Frank W. Fouts, IV and Sheila D. Stibolt v. Kurt W. Muench, Lance A. Muench, Mark A. Muench and UpCurve Energy Partners, LLC

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-24-00218-CV
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Frank W. Fouts, IV and Sheila D. Stibolt, Appellants

v.

Kurt W. Muench, Lance A. Muench, Mark A. Muench,
and UpCurve Energy Partners, LLC, Appellees

On Appeal from the 143rd Judicial District Court
Reeves County, Texas
Trial Court No. 19-09-23159-CVR

M E MO RA N D UM O PI NI O N
The initial dispute in this case concerned whether a 160-acre tract of land in Reeves County,

Texas (the property) was conveyed to the grantees as their separate property or as community

property, and with or without the right of survivorship. After the trial court rendered summary

judgments on both matters, that final order was appealed. See UpCurve Energy Partners, LLC v.
Muench, 661 S.W.3d 907 (Tex. App.—El Paso 2023, no pet.). This Court affirmed in part, reversed

in part, and remanded for further proceedings. See id. at 922. On remand, the sole issue before the

trial court was “the marital property characterization issue of whether the grantees of the l981 Deed

received their interest as separate property or community property.” Following a bench trial, the

trial court signed a final judgment that determined the parties’ respective separate property interests

and incorporated its previous ruling on the survivorship issue. Frank W. Fouts, IV and Sheila D.

Stibolt (collectively, Appellants) appealed. For the following reasons, we affirm.

I. BACKGROUND 1

In 1981, Dorothy M. Werner conveyed the property to her three children via a quit claim

deed (the 1981 Deed). Her three children were Shirley A. Muench, Richard A. Werner, and

Geraldine Fox. Appellees, Kurt W. Muench, Lance A. Muench, and Mark A. Muench (collectively,

the Muenches), obtained their interests in the property from their mother, Shirley Muench.

Appellants obtained their interests in the property from Geraldine Fox. UpCurve Energy Partners,

LLC (UpCurve) obtained its interests via conveyances from other grantees.

In the initial lawsuit, the Muenches filed a trespass-to-try-title suit against several

defendants, including Appellants and UpCurve. On cross-motions for summary judgment, the trial

court considered: the Muenches’ argument that the property was conveyed as a gift and was

therefore their separate property; UpCurve’s argument that the property was not conveyed with

right of survivorship and the conveyance was a grant of community property; and Appellants’

argument that the property was conveyed with right of survivorship. On August 11, 2021, the trial

court issued a final order (1) granting the Muenches’ motion for summary judgment “as to the

1
A more detailed summary of the facts and procedural history of the underlying dispute may be found in our prior
opinion. See UpCurve Energy Partners, LLC v. Muench, 661 S.W.3d 907, 910–15 (Tex. App.—El Paso 2023, no pet.).

2
separate property issue” and otherwise denying the motion; (2) granting UpCurve’s motion for

summary judgment “as to the survivorship issue” and otherwise denying the motion; and (3)

denying Appellants’ motion for summary judgment.

UpCurve appealed, arguing the trial court erred in determining the property was conveyed

as separate property. None of the parties appealed the trial court’s ruling on the survivorship issue.

See id. at 914, 916 n.3. After considering the appeal, this Court concluded that (1) the Muenches

did not meet their summary judgment burden to conclusively establish a conveyance by gift such

as to characterize the ownership of the grantees’ interests as separate property, and (2) UpCurve

failed to meet its burden to conclusively establish the community property character of the property

interest conveyed to each grantee. Id. at 921–22. We then reversed the trial court’s grant of the

Muenches’ motion for summary judgment, affirmed the trial court’s denial of UpCurve’s motion

for summary judgment, and remanded for further proceedings consistent with the opinion. Id. at

922.

On remand, the sole issue before the trial court was “the marital property characterization

issue of whether the grantees of the l981 Deed received their interest as separate property or

community property.” At the bench trial, the only evidence considered by the trial court was an

Agreed Statement of Facts 2 and the 1981 Deed. No witnesses testified. The court heard argument

regarding whether the 1981 Deed was a gift deed that conveyed separate property or whether the

deed conveyed community property. The issue of survivorship, although briefly mentioned, was

not relitigated.

2
The Agreed Statement of Facts set forth two alternative outcomes regarding the parties’ respective ownership
interests in the property: one if the court determined the 1981 Deed was a grant of separate property and the other if
the court determined the deed was a grant of community property. Each party was identified by name with their
respective interest under each scenario.

3
At trial, the Muenches argued in favor of their position that the property should be

characterized as separate property, while UpCurve argued that the property should be characterized

as community property.

Fouts argued as follows:

Good afternoon, Your Honor. This is going to be short and sweet. Sheila and I have
come here today to hear your decision on how our grandmother’s 1981 Illinois deed
was conveyed. We have not changed our position. It was a survivorship deed. We
are not going to take up the Court’s time to rehash what we’ve already rehashed
many times before because nothing has changed. The nonmaterial correction deed
along with the appellate’s [sic] opinion says it all, but that’s not for us to decide.
It’s for you to decide. And that being said, we rest our side.

. . .

There are recitals in the 1981 deed that were not recognized. And I realize where
we’re at right now where [sic] the survivorship issue, but at the time–at this time,
we would like to adopt [the Muenches’] argument as [sic] separate property issue
even though we still think and know it was a survivorship deed, but we agree with
everything that he says.

And Stibolt argued:

. . . I just wanted to say that of out of the cases presented here, I don’t think there’s
any that reflect a deed from Illinois. My grandmother was from Illinois. The deed
was drafted in Illinois. Illinois is not a community property state . . . so I don’t know
how they can impose or manipulate a 1981 deed from Illinois to fit Texas rules and
codes because it’s not going to. It was crafted in Illinois. Illinois is not a community
property state and it does accept survivorship.

We also recognize that when you did not rule in our favor as far as a summary
judgement, that the wording was not there for survivorship in Texas, and we agreed
with that. It wasn’t. And that’s when we introduced the nonmaterial correction deed,
but like I say, again, to impose Texas rules and laws on an Illinois deed, I think is
unfair. 3

3
When Appellants each filed separate answers to the lawsuit, they attached as an exhibit a document dated April 3,
2017, entitled “Correction Quit Claim Deed (Nonmaterial Correction).” The document stated: “Error Being Corrected”
“Volume 408, Page 81, Deed Records of Reeves County. Texas . . . The words ‘with rights of survivorship’ were
inadvertently excluded from the Original Conveyance after the words ‘not in Tenancy in Common but in Joint
Tenancy’ (in the first paragraph of the Original Conveyance).” This document was not offered or admitted at the trial
on remand.

4
The trial court pointed out “that the real property that is the issue in the case is Texas real property

and that does make a difference on which law is applied to determine the outcome.”

On June 6, 2024, the trial court issued a letter ruling. The next day, Appellants filed a

motion to reopen the evidence contending they had discovered a previously unidentified heir. The

trial court later denied the motion. On July 2, 2024, the trial court signed a judgment in favor of

the Muenches on their trespass-to-try-title claim and determining the various parties’ respective

interests in the property. The trial court incorporated its previous summary judgment on the right

of survivorship issue.

II. APPELLANTS’ ARGUMENTS ON APPEAL
As a preliminary matter, we recognize that Appellants are acting pro se on appeal and we

must construe their briefs “liberally, and with patience.” See Smart v. Prime Mortgage & Escrow,

LLC, 659 S.W.3d 155, 160 (Tex. App.—El Paso 2022, pet. denied). “[W]e are mindful of our duty

to construe appellate briefs ‘reasonably, yet liberally, so that the right to appellate review is not

lost by waiver’ and to ‘reach the merits of an appeal whenever reasonably possible.’” Conroy v.

Wilkerson, 626 S.W.3d 24, 30 (Tex. App.—El Paso 2021, no pet.) (quoting Perry v. Cohen, 272

S.W.3d 585, 587 (Tex. 2008) (per curiam)). But even so, the law is well-settled that a party

proceeding pro se must comply with all applicable procedural rules and properly present her case

on appeal. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). We are not

permitted to make allowances or apply different standards simply because a pro se litigant is acting

without an attorney. Id.; Jonson v. Duong, 642 S.W.3d 189, 193 (Tex. App.—El Paso 2021, no

pet.) (“To hold otherwise would be to give pro se litigants an unfair advantage over parties

represented by counsel.”).

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We understand Appellants’ arguments as raising challenges (1) to the trial court’s

determination that the property was conveyed without right of survivorship and (2) to the trial

court’s denial of the motion to reopen the evidence. To the extent Appellants may argue otherwise,

any other potential issue has been waived by inadequate briefing under Texas Rule of Appellate

Procedure 38.1(i). 4 See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the record.”).

III. RIGHT OF SURVIVORSHIP ISSUE
Before we consider Appellants’ argument on the issue of survivorship, we must address

whether this issue is properly before us in this appeal. Prior to the first appeal, the trial court

considered the parties’ arguments regarding whether the 1981 Deed conveyed the property with

right of survivorship. UpCurve moved for summary judgment against Appellants on the ground

that “[n]o right of survivorship in the Property exists under the 1981 Deed or any purported

correction of the 1981 Deed[.]” Appellants moved for summary judgment on the ground that the

deed contained a right of survivorship. 5 The trial court granted UpCurve’s motion for summary

judgment “as to the survivorship issue” and denied Appellants’ motion. As noted above, the trial

court also ruled on the separate versus community property issue, granting the Muenches’ motion

for summary judgment “as to the separate property issue.” The summary judgment decreed the

ownership interests of the parties in the property and denied all other relief not expressly granted.

4
For example, after the bench trial, Appellants filed a motion to take judicial notice of the law from other states in
support of their survivorship claim. On appeal, Appellants contend the trial court “erred by not even acknowledging
the Motion.” But Appellants do not support this contention with legal authority; therefore, we do not consider the
merits of this complaint.
5
On appeal, the Muenches point out that the clerk’s record does not contain a copy of Appellants’ motion for summary
judgment. The clerk’s record contains only a copy of Appellants’ reply in support of their motion for summary
judgment. In light of our conclusion below that this issue is not properly before us, it does not matter that the motion
is not in the record.

6
There is no dispute that the trial court’s order was final and appealable. See Garcia v. Ramirez as

Co-Tr. of Ramirez Min. Tr., No. 08-23-00117-CV, 2024 WL 2801931, at *2 (Tex. App.—El Paso

May 31, 2024, no pet.) (mem. op.) (“For a summary-judgment order to be final, it must

unambiguously dispose of all claims and all parties.”).

The only party to perfect an appeal was UpCurve, and it appealed on a single ground: “the

trial court erred in granting the Muenches motion for summary judgment on the issue of whether

the original grantees’ interests were community property or separate property, and . . . the trial

court further erred in denying UpCurve’s cross motion on the same issue.” Muench, 661 S.W.3d

at 916. 6 Appellants could have filed a notice of appeal from the 2021 final order to broaden the

issues to include whether the 1981 Deed contained a right of survivorship, but they did not do so.

Id. at 916; see also Chen v. Razberi Techs., Inc., 645 S.W.3d 773, 783 (Tex. 2022) (“Any party

seeking to challenge issues not already pending before the appellate court must file a notice of

appeal from the final judgment.”); Tex. R. App. P. 25.1(c) (“A party who seeks to alter the trial

court’s judgment or other appealable order must file a notice of appeal. . . . The appellate court

may not grant a party who does not file a notice of appeal more favorable relief than did the trial

court except for just cause.”). Because Appellants did not perfect an appeal from the trial court’s

summary judgment ruling on the survivorship issue, they waived their complaint. See Bunton v.

Bentley, 153 S.W.3d 50, 53 (Tex. 2004) (“ordinarily, an appellant waives any complaint about the

trial court’s judgment that is not raised in the court of appeals”); Pat Baker Co. Inc. v. Wilson, 971

S.W.2d 447, 450 (Tex. 1998) (per curiam) (“It is axiomatic that an appellate court cannot reverse

a trial court’s judgment absent properly assigned error.”).

6
This Court noted that “UpCurve’s notice of appeal indicated it was not appealing the trial court’s ruling as to the
survivorship issue.” Muench, 661 S.W.3d at 916 n.3.

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Therefore, the only issue addressed in the prior appeal was the characterization of the

property conveyed under the 1981 Deed as either separate property or community property.

Muench, 661 S.W.3d at 920–21. Concluding that the parties did not satisfy their summary

judgment burdens on this issue, we reversed that portion of the order and remanded for proceedings

consistent with our opinion. Id. at 922. Our mandate in the first appeal explained the partial

affirmance and the reversal and remand as to the separate property issue, stating, in part:

The Court has considered this cause on the record and concludes the trial court’s
judgment should be affirmed in part, and reversed and remanded in part. The
judgment of the trial court denying [UpCurve’s] summary judgment motion [as to
the separate property issue] is affirmed. The portion of the trial court’s judgment
granting [the Muenches’] summary judgment motion [as to the separate property
issue] is reversed, and the case is remanded to the trial court for further proceedings
consistent with the opinion of this Court.

On remand, a trial court is authorized to take actions necessary to give full effect to the

appellate court’s judgment and mandate. Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013);

see also Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex. App.—Dallas

2011, no pet.) (“On remand, the filing of the mandate with the trial court vests the trial court with

limited [authority], as defined by the parameters of the mandate, to decide those issues specified

in the mandate.”). The trial court does not have the authority to take any action that is inconsistent

with or beyond the scope of that which is necessary to give full effect to the appellate court’s

judgment and mandate. Phillips, 407 S.W.3d at 234; Scott Pelley P.C. v. Wynne, 578 S.W.3d 694,

699 (Tex. App.—Dallas 2019, no pet.).

Because no party appealed from the part of the trial court’s order granting UpCurve’s

motion for summary judgment on the ground that the property was not conveyed with right of

survivorship and denying Appellants’ argument that the property was conveyed with right of

survivorship, that part of the judgment was final and unappealable. See United Res., L.P. v. Sepco

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Tubulars, Inc., No. 04-12-00663-CV, 2014 WL 3339537, at *3 (Tex. App.—San Antonio July 9,

2014, no pet.) (mem. op.) (“When the Court remanded the case to the trial court with its mandate,

it necessarily remanded the cross-claims against United Resources and the part of the trial court’s

April 22, 2008 judgment that rendered a take-nothing judgment on those claims. However, because

no party had appealed the part of the trial court’s judgment that rendered a take-nothing judgment

on the cross-claims against United Resources, that part of the judgment was final and

unappealable.”); Medina v. Benkiser, 317 S.W.3d 296, 299 (Tex. App.—Houston [1st Dist.] 2009,

no pet.) (“An appellate court’s judgment is final not only in reference to the matters actually

litigated, but as to all other matters that the parties might have litigated and decided in the case.”).

The trial court’s final judgment on remand correctly incorporated its previous summary

judgment on the survivorship issue. United Res., 2014 WL 3339537, at *4 (Marion, J., concurring)

(“the trial court lacked authority to review or interpret the part of its [summary judgment] that was

final and unappealable”); see also George v. Vick, 686 S.W.2d 99, 100 (Tex. 1984) (per curiam)

(holding that because “[n]o party appealed from the trial court’s judgment insofar as it disposed of

the actions by and against Penny McLean and John Askew[, the] trial court’s judgment as to them

is affirmed and need not be tried again”).

We conclude that we do not have authority to consider Appellants’ argument on the issue

of whether the 1981 Deed contained a right of survivorship. Accordingly, we overrule Appellants’

first issue.

IV. MOTION TO REOPEN EVIDENCE
During the bench trial, the trial court stated, “[t]he evidence for the Court to consider is the

1981 deed as well as the stipulation of facts that’s been submitted by the parties which includes a

statement regarding familia[l] relationships.” The court asked each party in turn whether “the

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Court’s statement of the evidence to be considered comports with your understanding of what the

evidence is for the Court to consider[.]” Each party, including Appellants, answered in the

affirmative. The court then asked, “[w]ith that, am I correct that the parties now stipulate that the

evidence is closed and that this trial would be based on the evidence that the Court has now

admitted and then we will proceed to legal argument?” Again, each party, including Appellants,

agreed.

After the trial court conducted the bench trial and issued its letter ruling, Appellants moved

to reopen the evidence, contending they had discovered a previously unidentified heir. The trial

court later denied the motion. On appeal, Appellants rely on Texas Rule of Civil Procedure 270:

“[w]hen it clearly appears to be necessary to the due administration of justice, the court may permit

additional evidence to be offered at any time; provided that in a jury case no evidence on a

controversial matter shall be received after the verdict of the jury.” Tex. R. Civ. P. 270. According

to Appellants, it is necessary to the due administration of justice that the correct heirs, including

the alleged heir, receive their entitled interest.

“Rule 270 allows, but does not require, a trial court to permit additional evidence.” Karam

v. Brown, 407 S.W.3d 464, 472 (Tex. App.—El Paso 2013, no pet.); Hernandez v. Lautensack,

201 S.W.3d 771, 779 (Tex. App.—Fort Worth 2006, pet. denied). In determining whether to grant

a motion to reopen, a trial court considers whether (1) the movant showed due diligence in

obtaining the evidence, (2) the proffered evidence is decisive, (3) reception of such evidence will

cause undue delay, and (4) granting the motion will cause an injustice. Karam, 407 S.W.3d at 472–

73; Hernandez, 201 S.W.3d at 779.

The decision to reopen is within the trial court’s sound discretion. Id. Here, Appellants

have not demonstrated that the trial court abused its discretion in denying their motion to reopen

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the evidence. Neither in their motion nor on appeal do they address any of the factors a court

should consider. Appellants contend they “had to wait to introduce this Motion because if the 1981

Deed had been determined to be a ‘Survivorship Deed,’ [t]his motion would not be necessary as

the Separate Property heirs would not be included per the language of the 1981 Deed.” Appellants

do not address whether they were diligent in “discovering” the alleged heir’s identity, nor do they

argue that they were not required to show due diligence. See Karam, 407 S.W.3d at 473. Appellants

do not state when they “discovered” the alleged heir; however, most of the exhibits attached to

their motion bear June 2022 dates, long before the January 2024 bench trial. Furthermore, their

statement on appeal that they “had to wait” to introduce the evidence implies they had the evidence

prior. Therefore, “it was incumbent upon [Appellants] to prove that [the identity of the alleged

heir] was not in [their] possession or available to [them] until” after the trial concluded. Instead,

Appellants agreed on the record to the evidence that the trial court would consider. See id.

Because Appellants have failed to demonstrate that any of the factors identified above were

satisfied, we cannot conclude the trial court abused its discretion by denying their motion to reopen

the evidence. Accordingly, we overrule Appellant’s second issue.

V. CONCLUSION
For the reasons stated above, we affirm the trial court’s judgment.

LISA J. SOTO, Justice

November 24, 2025

Before Salas Mendoza C.J., Palafox and Soto, JJ.

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