Tommy Parker, Jr. v. Mary Martha Parrack

Affirmed in Part, Vacated and Dismissed in Part, and Memorandum Opinion
filed June 4, 2026

In The

Fifteenth Court of Appeals

NO. 15-25-00075-CV

TOMMY PARKER, JR., Appellant
V.

MARY MARTHA PARRACK, Appellee

On Appeal from the 12th District Court
Madison County, Texas
Trial Court Cause No. 18-16110

MEMORANDUM OPINION
This appeal concerns a dispute between siblings over the ownership of certain
rights to 780 acres of land: 100% of the surface rights and 25% of the mineral rights.1
Tommy Parker, Jr. (“Tommy”) sued his sister, Mary Martha Parrack (“Mary
Martha”) to invalidate a 2011 deed purportedly showing that he conveyed his share
of the executive rights and the right to receive bonuses from the 780 acres to Mary

1
We refer to the disputed rights collectively as “the 780 acres.”
Martha and to establish that he still owns half of the 780 acres of the surface. A jury
found that she did not breach her fiduciary duty to him in connection with that
conveyance and that nonparty Parrack Ranch Ltd. owns all surface rights in the 780
acres. We affirm in part and vacate and dismiss in part.

BACKGROUND
The parties’ grandparents, Jim and Willie Lee Baker, owned almost 5,000
acres of ranchland near Madisonville. In 1983, the Bakers put some of that land in
trust for their daughter, Linda Westmoreland. The Bakers appointed Westmoreland
sole trustee and directed that the trust property be divided between Tommy and Mary
Martha after her death.
To avoid gift tax consequences, the Bakers transferred small interests in the
ranch into the trust every year. Jim Baker died in 1993, and Willie Lee died in 2001.
By the time of Willie Lee’s death, the Trust owned the 780 acres—a 447-acre tract
and 339-acre tract.2 The Bakers had also transferred various property to Tommy,
including the surface rights to a separate tract called the “Garrett Place.” In 2000,
Tommy’s aunts assigned him the executive mineral rights to the Garrett Place.
In 2002, Westmoreland conveyed the Trust’s surface rights in the 447 acres
to Mary Martha (“2002 Deed”), who had previously built a house there with her
husband, Kevin Parrack Sr. According to Mary Martha, her mother said “rather than
survey that little off, I will give you the whole tract because it is going to be yours
anyway.” Mary Martha and her husband subsequently added fencing, cattle guards,
built additional structures, and raised crops on the land.
Shortly after Westmoreland died in 2011, Tommy signed a deed giving Mary
Martha all his executive and bonus rights in the 780 acres (“2011 Deed”). After

2
The tract the parties refer to as “the 339 acres” is really 333 acres.

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recording the deed, Mary Martha signed several mineral leases for the 780 acres.
When Mary Martha received bonus money from Burk Royalty, she celebrated and
“felt like [Tommy] celebrated with me.”
In December 2012, Mary Martha executed a deed conveying all her interests
in the 339-acre tract to the Parrack Brothers Family Limited Partnership. Through a
series of deeds signed in July 2015, the Parracks and various entities controlled by
them conveyed all the surface rights in the 780 acres to Parrack Ranch, Ltd, a limited
liability company. The general partner of Parrack Ranch Ltd. is a limited liability
company controlled by Mary Martha’s husband.
Tommy Parker sued his sister in 2018 seeking declarations that the 2002 Deed
to Mary Martha from their mother and the 2011 Deed to Mary Martha from him are
void and that Tommy and Mary Martha each own “all surface interest and one-
quarter of the mineral interests” in the 780 acres, as well as a judgment for 50% of
the funds Mary Martha received from any bonus payments after the 2011 Deed.
Mary Martha answered and asserted the affirmative defenses of waiver and statute
of limitations and objected that Tommy had failed to join all parties with rights in
the 780 acres. She also sought counter-declarations that Parrack Ranch, Ltd owns all
legal and equitable rights to the 780 acres; that the 2011 Deed validly conveyed
Tommy’s mineral and other executive rights to her; and that she is entitled to retain
all bonus payments, rents, and royalties related to the 780 acres that she received
since 2011.
The parties tried the case to a jury over four days in November 2024. After
Tommy rested, the trial court granted a directed verdict on his claim to invalidate
the 2002 Deed. At the conclusion of the trial, the jury rejected all of Tommy’s claims
and found, as relevant here, that Mary Martha owes a fiduciary duty to Tommy, that
she did not breach the duty with respect to the 2011 Deed, and that nonparty Parrack
Ranch Ltd. held the 339 acres in adverse possession for at least five years. The trial
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court accordingly rendered judgment that nonparty Parrack Ranch Ltd. owns all
legal and equitable rights in the surface of the 780 acres, that the 2011 Deed is valid,
and that Mary Martha is entitled to keep the bonus payments she received.
Tommy filed a motion for new trial challenging the legal and factual
sufficiency of the evidence. The motion was overruled by operation of law, and this
appeal followed.3

DISCUSSION
Tommy argues that there is legally and factually insufficient evidence to
support the jury’s finding that Mary Martha did not breach her fiduciary duty and
that Parrack Ranch, Ltd., acquired the 339 acres through adverse possession.
No Breach of Fiduciary Duty
The elements of a cause of action for breach of fiduciary duty are: (1) the
existence of a fiduciary duty, (2) breach of the duty, (3) causation, and (4) damages.4
Neither party challenges the jury’s finding that Mary Martha owed fiduciary duties
to Tommy. A presumption of unfairness applies to transactions between a fiduciary
and a party to whom he owes a duty of disclosure, and the burden is on the fiduciary
to show the fairness of the transaction.5
A party without the burden of proof challenging the legal sufficiency of an
adverse finding must demonstrate that no evidence supports the jury’s finding.6 We

3
The Supreme Court ordered the Tenth Court of Appeals to transfer this case to us for
docket-equalization purposes. We are unaware of any conflict between the Tenth Court’s
precedent and our own. See TEX. R. APP. P. 41.3 (“[T]he court of appeals to which the case is
transferred must decide the case in accordance with the precedent of the transferor court.”).
4
First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017).
5
See Austin Tr. Co. as Tr. of Bob & Elizabeth Lanier Descendants Trs. for Robert Clayton
Lanier, Jr. v. Houren, 664 S.W.3d 35, 45 n.11 (Tex. 2023); Tex. Bank & Tr. Co. v. Moore, 595
S.W.2d 502, 507–08 (Tex. 1980).
6
Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014); see Albert v. Fort
Worth & W. R.R. Co., 690 S.W.3d 92, 97 (Tex. 2024).

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will sustain a no-evidence point if: (a) there is a complete absence of evidence of a
vital fact, (b) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a
vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes
the opposite of the vital fact.”7 In reviewing for legal sufficiency, we “credit
favorable evidence if reasonable jurors could, and disregard contrary evidence
unless reasonable jurors could not.”8
But in reviewing for factual sufficiency, we consider and weigh all the
evidence.9 When a party without the burden of proof challenges the factual
sufficiency of an adverse finding, we will set aside the finding only if it is so against
the great “weight and preponderance [of the evidence] as to be manifestly unjust,
shock the conscience, or clearly demonstrate bias.”10
We evaluate the sufficiency of the evidence based on the jury charge as neither
party objected to it.11 Question 18 provides:
In regard to the transaction represented by the August 18, 2011 Special
Warranty Deed, did Mary Martha Parrack fail to comply with her
fiduciary duty to Tommy Parker, Jr.?

Because a relationship of trust and confidence existed between them,
on August 18, 2011 as a fiduciary to Tommy Parker, Jr., Mary Martha
Parrack owed Tommy Parker, Jr. a fiduciary duty. To prove she
complied with her fiduciary duty, Mary Martha Parrack must show by
a preponderance of the evidence that:

7
Lozada v. Posada, 718 S.W.3d 262, 266 (Tex. 2025).
8
Werner Enters. v. Blake, 719 S.W.3d 525, 533 (Tex. 2025).
9
See Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019); Ortiz v. Jones, 917 S.W.2d 770,
772 (Tex. 1996).
10
Windrum, 581 S.W.3d at 782 (internal quotation marks omitted).
11
See Mem’l Hermann Health Sys. v. Gomez, 649 S.W.3d 415, 426 n.32 (Tex. 2022) (“[I]t is
the court’s charge ... that measures the sufficiency of the evidence when the opposing party fails
to object to the charge.”).

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1. The transaction in question was fair and equitable to Tommy Parker Jr.;
and

2. Mary Martha Parrack made reasonable use of the confidence that
Tommy Parker, Jr. placed in her; and

3. Mary Martha Parrack acted in the utmost good faith and exercised the
most scrupulous honesty toward Tommy Parker. Jr.; and

4. Mary Martha Parrack placed the interests of Tommy Parker. Jr. before
her own and did not use the advantage of her position to gain any benefit
for herself at the expense of Tommy Parker, Jr.; and

5. Mary Martha Parrack fully and fairly disclosed all important
information to Tommy Parker, Jr. concerning the transaction.

The testimony of Tommy and Mary Martha paint conflicting pictures of the
execution of the 2011 Deed. Tommy testified that on one of his frequent visits to
Mary Martha’s house, she gave him a piece of paper and asked him to sign it.
According to Tommy, Mary Martha said she needed his signature “so that the oil
company will give [Mary Martha] all … the bonus money” from the 780 acres “to
pay [Westmoreland’s] bills, expenses, and taxes.” Tommy testified that he replied:
“Okay. I will do it one time. I will give you the money one time” and signed the
document. The document Tommy signed at Mary Martha’s house is not in the
record. However, Tommy later signed the 2011 Deed at Farris Insurance Company
in the presence of Mary Martha and a notary, Cindy Starns. Before signing it, he
says he voiced his understanding that he was making a one-time conveyance of his
bonus rights, and that Mary Martha did not correct him at that time.
Mary Martha gave a different version of events in her deposition, parts of
which were read into the record because she died before trial.12 In her telling, the

12
Parrack’s son and executor, Kevin Parrack, Jr. continued the suit. See TEX. R. CIV. P. 151.

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only time Tommy signed any document conveying his rights was at Farris Insurance.
She confirmed that she asked him to give her his rights in the 780 acres because she
“needed the money” for expenses related to Westmoreland’s estate. Both parties
considered the arrangement fair because Tommy had received all the lease money
and executive rights from the Garrett Place years earlier. Mary Martha denied any
intent to deceive Tommy and, in fact, made sure that he understood the terms of the
agreement. She later received a substantial bonus payment and felt that Tommy
“celebrated with [her].” She was not aware that Tommy felt that she deceived him
until just before he sued her.
Two witnesses supported her testimony. Mary Martha’s husband testified that
he was present during the signing because he rented an office in the same building.
Tommy indicated in conversation that he understood that he was conveying the
executive rights and bonus interest “for all time.” The notary, Cindy Starns,
confirmed that she notarized the 2011 Deed. She remembered Tommy because it
was the only time he asked her to notarize a document. Starns testified that she
always asks the person appearing before her to read the document in front of her and
affirm their understanding of it.
When evidence conflicts, it is the jury’s responsibility “to evaluate the
credibility of the witnesses and reconcile any inconsistencies,” and it may “believe
all or any part of the testimony of any witness and disregard all or any part of the
testimony of any witness.”13 The jury apparently credited Mary Martha’s version,
and we must defer to that reasonable decision.14 Considering the record in that light,
there was legally sufficient evidence that Tommy knew he was transferring his rights
in the 780 acres to Mary Martha and believed that doing so would be fair given that

13
Anderson v. Durant, 550 S.W.3d 605, 616 (Tex. 2018).
14
See City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005) (reviewing court must defer
to jury’s reasonable determinations on the credibility of witnesses).

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he had already received similar rights in the Garrett Place. And the jury could
reasonably infer from the notary’s testimony that Tommy read the 2011 Deed in her
presence and affirmed to her that he understood it.15 Applying the appropriate
standard, we conclude that the jury could reasonably find that Mary Martha proved
all five elements by a preponderance of the evidence.
In reviewing for factual sufficiency, we also consider the contrary evidence.
Texas courts have identified four “important considerations” in assessing the
fairness of the transaction: “whether (1) there was full disclosure, (2) the
consideration was adequate, (3) the party to whom the fiduciary duty is owed had
the benefit of independent advice, and (4) the fiduciary benefited at the other’s
expense.”16 Tommy argues that all but one of the considerations support a finding
that the transaction was unfair: he received no consideration, he did not have the
benefit of independent advice, and Mary Martha significantly benefited from the
transaction.17 But there was no consideration because, on the facts determined by the
jury, the 2011 Deed was intended as a gift.18 A gift from the principal to a fiduciary
is permissible if it meets the same “fair and reasonable” standard as an exchange for
value.19 And while the benefit of independent advice is an important consideration

15
In re C.E., 687 S.W.3d 304, 308 (Tex. 2024) (jury may “draw reasonable inferences from
basic facts to ultimate facts”).
16
Hrdy v. Second St. Props. LLC, 649 S.W.3d 522, 539 (Tex. App.—Houston [1st Dist.]
2022, pet. denied).
17
Tommy also argues that whether Mary Martha made full disclosure is “disputed.” But the
jury resolved that dispute in her favor, and we may not substitute our judgment. See In re
Commitment of Stoddard, 619 S.W.3d 665, 677 n.12 (Tex. 2020) (explaining that even under
factual sufficiency review, the jury “remains the sole judge of witnesses’ credibility and the weight
to be given their testimony”).
18
See Haile v. Holtzclaw, 414 S.W.2d 916, 927 (Tex. 1967) (transfer of property without
consideration constituted gift); York v. Boatman, 487 S.W.3d 635, 642 (Tex. App.—Texarkana
2016, no pet.) (“The elements of a valid gift by deed are: (1) donative intent, (2) delivery of the
property, and (3) acceptance of the property.”).
19
See, e.g., Musquiz v. Keesee, 2017 WL 4341463, at *7 (Tex. App.—Amarillo Sept. 28,
8
in determining the fairness of a transaction,20 its absence is not always dispositive.
Considering this contrary evidence together with the supporting evidence detailed
above, we conclude that the jury’s finding that Mary Martha did not breach her
fiduciary duty was not so contrary to the overwhelming weight of the evidence as to
be clearly wrong and unjust.
Adverse Possession of the 339 acres
Turning to the adverse-possession finding, the jury found that Parrack Ranch,
Ltd., a nonparty, held the 339 acres in adverse possession for at least five years. The
trial court, in turn, declared that Parrack Ranch owns all legal and equitable rights in
the surface of the 780 acres. Tommy argues that there is legally and factually
insufficient evidence that Parrack Ranch held the 339 acres in adverse possession.
But Parrack Ranch is not a party to this case. Rule 39 provides that a person
“shall be joined” as a party if “in his absence complete relief cannot be accorded
among those already parties.”21 Mary Martha objected in her answer that Tommy
failed to sue all necessary parties because “persons other than” the siblings “have an
interest” in the 780 acres, and sought a declaration that Parrack Ranch, Ltd. owned
“all legal and equitable rights, title and interest,” but no one bothered to join or
appear by pleadings or at trial for that entity.22
A substantial part of the trial involved competing claims as to whether the
Parrack’s activities regarding the ranch were sufficient to oust a co-tenant like
Tommy by adverse possession.23 But rendering judgment for or against a nonparty

2017, pet. denied); Estate of Townes v. Townes, 867 S.W.2d 414, 417 (Tex. App.—Houston [14th
Dist.] 1993, writ denied).
20
Hrdy, 649 S.W.3d at 547.
21
TEX. R. CIV. P. 39(a)(1). Rule 39 applies in declaratory-judgment proceedings. See In re
Kappmeyer, 668 S.W.3d 651, 655 (Tex. 2023).
22
She did not mention Parrack Ranch, Ltd. or seek to join it as a party.
23
BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 70 (Tex. 2011) (“In an adverse possession
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implicates the trial court’s jurisdiction,24 which we may consider for the first time
on appeal even if no party has questioned it.25 A declaratory judgment is appropriate
when a real controversy exists “as to the rights and status of parties actually before
the court for adjudication.”26 A judicial decision without a real controversy is an
advisory opinion,27 which Texas courts lack jurisdiction to issue.28 Because Parrack
Ranch is not a party to this case, the trial court lacked jurisdiction to declare its rights
as to the 339 acres or the entire 780 acres. Consequently, the portions of the judgment
declaring that Parrack Ranch held the 339 acres in adverse possession and so owns
all the surface rights to the 780 acres are “purely advisory.”29

CONCLUSION
We vacate the trial court’s judgment as to Parrack Ranch’s ownership of the
780 acres for want of jurisdiction. The judgment is otherwise affirmed.

/s/ Scott A. Brister
Scott A. Brister
Chief Justice

claim between cotenants, the proponent must prove ouster—unequivocal, unmistakable, and
hostile acts the possessor took to disseize other cotenants.”).
24
Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004) (denying declaratory
judgment as to rights of homeowners not joined in the lawsuit as any opinion interpreting their
rights “would be purely advisory”).
25
1 Coventry Court, LLC v. Downs of Hillcrest Residential Ass’n, 728 S.W.3d 711, 712 (Tex.
2026).
26
Brooks, 141 S.W.3d at 163–64 (emphasis added); see Allstate Ins. Co. v. Irwin, 627 S.W.3d
263, 269 (Tex. 2021) (“A declaratory judgment is therefore appropriate when a real controversy
exists between the parties.” (emphasis added)).
27
Brooks, 141 S.W.3d at 164.
28
Tex. Dep’t of Fam. & Protective Servs. v. Grassroots Leadership, Inc., 717 S.W.3d 854,
862 (Tex. 2025).
29
See Brooks, 141 S.W.3d at 163–64.

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Before Chief Justice Brister and Justices Field and Farris.

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