and act as an excuse for not paying Pegasus. Massar’s new

arguments in his reply come directly in response to Pegasus demonstrating Massar’s

inadequate briefing and are again too late. Massar’s Reply Brief cannot be used to

salvage arguments and missing analysis that should have been a part of Massar’s

opening brief.

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
MOTION FOR LEAVE TO FILE SUR-REPLY PAGE 5
Massar’s Reply Brief also presents new argument regarding his interpleader

excuse. In his opening brief, Massar spends barely two paragraphs regarding his

entitlement to discharge because of interpleader. Brief of Appellant, pp. 30-31.

Massar did not provide any meaningful analysis – simply conclusions. Massar may

not use his Reply Brief to compensate for waiver regarding his interpleader claim in

his initial brief.

Massar’s reply also for the first time mentions standards of review and

analysis regarding promissory estoppel waived in his opening brief. In Massar’s

opening brief, Massar devotes several short conclusory paragraphs to promissory

estoppel. In Massar’s reply, he argues, again for the first time, that there is

insufficient evidence to support Pegasus’ alternate ground for recovery.4 Reply Brief,

p. 13. Massar’s reply presents new and untimely arguments and analysis for evidence

regarding promissory estoppel. Richey, 2024 WL 5241049, at *4 (reply brief may

not be used to attack the sufficiency of the evidence for the first time).

Massar’s Reply Brief also belatedly refers to the sufficiency of evidence for

the award of $15,990 in damages. In Massar’s initial brief, he devotes two

conclusionary paragraphs to claiming the award of damages is incorrect with no

mention of insufficiency, much less analysis related thereto. This latest argument in

4
Massar does not refer to insufficiency of evidence regarding any issue in his opening brief, only
in his reply and only after Pegasus pointed out this deficiency.

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
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his Reply Brief comes too late.

Lastly, Massar’s Reply Brief attempts to interject a jurisdictional issue

regarding the $8,000 purportedly paid into the court’s registry. While jurisdictional

issues may be raised at any time, Massar’s reply does not identify, analyze, or much

less explain any jurisdictional issue including the $8,000 in the court’s registry.

Massar’s reply cannot be use to create a phantom jurisdictional issue which Massar

has not adequately briefed.5

Massar’s Reply Brief may not be used to cure the numerous and overwhelming

deficiencies in Massar’s opening brief. Accordingly, Massar’s Reply Brief should be

stricken.

III.
ALTERNATIVELY, PEGASUS SHOULD BE PERMITTED A SUR-REPLY
TO RESPOND TO MASSAR’S NEW ARGUMENT

Should this Court permit Massar’s Reply Brief, Pegasus should be afforded an

opportunity to address Massar’s new arguments in his Reply Brief. Although the

Texas Rules of Appellate Procedure do not provide for a sur-reply, if the Reply Brief

is permitted, Pegasus should be permitted a sur-reply. A court may grant leave to

file a sur-reply for good cause or in the interests of justice. See In re KFC U.S.A.,

Inc., No. 05-98-01116-CV, 1998 WL 427284, at *1 (Tex. App. – Dallas Jul. 30,

5
If a jurisdictional issue existed, Massar should have filed a motion to dismiss or a motion to abate
the appeal. By proceeding to briefing, Massar is acknowledging that there is no jurisdictional issue.

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
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1999, orig. proceeding).

A. Massar’s Trial By Consent Fails

Initially, Pegasus would show Massar’s argument that the issue of conditions

precedent was tried by consent fails for several reasons. In determining whether

there is trial by consent, the trial court examines the record “not for evidence of the

issue, but rather for evidence of the trial of the issue.” Case Corp. v. Hi-Class

Business Systems of America, Inc., 184 S.W.3d 760, 771 (Tex. App. – Dallas 2005,

pet. denied). Trial by consent does not apply when evidence relevant to an unpled

matter is also relevant to a pleaded issue. Id. Trial by consent is the exception rather

than the rule and reserved for exceptional cases. Id. at 772.

Massar’s Reply Brief does not articulate the rules for trial by consent; Massar

merely contends a reviewing court must examine the record for evidence of trial of

the issue and offers several excerpts from the trial. However, Massar does not

establish that the excerpts provided in his reply demonstrate trial of Massar’s

conditions precedent defense.

In particular, the excerpts provided by Massar go to the issue of Massar’s use

of Pegasus’ medical records and billings to obtain two settlements on behalf of

Ronald Paulson (Massar’s client), Pegasus’ fraud claim, and Massar’s breach of

contract – in other words, the excerpts go to evidence of pled issues – not exclusively

unpled issues. Moreover, Massar admitted that he had Paulson’s treatment notes, x-

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
MOTION FOR LEAVE TO FILE SUR-REPLY PAGE 8
ray reports, narrative reports, and itemized statements from Pegasus which Massar

argued were the conditions precedent in Massar’s Letter of Protection. Indeed,

Massar testified that:

Q. Yeah, you would need to have that before you wrote any demand
letter, you want to have the medical records and medical charges, right?

A. I happened to look at my demand letter on this case, and we did a
very thorough demand on this, when specifics what each doctor
indicated his diagnostics and treatments, and what the nature of his
injuries were to determine so we can max out on the policies.

Q. You included the Pegasus bills and Pegasus records in the demand,
didn't you?

A. Yes.

Q. You didn't tell the insurance company those bills weren't reasonable,
they weren't necessary, you didn't tell them that, did you?

A. No. That's foolish if I did that, but I will tell you that the insurance
company came back and said that there's questionable billings and
questionable diagnostics on the injections.

RR Vol. 2, pp. 116-117.
...

Q. Did you -- but you used the Pegasus bills and records to establish
and get a settlement, did you not?

A. To the current damages, right.

Q. Well, you used the records, too, to show what kind of treatment he
had, what kind of injuries he had. My gosh, the man was in a 10 out of
10 pain. You used those records, didn't you?

A. Of course.

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
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RR Vol. 2, p. 118.
...

Q. Did you at any time tell Pegasus or call Pegasus and say -- before
December 2, 2020, and say your bills are not reasonable, your treatment
was the wrong treatment, anything along that line?

A. No. I didn't have any problems until Mr. Paulson informed me.

Q. You were happy to use those bills, and you were happy to use those
records from Pegasus, weren't you?

A. Yes.

Q. And when you used those medical bills, Pegasus bills and Pegasus
records, you were representing to the insurance company in the demand
letter, on behalf of your client, Mr. Paulson, those bills were reasonable
and necessary, weren't you? Not just Pegasus's, but every bill that you
included were reasonable and necessary?

A. Generally speaking, yes. (Inaudible) medical reports, the medical --
that the doctor provided to my client is proper.

RR Vol. 2, pp. 118-119.
...

Q. So at the time of settlement and you visit with Mr. Paulson about the
bills and what you're going to demand, that you knew from Pegasus that
he – the records reflected he received trigger point injections and
epidurals, you knew that, right?

A. At what time?

Q. When you made the demand letter to the – the first settlement?

A. Yes.

Q. You knew all that because you reviewed it?

A. That's correct.

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Q. And you went over that with Mr. Paulson, didn't you, you said, well,
here's what we got from Pegasus. The bill is X, and it says you received
trigger point and epidurals?

A. Typically, I do that all the time. I don't -- I know I spent a lot of time
with Mr. Paulson, yes.

Q. Okay. And did you -- and what was his response when you went
over these treatment records with him and the bills before you ever sent
a demand letter out, what did he tell you?

A. I think I -- we reviewed the medical records with him, and he said
okay. So I said let's just get this thing done.

Q. So at the time before you ever -- assuming you met with him, you
went over these records, and you went over the bills with him, all the
bills, but that would have included Pegasus, right?

A. Right.

Q. And you talked to him about the treatment records, right?

A. Right.

Q. Okay. And at the time you met with him before that, nothing was
said was I never got this treatment, none of that. You never heard a
word about that, did you?

A. Not before the demands, no.

RR Vol. 2, pp. 119-121.
...

Q. Okay. And you've just told me that you sent out these letters, this
demand letter with Pegasus bills and records, and by doing that, you
were representing to the insurance company those bills were reasonable
and necessary, were you not?

A. Yes.

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RR Vol. 2, p. 123.

Pegasus also elicited testimony from Massar demonstrating fraud and

Massar’s lack of credibility in trying to excuse his failure to pay Pegasus:

Q. It says this letter is contingent -- or the LOP is contingent on
receiving certain items. Do you see those?

A. Correct.

Q. You received every one of those items from Pegasus, did you not?

A. Some documents we didn't get until after we were in litigation from
your office.

Q. What documents did you not get?

A. A lot of those financial records, whether he was -- had the --
informing him that they were not taking the billing insurance. I'm sure
there's some other records that I did not get.

Q. I'm confused. What is -- this list, four categories of items. Daily
treatment notes, you got those, didn't you?

A. Right.

Q. Okay. You got the x-ray reports, if x-rays were taken. You got those,
didn't you?

A. Yes.

Q. Okay. You got initial, interim and final narrative reports, didn't you?
The treatment notes?

A. I got the final narrative report. I guess I was including any financial
information that Pegasus was obtaining from my client.

Q. Okay. Let me keep going here. Four says itemized statement services

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rendered. Do you see that?

A. Yes.

Q. Where in any of this does it say I want the financial records or your
financial policy that you weren't processing insurance and things of
nature, where is that in this?

A. It's not.

RR Vol. 2, pp. 124-125.

The excerpts found in Massar’s Reply Brief do not establish proof of trial by

consent for Massar’s unpled defense of failure of conditions precedent. Therefore,

there is no trial by consent regarding Massar’s unpled conditions precedent defense.

But even assuming Massar’s conditions precedent defense was tried by

consent, the trial court clearly and overwhelmingly rejected Massar’s contentions.

As Pegasus’ brief reveals, Massar suffered from significant credibility challenges,

systematically avoiding answering straightforward questions and testified expressly

and materially contrary to his contentions; furthermore, the evidence

overwhelmingly demonstrates that all conditions precedent were met for the items

identified in Massar’s Letter of Protection, including that Pegasus’ charges were

reasonable and necessary.

Even Paulson, Massar’s client, did not support Massar’s version of events

concerning any conditions precedent. Notably, Paulson testified that he instructed

Massar to pay Pegasus but Massar refused to follow his client’s instructions.

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Massar’s conditions precedent argument fails on the merits.

B. Massar’s Other New Arguments Equally Fail

Massar’s new argument and analysis regarding the Texas Disciplinary Rules

and any insufficiency of the evidence equally fails. Massar may not blame the

Disciplinary Rules for not paying Pegasus because these rules are not civil standards

for liability and Massar failed to follow the very rules he relies on. Indeed, Massar

failed to inform Pegasus that he had settled the liability case, chose to pay certain

providers to the exclusion of Pegasus, waited years to make any payments, asked for

and received a reduction of the Pegasus bill when he knew (according to his own

testimony) that a dispute allegedly existed over the Pegasus bill, used Pegasus’ bills

and records to obtain two settlements for Paulson, and failed to follow Paulson’s

instructions to pay Pegasus. Massar’s reliance on the Disciplinary Rules not to pay

Pegasus is meritless.

Massar’s newest argument regarding interpleader does not change the

outcome. Evidence presented at trial establishes there were no rival claims – Paulson

told Massar to pay Pegasus. Moreover, Massar’s inexcusable, unexplained, and

dishonest delay6 defeats interpleader. Lastly, Massar offers no record of the hearing

on his interpleader request and thus, this Court must legally presume the trial court’s

6
Pegasus cites Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 850-52 (Tex. 2018) for
its delay argument. Massar provides no argument why Rodriguez should be ignored.

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ruling is correct. Tex. R. App. P. 34.6(c)(4); Bennett v. Cochran, 96 S.W.3d 227, 229

(Tex. 2002). On the merits, Massar’s latest argument regarding interpleader fails.

Massar’s new arguments regarding promissory estoppel, like his other new

arguments, fail. Massar for the first time raises factual insufficiency but Massar fails

to identify what facts are insufficient for promissory estoppel. Although Massar lists

three elements for promissory estoppel, he does not identify any element on which

there is factual insufficiency – only conclusions. Indisputably, Massar made a

promise to pay Pegasus $8,000 for its treatment of Paulson and Pegasus relied on

this promise as evidenced by Pegasus’ repeated attempts to contact Massar for

payment. Massar’s new promissory estoppel argument is without merit.

Massar’s latest challenge regarding damages disregards Pegasus’ legal

authority on this issue. Massar’s refusal to pay $8,000 promised to Pegasus entitles

Pegasus to sue on the original debt and Massar does not contest this legal authority.

Massar cannot rely on a promise he refused to fulfill to limit damages.

Finally, the omission of the $8,000 in interplead funds as a jurisdictional

challenge is flawed. If the trial court’s judgment is not final, then Massar should be

requesting dismissal or abatement of the appeal, yet Massar’s prayer in the Reply

Brief seeks reversal and rendering judgment in his favor. This prayer is legally

inconsistent with Massar’s jurisdictional argument. There is no jurisdictional issue

and Massar’s argument on this subject is meritless.

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In summary, even if this Court were to consider Massar’s Reply Brief, there

is no merit in the new arguments that Massar makes.

CONCLUSION

Massar’s Reply Brief should be struck as it represents an attempt to cure and

salvage issues waived by Massar’s inadequate briefing in his opening brief. If the

Court does consider Massar’s Reply Brief, then it should grant Pegasus leave to file

and consider its Sur-Reply portion of this Motion.

WHEREFORE, PREMISES CONSIDERED, Appellee prays this Court

affirm the Judgment and grant it such other and further relief to which it is entitled.

Respectfully submitted,

/s/ Mark A. Ticer
Mark A. Ticer
State Bar No. 20018900
mticer@ticerlaw.com
Jennifer W. Johnson
State Bar No. 24060029
jjohnson@ticerlaw.com

LAW OFFICE OF MARK A. TICER
10440 N. Central Expressway, Suite 600
Dallas, Texas 75231
214-219-4220 – Telephone
214-219-4218 – Facsimile

ATTORNEYS FOR APPELLEE

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
MOTION FOR LEAVE TO FILE SUR-REPLY PAGE 16
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing
document has been served upon all counsel of record as follows, via electronic filing,
on this the 6th day of January 2026:

Raymond R. Fernandez, Jr.
State Bar No. 06934275
rfernandez@fernandezllp.com
Robert L. Knebel, Jr.
State Bar No. 11589500
rknebel@fernandezllp.com
FERNANDEZ LLP
2515 McKinney Avenue, Suite 920
Dallas, Texas 75201
214-231-2700 – Telephone

/s/Mark A. Ticer
Mark A. Ticer

CERTIFICATE OF CONFERENCE

Appellee Pegasus Pain Management, PLLC conferred with Appellant
Johannes Massar regarding the relief sought herein via email on January 6, 2026.
Appellant is opposed to Appellee’s Motion.

/s/Mark A. Ticer
Mark A. Ticer

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
MOTION FOR LEAVE TO FILE SUR-REPLY PAGE 17
CERTIFICATE OF COMPLIANCE

Appellee Pegasus Pain Management, PLLC’s Motion to Strike Reply Brief or
Alternatively Motion for Leave to File Sur-Reply complies with the typeface and
length requirements of Texas Rule of Appellate Procedure 9.4 because:

(1) This brief complies with typeface and the type style requirements of Rule
9.4(e) because the brief has been prepared in a conventional typeface using
Word with Times New Roman 14-point font.

(2) This brief complies with the length requirements of Rule 9.4(i)(2) because
it contains 3,596 words, excluding the parts of the brief exempted by Rule
9.4(i)(1).

/s/Mark A. Ticer
Mark A. Ticer

APPELLEE PEGASUS PAIN MANAGEMENT, PLLC’S MOTION TO STRIKE REPLY BRIEF OR ALTERNATIVELY
MOTION FOR LEAVE TO FILE SUR-REPLY PAGE 18
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Lisa Amerson on behalf of Mark Ticer
Bar No. 20018900
lamerson@ticerlaw.com
Envelope ID: 109724790
Filing Code Description: Motion
Filing Description: Appellee's Motion to Strike Reply Brief or Alternatively,
Motion for Leave to File Sur-Reply
Status as of 1/6/2026 4:34 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Raymond R.Fernandez rfernandez@fernandezllp.com 1/6/2026 4:25:30 PM SENT

Robert L.Knebel rknebel@fernandezllp.com 1/6/2026 4:25:30 PM SENT

Mark Ticer 20018900 mticer@ticerlaw.com 1/6/2026 4:25:30 PM SENT

Michelle Smith msmith@ticerlaw.com 1/6/2026 4:25:30 PM SENT

Jennifer WeberJohnson jjohnson@ticerlaw.com 1/6/2026 4:25:30 PM SENT

Brooke Bailey bbailey@ticerlaw.com 1/6/2026 4:25:30 PM SENT