Ivarene and Victor Hosek v. Rosale Scott ( 2015 )

ACCEPTED
04-14-00655-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/28/2015 1:43:34 PM
KEITH HOTTLE
CLERK
NO. 04-14-00655-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
FOURTH COURT OF APPEALS DISTRICT
04/28/2015 1:43:34 PM
SAN ANTONIO, TEXAS KEITH E. HOTTLE
Clerk
IVARENE HOSEK AND VICTOR HOSEK,
Appellants
V.
ROSALE SCOTT,
Appellee
Appealed from the 81st Judicial District Court
of Atascosa County, Texas, Honorable Fred Shannon, Presiding
APPELLEE’S BRIEF
G. WADE CALDWELL
State Bar No. 03621020
Email: gcaldwell@beclaw.com
RAQUEL G. PEREZ
State Bar No. 00784746
Email: rperez@beclaw.com
BARTON, EAST & CALDWELL, PLLC
One Riverwalk Place, Suite 1825
700 North St. Mary’s Street
San Antonio, TX 78205
Telephone: (210) 225-1655
Facsimile: (210) 225-8999
ATTORNEYS FOR APPELLEE
ROSALE SCOTT
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................i
INDEX OF AUTHORITIES.....................................................................................iv
INDEX OF RECORD CITE ABBREVIATIONS ................................................ viii
STATEMENT OF THE CASE .................................................................................ix
STATEMENT ON ORAL ARGUMENT ................................................................. x
ISSUES PRESENTED...............................................................................................x
I. INTRODUCTION ............................................................................................1
II. STATEMENT OF FACTS...............................................................................2
A. The Relevant Tracts of Property ........................................................... 5
B. Conveyance of Voigt Tract to Appellants and Appellee ...................... 6
C. Partition of Surface and Agreement Not to Partition Minerals in
Partition Deed ........................................................................................6
D. Scott Deeds the 38.5 Acre Tract to the Appellants ............................... 7
E. Scott Sells the Morales Tract ................................................................ 8
F. Scott Sells the King Tract...................................................................... 8
G. Procedural History................................................................................. 8
H. The Court Granted Appellee Attorneys’ Fees....................................... 9
III. SUMMARY OF THE ARGUMENT.............................................................10
IV. STANDARD OF REVIEW ...........................................................................12
[i]
A. Standard of Review Applicable to Granting of Summary Judgment
(Appellants’ First and Second Issues) .................................................12
B. Standard of Review Applicable to Awarding of Attorneys’ Fees
(Appellants’ Third Issue) ....................................................................13
C. Standard of Review Applicable to Awarding of Costs (Appellants’
Fourth Issue) ........................................................................................13
V. ARGUMENT .................................................................................................13
A. The Granting of Summary Judgment Was Not Error .........................13
1. Appellants Failed to Plead Ambiguity ......................................13
2. Law Applicable to Deed Interpretation ....................................14
a. If a Court Determines a Deed is Not Ambiguous, It Will
Construe It As a Matter of Law ...........................................14
b. Conflicting Interpretations by the Parties Do Not Create
Ambiguity ............................................................................15
c. The Court is Required to Determine the Parties’ Intent
From the Language in the Deed Not From Parol
Evidence...............................................................................16
3. The Trial Court Correctly Determined That the Deed was
Unambiguous and Construed the Deed as Matter of Law ........ 17
a. The First Clause in the Sentence Expressly Reserved the Oil,
Gas and Other Minerals From the Partition.........................17
b. The Second Clause of the Sentence Evidences an Agreement
Not to Partition the Minerals For a Specified Period of Time
in the Future .........................................................................18
c. The Deed was Unambiguous and the Interpretation Makes
Sense ....................................................................................20
[ii]
4. Parol Evidence is Not Admissible Because the Deed is Not
Ambiguous ................................................................................22
5. The Evidence Offered by Appellants is Incompetent and Does
Not Create a Fact Issue .............................................................23
a. Affidavit of Allen D. Cummings is Incompetent and Does
Not Create Fact Issue..........................................................23
b. Affidavit of Ivarene Hosek .................................................24
c. The Letter Offered by Appellants is Incompetent .............. 26
d. The Deposition Excerpts of Appellee Are Incompetent .... 26
6. Appellants Have Waived All Arguments That Were Not
Asserted In Response to Appellee’s Summary Judgment
Motion .......................................................................................26
B. The Trial Court Did Not Abuse Its Discretion When It Awarded
Attorneys’ Fees....................................................................................30
C. The Trial Court Did Not Abuse Its Discretion on the Issue of Costs . 32
VI. CONCLUSION ..............................................................................................35
VII. PRAYER ...................................................................................................35
CERTIFICATE OF COMPLIANCE .......................................................................36
CERTIFICATE OF SERVICE ................................................................................37
APPENDIX ...................................................................................................38
[iii]
INDEX OF AUTHORITIES
Cases
Alvarado v. State,
912 S.W.2d 199 (Tex.Crim.App. 1995) .................................................................. 3
Bavishi v. Sterling Air Condition, Inc.,
2011 Tex.App. LEXIS 6271 (Tex.App.—Houston [1st Dist.] 2011, no pet.) ....... 25
Bocquet v. Herring,
972 S.W.2d 19 (Tex. 1998) .................................................................................... 30
Bowers v. Taylor,
263 S.W.3d 260 (Tex.App.—Houston [1st Dist.] 2007, no pet.) ........................... 12
Christus Health & Christus Health Gulf Coast v. Dorriety,
345 S.W.3d 104 (Tex.App.—Houston [14th Dist.] 2011, pet. denied) ..............13, 32
City of Temple v. Taylor,
268 S.W.3d 852 (Tex.App.—Austin 2008, pet. denied) .............................13, 30, 31
Columbia Gas Trans. Corp. v. New Ulm Gas,
940 S.W.2d 587 (Tex. 1996).................................................................................. 15
Crozier v. Horne Children Maint. and Educ. Trust,
597 S.W.2d 418 (Tex.App.—San Antonio 1980, writ ref’d, n.r.e.) ............14, 17, 21
Dimock v. Kadane,
100 S.W.3d 622 (Tex.App.—Eastland 2003, pet. denied) .................................... 19
Double Diamond, Inc. v. Saturn,
339 S.W.3d 337 (Tex.App.—Dallas 2011, pet. denied) ........................................ 31
Dubose v. Worker’s Medical P.A.,
117 S.W.3d 916 (Tex.App.—Houston [14th Dist.] 2003, no pet.) ......................... 27
Fisher v. Wynn,
2011 Tex.App. Lexis 6031 (Tex.App. Tyler Aug. 3, 2011, no pet.) ..................... 16
[iv]
Frost Nat’l Bank v. L&F Distribs., Ltd.,
165 S.W.3d 310 (Tex. 2005).................................................................................. 16
GuideOne Elite Ins. v. Fielder Rd. Baptist Ch.,
197 S.W.3d 305 (Tex. 2006).................................................................................. 30
Henson v. Southwest Airlines Co.,
180 S.W.3d 841 (Tex.App.—Dallas 2005, pet. denied) ........................................ 12
Heritage Res., Inc. v. NationsBank,
939 S.W.2d 118 (Tex. 1996).................................................................................. 14
Hot-Hed, Inc. v. Safehouse Habitats (Scotland), Ltd.,
333 S.W.3d 719 (Tex.App.—Houston [1st Dist.] 2010, pet. denied) ..........13, 32, 34
KPMG Peat Marwick v. Harrison County Hous. Fin.,
988 S.W.2d 746 (Tex. 1999).................................................................................. 12
Laidlaw Waste Sys. v. City of Wilmer,
904 S.W.2d 656 (Tex. 1995).................................................................................... 5
Lawton v. State,
913 S.W.2d 542 (Tex.Crim.App. 1995) .................................................................. 3
Lichtenstein v. Lichtenstein Bldg. Corp.,
442 S.W.2d 765 (Tex.Civ.App.—Corpus Christi 1969, no writ) .......................... 19
Long v. Hitzelberger,
602 S.W.2d 321 (Tex.App.—Eastland 1980, no writ) .......................................... 19
Luckel v. White,
819 S.W.2d 459 (Tex. 1991)........................................................................16, 17, 21
MCEN 1996 Pshp v. Glassell,
42 S.W.3d 262 (Tex.App.—Corpus Christi 2001, pet. denied) ............................ 19
Mega Child Care, Inc. v. Texas Dep’t of Protective & Regulatory Servs.,
29 S.W.3d 303 (Tex.App.—Houston [14th Dist.] 2000, no pet.) ........................... 24
[v]
Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc.,
907 S.W.2d 517 (Tex. 1995).................................................................................. 23
Nawas v. R&S Vending,
920 S.W.2d 734 (Tex.App.—Houston [1st Dist.] 1996, no writ) ............................ 3
Omohundro v. Ramirez-Justus,
392 S.W.3d 218 (Tex.App.—El Paso 2012, pet. denied) ........................................ 3
PYR Energy Corp. Samson Res. Co.,
456 F. Supp. 2d 786 (E.D. Tex. 2006) ..................................................................... 18
Roehrs v. FSI Holdings, Inc.,
246 S.W.3d 796 (Tex.App.—Dallas 2008, pet. denied) ........................................ 12
Ryland Grp. v. Hood,
924 S.W.2d 120, 122 (Tex. 1996).......................................................................... 25
SAS Inst., Inc. v. Breitenfeld,
167 S.W.3d 840 (Tex. 2005)..............................................................................15, 23
Security Development Co. v. Hidalgo County Drainage Dist. No. 1,
124 S.W.2d 178 (Tex.Civ.App.—Amarillo 1938, no writ) ................................... 18
Slavens v. James,
229 S.W. 317 (Tex. Comm’n App. 1921, judgm’t adopted) ................................. 16
State v. Kirkpatrick,
299 S.W.2d 394 (Tex.Civ.App.—Dallas 1957,
writ ref’d n.r.e.) ...................................................................................................... 19
Stradt v. First United Methodist Church,
573 S.W.2d 186 (Tex. 1978).................................................................................. 19
Tello v. Bank One, N.A.,
218 S.W.3d 109 (Tex.App.—Houston [14th Dist.] 2007, no pet.) ......................... 27
Terrill v. Tuckness,
985 S.W.2d 97 (Tex.App.—San Antonio 1998, no pet.)....................................... 14
[vi]
Universal C.I.T. Credit Corp. v. Daniel,
243 S.W.2d 154 (Tex. 1951).................................................................................. 15
Warner v. Winn,
191 S.W.2d 747, 751 (Tex.Civ.App.—San Antonio 1945, writ ref’d n.r.e.) ........ 19
Welder v. Welder,
794 S.W.2d 420 (Tex.App.—Corpus Christi 1990, no writ)................................. 24
Western Invs., Inc. v. Urena,
162 S.W.3d 547 (Tex. 2005).................................................................................. 12
World Help v. Leisure Lifestyles, Inc.,
977 S.W.2d 662 (Tex.App.—Fort Worth 1998, pet. denied) ................................ 14
Statutes and Rules
Tex. R. App. P. 34.5(b)(1) ..................................................................................... 33
Tex. R. App. P. 38.1(e) ........................................................................................... x
Tex. R. App. P. 38.1(g) ........................................................................................... 3
Tex. R. App. P. 38.2(a)(1)(B) ............................................................................ ix, 5
Tex. R. App. P. 39.1................................................................................................. x
Tex. R. Civ. P. 94 ................................................................................................... 14
Tex. R. Civ. P. 166a(c) .....................................................................................12, 27
Tex. R. Civ. Prac. & Rem. Code §37.009.............................................................. 30
Tex. R. Evid. 702 ................................................................................................... 24
[vii]
INDEX OF RECORD CITE ABBREVIATIONS
Abbreviation Reference
Appellant App. ___ Appendix to Appellant’s Brief.
Appellee App. ___ Appendix to Appellee’s Brief.
CR ___ Clerk’s Record filed October 22, 2014.
Supp. CR ___ Supplemental Clerk’s Record filed January 21, 2015.
RR ___ Reporter’s Record on motion for Attorneys Fees refiled
on December 29, 2014 with color exhibits (originally
filed on December 24, 2014 with black and white
exhibits).
[viii]
STATEMENT OF THE CASE
Pursuant to Rule 38.2(a)(1)(B), T.R.A.P., Appellee Scott disagrees with the
Statement of the Case submitted by Appellants and therefore submits the following
Statement of the Case:
Trial Court: This case was filed by Appellants as a
declaratory judgment action under Texas
Civil Practice and Remedies Code § 37.001
et seq. (CR 1-5). Appellants requested the
court to declare that they owned one
hundred percent of the minerals under a tract
of property in Atascosa County. (CR 75-
77). Judge Fred Shannon granted partial
summary judgment in favor of Appellee.
(CR 147-149). Appellee filed a motion for
attorneys’ fees. (CR 152-200). A hearing
was held on the issue of attorneys’ fees, (RR
1-60 & exh 1, 2 and 3) 1, after which the
Court awarded Appellee attorneys’ fees of
$39,500, plus conditional fees on appeal.
(CR 216-217). Final Judgment was issued
on June 19, 2014. (CR 210-215).
Post-trial and appeal Appellants requested Finding of Facts and
Conclusions of Law. (CR 227). Appellants
filed a Motion for New Trial. (CR 248-
250). The Court issued Findings of Fact and
Conclusions of Law. (CR 405-412).
Appellants filed a Notice of Appeal on
September 22, 2014. (CR 415).
1
The Reporter’s Record also includes Exhibits 1 (Affidavit with exhibits); 2 (attorneys’ fees
chart); and 3 (Resume) that were introduced at the hearing.
[ix]
STATEMENT ON ORAL ARGUMENT
The Court should grant oral argument because oral argument would
significantly aid the Court in deciding this case. See Tex. R. App. P. 38.1(e), 39.1.
Appellants’ brief raises several theories and factual allegations in an attempt to
complicate the case and obtain a reversal. Oral argument would aid the Court
because it would permit the parties to focus on the relevant issues and answer
questions regarding the language in the partition deed.
ISSUES PRESENTED
Reply to Issue Nos. 1 and 2: The trial court did not err when it granted summary
judgment because the Partition Deed was not ambiguous and parol evidence was
not admissible. The sentence in the Deed contained two separate and independent
clauses. The first clause clearly excluded the minerals from the partition. The
second clause restricted the parties’ ability to partition the minerals for 25 years or
so long as oil and gas were being produced. At the end of the twenty-five year
period, the parties regained their ability to partition. To the extent Appellants elect
to use the term reverter, the only thing that reverted back after twenty-five years
was the “ability” to partition. Furthermore, Appellants waived several of their
arguments as they were not included in their response to summary judgment.
Reply to Issue No. 3: The trial court did not abuse its discretion in awarding
attorneys’ fees because the awarding of fees was authorized under the Declaratory
Judgment Act and was equitable and just.
Reply to Issue No. 4: The trial court did not abuse its discretion on the issue of
costs because the court did not require Appellants to pay costs and the documents
designated by Appellee for inclusion in the record were reasonable.
[x]
NO. 04-14-00655-CV
IN THE COURT OF APPEALS
FOURTH COURT OF APPEALS DISTRICT
SAN ANTONIO, TEXAS
IVARENE HOSEK AND VICTOR HOSEK,
Appellants
V.
ROSALE SCOTT,
Appellee
Appealed from the 81st Judicial District Court
of Atascosa County, Texas, Honorable Fred Shannon, Presiding
APPELLEE’S BRIEF
Appellee, ROSALE SCOTT (“Scott”), responds to Appellant’s Opening
Brief (the “Brief”) as follows:
I. INTRODUCTION
This case is about the interpretation of a Partition Deed that could not be
clearer on one point – the minerals were not being partitioned. The trial court
granted summary judgment on the basis that the language was clear and interpreted
the Deed as a matter of law, holding that the Deed partitioned the surface but not
the minerals. The Appellants argue the Deed is ambiguous when it clearly states:
[1]
This partition does not include any of the oil, gas and other
minerals in, on, or under the above-described tracts of land, and
same are to remain undivided for a period of twenty-five (25) years
from the date hereof and as long thereafter as oil, gas, or other
minerals are produced in paying quantities from the above described
lands.
(CR 74-75) (Appellee App. Tab C) (emphasis added).
In addition to excluding the minerals from the partition, the parties agreed
that they would not thereafter partition the minerals for twenty-five years and so
long thereafter as oil, gas and other minerals are performed in paying quantities.
After this twenty-five year period expired, if no oil, gas or other minerals were
being produced, then the restriction on the parties’ ability to partition was lifted
and the parties could partition the minerals or choose to leave them undivided.
Appellants make a flailing attempt to argue unfairness and introduce parol
evidence, most of which was untimely. There is no unfairness. Appellants own
half the minerals on the land they received the surface of, and can pursue their
claim to half the minerals on the land Ms. Scott sold. Appellants’ attempts to grab
more minerals should be rejected.
II. STATEMENT OF FACTS
Appellee does not agree that Appellants’ Statement of Facts is accurate or
complete. Appellee objects to the Appellants’ Statement of Facts because it
contains conclusory, inaccurate, argumentative, unsupported allegations. The
Court should disregard all alleged facts by Appellants for which there is no support
[2]
in the record and for which they failed to cite the record. “A party asserting error
on appeal bears the burden of showing that the record supports the contention
raised and of specifying the place in the record where matters upon which it relies
or of which it complains are shown.” Omohundro v. Ramirez-Justus, 392 S.W.3d
218, 221 (Tex.App.--El Paso 2012, pet. denied). (citations omitted). When
appellate issues are unsupported by argument or lack citation to the record or legal
authority, nothing is presented for review. Id. (citations omitted). A court is not
required to sift through the record in search of facts supporting a party’s position.
Tex. R. App. P. 38.1(g); Lawton v. State, 913 S.W.2d 542, 554 (Tex.Crim.App.
1995) (when a party does not refer the appellate court to the precise pages in the
record where the error allegedly occurred, the appellate court may properly
overrule the issue as inadequately briefed); Alvarado v. State, 912 S.W.2d 199, 210
(Tex. Crim. App. 1995) (it is not an appellate court’s task to review the record in
an attempt to verify appellant’s claims); Nawas v. R & S Vending, 920 S.W.2d 734,
737 (Tex.App.–Houston [1st Dist.] 1996, no writ) (appellate brief must include a
fair, condensed statement of facts pertinent to the points of error raised with
references to pages in record where facts may be found).
Appellants’ Statement of Facts is riddled with alleged facts that are not
supported with citation to the record or contain citations to the record that are
incorrect. For example, the Statement of Facts asserts that an “ambiguity” of the
[3]
Deed caused a landman to send a quit claim Deed to Ms. Scott. (Appellants’ Brief
at p. 2). Appellants have cited no support in the record as to the wholly speculative
reasons of what allegedly caused a landman to send a quit claim deed to Ms. Scott.
(Id.) The Statement of Facts also asserts, “. . . but up until the quit claim deed, the
parties treated the minerals in similar fashion. (Appellants’ Brief at p. 2). This
statement, as well as the sentence before it, contain no citation to the record. (See
Id.). The Statement of Facts also asserts “. . . all parties have treated the minerals
as reverting to the surface owner.” (Appellants’ Brief at p. 3). This is an
unsupported opinion with no citation to the record. The Statement of Facts also
states that the buyers paid Ms. Scott, not Ms. Hosek for the minerals, citing
Supplemental Clerk Record at p. 50. (Appellants’ Brief at p. 3). The citation to
the record does not support the allegations. (See Id.). The Statement of Facts also
states that Ms. Scott asked the Hoseks to ignore the agreement not to partition
before the twenty-five years were up so that she could please her buyer.
(Appellants’ Brief at p. 3, citing the Supplemental Clerk’s Record at pp. 73-76).
The record cite, however, in no way supports the statement. See Id. Additionally,
the Statement of Facts asserts, “only when oil was found. . . did Ms. Scott make
her claim,” again citing the Supplemental Record at pp. 73-76. (Appellants’ Brief
at p. 3). Yet again, the citation to the record does not support the allegation. Based
on the authorities above, all of these alleged facts should be disregarded by the
[4]
Court.
Appellants also cite to their own pleadings in the Statement of Facts, by
citing to the supplemental clerk’s record at p. 45. (Appellants’ Brief at pp. 1-2).
As a general rule, pleadings are not summary judgment evidence and therefore any
attempts by Appellants to use their own pleadings as summary judgment evidence
should be disregarded. See Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656,
660 (Tex. 1995).
Pursuant to Tex. R. App. P. 38.2(a)(1)(B), Appellee presents a corrected
Statement of Facts.
A. The Relevant Tracts of Property.
For ease of reference below, Appellee will refer to the different tracts within
the properties at issue as follows:
a. The initial 338.4 acre tract of land, described in the Warranty
Deed, that was conveyed to Appellants and Appellee by their
parents, Fridolin Alex and Pearl Schnautz Voigt will be referred
to as the “Voigt Tract.”
b. The approximately 170 surface acres that Appellants received
when the parties partitioned the surface in the Partition Deed
will be referred to as the “Hosek Tract.”
c. The approximately 38 acres, described in the Hosek Deed, that
were initially received by Ms. Scott when the parties partitioned
land and later sold by Ms. Scott to Victor and Ivarene Hosek
shortly after the Partition Deed was executed will be referred to
as the “38-Acre Tract.”
d. The approximately 60 acres, described in the Morales Deed,
that were sold by Ms. Scott to Mr. and Mrs. Evaristo Morales,
[5]
will be referred to as the “Morales Tract.”
e. The approximately 70 acres, described in the King Deed, that
were sold by Ms. Scott to Mr. and Mrs. William W. King will
be referred to as the “King Tract.”
B. Conveyance of Voigt Tract to Appellants and Appellee.
Appellants, IVARENE HOSEK and husband VICTOR HOSEK, and
Appellee, ROSALE SCOTT, each received an undivided one-half interest in the
338.4 Voigt Tract from Ms. Scott’s and Ms. Hosek’s parents by Warranty Deed
dated October 4, 1978 and recorded at Vol. 491, Page 288 of the Real Property
Records of Atascosa County, Texas (the “Warranty Deed”). (CR 69-71).
C. Partition of Surface and Agreement Not to Partition Minerals in
Partition Deed.
Thereafter, Ms. Scott received approximately half of the undivided interest
in the surface of the Voigt Tract by the Deed of Partition from Victor Hosek and
Ivarene Hosek dated August 17, 1979 and filed of record in the Real Property
Records of Atascosa County, Texas at Vol. 510, Page 126 (the “Partition Deed”).
(CR 72-77) (Appellee App. Tab C). The Partition Deed expressly excluded the
minerals from the partition with the language in bold below:
This partition does not include any of the oil, gas and other
minerals in, on, or under the above-described tracts of land, and
same are to remain undivided for a period of twenty-five (25) years
from the date hereof and as long thereafter as oil, gas, or other
minerals are produced in paying quantities from the above described
lands.
[6]
(CR 74-75) (Appellee App. Tab C).
As is apparent, in the second part of the sentence quoted above, the parties
further agreed that they would not partition the land “for a period of twenty-five
(25) years . . . and as long thereafter as oil, gas, and other minerals are produced in
paying quantities. . .” (Id.)
Accordingly, the surface interest and mineral interests were severed from
each other, but the minerals under the Voigt Tract continued to be owned with a 50
percent undivided interest to Appellee and a 50 percent undivided interest to
Appellants. (Id.)
The minerals under the Voigt Tract have not been subsequently partitioned.
(See CR 211) (Appellee App. Tab D).
D. Scott Deeds the 38.5 Acre Tract to the Appellants.
Subsequent to the execution of the Partition Deed, Ms. Scott deeded to the
Appellants a 38.5 acre tract which had originally been apportioned to her pursuant
to the Partition Deed by Warranty Deed dated October 16, 1979 and filed of record
in the Real Property Records of Atascosa County, Texas at Vol 514, Page 107 (the
“Hosek Deed”). (CR 78-80). The Hosek Deed made specific reference to the
exclusion of all of the mineral rights reserved under the Partition Deed, but did not
reserve Ms. Scott’s 50% of the minerals under the 38.5 acre tract. Id.
[7]
E. Scott Sells the Morales Tract.
Subsequently, Ms. Scott sold and deeded to Evaristo Morales and his wife
Irene F. Morales approximately 60 acres (the “Morales Tract”) pursuant to a Cash
Warranty Deed dated March 4, 1986 and filed of record in the Real Property
Records of Atascosa County, Texas at Vol 745 Page 50 (the “Morales Deed”).
(CR 81-83). The Morales Deed made specific reference to the reservation
contained in the Partition Deed. (CR 81).
F. Scott’s Sells the King Tract.
Ms. Scott later sold to Mr. and Mrs. William W. King the remaining land,
approximately 70 acres (the “King Tract”) pursuant to a Warranty Deed with
Vendor’s Lien dated January 29, 1980 and filed of record in the Real Property
Records of Atascosa County, Texas at Vol 819, Page 135 (the “King Deed”). (CR
84-86). The King Deed made specific reference to the reservation in the Partition
Deed as well as a 20 year reservation of Rosale Scott’s one-half (1/2) mineral
interest. (CR 84-85).
G. Procedural History.
Appellants filed their Original Petition for Declaratory Judgment on or about
June 18, 2013 requesting that the trial court issue a judgment that Appellants own
one hundred percent of the minerals under their property. (CR 1-4). Appellee
filed an Answer, Counter-Claim and Plea in Abatement, which sought to require
[8]
Appellants to bring in the co-owners of the Morales Tract and King Tract into the
case, because if Ms. Scott was correct, Appellants owned half the minerals under
these tracts and would own claim to the minerals under the King and Morales
Tracts. (CR 6-11). Appellee’s Plea in Abatement was opposed by Appellants and
denied. (CR 29). After the parties conducted some discovery, Appellee filed
“Defendant’s Motion for Partial Summary Judgment (CR 57-68) along with
exhibits (CR 69-89) (Appellee App. Tab A). Appellants did not file a timely
response to the summary judgment motion and accordingly sought leave to file an
untimely response (CR 90-91), which was granted by the Honorable Fred Shannon.
(CR 145). Judge Shannon subsequently granted Appellee’s Motion for Partial
Summary Judgment (CR 147-149), issued a Final Judgment (CR 210-213)
(Appellee App. Tab D), granted Appellee Attorneys’ Fees (CR 211-212; 216-217),
issued Findings of Fact and Conclusions of Law (CR 405-412), and set a
supersedeas bond (CR 413-414). Appellants then filed a Notice of Appeal,
appealing the final judgment in this case (CR 415).
H. The Court Granted Appellee Attorneys’ Fees.
As noted above, Appellee filed a Motion for Attorneys’ Fees (CR 152-157)
along with exhibits (CR 158-200). Appellee requested $74,000.00 in attorneys’
fees for work performed in the trial court, plus costs. (CR 156). Appellee also
requested (a) $3,500.00 if a motion for new trial is necessary; (b) $30,000.00 in the
[9]
event any part of the judgment is appealed to the appropriate court of appeals and
Ms. Scott prevails; (c) $15,000.00 in the event any part of the judgment is appealed
to the Texas Supreme Court by Writ or Error and Scott prevails; and (d)
$25,000.00 should the petition for review be granted by the Texas Supreme Court
and Scott prevails. (CR 156).
The Court awarded Appellee substantially less, being $39,500.00 in
attorneys’ fees incurred through entry of judgment and setting of a supersedeas
bond, a conditional award of $2,500.00 in the event a new trial is sought,
$12,500.00 in the event of an appeal, $3,500.00 if appealed to the Texas Supreme
Court by Writ of Error and $12,500.00 should the Petition for Review be granted
by the Supreme Court. (CR 211-212; CR 216-217) (Appellee App. Tab D).
III. SUMMARY OF THE ARGUMENT
This case is about a Partition Deed that was clear and the trial court correctly
granted summary judgment and interpreted the Partition Deed as a matter of law.
The Appellants argue that one sentence in the Partition Deed was ambiguous, but
failed to plead ambiguity. Moreover, the sentence was clear. The first clause in
the sentence excluded the minerals from the partition. The second clause in the
sentence contained an agreement not to partition the minerals for 25 years or so
long as oil and gas were being produced. At the end of the twenty-five year
period, the parties regained their ability to partition or not. Appellants attempt to
[10]
rely on parol evidence to create an ambiguity but parol evidence is not admissible
and in any event does not create an ambiguity. Finally, Appellants waived many
of the arguments they assert in their brief because they were not included in their
response to the summary judgment motion.
The trial court did not abuse its discretion in awarding attorneys’ fees.
Attorneys’ fees were authorized under the Declaratory Judgment Act. The court
awarded approximately half of the fees requested by Appellee. Appellants’
argument that it is not equitable to award attorneys’ fees because both parties
needed the deed interpreted and therefore both parties caused the necessity of the
suit, is incorrect. Appellants caused the suit by filing it. Moreover, Appellants’
reasoning is flawed because under their reasoning, attorneys’ fees would never be
appropriate in a declaratory judgment action involving the interpretation of a deed
or contract since a dispute between the parties as to the meaning of the
contract/deed will always require interpretation.
The trial court did not abuse its discretion with respect to costs related to the
cost of the record on appeal. Appellants have not shown that Appellee improperly
increased costs. Moreover, the Appellants’ complaints about documents
designated to be included in the record lack merit. The documents requested were
reasonable and the trial court did not require Appellants to pay for the inclusion of
the documents in the record.
[11]
IV. STANDARD OF REVIEW
A. Standard of Review Applicable to Granting of Summary Judgment
(Appellant’s First and Second Issues).
Declaratory judgments rendered by summary judgment are reviewed under
the same standards that govern summary judgments generally. Bowers v. Taylor,
263 S.W.3d 260, 264 (Tex.App.—Houston [1st Dist.] 2007, no pet.). The standard
of review for summary judgments is de novo. Roehrs v. FSI Holdings, Inc., 246
S.W.3d 796, 805 (Tex.App.—Dallas 2008, pet. denied). An appellate court must
consider all grounds presented in the summary judgment motion and affirm if any
ground is meritorious. Id.
A summary judgment is properly granted when a movant establishes that
there are no genuine issues of material fact and that he is entitled to judgment as a
matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County
Hous. Fin., 988 S.W.2d 746, 748 (Tex. 1999). Further, the trial court properly
grants a traditional motion for summary judgment if the movant conclusively
disproves an essential element of its opponent’s claim. Henson v. Southwest
Airlines Co., 180 S.W.3d 841, 843 (Tex.App.—Dallas 2005, pet. denied). Like the
trial court, the appellate court must consider the evidence in the light most
favorable to the nonmovant. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550
(Tex. 2005).
[12]
B. Standard of Review Applicable to Awarding of Attorneys’ Fees
(Appellant’s Third Issue).
The standard of review for an award of attorneys’ fees on a declaratory
judgment is abuse of discretion. City of Temple v. Taylor, 268 S.W.3d 852, 858
(Tex.App.—Austin 2008, pet. denied). “A trial court abuses its discretion when it
reaches a decision so arbitrary and unreasonable as to constitute a clear and
prejudicial error of law.” Hot-Hed, Inc. v. Safehouse Habitats (Scotland), Ltd., 333
S.W.3d 719, 733 (Tex.App.—Houston [1st Dist.] 2010, pet. denied).
C. Standard of Review Applicable to Awarding of Costs (Appellants’
Fourth Issue).
The standard of review for an award of costs is an abuse of discretion.
Christus Health & Christus Health Gulf Coast v. Dorriety, 345 S.W.3d 104, 117
(Tex.App.--Houston [14th Dist.] 2011, pet. denied).
V. ARGUMENT
A. The Granting of Summary Judgment Was Not Error.
Appellants take the position that one sentence in the Partition Deed is
ambiguous, a claim they failed to plead. Appellants’ theory does not raise a
genuine issue of material fact and is not a basis to reverse summary judgment.
Moreover, several arguments raised by Appellants have been waived.
1. Appellants Failed to Plead Ambiguity.
Despite making ambiguity a prominent part of their argument on appeal,
[13]
Appellants fail to point out they did not plead ambiguity. See Appellants’ Original
Petition for Declaratory Judgment. (CR 1-4). This is significant because
ambiguity is an affirmative defense that must be specifically plead. See World
Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 680 (Tex.App.—Fort Worth
1998, pet. denied) (refusing to consider parol evidence because ambiguity was not
plead); see also, Crozier v. Horne Children Maint. and Educ. Trust, 597 S.W.2d
418, 421 (Tex.App.—San Antonio 1980, writ ref’d, n.r.e.); Tex. R. Civ. P. 94.
This Court of Appeals has considered conflicting case law on whether
ambiguity must be plead and has determined that, “the correct position is that
latent deed ambiguity in a deed must be pleaded.” Terrill v. Tuckness, 985 S.W.2d
97, 102 (Tex.App.—San Antonio 1998, no pet.). Because ambiguity was not
plead, the court should affirm summary judgment. Even if the Court were to
determine that ambiguity need not have been plead in this case, however, this
Court should still affirm summary judgment.
2. Law Applicable to Deed Interpretation.
a. If a Court Determines a Deed is Not Ambiguous, It Will
Construe It As a Matter of Law.
The question of whether an instrument is ambiguous is a question of law.
Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). Contract
terms must be given their “plain, ordinary and generally accepted meaning unless
the instrument shows that the parties used them in a technical or different sense.”
[14]
Id. “If the written instrument is so worded that it can be given a certain or definite
legal meaning or interpretation, then it is not ambiguous and the court will construe
the contract as a matter of law.” SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840,
841 (Tex. 2005). In this case, the trial court did just that, concluding that the Deed
was not ambiguous and interpreted the Deed, stating: “IT IS THEREFORE
ORDERED . . . (1) the Partition Deed is unambiguous as a matter of law; (2) the
Partition Deed partitioned the surface, but did not partition the minerals; (3) as to
the minerals, the Hoseks and Scott agreed not only that they were not
partitioned, but also that they would not partition them until the expiration of
the stated time limits, and whether the minerals would ever be partitioned by
the owners remained an open question. . . .” (CR 147-148; CR 210-211)
(Appellee App. Tab D) (emphasis added).
b. Conflicting Interpretations by the Parties Do Not Create
Ambiguity.
An ambiguity does not arise simply because the parties advance conflicting
interpretations of a contract. Columbia Gas Trans. Corp. v. New Ulm Gas, 940
S.W.2d 587, 589 (Tex. 1996). Only if, after application of the rules of
construction, there are two or more reasonable interpretations, can a court find an
instrument ambiguous. Id.; See also Universal C.I.T. Credit Corp. v. Daniel, 243
S.W.2d 154, 157 (Tex. 1951). However, if after applying the relevant rules of
construction, a contract can be given a definite legal meaning, the contract is
[15]
unambiguous and the court can construe the contract as a matter of law. Frost
Nat’l Bank v. L&F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005). Here, the
fact that the Appellants are advancing a different interpretation of the Deed, does
not create an ambiguity. The Deed can be given a definite legal meaning – it was
an agreement not to partition the minerals, with the possible partition to be decided
in the future. This is consistent with Appellee’s testimony that the partition of the
minerals would be renegotiated after twenty-five years. (Supp. CR 72-73).
c. The Court is Required to Determine the Parties’ Intent
From the Language in the Deed Not From Parol Evidence.
When determining the intent of the parties to an instrument, the courts apply
the rules of construction to the four corners of the instrument itself, regardless of
what may have been the subjective intent of the parties to the instrument. Luckel v.
White, 819 S.W.2d 459, 462 (Tex. 1991). In fact, the first rule of construction is to
ascertain and give effect to the parties’ intentions as expressed in the instrument.
Id. “The intention is to be ascertained as expressed by the language used, and not
the intention which may have existed in the [makers’] minds . . . , but is not
expressed by their language.” Fisher v. Wynn, 2011 Tex.App. Lexis 6031 *9
(Tex.App.--Tyler Aug. 3, 2011, no pet.) citing Slavens v. James, 229 S.W. 317,
318 (Tex. Comm’n App. 1921, judgm’t adopted).
“Even if different parts of the deed appear contradictory or inconsistent, the
court must strive to harmonize all of the parts, construing the instrument to give
[16]
effect to all of its provisions.” Luckel v. White, 819 S.W.2d 459, 462 (Tex. 1991)
(citations omitted). Furthermore, “[i]f the provisions can be harmonized and
reconciled, the contract is not ambiguous, and parol evidence is not admissible to
create an ambiguity or to give the contract a meaning different from which its
language imports.” Crozier v. Horne Children Maint. and Educ. Trust, 597
S.W.2d at 422.
In this case, the trial court determined that the Deed was not ambiguous and
therefore interpreted the Deed from the language contained in the Deed. (CR 147-
148; 210-211) (Appellee App. Tab D). Appellants, however, are relying on parol
evidence in an attempt to create an ambiguity in the Deed. (Appellants’ Brief at
pp. 4, 7-12). They have attempted to introduce various pieces of parol evidence to
argue that subsequent treatment of the minerals by the parties creates an ambiguity.
Because the Deed is not ambiguous, this Court cannot consider parol evidence.
3. The Trial Court Correctly Determined That the Deed was
Unambiguous and Construed the Deed as a Matter of Law.
a. The First Clause in the Sentence Expressly Reserved the
Oil, Gas and Other Minerals From the Partition.
The sentence at issue in the Partition Deed contains two separate and
independent clauses. The first clause clearly excludes the minerals from the
partition: “[t]his partition DOES NOT INCLUDE any of the oil, gas and other
minerals in, on, or under the above-described tracts of land, . . .” (emphasis
[17]
ours). See Partition Deed, (CR 74-75) (Appellee App. Tab C). There is no doubt
that this language operates as an exclusion from the partition. See Security
Development Co. v. Hidalgo County Drainage Dist. No. 1, 124 S.W.2d 178, 181
(Tex.Civ.App.—Amarillo 1938, no writ.) (technical language not necessary to
create reservation or exception); PYR Energy Corp. Samson Res. Co., 456
F. Supp. 2d 786, 803 (E.D. Tex. 2006) (same). Appellants concede that this
language severed the surface from the minerals but allege that the minerals are
only expressly excluded from the partition for twenty-five years. (Appellants’
Brief at p. 2, 9). Appellants’ argument is incorrect. The plain language of the first
part of the sentence completely excludes the minerals from the Partition.
b. The Second Clause of the Sentence Evidences an Agreement
Not to Partition the Minerals For a Specified Period of
Time in the Future.
Appellants claim that the Deed was ambiguous as to the issue of what
happened to the minerals after the twenty-five year period expired. (Appellants’
Brief at p. 2). The Trial Court correctly determined that the issue was not
ambiguous—at the expiration of the twenty-five year period, the restriction on the
parties’ ability to partition was lifted and the parties were once again free to
partition or not.
Parties may voluntarily agree to partition land. However, a voluntary
partition of land must be based on the agreement of all parties with a possessory
[18]
interest thereto and cannot be the result of a unilateral decision. Stradt v. First
United Methodist Church, 573 S.W.2d 186, 190 (Tex. 1978) (subjective intent of
one party is not proof of an agreement between several parties to partition land);
see also State v. Kirkpatrick, 299 S.W.2d 394, 397 (Tex.Civ.App.—Dallas 1957,
writ ref’d n.r.e.). More importantly, parties can expressly agree to waive the right
to partition. Lichtenstein v. Lichtenstein Bldg. Corp., 442 S.W.2d 765, 769
(Tex.Civ.App.—Corpus Christi 1969, no writ) (parties can make contracts
expressly providing against partitioning). An express agreement not to partition
will be honored by the courts. MCEN 1996 Pshp v. Glassell, 42 S.W.3d 262, 263-
64 (Tex.App.—Corpus Christi 2001, pet. denied). Parties can also impliedly agree
not to partition. See Id. at 264 (pooling agreement created implied agreement not
to partition); Long v. Hitzelberger, 602 S.W.2d 321, 323 (Tex.App.—Eastland
1980, no writ.) (implied agreement not to partition); Warner v. Winn, 191 S.W.2d
747, 751 (Tex.Civ.App.—San Antonio 1945, writ ref’d n.r.e.) (courts will imply an
agreement not to partition); Dimock v. Kadane, 100 S.W.3d 622, 625 (Tex.App.—
Eastland 2003, pet. denied.) (affirming implied agreement not to partition mineral
interests). Accordingly, it is well settled that parties can agree not to partition
property, including minerals interests. One must look to the language of the
dividing document, in this case the Partition Deed, to determine the Parties’ intent.
[19]
As established above, the first clause of the sentence in the Partition Deed
expressly excludes the oil and gas and other mineral interests from the partition,
“[t]his partition DOES NOT INCLUDE any of the oil, gas and other minerals in,
on, or under the above-described tracts of land, . . .” See (CR 74-75) (Appellee
App. Tab C) (emphasis added). The second clause of the sentence evidences an
agreement not to partition the minerals for a specified period of time in the future:
“and same are to remain undivided for a period of twenty-five (25) years from
the date hereof and as long thereafter as oil, gas, or other minerals are
produced in paying quantities from the above described lands.” (CR 74-75)
(Appellee App. Tab C) (emphasis added). Under the above cited authorities, this
language constitutes an express agreement not to partition for a specified and finite
period of time in the future.
Accordingly, the issue of what happens to the minerals after the twenty-five
year period expires is clear -- if, after twenty-five years, oil, gas, and other
minerals are not being produced in paying quantities, then the restriction on the
parties’ ability to partition was lifted and the parties were once again free, if they
so desired, to take affirmative action to partition the minerals, or not to. The Deed
is completely devoid of any intent to clearly partition at the end of the time period.
c. The Deed was Unambiguous and the Interpretation Makes
Sense.
As rightly determined by the trial court, the Partition Deed is worded in a
[20]
manner that it can be given a definite legal meaning/interpretation. Specifically,
the trial court concluded that:
IT IS THEREFORE ORDERED that partial summary judgment is
granted in favor of Defendant ROSALE SCOTT and that: (1) the
Partition Deed is unambiguous as a matter of law; (2) the Partition
Deed partitioned the surface, but did not partition the minerals; (3) as
to the minerals, the Hoseks and Scott agreed not only that they
were not partitioned, but also that they would not partition them
until the expiration of the stated time limits, and whether the
minerals would ever be partitioned by the owners remained an
open question and the Hoseks and Scott continued to own an
undivided one-half of the minerals, each; and (4) that since there has
been no subsequent partition of the minerals, Defendant ROSALE
SCOTT therefore currently owns fifty percent (50%) of the minerals
under the 169.27 acres of land, the surface of which was deeded to the
Hoseks on pages 1-3 of the Partition Deed, whose legal description is
attached as Exhibit “A” and incorporated by reference.
(CR 147-148; CR 210-211) (Appellee App. Tab D) (emphasis added).
Further, Judge Shannon’s interpretation is reasonable, and makes sense. See
Luckel v. White, 819 S.W.2d at 462; Crozier v. Horne Children Maint. and Educ.
Trust, 597 S.W.2d at 422. When families partition land, it is very common to
partition the surface but not the minerals. The primary reason for this is the
perceived unfairness that could occur if the sibling who receives half the family
farm ends up with a big oil or gas well, while the other sibling has a dry hole.
Many families lack the expertise to assess whether mineral values may vary under
different parts of a tract of land, so they simply decide to share the minerals under
the entire tract. This common situation fits this fact situation perfectly. Two
[21]
sisters, splitting the family farm in 1979, neither of whom have a demonstrated
sophistication in minerals in the record, decided not to partition their minerals.
Appellants attempt to argue the result is unfair. The result is completely fair
to Appellants. Appellants have retained all of their minerals, it is just that half of
their minerals must be claimed under the King and Morales Tracts. (CR 81-83, 84-
86). As noted above, both the King and Morales Deeds made specific reference to
the reservation contained in the Partition Deed. (See CR 81, 84-85). Moreover,
Appellants have retained 100% of the minerals under the 38 acre tract. (CR 78-
80). This is a case of greed by Appellants, who are attempting to retain 75%
(approximately) of the minerals under the Voigt Tract—100% under Appellants’
tracts and 50% under the King and Morales Tracts.
4. Parol Evidence is Not Admissible Because the Deed is Not
Ambiguous.
Appellants made a flailing attempt to create ambiguity, and argue unfairness,
by introducing largely incompetent parol evidence. Appellee objected to all of the
evidence offered by Appellants in support of their response to summary judgment
on the grounds that the language in the Partition Deed is clear and, therefore, parol
evidence is not admissible.2 (See CR 117, 120). The Court did not reach the
objections because Judge Shannon found the Partition Deed was not ambiguous.
2
Appellee also moved to strike Appellants’ response to summary judgment (including all of the
evidence attached) because it was untimely but the trial court denied the motion and permitted
Appellants to proceed with their untimely evidence. See Court Order (CR 145).
[22]
(CR 147, 210) (Appellee App. Tab D). Where a document is not ambiguous, the
court should construe the document as a matter of law. See SAS Inst., Inc. v.
Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005). “[P]arol evidence is not admissible
for the purpose of creating an ambiguity.” Nat’l Union Fire Ins. Co. of Pittsburgh,
PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). ‘[O]nly where a contract
is first determined to be ambiguous may the courts consider the parties’
interpretation . . . and admit extraneous evidence to determine the true meaning of
the instrument. Nat’l Union, 907 S.W.2d at 520. Since the Court correctly
determined that the Partition Deed was not ambiguous, parol evidence was not
admissible.
5. The Evidence Offered by Appellants is Incompetent and Does Not
Create Ambiguity.
a. Affidavit of Allen D. Cummings.
Appellants rely on the Affidavit3 of Allen D. Cummings, an oil and gas
attorney, to argue that the parties intended the minerals to revert to the surface
owner. (Appellants Brief at p. 11). Appellee asserted several objections to the
Affidavit and Report. (CR 123-124). The Trial Court obviously did not find the
Affidavit and Report admissible because the Court held that the Deed was
unambiguous and interpreted the Deed as a matter of law. (CR 147-148; CR 210-
3
Appellants refer to the “Affidavit” of Cummings citing the Supplemental Clerk’s Record at p.
51. (Appellants’ Brief at p. 11). The Affidavit does not contain Cummings’ opinions regarding
the Partition Deed. They are contained in the Report attached thereto. (Supp. CR 52-53).
Accordingly, Appellee will refer to the Affidavit and Report.
[23]
211) (Appellee App. Tab D).
Cummings’ Affidavit and Report, which do not opine the Deed is
ambiguous, and merely argue another interpretation, should not be considered
because he offers opinions based on questions of pure law, and is attempting to
usurp the trial court’s role. (CR 124; Supp. CR 51-53). An expert may not testify
on pure questions of law. Mega Child Care, Inc. v. Texas Dep’t of Protective &
Regulatory Servs., 29 S.W.3d 303, 309 (Tex.App.—Houston [14th Dist.] 2000, no
pet.). An expert is not allowed to testify directly to his understanding of the law.
Welder v. Welder, 794 S.W.2d 420, 433 (Tex.App.—Corpus Christi 1990, no writ).
Additionally, Cummings was not timely designated as an expert. (CR 123).
Cummings was also a biased, interested witness because he performs work for
EOG, who owns the lease on the property. (CR 124). Cummings’ Affidavit and
Report are conclusory and does not meet the threshold established in Tex. R. Evid.
702. (CR 124; Supp. CR 51-53). Accordingly, Cummings’ Affidavit and Report
were properly not considered. Moreover, even if considered, the only thing that
the parties regained after the twenty-five year period expired, was the ability to
take action to partition.
b. Affidavit of Ivarene Hosek.
Appellants also rely on the Affidavit of Ivarene Hosek to attempt to create
ambiguity. (Appellants’ Brief at pp. 3, 11-14). Appellee objected to the Affidavit
[24]
on numerous grounds. (CR 121-123). First, the Affidavit is parol evidence that is
not admissible. Second, the portions of the Affidavit relied on by Appellants are
simply incompetent evidence.
For example, Appellants allege that Appellee and the oil companies all
believed the mineral reverted back to the surface owners. (Appellants’ Brief at p.
11). The Affidavit provides: “[w]e agreed to let the minerals remain undivided for
a period of twenty-five years and as long thereafter as oil and gas were being
produced, after that time, the minerals would be vested in the surface owner.”
Bare conclusions are not evidence and are not probative of any facts. Bavishi v.
Sterling Air Conditioning, Inc., 2011 Tex.App. LEXIS 6271 *25 (Tex.App.--
Houston [1st Dist.] 2011, no pet.). Unsupported conclusory statements are not
credible and are not susceptible to being readily controverted. Ryland Grp. v.
Hood, 924 S.W.2d 120, 122 (Tex. 1996).
Additionally, Appellants claim that Appellee told buyers they would own
50% of the minerals owned by the Hoseks after twenty-five years. (Appellants’
Brief at p. 3, 12). Specifically the Affidavit states: “[m]y sister knew of our
agreement regarding the minerals and told this to her buyers, who purchased her
property after my sister told them they would own the minerals after the expiration
[25]
of the twenty-five year period, being August 17, 2004.”4 This sentence is
conclusory, hearsay, fails to lay a proper foundation, and fails to state that it is
based on personal knowledge and is clearly not based on personal knowledge.
c. The Letter Offered by Appellants is Incompetent.
Appellants also attempt to rely on a letter addressed to Wesley King.
(Appellants’ Brief at p. 12). Because the Deed is not ambiguous, the letter cannot
be considered. Further, Appellants have provided no competent evidence to
authenticate the letter. (CR 125). Since the Partition Deed is not ambiguous, the
court should not consider the letter.
d. The Deposition Excerpts of Appellee Are Incompetent.
Appellants also attempt to rely on excerpts from the deposition of Appellee.
(Appellants’ Brief at p. 12). Because the Deed is not ambiguous, the deposition
excerpts cannot be considered.
6. Appellants Have Waived All Arguments That Were Not Asserted
In Response To Appellee’s Summary Judgment Motion.
This Court should review Appellants’ Response to Appellee’s Motion for
Partial Summary Judgment (the “Response”) to see how incomplete and bare
bones the Response is. See (CR 92-96; Supp. CR 37-41) (Appellee App. Tab B).
As explained in more detail below, the Response does not contain many of the
4
Here again Appellants attempt to imply that Appellee sold Appellants’ portion of the minerals
under the Morales and King Tracts, but as already established, that did not happen, the King and
Morales Deeds expressly refer to the Partition Deed. (CR 81 and 84-85).
[26]
arguments Appellants have asserted in their brief. (See Appellants’ Brief at pp. 7-
12). Accordingly, those arguments are waived and Appellants are precluded from
raising those arguments at this time.
In the context of a summary judgment, a non-movant is required to expressly
present to the trial court, by written answer or response, any issues defeating the
movant’s entitlement to summary judgment. Tello v. Bank One, N.A., 218 S.W.3d
109, 118 (Tex.App--Houston [14th Dist.] 2007, no pet.) (citing Tex. R. Civ, P.
166a(c)); Dubose v. Worker’s Medical P.A., 117 S.W.3d 916, 920 (Tex.App.--
Houston [14th Dist.] 2003, no pet.). To “expressly” present issues as required by
Rule 166 a(c), written answer or response to the motion for summary judgment
must fairly apprise the movant and the trial court of the issues the non-movant
contends should defeat the motion for summary judgment. Id. At 119. In
determining what issues were expressly presented to the trial court, a reviewing
court may not rely on the appellate briefs or the summary judgment evidence.
Dubose v. Worker’s Medical P.A., 117 S.W.3d 916, 920 (Tex.App.--Houston [14th
Dist.] 2003, no pet.). Any issues not expressly presented to the trial court in a
written response shall not be considered as grounds for reversal. Id. Thus, the
failure to present issues to defeat summary judgment in the trial court waives those
issues on appeal.
[27]
Appellants’ argue several principles of deed interpretation arguing for
ambiguity that were not in the response to summary judgment. (Appellant’s Brief
at p.7). The arguments waived include:
Argument That Grantee Conveys the Greatest Estate: Appellants argue
that Texas courts apply the “four corners” rule and look not at isolated terms but
consider the whole instrument to convey the grantee the greatest estate that the
terms of the deed will permit. (Appellants’ Brief at p. 8). This “greatest estate”
argument was not asserted in Plaintiff’s response to Defendant’s Motion for Partial
Summary Judgment. (CR 92-96) (Supp. CR 37-41) (Appellee App. Tab B).
All of the related arguments and explanations in support of Appellants’
greatest estate argument have also been waived. For example, Appellants argue
that both phrases in the sentence should be read together, and that the first phrase
should not be allowed to contradict the “patent purpose” of the document, “to
partition the estate.” (Appellants’ brief at p. 8). Appellants claim that reading the
phrases together gives the logical interpretation that the minerals are not
partitioned for twenty-five years to allow for the sharing of current production but
are partitioned after twenty-five years to accomplish full partitioning. (Id. at pp. 8-
9). None of these arguments were asserted in response to summary judgment.
(CR 92-96) (Supp. CR 37-41) (Appellee App. Tab B).
[28]
Argument That It Is Oppressive To Omit the Minerals From Partition:
Appellants argue that it is oppressive to omit the minerals from eventual partition
and inequitable to deprive one party of presently occurring or soon-to-occur
production. (Appellants’ Brief at p. 9). This argument was not asserted in
Plaintiff’s Response to Defendant’s Motion for Partial Summary Judgment. (CR
92-96) (Supp. CR 37-41) (Appellee App. Tab B). It also ignores the common
practice of families to partition surface and not minerals.
Argument That When Lands Are Partitioned Among Co-Owners, the
Whole is Partitioned Unless Expressly Excepted: Appellants also argue that
when the lands are partitioned among co-owners, the whole of the land is
partitioned unless some portion is expressly excepted from the partition.
(Appellants’ Brief at p. 9). This argument was not asserted in Plaintiff’s Response
to Defendant’s Motion for Partial Summary Judgment. (CR 92-96) (Supp. CR 37-
41) (Appellee App. Tab B).
Argument That There Is a Presumption That the Grantor Intends To
Convey All Appurtenant Rights: Appellants argue that there is a presumption
that a grantor (which they allege here is Appellee) intends to convey all
appurtenant rights incidental to the beneficial enjoyment of the property.
(Appellants’ Brief at p. 9). Appellants further claim that appurtenant rights here
would mean that the minerals revert to the surface owner after twenty-five years or
[29]
production are up. (Appellants’ Brief at p. 10). This “appurtenant rights”
argument was not asserted in Plaintiff’s Response to Defendant’s Motion for
Partial Summary Judgment. (CR 92-96) (Supp. CR 37-41) (Appellee App. Tab B).
Argument That Reverter After Twenty-Five Years Would Uphold the
Purpose of the Deed: Appellants also argue that where the instrument is capable
of two constructions and where one would give effect to the whole instrument
while the other would defeat it, courts give preference to the construction that
would uphold the purpose. (Appellants’ Brief at p. 10). This argument was not
asserted in Plaintiff’s Response to Defendant’s Motion for Partial Summary
Judgment. (CR 92-96) (Supp. CR 37-41) (Appellee App. Tab B).
B. The Trial Court Did Not Abuse Its Discretion When It Awarded
Attorneys’ Fees.
Since attorneys’ fees are recoverable in a Declaratory Judgment Action, the
Court awarded Appellee attorneys’ fees. (CR 211-212; CR 216-217) (Appellee
App. Tab D); Tex. Civ. Prac. & Rem. Code §37.009. The standard of review for
an award of attorneys’ fees is an abuse of discretion. City of Temple v. Taylor, 268
S.W.3d 852, 858 (Tex.App.—Austin 2008, pet. denied). Under the Declaratory
Judgment Act, a court may award reasonable and necessary attorneys’ fees as are
equitable and just. GuideOne Elite Ins. v. Fielder Rd. Baptist Ch., 197 S.W.3d
305, 311 (Tex. 2006); Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex. 1998).
[30]
In this case, Appellee requested $74,000.00 at the trial court level plus
additional attorneys’ fees in the event of an appeal. (CR 156). The trial court only
granted $39,500.00. (CR 211-212; CR 216) (Appellee App. Tab D). Appellants
argue that if this Court reverses the summary judgment, it should reverse the award
of attorneys’ fees as well. Reversal of a trial court’s decision on a declaratory
judgment does not require reversal of an award of attorneys’ fees to the party who
prevailed in the trial court. City of Temple v. Taylor, 268 S.W.3d at 858. Here, the
Appellants have not shown that the trial court abused its discretion in awarding
attorneys’ fees. Therefore, reversal would not be required. See Id. The court
could, however, remand the issue of attorneys’ fees for reconsideration in light of
the Court’s opinion. See Double Diamond, Inc. v. Saturn, 339 S.W.3d 337, 347
(Tex.App.—Dallas 2011, pet. denied). Appellants also argue that even if summary
judgment is not reversed, the attorneys’ fee award is not just and equitable, because
“’just and equitable’ should be tied to the party who caused the necessity of the
suit.” (Appellants’ Brief at p. 14). Appellants further claim that both parties
“caused” the suit because both parties needed the Deed interpreted. (Appellants’
Brief at p. 15).
Appellants’ theories lack merit and are not supported by authority. First,
Appellants must have forgotten they caused the suit by filing it. Further, taking
Appellants’ arguments to their logical conclusion, attorneys’ fees would never be
[31]
awarded in declaratory judgment actions where the interpretation of a deed or
contract is at issue and the parties need the deed/contract interpreted to resolve the
dispute. Appellants have not shown that the trial court abused its discretion in
awarding attorneys’ fees. In this regard, Appellants have not shown that the trial
court’s award of attorneys’ fees was so arbitrary and unreasonable as to constitute
a clear and prejudicial error of law. See Hot-Hed, Inc. v. Safehouse Habitats
(Scotland), Ltd., 333 S.W.3d 719, 733 (Tex.App.—Houston [1st Dist.] 2010, pet.
denied). Accordingly, the award of attorneys’ fees should be affirmed.
C. The Trial Court Did Not Abuse Its Discretion on the Issue of Costs.
As noted above, the standard of review for an award of costs is an abuse of
discretion. Christus Health & Christus Health Gulf Coast v. Dorriety, 345 S.W.3d
104, 117 (Tex.App.—Houston [14th Dist.] 2011, pet. denied). Appellants’, with no
record cites, argue this counsel raised the cost of the case by attempting to require
the mineral owners of the King Tract and Morales Tract be brought in.
(Appellants’ Brief at p. 15). Appellants’ conclusory allegations are unsupported
with citation to the clerk’s record and should be disregarded. Moreover,
Appellants’ counsel should at least try to explain why adding a necessary party was
an unjustified effort. Also without citation to the record, Appellants’ conclusory
statement that this counsel’s bills contained duplication and triplication of effort.
(Appellants’ Brief at p. 16). Appellants’ conclusory allegations are unsupported
[32]
with citation to the clerk’s record and should be disregarded. Appellants did not
even attempt to explain the alleged duplication and triplication of effort. (Id.)
Moreover, the trial court made extensive Findings of Fact and Conclusions of Law
(CR 405-412), including that the attorneys’ fees had been segregated and the work
performed and attorneys’ fees sought were reasonable and necessary. (CR 407-
410). As noted above, the trial court only awarded half of the attorneys’ fees
requested by Appellee. (CR 211-212) (Appellee App. Tab D).
Appellants go on to complain about sixteen documents that Appellee
requested be added to the record on appeal, apparently arguing Appellee should
have known what Appellants’ brief would contain in advance. (Appellants’ Brief
at p. 16). First, Appellee should be permitted to add documents she believes may
be necessary to the clerk’s records. In fact, the Rules of Appellate Procedure
specifically permit Appellee to add documents. Tex. R. App. P. 34.5(b)(1).
Second, even a cursory glance at the documents requested by Appellees
demonstrates that the request was not “outrageous” as claimed by Appellants. For
example, Appellee requested that her Original and Amended Answers be included
in the clerk’s record. (CR 417). Appellee also requested that her objections to the
summary judgment evidence and the order granting summary judgment be
included. (CR 417). Appellee also requested that her Motion for Award of
Attorney’s Fees and Order Granting Attorney’s Fees be included in the Clerk’s
[33]
Record. (CR 418). Appellants may be complaining about Appellee’s designation
of documents relating to the supersedeas bond. This was, however, relevant
because the parties filed briefs in the court relating to the amount of the
supersedeas bond. See Appellee’s Motion to Increase Supersedeas Bond, Fourth
Court of Appeals File. Even if Appellants disagree with the inclusion of some of
the documents requested by Appellee, certainly Appellee should be granted some
latitude in designating documents to be included in the clerk’s record. These
requests are simply not outrageous and certainly, Appellants have not shown that
the trial court abused its discretion with respect to costs. Moreover, the trial court
did not even order Appellants to pay the costs. Rather, Appellee was ordered to
pay the costs, “without prejudice to seeking recovery as costs on appeal.” (CR
427). Accordingly, Appellants have not shown that the trial court’s award of costs
was so arbitrary and unreasonable as to constitute a clear and prejudicial error of
law. See Hot-Hed, Inc. v. Safehouse Habitats (Scotland), Ltd., 333 S.W.3d 719,
733 (Tex.App.—Houston [1st Dist.] 2010, pet. denied). (CR 427). Moreover, this
issue has not been preserved for review. The Notice of Appeal filed by Appellants
indicates that they are appealing the Final Judgment. (CR 415—Notice of Appeal;
CR 210-215—Final Judgment) (Appellee App. Tab D). The trial court’s order on
costs should not be reversed.
[34]
VI. CONCLUSION
For the foregoing reasons, this Court should affirm summary judgment as
well as the award of attorneys’ fees and costs granted by the trial court and award
Appellee costs on appeal.
VII. PRAYER
Therefore, it is requested that:
a) The trial court be in all things affirmed;
b) Costs of the appeal be assessed against Appellant; including the
additional $12,500.00 in attorneys’ fees because Plaintiffs filed an appeal to the
court of appeals as provided for in the Judgment;
c) Attorneys’ fees of $2,500.00 because Appellants filed a motion
for new trial as provided in the Judgment; and the
c) Appellee have such other relief to which she may be entitled.
[35]
BARTON, EAST & CALDWELL,
P.L.L.C.
One Riverwalk Place, Suite 1825
700 N. St. Mary’s Street
Sam Antonio, Texas 78205
Telephone: (210) 225-1655
Facsimile: (210) 225-8999
By: /s/ G. WADE CALDWELL
G. WADE CALDWELL
State Bar No. 03621020
Email: gcaldwell@beclaw.com
RAQUEL G. PEREZ
State Bar No. 00784746
Email: rperez@beclaw.com
ATTORNEYS FOR APPELLEE
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word 2013 and contains 8,149 words, as determined by the computer software’s
word-count function, excluding the sections of the document listed in Texas Rule
of Appellate Procedure 9.4(i)(1).
/s/ G. WADE CALDWELL
G. WADE CALDWELL
[36]
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document will be served
in the manner indicated below this 28th day of April, 2015 upon the following:
Michele Barber Chimene ___ First Class Mail
The Chimene Law Firm ___ Facsimile
2827 Linkwood Dr. ___ Hand Delivery
Houston, Texas 77025-3809 X Electronic Transmission
Email: michelec@airmail.net
Robert J. Ogle ___ First Class Mail
Attorney at Law ___ Facsimile
508 E. San Antonio Street ___ Hand Delivery
Boerne, Texas 78006 X Electronic Transmission
Facsimile: (830) 249-8508
Email: bob@ogleattorney.com
Counsel for Appellants
/s/ G. WADE CALDWELL
G. WADE CALDWELL
RAQUEL G. PEREZ
M:\2000\2200 OIL AND GAS CLIENTS\121 Hosek v Scott\4TH COA APPEAL\Appellee's Brief\Appellee's Brief 04-28-15-Final.docx
[37]
APPENDIX
Tab A Defendant’s Motion for Partial Summary Judgment
Tab B Plaintiffs’ Response to Defendant’s Motion for Partial
Summary Judgment (without exhibits)
Tab C Deed of Partition
Tab D Final Judgment
Tab E Tex. R. App. P. 34.5, 38, 39.1
Tab F Tex. R. Civ. P. 94, 166a(c)
Tab G Tex. R. Civ. Prac. & Rem. Code 37.009
Tab H Tex. R. Evid. 702
[38]
Tab A
CAUSE NO. 13-06-0559-CVA
IV ARENE HOSEK AND VICTOR § IN THE DISTRICT COURT
HOSEK, §
§
Plaintiffs, §
§
v. § 81 ST JUDICIAL DISTRICT
§
RO SALE SCOTT, §
§
Defendant. § ATASCOSA COUNTY, TEXAS
DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant ROSALE SCOTT ("Scott") files this, her Motion for Partial Summary
Judgment against Plaintiffs IVARENE HOSEK AND VICTOR HOSEK, ("Plaintiffs") and
would respectfully show the Court as follows:
I.
INTRODUCTION
1. This is a straight forward case involving the interpretation of a Partition Deed.
The primary dispute involves the ownership of mineral interests under land that had previously
been conveyed to the Parties to this suit. After receiving the land, the Parties executed a
Partition Deed which partitioned the surface between Plaintiffs and Ms. Scott, but did not
partition the minerals. The minerals were expressly excepted (i.e. excluded) from the partition
by the language in bold below.
This partition does not include any of the oil, gas and other minerals in, on,
or under the above-described tracts of land, and same are to remain undivided
for a period of twenty-five (25) years from the date hereof and as long thereafter
as oil, gas, or other minerals are produced in paying quantities from the above
described lands.
FILED / 0 ; 3qo·a.oCK.fLM
MARGARET E. UTILETON, DISTRICT Q.ERK
Page J 1
DEC 1 6 2013
57
~~
2. In addition to excepting the minerals from the agreement to partition the surface,
the parties further agreed that they would not partition the minerals for a specified period of
time-twenty-five years and so long thereafter as oil, gas and other minerals are performed in
paying quantities. After this time period, if no oil, gas or other minerals were being produced,
then the restriction on the parties' ability to partition was lifted and the parties could then decide
to take affirmative action to partition the minerals. Thus, the surface interest and mineral
interests were severed from each other, but the minerals under the tract at issue in this litigation,
what is known as the Voigt Tract, continued to be owned with a 50 percent undivided interest to
Ms. Scott and a 50 percent undivided interest to Plaintiffs. The minerals have not been
subsequently partitioned.
3. This Motion asks the Court to grant partial summary judgment on three issues:
a. the Partition Deed is not ambiguous, and can be interpreted by the Court without
the need for testimony as to the meaning of the paragraph quoted above;
b. the Partition Deed did not partition the minerals at the time it was signed; and,
c. the language in the Partition Deed was not effective to partition minerals at a date
certain in the future.
II.
SUMMARY JUDGMENT PROOF
4. Defendant relies on the following summary judgment proof, true and correct
copies of which are attached and incorporated here by reference:
Exhibit A. Warranty Deed dated October 4, 1978 and recorded at Vol. 491, Page 288
of the Real Property Records of Atascosa County, Texas (the "Warranty
Deed").
Exhibit B. Deed of Partition between Victor Hosek and Ivarene Hosek and Rosale
Scott dated August 17, 1979 and filed of record in the Real Property
Records of Atascosa County, Texas at Vol. 510, Page 126 (the "Partition
Deed").
Page I 2
58
Exhibit C. Warranty Deed from Rosale Scott to Ivarene and Victor Hosek dated
October 16, 1979 and filed of record in the Real Property Records of
Atascosa County, Texas at Vol. 514, Page 107 (the "Hosek Deed").
Exhibit D. Cash Warranty Deed dated March 4, 1986 and filed of record in the Real
Property Records of Atascosa County, Texas at Vol. 745 Page 50 (the
"Morales Deed")
Exhibit E. Warranty Deed with Vendor's Lien dated January 29, 1980 and filed of
record in the Real Property Records of Atascosa County, Texas at Vol.
819, Page 135 (the "King Deed")
Exhibit F. Request for Admission Response No. 25 from Plaintiffs (sic) Response to
Requests for Admissions of Defendant Rosale Scott.
All of the exhibits are either; certified, produced by Plaintiffs, or judicially admitted.
5. Pursuant to Tex. R. Civ. Proc. 166a (d), Defendant gives notice of her intent to
use the above-referenced discovery in support of this Motion. Defendant is filing the documents
concurrently with her Motion for Summary Judgment. Defendant also relies upon the other
proper summary judgment proof allowed by Rule 166 a(c), TRCP, referenced below.
III.
STATEMENT OF FACTS 1
The Relevant Tracts of Property
6. This case involves the mineral interests under various Tracts of property.
7. Defendant will refer to the different tracts within the properties at issue as
follows:
a. The initial 338.4 acre tract of land, described in the Warranty Deed, that
was conveyed to Plaintiffs and Defendant by their parents, Fridolin Alex
and Pearl Schnautz Voigt will be referred to as the "Voigt Tract."
1
As set forth, these facts are for purposes of this Motion only.
Page I 3
59
b. The approximately 170 surface acres that Plaintiffs received when the
parties partitioned the surface in the Partition Deed will be referred to as
the "Hosek Tract."
c. The approximately 38 acres, described in the Hosek Deed, that were
initially received by Ms. Scott when the parties partitioned land and later
sold by Ms. Scott to Victor and Ivarene Hosek shortly after the Partition
Deed was executed will be referred to as the "38-Acre Tract."
d. The approximately 60 acres, described in the Morales Deed, that were sold
by Ms. Scott to Mr. and Mrs. Evaristo Morales, will be referred to as the
"Morales Tract."
e. The approximately 70 acres, described in the King Deed, that were sold by
Ms. Scott to Mr. and Mrs. William W. King will be referred to as the
"King Tract."
Conveyance of Voigt Tract to Plaintiffs and Defendant in Warranty Deed
8. Plaintiffs, IV ARENE HOSEK and husband VICTOR HOSEK, and Defendant,
ROSALE SCOTT, each received an undivided one-half interest in the 338.4 Voigt Tract by
Warranty Deed dated October 4, 1978 and recorded at Vol. 491, Page 288 of the Real Property
Records of Atascosa County, Texas (the "Warranty Deed"), a true and correct copy of which is
attached hereto as "Exhibit A."
Partition of Surface And Agreement Not to Partition Minerals In Partition Deed
9. Thereafter, Ms. Scott received approximately half of the undivided interest in the
surface of the Voigt Tract by the Deed of Partition from Victor Hosek and Ivarene Hosek dated
August 17, 1979 and filed of record in the Real Property Records of Atascosa County, Texas at
Vol. 510, Page 126 (the "Partition Deed"). A true and correct copy of the Partition Deed is
attached hereto as "Exhibit B". The Partition Deed expressly excepted (i.e. excluded) the
minerals from the partition with the language in bold below:
Page 14
60
This partition does not include any of the oil, gas and other minerals in, on,
or under the above-described tracts of land, and same are to remain undivided
for a period of twenty-five (25) years from the date hereof and as long thereafter
as oil, gas, or other minerals are produced in paying quantities from the above
described lands.
10. The parties further agreed that they would not partition the land "for a period of
twenty-five (25) years ... and as long thereafter as oil, gas, and other minerals are produced in
paying quantities ... " See Partition Deed, Exhibit "B ".
11. Accordingly, the surface interest and mineral interests were severed from each
other, but the minerals under the Voigt Tract continued to be owned with a 50 percent undivided
interest to Ms. Scott and a 50 percent undivided interest to Plaintiffs.
12. The minerals under the Voigt Tract have not been subsequently partitioned, nor
have Plaintiffs sold any of their one-half undivided minerals under the Voigt Tract, although
Defendant Ms. Scott has sold portions of her one-half undivided rights as further detailed herein.
See Hosek Deposition Excerpts, Exhibit "F".
Scott Deeds a 38.5 Acre Tract to the Plaintiffs (the Hosek Deed)
13. Subsequent to the execution of the Partition Deed, Ms. Scott deeded to the
Plaintiffs a 38.5 acre tract which had originally been apportioned to her pursuant to the Partition
Deed. This conveyance was accomplished by Warranty Deed dated October 16, 1979 and filed
of record in the Real Property Records of Atascosa County, Texas at Vol 514, Page 107 (the
"Hosek Deed"). A true and correct copy of the Hosek Deed is attached hereto as "Exhibit C".
The Hosek Deed made specific reference to the exclusion of all of the mineral rights reserved
under the Partition Deed.
Page I 5
61
Scott Sells Approximately 60 Acres of Her Property to Mr. and Mrs. Morales
14. Subsequently, Ms. Scott sold and deeded to Evaristo Morales and his wife Irene
F. Morales approximately 60 acres (the "Morales Tract") pursuant to a Cash Warranty Deed
dated March 4, 1986 and filed of record in the Real Property Records of Atascosa County, Texas
at Vol 745 Page 50 (the "Morales Deed"). A true and correct copy of the Morales Deed is
attached hereto as "Exhibit D". The Morales Deed made specific reference to the reservation
contained in the Partition Deed.
Scott's Sells Remaining 70 Acres of Her Property to Mr. and Mrs. King
15. Ms. Scott later sold and deeded to Mr. and Mrs. William W. King the remaining
land, approximately 70 acres (the "King Tract") pursuant to a Warranty Deed with Vendor's
Lien dated January 29, 1980 and filed of record in the Real Property Records of Atascosa
County, Texas at Vol 819, Page 135 (the "King Deed"). A true and correct copy of the King
Deed is attached hereto as "Exhibit E". The King Deed made specific reference to the
reservation in the Partition Deed as well as a 20 year reservation of Rosale Scott's one-half (112)
mineral interest.
v.
STANDARD OF REVIEW
16. Summary judgment is appropriate when there 1s no genume issue as to any
material fact and the moving party is entitled to judgment as a matter of law. TEX. R. Civ. P.
166a(c). In determining a motion for summary judgment, the court may not weigh the evidence.
Huckabee v. Time Warner Entm 't Co., 19 S.W.3d 413, 422 (Tex. 2000). The court's only duty is
to determine whether a material question of fact exists. Id.
Page 16
62
17. If a defendant conclusively negates an essential element of a plaintiff's cause of
action as ~ matter of law, summary judgment is proper. Hartsfield v. McRee Ford, Inc., 893
S.W.2d 148, 150 (Tex. App. - Houston [1st Dist.] 1995, writ denied); Goldberg v. United States
Shoe Corp., 775 S.W.2d 751, 752 (Tex. App.-Houston [1st Dist.] 1989, ~rit denied). Once the
defendant has negated an essential element of plaintiff's claim, the plaintiff has the burden to
produce evidence that raises an issue of fact on that element.
18. Summary judgment also provides a method for summarily ending a case that
involves only a question of law and no fact issue. Tex.R.Civ.P. 166a(c); Nixon v. Mr. Property
Management Co., 690 S.W.2d 546, 548 (Tex.1985); Cigna Ins. Co. v. Rubalcada, 960 S.W.2d
408, 411 (Tex.App.-Houston [1st Dist.] 1998, no pet.). When an instrument is unambiguous
and the dispositive facts are not in dispute, a court may grant summary judgment and render a
declaratory judgment regarding the parties' rights under the instrument. See Berrand, Inc. v.
Whataburger, Inc., 214 S.W.3d 122, 131-32 (Tex.App.-Corpus Christi 2006, pet. denied); TC
Dallas #1, LP v. Republic Underwriters Ins. Co., 316 S.W.3d 832, 837 (Tex. App.-Dallas
2010, no pet.).
VI.
ARGUMENT AND AUTHORITIES
19. In the instant case, Plaintiffs' filed a Petition for Declaratory Judgment, pursuant
to the Texas Uniform Declaratory Judgments Act asking the court to enter a judgment that
Plaintiffs own one hundred percent of the minerals, including oil and gas, lying under "their
property" (undoubtedly referring to the Hosek Tract and the 38-Acre Tract) and that Ms. Scott
owns no minerals lying under said tracts. As demonstrated below, the Partition Deed relied on
by Plaintiffs to claim that they own one hundred percent of the minerals under their tracts of land
Page 17
63
unambiguously demonstrate that the minerals were expressly excepted from the partition and the
parties expressly agreed not to partition the minerals for a specified period of time. Accordingly,
Plaintiffs claims are without merit and summary judgment should be granted in favor of
Defendant:
A. The Partition Deed Is Unambiguous as a Matter of Law.
20. The question of whether an instrument is ambiguous 1s a question of law.
Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). "If the written instrument
is so worded that it can be given a certain or definite legal meaning or interpretation, then it is
not ambiguous and the court will construe the contract as a matter of law." SAS Inst., Inc. v.
Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005). An ambiguity does not arise simply because the
parties advance conflicting interpretations of the contract. Columbia Gas Trans. Corp. v. New
Ulm Gas, 940 S.W.2d 587, 589 (Tex. 1996). Only if, after application of the rules of
construction, there are two or more reasonable interpretations, can a court find an instrument
ambiguous. Id.; See also Universal C.IT. Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex.1951).
However, if after applying the relevant rules of construction, a contract can be given a definite
legal meaning, the contract is unambiguous and the court can construe the contract as a matter of
law. Frost Nat'l Bankv. L & F Distributors, Ltd., 165 S.W.3d 310, 312 (Tex. 2005).
21. When determining the intent of the parties to an instrument, the courts apply the
rules of construction to the four corners of the instrument itself, regardless of what may have
been the subjective intent of the parties to said instrument. Lucke! v. White, 819 S.W.2d 459
(Tex.1991). In fact, the first rule of construction is to ascertain and give effect to the parties'
intentions as expressed in the document. Id. at 311-12. "The intention is to be ascertained as
expressed by the language used, and not the intention which may have exited in the [makers']
Page I 8
64
minds ... , but is not expressed by their language." Fisher v. Wynn, 2011 Tex.App. Lexis 6031
(Tex.App. Tyler Aug. 3, 2011, no pet.) citing Slavens v. James, 229 S.W. 317, 318 (Tex.
Comm'n App. 1921, judgm't adopted). Even if different parts of the deed appear contradictory
or inconsistent, the court must strive to harmonize all of the parts, construing the instrument to
give effect to all of its provisions." Lucke! v. White, 819 S.W.2d 459, 462 (Tex. 1991) (citations
omitted).
22. In the instant case, the Partition Deed is worded in a manner that it can be given a
definite legal meaning/interpretation and the Court should rule that the Partition Deed is not
ambiguous as a matter of law.
B. The Oil, Gas and Other Mineral Rights are not currently partitioned in the
Partition Deed.
a. The Oil, Gas and Other Minerals Were Expressly Excepted from the
Partition.
23. To the extent Plaintiffs attempt to argue that because the surface was partitioned,
the minerals were also partitioned, this is contrary to the express terms of the Partition Deed.
Specifically, Plaintiffs may argue that when lands are partitioned among co-owners, the whole of
the land is partitioned, unless some portion of the land is expressly excepted from the partition.
See Pewitt v. Renwar Oil Corp., 261 S.W.2d 904, 906 (Tex.Civ.App.-Houston, 1962, writ
refused n.r.e.). In the instant case, the minerals were clearly excepted from the partition. As
noted above, the Partition Deed expressly provides: "[t]his partition DOES NOT INCLUDE
any of the oil, gas and other minerals in, on, or under the above-described tracts of land, ..
." (emphasis ours) See Partition Deed, Ex. B. There is no doubt that this language operates as
an exception from the partition. See Security Development co. v. Hidalgo County Drainage Dist.
No. 1, 124 S.W.2d 178, 181 (Tex.Civ.App.-Amarillo 1938, no writ.) (technical language not
Page 19
65
necessary to create reservation or exception); PYR Energy Corp. Samson Res. Co., 456
F. Supp. 2d 786 (E.D. Tex. 2006) (same).
b. The Partition Deed Contains An Agreement Not to Partition the Minerals
And Restricts the Ability to Partition For A Specified Period of Time.
24. Parties may voluntarily, agree to partition land. However, a voluntary partition of
/
land must be based on the agreement of all parties with a possessory interest thereto and cannot
be the result of a unilateral decision. Stradt v. First United Methodist Church, 573 S.W.2d 186,
190 (Tex. 1978) (subjective intent of one party is not proof of an agreement between several
parties to partition land); see also State v. Kirkpatrick, 299 S.W.2d 394, 397 (Tex.Civ.App.-
Dallas 1957, writ ref'd n.r.e.). Parties can expressly agree to waive the right to partition.
Lichtenstein v. Lichtenstein Bldg. Corp., 442 S.W.2d 765, 769 (Tex.Civ.App.-Corpus Christi
I
1969, no writ). An express agreement not to partition will be honored by the courts. MCEN
1996 Pshp v. Glassel!, 42 S.W.3d 262, 263-64 (Tex.App.-Corpus Christi 2001, pet. denied).
Parties can also impliedly agree not to partition. See Id. at 264 (pooling agreement created
implied agreement not to partition); Long v. Hitzelberger, 602 S.W.2d 321, 323 (Tex.App.-
Eastland 1980, no writ.) (implied agreement not to partition); Warner v. Winn, 191 S.W.2d 747,
751 (Tex.Civ.App.-San Antonio 1945, writ ref'd n.r.e.) (courts will imply an agreement not to
partition); Dimock v. Kadane, 100 S.W.3d 622, 625 (Tex.App.-Eastland 2003, pet. denied.)
(affirming implied agreement not to partition mineral interests). Accordingly, it is well settled
that parties can agree not to partition property, including minerals interests. One must look to the
language of the dividing document, in this case the Partition Deed, to determine the parties'
intent.
25. In the instant case, the Partition Deed expressly excludes the oil and gas and other
Page I 10
66
mineral interests from the partition. It specifically states, "[t]his partition DOES NOT
INCLUDE any of the oil, gas and other minerals in, on, or under the above-described tracts
of land, ... " See Partition Deed, Ex. B. The remaining language constitutes an agreement not
to partition the minerals for a specified period of time. Specifically, the language provides, "and
same are to remain undivided for a period of twenty-five (25) years from the date hereof and as
long thereafter as oil, gas, or other minerals are produced in paying quantities from the above
described lands." Under the above cited authorities, this language constitutes an express
agreement not to partition for a specified and finite period of time.
26. If, after twenty-five years, oil, gas, and other minerals are not being produced in
paying quantities, then the restriction on the parties' ability to partition was lifted and the parties
were once again free, if they so desired, to take affirmative action to partition the minerals. No
such partition has been made and thus the 100 percent ownership is shared equally by the
Plaintiffs and Defendant, subject to any subsequent conveyances. As such, the Court must rule
as a matter of law that the Partition Deed does not presently partition the oil, gas and other
mineral rights to the Voigt Tract and Ms. Scott owns a 50% undivided interest.
VII.
CONCLUSION
For the foregoing reasons, Defendant is entitled to summary judgment as to the
following:
a. The Partition Deed is unambiguous as a matter oflaw.
b. The Partition Deed does not currently partition the oil, gas and other mineral rights of
the Voigt Tract.
Page I 11
67
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant ROSALE SCOTT respectfully
request the Court grant this Motion for Summary Judgment as requested herein and for such
other relief to which Defendant may be entitled.
State Bar No. 03621020
ZACHARY J. FANUCCHI
State Bar No. 24028548
ATTORNEYS FOR DEFENDANT, ROSALE
SCOTT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document will be served in the manner
indicated this !d't
day of December, 2013 upon the following:
Robert J. Ogle
Attorney at Law _ Certified Mail, Return Receipt Requested
508 E. San Antonio Street X Facsimile
_Hand Delivery
Boerne, Texas 78006
X Electronic Transmission
Facsimile: (830) 249-8508
Counsel for Plaintiff
G. ADE CALDWELL
ZACHARY J. FANUCCHI
M:\2000\2200 OIL AND GAS CLIENTS\121 Hosek v Scou\Plcadings\2013.11.27.Dcfs MSJ.docx
Page I 12
68
' ~.
WARRANTY DEED
I
THE STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ATASCOSA
That we, FRIDOLIN ALEX VOIGT and wife PEARL SCHNAUTZ VOIGT
of the County of Atascosa and State of Texas for and in consideration
of the sum of TEN and No/100 DOLLARS ( $10.00)- and other valuable
consideration to the undersigned paid by the grantees herein named,
the receipt of which is hereby acknowledged have GRANTED, SOLD and
CONVEYED, and by these presents do GRANT , SELL AND CONVEY unto
VICTOR HOSEK and wife IVARENE VOIGT HOSEK of the County of Wilson,
State of Texas a one half (~) undivided interest in and to the
following described property and unto ROSALE VOIGT SCOTT as her
separate property a one half (~) interest in and to the following
described property and same being a total of all the following
described real property in Atascosa County, Texas, to-wit:
First Tract:
207.77 acres of land, situated about 20.miles S 85° E. from
Jourdanton, Texas, and being made up of 11 acres out of the John
Herron Survey No. 214, Abstract No. 393; 27 acres out of the H.B.
Theobold Survey No. 210, Abstract No 849; 105.77 acres out of the
Geo W. Thomas Survey No. 209, Abstract No. 848; and 64 acres out
of the John Smith Survey No. 213, Abstract No. 804; and being a
part of Subdivisions Nos. I,II,and III of the Robert Krause 1103
acre tract, and said 207.77 acres, in one body, being described
by metes and bounds as follows, to-wit:
BEGINNING at a corner fence post on the N.W. side of a 20 foot
public road traversing the Robert Krause tract of land, the
same being the east corner of Subdivision No. III, and the
east corner or this tractr
THENCE s. 50° DO' W. 793.0 feet with the North line or said
20 foot road to a stake set on same for the lower southwest
corner of this tract and the lower southeast corner of a
322.6 acre tract;
THENCE N. 40° ·00 1 W. 1737.5 feet to a stake set for the· inner
southwest corner of this tract and the inner southeast corner
of said 322.6 acre tract;
THENCE s. 50° 00 1 W. 1560.0 feet to a stake set for the upper
southwest corner of this tract and a corner of said 322.6
acre tract;
THENCE N. 40° 00 1 W. 2915.0 feet to a stake set in the south
fence line of an 8.6 acre tract for the Northwest corner of
this tract and the Northeast corner of said 322.6 acre tract;
THENCE N. 69° 37' E. 112.5 feet with fence line to the Southeast
corner fence post of said 8.6 acre·tract;
BEC PLTF 0041
69
0 .
THENCE N. 0 33 1 W. 373.5 feet with fence line to the Northeast
corner fence post of said 8.6 acre tract;
THENCE N. 59° 32' E. 570.0 feet with fence line to corner
fence post;
THENCE N. 39° 07' W. 363.5 feet with fence line to corner
fence post for corner, same being the West corner of Sub-
division No. III;
THENCE N. 530 31 'E. 1432.0 feet with fence line to corner
fence post for the Northeast corner of this tract, same
being the North corner of Subdivision No. III;
THENCE S. 40° 00 1 E. 5083.0 feet with the common boundary
fence line of Subdivisions Nos. III. and IV to the place
of beginning,containing within the above metes and bounds
207.77 acres of land, comprised as aforesaid of 11 acres
out of the John Herron Survey No. 214; 27 acres out of the
H.B. Theobold Survey No. 210; 105.77 acres out of the Geo. W.
Thomas Survey No. 209; and 64 acres out of the John Smith
Survey No. 213. Surveyed on April 19, 1948, by John ~- Peel,
County Surveyor of Atascosa County, Texas.
And being the same land described in deed dated May 6, 1948 from
L. W. STIEREN to FRIDOLIN VOIGT and recorded in Vol. 189, Pages 379-
382 of the Deed Records of Atascosa County, Texas.
Second Tract:
Being 130.77 acres of land in the Geo W. Thomas, Juan Ortiz,
and C. Hernandez surveys and being described by metes and bounds
as follows:
BEGINNING at a stake set on the southwest line of an old 20
foot road and the northeast line of a tract of 249t acres
conveyed to H. E. Ridout by c. E. Koriff of which this tract
is a part, said stake being set for the west corner of a
150-3/4 acre tract and the east corner of this tract and the
lower north corner of a 119.04 acre tract;
THENCE N. 40 deg. w. 3203 feet with the southwest line of said
20 foot road and the northeast line of original 249t acre tract
to a stake set for the north corner of this tract and the north
corner of said original 249t acre tract;
THENCE S. 50 deg. 17 1 W. 2588 feet with the southeast line of a
road and the northwest line of said 249t acre tract;
THENCE S. 40 deg. E. 2900 feet with the southwest fence line of
said 249t acre Subdivision to a stake set on same for the south
corner of this tract and the west corner of a 119.04 acre tract;
THENCE N. 50 deg. E. 1164.5 feet to a common corner of this
tract and 119.04 acre tract; .
THENCE N. 38 deg. 36 1 W. 1087.5 feet with fence line to a stake
set on same for a common corner of this tract and 119.04
acre tract;
THENCE N. 50 deg. E. 384 feet to a post set for a common corner
of this tract and 119.04 tract;
THENCE N. 40 deg. w. 304 feet to a post set for a common corner
of this tract and 119. 04 acre tract;
THENCE N. 50 deg. E. 984 feet to a stake set for a .common corner
of this tract and 119. 04 acre tract;
- 2 -
r
BEC PLTF 0042
70
THENCE S. 40 deg. E. 1707. 5 feet, ~ara 11iegns, .. that .;; ra.1'tl tj_on or' so;. id
lands be made as follo'l-rs, to-wi.t:
:F'iret. The said Vietot' Hosek and wiff:, Ivarene v,)igt Rosel;:,
shall f'rora henceforth have, hold, posses>> and enjoy in seve1°F..l i:;y by
themAF'lves s;i.nd to themselves am't to them and their heirs !-'.ncl ausi~;ns
for their psrt, ehare, intertst.e.nd propc.irtiDn of' m:tid 16.nJ.a and.
premtses, all that certain part of lan<'l situated in Ataseo !>a County,
'J'exB.s, as foJ.lowa;
207.77 acres of land, situate:l about 20 ;niles S 85 <:leg. E.
from Jou1•dRnton, Texas, and being made up of 11 acres ~iut of the ,fohn
Hef1•on Survey No. 214, Abstract No, 393; 27 cicres out oi' the H. B.
TherJbold Survey No. 210, Abstract l:b. 849; 105.77 acres out of the
Geo. 1:{. Thomas Survey No. 209, Abstr-3.ct No. 34i:i; and 64 a.crec.i out
of the John Smith Survey Ho. 213, .!i.bst _ •act No. 80L,; Fmd. bein-s a p1:>.rt
of SubdiYiaione Nos. I, II, and III of the Robert Kr!'luse 1103 p,_()re
tr~ct, and Raid 207.77 acres, in one body, being described by metes
anc'l. bounds as follows, to-wit:
BEGINNIHG at a corner fence post on tl'1e N. W. side of e, 20
foot public road. traversing the Robert K1·ause trs.ct of lan(l, th<'. seme
being the east corner of Subdivision No. III, and the ee.st <::orner of
this trF,c t;
THENCE S. 50 deg. 00 1 W. 793.0 feet with the North line of
said 20 foot road to a stake set on same for the lower southwest
corner of this tract and the lower southeast corner of a 322. 6 acre
tract;
THENCE N. L~O deg. 00 1 W. 1737-5 feet to a st".ke sat for the
inner southwest corner of this tract anci the inner southear:t earner
of said. 322.6 acre tract;
THENCE S. 50 deg. 00' W. 1560.0 feet to a stR.ke set for the
up;ier southwest corner of this tract and a eorner or' E::--iil 32~· .6 acre
tr~.e t;
BEC PLTF 0050
72
Tl1'.':l~CE
lL hO deg. 00 1 \-i, 2915.0 fee.t t'.) <'. shke 8P.t in the
:~TCE H. 39 a.cg. ,.J7 1 ,[. J6). 5 feet '."i th fence line to corner
"l"encP. r.:ist fo1• corn-: t', sa.me bein,;; the \fos·~ corner of' Subd.i Vi8icn
No. III;
THEHCEN. 53 (leg. 31 1 E. lh32.0 feet Nich fenee line to
".ornE'l' fF:nce ;:iost f·'.lr the Northet:i.8t norner of this tro.ct, sa.me 'J~ing
the North cornsr of 9ubdlvieion No. III;
TH!':NCE S. 40 deg. 00 1 E. 5083.0 feet with the C';ommon
houndary fc'nce llnE>. of Sub<'i.:\.Vis:l0na Nos. III !'l.nc.l. IV to the :;:lace of
b~ gin:1ing, o;)J1t8.ining 'ofi thin th'= above metes and bounds 207. 77 °wres
of 18.nd., cornnriserl Hr, .ci.fores..• ..i.ct described as First
'rrHrt, convi~yecl to Victor H"Jsek arn1 vrife., Im:>.rene V0igt Rosel~, 'l.nd
RosHle Yr)tgt $cote, ':•:t '·ie.rrP.n.t:' Desd (lated Oct·/ber 9, 157:~:, l.'f t'errnrd
·1n V.:.>luine 1>91, Fe.€es 283-291, DPerl. Renord.p of Atai;o·:>goi. Count:r, ~'•··::·3s,
r.orm·,r:i.8Pcl of 23.10 acres out ::ii' ths H. B. Theobc·l•~. Survey ff2l·j,
Abpi~t··,_ct 1''3h9, ,ind. 15.4 eo.:·ee out of thf; Geo. W. Thoml'l.s Surve;v fi;?Oj,
Ab'"'.:r... ,,ct #·8LL9, ~:,,i•.' 3~. 5 A.ore,1 being: ·.aore particu.La~·ly clesc.r·J.')ed ""
i' ~il.'1 ·:)1'/ '·'. !
BEG·Il:HlING e.t £\ l./Z inch €?1vaniz.e.ct be··'ri:> N. li{1 deg. 00 f'.l:Ln. ·.v., 1701.00 feet;
~'HE~~ ~:E s. 40 de;;;. E. 33.51-L 20 feet to a ~~/4 inch $·3 l vfJ ni zed
·r;i ,.'.'- found on th" 11or•th•·.•est Right-of-Way line of 3n exifiting SO feet
0ounty ro8.d for the E>1st cornE;l' of this tra.ct;
'.1'"!:'·21CJ<: S, 5'..> rle'!;. 2·3 01:111. '·I. 50·}.00 f~et aLme; the Northr.;est
R:lg-ht-o!'-WF-'Y 1 in"' o:f !"'3.id e:>cisting 50 f,xit aounty· roe.d foe <'l. 1/2 :i.ncl.l
"'"l'I!'!l.LcflrJ nl:of' iJ8t for the Sonth r:rJ!'l1"P 0f' th: s trRet;
-2-
BEC PLTF 0051
73
':':{ENCE H. l..;.O •leg. 00 min. ii. JJ5L1.• 20 fee;; to a 1/2 inch
~·.:::·!l.V::·nize(l 'fJipe eet fo 1:~ the \-i1::st ·~ornf !., c:f thiA trPct;
THENCE tJ. 50 deg. 28 min. E. 500 .00 feet t0 the Place uf
Beginning, C'-~JY1taining- J8.5 ac:rc-,s of land, e.8 surveyed on the .ground
b;;r me, Victor Seguin, Re.;lE\tE>rod Public Surveyor No. 1776, on chis,
the l:;'.tl:J. d" y of Junfl, 1979.
This parti t:'..on does not include iiny of the oil, F.;as f.'l.nc1 other
'r·i.11"-Y':'! ·:i ~.n, 11n 01· unc.ler the e.bove described tr·e.ct of l3nJ., and Sf.me
d!!te hereof Rno. as l'.;.ng 1:;hereafte:r as oil, ge.s or other i!'inerF>le
ere -r:'rorluced in naying qunnt.i tie12 from the above ,1esc;ribed le.nd.
Second. Tho:: B'ti:l R,;s~le Vc_i.tgt Sr:ott ehsll from hence!orth
:....
hav~, hold, pos?esR e~~ enjoy in severalty by herself And to herself
cind tc1 her Emel her h~·i:re ':l.nd.eti:.signs for her rlf.1•t, share, interest
~nd proportion of seid lRnds and premises, the folloving two tracts
First Tl',:Gt: Being lJ0.77 1wres of le.nd in the Geo .•I. Thomas,
JuHl Or·:.1z, anrl C. Hernandez Surveys, a.nd ·being rlescribed by metes
i>nd bounds as f'olloi..rs:
BEG·INi'lIW.l- a.t s. str<:·:e set tl!1 the south.·'eRt line of 1.1.n old
?O fc)·..1t !'c1ad A.nd the northea·".T; U.ne o:t' a tr">ct of 249;t acr~s C:'-On-
ve.~r~d t'.) H. E . .Ridout 'by 0. ,~.. Ko1•iff of which this 'tl'P.ct ifj a ps.rt,
::'."1.ir' et;.0 !~':! 1,:)eJ.!1g" set far the 1·.fetit n,()l'tlE;l' Dr° fl 150-J/LJ. 8.Gl'e tr'P.()t; end
th~ ePPt ~~~ner• af tl1i8 t1·R~~t Rnd the lower n1»~th corner af ~ 119.04
?r.r•) 'Gr·~·.-::t:
THENCE lL hO de,,,;. ·1. J2J3 feet w1 th tho: southwest line of
<;c-ii•' 20 fo,1t Poed a.rid the nortb.east line of oPigim.~l 2.Lf9i 2.cre tr">r.t
to B f'!t[·}~f' set 'for the no).·~h corm· r of tM.s t;r;:.nt end the riorU1 (:orner
0~ BRi~ ori~in0l 2h9i acre trBct;
'I'HENCE S. 50 c3.ef..'.;. 1? 1 W. 258'?. feet With the southea9t line of
[' rmid cm·:'\. the nortlT•est l.ine. of sa1.-1 245B; a'.'re tra.ct;
THE~'CE S. /J.Q rl.e:~:. ll:. 2900 feet With thP. south•·•est fen:::e line
(.:~· R.P.i·~! ?Li..9~ al'~re Subr1.ivip:i_:)ri to a ~~tP...ke set on sa!11e for tbe ~outt1
·~·:>rn•:"· :;.P ti1i.'l trP.ct l'\nc1. the west "orn"r of a 119.04 acre tra~t;
'~H:S;1cE ~1. 50 1'leg. E. 1164.5 feet to " common coi:•ner 0f tbla
':!····::t "n•:. 119.0Li. eore tr:;~t;
'I'Hf.HCE N. 38 d.e~. 16 1 \!. 108?. 5 feet .,,i'Gb fence line to a
et~ke set on saqe for ~-~a~~on c2rn~r of this tract and 119.04 Rcre
tr'' et;;
1'HENOE N. 50 .cJ.e~.
E. 384 feet to a post set for <". eommon
·:· nrne:tl of this tra.c t an11. 119. 04 aCr•e trHc t;
TR~NC~ N. 40 ~e~. W. 304 feet to a ~oet set for a common
corn~~r o:f thie trnot and ll9 .. 0.L!. 8.ere tract;
':'HE!·TCE N • .50 deg. E. ?8Lf ·feet to B. 601-t.i):~ '.'>1' Gh6 Deed Reaords of Ata1H'.0Re.
r, r~_n..J. n ~:y , '1 ~ :-..:G. A •
1
SE:'ouna. Trfl.ct. All th?t c<:,rt•o~_n tr~.c.t or ::.a.reel of la.nd
ining J8 . .5 ·"·~refJ of land, ·being a portion of ' l 207.77 ."1·.'r<:> tr,,ct
()'.)l!°t?..
:\"'"nril:>ecl. a_,, Fi·v;:.t Tract, c:nw~yed to Victor Hosel!; and vrif~, r·•rarenE:'
V1ig·t HoR5l:, WEI:
BECH1ElING i;i.t 1J 1/2 inch galvirnzied pipe set 0:1 the lfortht':':l.st
boundary J.i11e of l'l-'iid 207.77 flr1re tract for the North corner of t.hif;
trqnt, from whinh flPce of beginning, the North corn•r of said 207.77
~orP trPnt bears N. 40 de~. 00 min. W. 1701 feet;
'l'HENC".' S. LJ.o dei";. E. 335L1.• 20 f'eet to P.. 3/4 inch gelVPhniY.e<.l
·oine fnund on th•7 North··rest ri5ht-of-wr,y linf! of 'l.n existing 50 fo•)t
. . . ount~r road f'cr the Eaet c':a'""nF·r .'.)f t::1j_s tr'."--•ct;
THENCE S. 50 dee;. ?8 rnin. 11. 500,00 ff!et s.luns· the Northwest
l'ight-of-'''l.J' lin~ of saicl. e:c:.st~_ng 50 l'n·::it countJ' road !'or P.. J./2 inch
~RJ.''!fi r-iet for the South corno:;r of tl1io ·~rr-.ot;
·J'HE!ICE N. l.1-0 deg. or.:i n•:i.n. W. 3354.20 'feet to ,"l 1/2 inch
;i;.?..J.·,-r,!nl·· :i:l. p:l1:·e s;;t; for tL<' ·:{r.' st 01:;:,•:w c' cf' t'1:l .~ t:.-.'H:'c;
THE~~Z ··1. 5~ ,,e~. 28 !11in. E., 5ooeoo feet tu the ~l&1~e of
bF.:gin11i.1'g, C·-:>ntaining 38. 5 a<:; res of l:·rnd, as su1•v:•ye1 1.m 'the gr.·~iuncl.
11y r~e, Vietor Seguin, R<::giste;•ecl Publlc Surveyor ifo. 1776, on this,
the 1Jth. day of June, 1979.
August, 19?9.
~~ne. z/&£,gi: M.;!1e is
,.fl.JJl;"tJ:l(;\i'.l_!'.ibed to the f.'oregriing in:.tru~ent, and aclrnowledgecl to me that
,.::;:,~p·€J:~, .. fcl).te11 thP. ~ci.mr:- for the 'c.ur···o»eP ~>n<.1. c.onsider"·tion thf':re:i.n e··1,-
:.jf>
. ;... . ' '•:;_ - /
7 .:.l.
·...
~··
ven und.er n1y h;•nd 81ld. seal of Dffioe, ::;n t;'1i::i the
lSt, A. D. 1979.
_
:·})·~ ~
','l..';.J :.
-·1 . . . .• ~w1§EMAN -
' ·>;:~'.Iir:'· ).~·:&?::P~blic in and for e.nd. for Wileon County,
·· ·~;,it-.i:J6'if counw. Texas
~. Be tore mt:r, tl1e undergignea. authority, on thie day personally
re. F.l.r:meared Ivarene Voigt Hosek, };.1101-rn to me to be the person whose mi.me
"""';· if' subscribed to the fol'.'e.·;oing instrument, a.nd acknowledged to me
~- th~f·.. -.;;\:e;xecutecl thE· same f1:ir the puryioAes ::i.nd considere.tion therein
;£$~'!! 'iJ;,, and " " l nf ar~',ce, on thi' the _,[7~
'-~ D. 1979.
··1;'.:i•.·
··::@Jj; -
~\,./ '!:IH FUblic in and tor
. '''.:\.;r:i.~·~·1~· County. Tex.am • for ·,vil"lon Coi.mt.y,
·:;oUH'!'Y OF WILSON
Before mi:, the und.ert".i~;nbi. ·'.~.uthorit;,r, 0I1 ·unii:. da.:; pei:•s(.mally
R.pr,eared. Ros~<-le V•·i~1~ Sn,_,tt, 'm'.JW!J t•) me ·t;cb'e the person 1·rhose no.me
in subso!·ibecl t~::o thr- J'rireg:)in;- instru!l'.ent, a.nd. .oicl<.no•.-r:Le(l§;ed tc· me tliet
v,l1~.-1 ·,ek'I ::.......
BEC Pl:.~'~
: ~'
·..,
.;•
°
THENCE S 40 00 1 00" E, 2348. SS feet to an iron pin set for the ."·I;
upper east corner of this tract. ..··:~~'.i
·:';1
THENCE S 50° OD' OD" w, 305.96 feet to an iron pin set for a cor- ·<1
ner of this tract. ,,,
·:"·
~:;.
THENCE S 40° 00' OD" E, 551. 00 feet to an iron pin set in the .. ~
·'..f.
c.r. southeast line of the 130.77 acre tract for the lower east corner of ..
c::; th;.s tract.
~1
THENCE S 50° 00 1 00 11 W, 653 .17 feet along the so1.1theast line of
·:.j
the 130.77 acre tract to the POINT OF BEGINNING. j~
;i::;
\;
This Deed and the hereinafter varranty are made expressly subject to \j
1~
the following:
a. Reservation of an undivided one-half (1/2) interest in and to ~~
the· oil, gas and other minerals in, on and under and that may be pro- :~
duced from the herein described premises. Such reservation appearing
in a Partition Deed dated August 17, 1979 by and between Victor
!-:
-~: . .~
·~
Hosek, et ux, Ivarene Voigt Hosek and Rosale Voigt Scott which deed ::1.
,_. ·.~
appears of record in Volume 510, Page 126, Deed Records, Atascosa
·i~'\r.
;~
County, Texas. ?7 :
~- .. ~
~- -:~
j
·~I
50 ~
~~
81
DEED 745
. . .i
TO HAVE AND TO HOLD the above described premises• together with all and
singular the rights and appurtenances thereto in anywise belonging unto the
said grantees, their hei:-s and assigns forever; and we do hereby bind
ourselves• our heirs, executors and administrators, to WARRANT AND FOREVER.
DEFEND, all and singular the said premises unto the said grantees, their heirs
and assigns, against every person whomsoever lawfully claiming or to claim the
same or any part thereof.
EXECUTED this 4th day of March, 1986.
HUGHo:ori
THE STATE OF TEXAS:
COUNTY OF ATASCOSA:
g
~ This acknowledged before me on the 4th day of March, 1986,
by RO SALE
.1
! ~
c::J1
~ Notary Public, State of Texas
ID
Printed name:~~~~~~~~~~~~-
gt
:.• ......
THE S'tATE OF TEXAS:
COUNTY OF ATASCOSA:
This instrument was acknowledged before me on the 4th day of March, 1986,
by HUGH O. SCOTT.
Notary Public, State of Texas
Printed name=~~~~~~~~~~~~-
51.
DEF 0022
82
,,,·r.:, . ....· .·.. , ...., ...
. . ·.···-··~~---. ...
1064
loiJ.,.1 for ltccoru
'±ib Da)' of!'09.U.!1 .filL
•t!::.!:!5n'r.luc:k p M
ELIDIA Sf.CUHA
Coun17 CletlL. At~ ....,.. Cuunt•
e1C1 r:0. 0 .=f\Vu,·"'-'
01'lH1r,"
BOOK 745 ~!! 52 ~·:
:~.:
..:~
~·:
·.;
.,
... :
·'
.J
::.:
- __ .. ______ :'j
,.
FIUD FOR REXJJRD:...:MAOCH==--4"---'A.D. 1986 AT.___,l:::,_,;,4c:::;5_ _ ___;0'CUJCK_ _P_.M. iiND ·.:
:: ,;
~ REXDRDED MAllCll 7 A.D. 1986 AT 4 :00 O'CUJCK__L.M. IN .,
::~,.
745 PJl.GE:S 50-52 - ·~
',-::
i
·'.:·
~.~
~
.~
-~
• -<
~
~
·'·
.
-·~
~
-::·:
·~
ii
52 ~~
i
DEF 0023 1
83 ------------·-·----·-------- . --------------·---
WD/VL ROSALE VOIGT SCOTT, ET VIR TO WILLIAM W. KING, ET UX
WARRANTY DEED WITH VENDOR'S LIEN
THE STATE OF TEXAS
COUNTY OF ATASCOSA KNOW ALL MEN BY THESE PRESENTS:
That I, RO SALE VOIGT SCOTT, joined pro forma by my husband, HUGH O.
SCOTT, of Wilson County, Texas, for and in consideration of the sum of TEN AND
N0/ 100 ( $1O.00) DOLLARS and other valuable consideration to the undersigned
paid by the Grantees herein named, the receipt and sufficiency of which is
hereby acknowledged, and the further consideration of the execution and
delivery by Grantees of their one certain vendor's lien note of even date
herewith in the principal sum of THIRTY THOUSAND AND N0/100 ($30,000.00)
DOLLARS, payable to the order of ROSALE VOIGT SCOTT, as therein provided and
bearing interest at the rates therein sped fied and providing for acceleration
of maturity in event of default and for attorney's fees, the payment of which
note is secured by the vendor's lien herein retained and is additionally
secured by Deed of Trust of even date herewith to James R. Andrus, Trustee,
have GRANTED, SOLD AND CONVEYED and by the. presents do GRANT, SELL AND
CONVEY unto WILLIAM W. KINt; and wife, ROSIE KING, whose address is 11911
Longleaf Lane, Houston, Harris County, Texas 77024, all of the following
described real property situated in Atascosa County, Texas, to-wit:
BEING 70.77 acres of land, more or less, described as follows:
BEING that certain 130. 77 acres of land out of the George W. Thomas
Survey, Abstract No. 848, the Juan Ortiz Survey, Abstract No. 652
and the Candido Hernandez Survey, Abstract No. 351, Atascosa County,
Texas, and being the same property described as First Tract in the
property conveyed to Rosale Voigt Scott in that certain Partition
Deed dated August 17, 1979, executed by and between Victor Hosek and
wife, Ivarene Voigt Hosek and Resale Voigt Scott, which Partition
deed appears of record in Vol. 510, Page 126 of the Deed Records of
Atascosa County, Texas.
LESS HOWEVER, that certain 60 acres of land; 39.93 acres out of the
George W. Thomas Survey, Abstract No. 848 and 20.07 acres out of the
Candido Hernandez Survey No. 205, Abstract No. 351, Atascosa County,
Texas, which is more particularly described in that certain Warranty
Deed dated March 3, 1986, executed by Rosale Voigt Scott, et vir to
Evaristo Morales, et ux, appearing of record in Vol. 745, Page 50 of
the Deed Records of Atascosa County, Texas.
SAVE AND EXCEPT, there is hereby reserved unto Rosale Voigt Scott,
her heirs and assigns, an undivided one-half (l/2) interest in and
to the oil, gas and other minerals in, on and under and that may be
produced from the herein described premises for a period of twenty
(20) years from date hereof, and for so long thereafter as oil, gas
or other minerals are produced therefrom, together with the right of
ing_ress and egress during said period for the purpose of exploring,
dr111 ing, producing and operating said land for oil, gas or other
minerals and for the purposes of treating and removing the same
therefrom,
This conveyance and the hereinafter warranty are expressly subject to the
following:
a. Right of Way Agreement dated January 20, 1949, executed by Fridolin A.
Voigt, et ux to Atlantic Pipeline Company, appearing of record in Vol. 197,
Page 338, Deed Records of Atascosa County, Texas.
b. Right of Way Agreement dated August 19, 1980, executed by Rosalie Voight
Scott to Valero Marketing Company, appearing of record in Vol. 532, Page 361,
Deed Records of Atascosa County, Texas.
84
DEF 0015
c. Mineral and/or royalty interest excluded or retained in deed recorded in
Volume 510, Page 126, Deed Records of Atascosa County, Texas.
TO HAVE AND TO HOLD the above described premises, together with all and
singular the rights and appurtenances thereto in anywise belonging, unto the
said WILLIAM W. KING and wife, ROSIE KING, their heirs and assigns forever;
and we do hereby bind ourselves, our heirs, executors and administrators to
WARRANT AND FOREVER DEFEND all and singular the said premises unto the said
WILLIAM W, KING and wife, ROSIE KING, their heirs and assigns, against every
person ~ho1DSoever lawfully claiming or to claim the same or any part thereof,
But it is expressly agreed and stipulated that the Vendor's Lien as well
as tb.e superior tit 1 e is retained against the above described property,
premises and improvements, until the above described note, and all interest
thereon are fully paid according to its face, tenor, effect and reading
thereof, when this deed shall become absolute,
EXECUTED this 29th day of January, 1990.
THE STATE OF TEXAS
COUNTY OF ATASCOSA
This instrument was acknowledged before me this ~ day of January,
1990, by ROSALE VOIGT SCOTT and husband, HUGH 0, SCOTr.,
~O~L~J~d~J.,__._O~....-.A~iV~~=· ~~~~­
........
e
NoTAR/PueLrc. STATE OF TEXAS
. ALFRED A, STEINLE
Nollry Niie 8111e al THH
llJ CealhlceEipt110'131/9'
85 DEF 9916
------------------------- --··-··-·· - ·····-----·---~--------------------------
r--
C"'J WARRANTY DEED /VE~'DOR' S LIEN
-M
..,,
.......
;E'
ROSALE VOIGT SCOTT, ET VIR
TO
WILLIAM W. KING, ET UX
eturn to William W. King.
11911 Longleaf Lane
Houston, TX 77024
STATE OF TEXAS COUNTY OF ATASCOSA
t tiereby certify that this Instrument wu liled on t:ia
date and time stamped hereon by me a~u dd,V
re:orded In lhe volumeand page ollhe op
1acards ot Atascosa County, Texas ::;tampt:d hereon
by m(®)" ~CORDl!IG DATE
~ °'-' 3() 191'0
STEINLE AND WETHERBEE ·~I
........ Lfl UITA HAYDEN
~
~tlon1'1!a nl '!liaiu COUNTY CLERK Atascosa County, Texas
P. o. eox 400
JOURDANTON. TEXAS 7802.6 By:tY\ .d\fvt.c;.A Deputy
86
DEF 0017
'-· ~•..-A~g.15. 2013 3:39PM No. 3690 P. 13
NO. 13-06-0559-CVA
IVARENE HOSEK AND VICTOR § IN THE DISTRICT COURT
HOSEK §
Plaintiffs, §
§
v. § 81ST JUDICIAL DISTRICT
§
ROSALESCOTI §
Defendant. § ATASCOSA COUNTY, TEXAS
PLAINJIFF'S RESPONSE TO
REQUESTS FOR ADMISSIONS
OFDEFENDANTROSALESCOTJ
TO: Rosale Scott, Defendant, by and through Defendant's attorney of record, G. Wade
Caldwell ·
NOW COMES lvarene Hosek and Victor Hosek, Plaintiffs, and respond to the Requests
for Admissions propounded by Rosale Scott pursuant to Rule 198 of the Texas Rules of Civil
Procedure.
Respectfully submitted,
:~ ertJ. fJvd ·!:Y=
Texas Bar No. 15231350
508 E. San Antonio St.
Boerne, TX 78006
Tel. (830) 249-9358
Fax. (830) 249-8508
Attorney for Plaintiffs
Ivarene Hosek and Victor Hosek
I
87
.~""•"Mg. 15. 2013 3:39PM No. 3690 P. 14
CERTIFICATE OF SERVICE
I certify tha,t on August .lf_, 2013 a true and correct copy of Plaintiff's Response to
Requests for Admissions was served by facsimile transmission on G. Wade Caldwell at 210-225-
8999.
2
88
Request for Admission No. 25: Admit that SCOTT never executed a document partitioning the
minerals under the HOSEK TRACT after the PARTITION DEED was executed.
Resp9~se: Admit
6
89
Tab B
d' 3 l
File> 't '~ o·a.oCK_B
MARGARETE. LITTLETON, DISTRICT Q.ERK II
I
NO. 13-06-0559-CVA
I JAN - 6 2014 - ··
IN THE DISTRICT COURT'P"7
O.ERK~,j/,.,,,A DEPUTY
CO, TX
IVARENE HOSEK AND VICTOR §
HOSEK §
Plaintiffs, §
§
v. § 81ST JUDICIAL DISTRICT
§
ROSALE SCOTT §
Defendant. § ATASCOSA COUNTY, TEXAS
PLAINTIFFS' RESPONSE TO
DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Plaintiffs, Ivarene Hosek and Victor Hosek, Non-Movants herein, and
request this Honorable Court to DENY Movant's Motion for Partial Summary Judgment.
I.
INTRODUCTION
A. When a movant files a motion for summary judgment based on summary
judgment evidence, the court can grant the motion only when the movant's evidence proves, as a
matter of law, all the elements of the movant's cause of action or defense, or disproves the facts
of at least one element in the non-movant's cause or defense.
B. When evaluating a motion for summary judgment, the court must:
1. Assume all the non-movant's proof is true;
2. Indulge every reasonable inference in favor of the non-movant; and
3. Resolve all doubts about the existence of a genuine issue of material fact
against the movant.
II.
A. The Hoseks, the Non-Movants in this cause, filed a declaratory judgment action
1
92
-
i
~~-,~'1
against Movant Scott, seeking an interpretation of a Partition Deed. The Partition Deed is
attached hereto as Exhibit "A". The Partition Deed reads as follows:
"This P'1;rtition does not include any of the oil, gas and other minerals in, on, or under the
above described tract of land, and same are to remain undivided for a period of twenty-five(25)
years from date hereof and as long thereafter as oil, gas or other minerals are produced in paying
quantities from the above described land."
The conflict over the interpretation of this Deed arises out of the failure of the document
to state what will occur after the expiration of the 25 year period and cessation of production.
The Deed does not expressly state what happens upon that occurrence, and thus the conflict was
born.
The deed was drafted by an attorney who is deceased. The Hoseks are aware that the
language was intended that the undivided mineral interests revert to the surface owners after the
expiration of 25 years and cessation of production, which occurred in 2004. The Hoseks,
together with Ms. Scott, instructed the attorney to prepare an instrument which gave effect to
their intention.
Movant Scott sold her land with the minerals and received cash consideration for the sale.
She now seeks one half of the minerals beneath the Hoseks' land, citing the defective deed as the
source of her title. In the letter attached as Exhibit "5" to Scott's deposition, Scott tells her
prospective buyer that he will receive the minerals under the land she will sell him after the
expiration of the 25 year period.
Movant filed a counterclaim against Non-Movants seeking affirmative relief for damages
and a declaration that she owns one-half of the minerals under the Hoseks' land. Movant is aware
that the Hoseks have leased their minerals to an oil company and that royalties are being
2
93
withheld until this conflict is resolved. During the course of exploration and development of the
minerals on the Hoseks' property, no oil company or title examiner opined that Movant Scott
owned any interest.
The Hoseks' retained expert, title examiner Allen D. Cummings, opines that the most
natural interpretation of the Partition Deed language is that the minerals reverted to the surface
owner after the expiration of 25 years and cessation of production. The report of Mr. Cummings,
as well as his CV, are attached to his affidavit, being Exhibit "C" hereto.
B. Movant alleges there is no genuine issue of material fact as to any element of
interpretation of the Partition Deed. The very existence of this litigation disproves this claim. The
wording is susceptible to multiple meanings by virtue of the Movant's claim that the language
did not have its commonly accepted meaning.
C. Non-Movants claim a genuine issue of material fact exists as to Movant's
counterclaim and submit affidavits, discovery, documentary evidence and Movants' pleadings, as
summary judgment evidence, referenced in an appendix attached hereto, filed with this response
and incorporated by such reference for all purposes as if recited verbatim herein.
III.
A. Non-Movants filed a claim against Movant seeking affirmative relief for the
interpretation of a Partition Deed.
B. Movant alleges Movant is entitled to a partial summary judgment as a matter of
law, and alleges that Movant can prove her counterclaim.
1. Non-Movants claim a genuine issue of material fact exists as to Movant's
claim and submit affidavits, discovery, documentary evidence and Movants' pleadings, as
summary judgment evidence, referenced in an appendix attached hereto, filed with this
3
94
response and incorporated by such reference for all purposes as if recited verbatim herein.
IV.
A. The Court should deny Movant's Motion for Partial Summary Judgment and
permit evidence to be presented and heard to establish the proper interpretation of the Partition
Deed made the basis of this lawsuit. The very existence of this dispute proves that there are
multiple interpretations of the document, and the evidence presented in this pleading establishes
that the Non-Movants' interpretation is the proper meaning of the document.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Non-Movants pray that this Court will
deny Defendant's Motion for Partial Summary Judgment, or order such other relief as may be
appropriate.
Respectfully submitted,
By: ~~~~~-t-~~-+-~~----_.,.~~~~
Robert J. Ogle
Texas Bar No. 1523135
508 E. San Antonio St.
Boerne, TX 78006
Tel. (830) 249-9358
Fax. (830) 249-8508
Attorney for Plaintiffs
Ivarene Hosek and Victor Hosek
4
95
CERTIFICATE OF SERVICE
I certify that on .J~"'"'-crr3 ,
2014 a true and correct copy of Plaintiffs' Response
to Motion for Summary Judgment was served by electronic mail on G. Wade Caldwell at
gcaldwell@beclaw.com.
5
96
Tab C
Victor Hosek, et al to Rosale Voigt Scott, et al
DE1;.D OF FA'i'.!'ITIOH
0
0 KNGW ALL :ME!! BY THESE PREST~wrs:
0)
That we, Victor Hoselr and WiI'e, Ivarene Voigt Hosek, of the
County of 11/ileon, StHte of Texas, and Roeale Voigt Scott of the County
of Bexar, Sta.te of ·rexafl, ha.ve and liold in com•i:on the knc'Ls hereinafter
mentioned, and are desirous of making pRrtition of the s&m~, it is
hereby covenanted, granted, and agreed. by and bt:t·'""""n said. 1-'arties, »nd
each of them covAn~nts, grants, conclu~ee, and agrees for himself,
themselvep, his and their heirs a.ncl. aso>iegns, .. that .;; ra.1'tl tj_on or' so;. id
lands be made as follo'l-rs, to-wi.t:
:F'iret. The said Vietot' Hosek and wiff:, Ivarene v,)igt Rosel;:,
shall f'rora henceforth have, hold, posses>> and enjoy in seve1°F..l i:;y by
themAF'lves s;i.nd to themselves am't to them and their heirs !-'.ncl ausi~;ns
for their psrt, ehare, intertst.e.nd propc.irtiDn of' m:tid 16.nJ.a and.
premtses, all that certain part of lan<'l situated in Ataseo !>a County,
'J'exB.s, as foJ.lowa;
207.77 acres of land, situate:l about 20 ;niles S 85 <:leg. E.
from Jou1•dRnton, Texas, and being made up of 11 acres ~iut of the ,fohn
Hef1•on Survey No. 214, Abstract No, 393; 27 cicres out oi' the H. B.
TherJbold Survey No. 210, Abstract l:b. 849; 105.77 acres out of the
Geo. 1:{. Thomas Survey No. 209, Abstr-3.ct No. 34i:i; and 64 a.crec.i out
of the John Smith Survey Ho. 213, .!i.bst _ •act No. 80L,; Fmd. bein-s a p1:>.rt
of SubdiYiaione Nos. I, II, and III of the Robert Kr!'luse 1103 p,_()re
tr~ct, and Raid 207.77 acres, in one body, being described by metes
anc'l. bounds as follows, to-wit:
BEGINNIHG at a corner fence post on tl'1e N. W. side of e, 20
foot public road. traversing the Robert K1·ause trs.ct of lan(l, th<'. seme
being the east corner of Subdivision No. III, and the ee.st <::orner of
this trF,c t;
THENCE S. 50 deg. 00 1 W. 793.0 feet with the North line of
said 20 foot road to a stake set on same for the lower southwest
corner of this tract and the lower southeast corner of a 322. 6 acre
tract;
THENCE N. L~O deg. 00 1 W. 1737-5 feet to a st".ke sat for the
inner southwest corner of this tract anci the inner southear:t earner
of said. 322.6 acre tract;
THENCE S. 50 deg. 00' W. 1560.0 feet to a stR.ke set for the
up;ier southwest corner of this tract and a eorner or' E::--iil 32~· .6 acre
tr~.e t;
BEC PLTF 0050
72
Tl1'.':l~CE
lL hO deg. 00 1 \-i, 2915.0 fee.t t'.) <'. shke 8P.t in the
:~TCE H. 39 a.cg. ,.J7 1 ,[. J6). 5 feet '."i th fence line to corner
"l"encP. r.:ist fo1• corn-: t', sa.me bein,;; the \fos·~ corner of' Subd.i Vi8icn
No. III;
THEHCEN. 53 (leg. 31 1 E. lh32.0 feet Nich fenee line to
".ornE'l' fF:nce ;:iost f·'.lr the Northet:i.8t norner of this tro.ct, sa.me 'J~ing
the North cornsr of 9ubdlvieion No. III;
TH!':NCE S. 40 deg. 00 1 E. 5083.0 feet with the C';ommon
houndary fc'nce llnE>. of Sub<'i.:\.Vis:l0na Nos. III !'l.nc.l. IV to the :;:lace of
b~ gin:1ing, o;)J1t8.ining 'ofi thin th'= above metes and bounds 207. 77 °wres
of 18.nd., cornnriserl Hr, .ci.fores..• ..i.ct described as First
'rrHrt, convi~yecl to Victor H"Jsek arn1 vrife., Im:>.rene V0igt Rosel~, 'l.nd
RosHle Yr)tgt $cote, ':•:t '·ie.rrP.n.t:' Desd (lated Oct·/ber 9, 157:~:, l.'f t'errnrd
·1n V.:.>luine 1>91, Fe.€es 283-291, DPerl. Renord.p of Atai;o·:>goi. Count:r, ~'•··::·3s,
r.orm·,r:i.8Pcl of 23.10 acres out ::ii' ths H. B. Theobc·l•~. Survey ff2l·j,
Abpi~t··,_ct 1''3h9, ,ind. 15.4 eo.:·ee out of thf; Geo. W. Thoml'l.s Surve;v fi;?Oj,
Ab'"'.:r... ,,ct #·8LL9, ~:,,i•.' 3~. 5 A.ore,1 being: ·.aore particu.La~·ly clesc.r·J.')ed ""
i' ~il.'1 ·:)1'/ '·'. !
BEG·Il:HlING e.t £\ l./Z inch €?1vaniz.e.ct be··'ri:> N. li{1 deg. 00 f'.l:Ln. ·.v., 1701.00 feet;
~'HE~~ ~:E s. 40 de;;;. E. 33.51-L 20 feet to a ~~/4 inch $·3 l vfJ ni zed
·r;i ,.'.'- found on th" 11or•th•·.•est Right-of-Way line of 3n exifiting SO feet
0ounty ro8.d for the E>1st cornE;l' of this tra.ct;
'.1'"!:'·21CJ<: S, 5'..> rle'!;. 2·3 01:111. '·I. 50·}.00 f~et aLme; the Northr.;est
R:lg-ht-o!'-WF-'Y 1 in"' o:f !"'3.id e:>cisting 50 f,xit aounty· roe.d foe <'l. 1/2 :i.ncl.l
"'"l'I!'!l.LcflrJ nl:of' iJ8t for the Sonth r:rJ!'l1"P 0f' th: s trRet;
-2-
BEC PLTF 0051
73
':':{ENCE H. l..;.O •leg. 00 min. ii. JJ5L1.• 20 fee;; to a 1/2 inch
~·.:::·!l.V::·nize(l 'fJipe eet fo 1:~ the \-i1::st ·~ornf !., c:f thiA trPct;
THENCE tJ. 50 deg. 28 min. E. 500 .00 feet t0 the Place uf
Beginning, C'-~JY1taining- J8.5 ac:rc-,s of land, e.8 surveyed on the .ground
b;;r me, Victor Seguin, Re.;lE\tE>rod Public Surveyor No. 1776, on chis,
the l:;'.tl:J. d" y of Junfl, 1979.
This parti t:'..on does not include iiny of the oil, F.;as f.'l.nc1 other
'r·i.11"-Y':'! ·:i ~.n, 11n 01· unc.ler the e.bove described tr·e.ct of l3nJ., and Sf.me
d!!te hereof Rno. as l'.;.ng 1:;hereafte:r as oil, ge.s or other i!'inerF>le
ere -r:'rorluced in naying qunnt.i tie12 from the above ,1esc;ribed le.nd.
Second. Tho:: B'ti:l R,;s~le Vc_i.tgt Sr:ott ehsll from hence!orth
:....
hav~, hold, pos?esR e~~ enjoy in severalty by herself And to herself
cind tc1 her Emel her h~·i:re ':l.nd.eti:.signs for her rlf.1•t, share, interest
~nd proportion of seid lRnds and premises, the folloving two tracts
First Tl',:Gt: Being lJ0.77 1wres of le.nd in the Geo .•I. Thomas,
JuHl Or·:.1z, anrl C. Hernandez Surveys, a.nd ·being rlescribed by metes
i>nd bounds as f'olloi..rs:
BEG·INi'lIW.l- a.t s. str<:·:e set tl!1 the south.·'eRt line of 1.1.n old
?O fc)·..1t !'c1ad A.nd the northea·".T; U.ne o:t' a tr">ct of 249;t acr~s C:'-On-
ve.~r~d t'.) H. E . .Ridout 'by 0. ,~.. Ko1•iff of which this 'tl'P.ct ifj a ps.rt,
::'."1.ir' et;.0 !~':! 1,:)eJ.!1g" set far the 1·.fetit n,()l'tlE;l' Dr° fl 150-J/LJ. 8.Gl'e tr'P.()t; end
th~ ePPt ~~~ner• af tl1i8 t1·R~~t Rnd the lower n1»~th corner af ~ 119.04
?r.r•) 'Gr·~·.-::t:
THENCE lL hO de,,,;. ·1. J2J3 feet w1 th tho: southwest line of
<;c-ii•' 20 fo,1t Poed a.rid the nortb.east line of oPigim.~l 2.Lf9i 2.cre tr">r.t
to B f'!t[·}~f' set 'for the no).·~h corm· r of tM.s t;r;:.nt end the riorU1 (:orner
0~ BRi~ ori~in0l 2h9i acre trBct;
'I'HENCE S. 50 c3.ef..'.;. 1? 1 W. 258'?. feet With the southea9t line of
[' rmid cm·:'\. the nortlT•est l.ine. of sa1.-1 245B; a'.'re tra.ct;
THE~'CE S. /J.Q rl.e:~:. ll:. 2900 feet With thP. south•·•est fen:::e line
(.:~· R.P.i·~! ?Li..9~ al'~re Subr1.ivip:i_:)ri to a ~~tP...ke set on sa!11e for tbe ~outt1
·~·:>rn•:"· :;.P ti1i.'l trP.ct l'\nc1. the west "orn"r of a 119.04 acre tra~t;
'~H:S;1cE ~1. 50 1'leg. E. 1164.5 feet to " common coi:•ner 0f tbla
':!····::t "n•:. 119.0Li. eore tr:;~t;
'I'Hf.HCE N. 38 d.e~. 16 1 \!. 108?. 5 feet .,,i'Gb fence line to a
et~ke set on saqe for ~-~a~~on c2rn~r of this tract and 119.04 Rcre
tr'' et;;
1'HENOE N. 50 .cJ.e~.
E. 384 feet to a post set for <". eommon
·:· nrne:tl of this tra.c t an11. 119. 04 aCr•e trHc t;
TR~NC~ N. 40 ~e~. W. 304 feet to a ~oet set for a common
corn~~r o:f thie trnot and ll9 .. 0.L!. 8.ere tract;
':'HE!·TCE N • .50 deg. E. ?8Lf ·feet to B. 601-t.i):~ '.'>1' Gh6 Deed Reaords of Ata1H'.0Re.
r, r~_n..J. n ~:y , '1 ~ :-..:G. A •
1
SE:'ouna. Trfl.ct. All th?t c<:,rt•o~_n tr~.c.t or ::.a.reel of la.nd
ining J8 . .5 ·"·~refJ of land, ·being a portion of ' l 207.77 ."1·.'r<:> tr,,ct
()'.)l!°t?..
:\"'"nril:>ecl. a_,, Fi·v;:.t Tract, c:nw~yed to Victor Hosel!; and vrif~, r·•rarenE:'
V1ig·t HoR5l:, WEI:
BECH1ElING i;i.t 1J 1/2 inch galvirnzied pipe set 0:1 the lfortht':':l.st
boundary J.i11e of l'l-'iid 207.77 flr1re tract for the North corner of t.hif;
trqnt, from whinh flPce of beginning, the North corn•r of said 207.77
~orP trPnt bears N. 40 de~. 00 min. W. 1701 feet;
'l'HENC".' S. LJ.o dei";. E. 335L1.• 20 f'eet to P.. 3/4 inch gelVPhniY.e<.l
·oine fnund on th•7 North··rest ri5ht-of-wr,y linf! of 'l.n existing 50 fo•)t
. . . ount~r road f'cr the Eaet c':a'""nF·r .'.)f t::1j_s tr'."--•ct;
THENCE S. 50 dee;. ?8 rnin. 11. 500,00 ff!et s.luns· the Northwest
l'ight-of-'''l.J' lin~ of saicl. e:c:.st~_ng 50 l'n·::it countJ' road !'or P.. J./2 inch
~RJ.''!fi r-iet for the South corno:;r of tl1io ·~rr-.ot;
·J'HE!ICE N. l.1-0 deg. or.:i n•:i.n. W. 3354.20 'feet to ,"l 1/2 inch
;i;.?..J.·,-r,!nl·· :i:l. p:l1:·e s;;t; for tL<' ·:{r.' st 01:;:,•:w c' cf' t'1:l .~ t:.-.'H:'c;
THE~~Z ··1. 5~ ,,e~. 28 !11in. E., 5ooeoo feet tu the ~l&1~e of
bF.:gin11i.1'g, C·-:>ntaining 38. 5 a<:; res of l:·rnd, as su1•v:•ye1 1.m 'the gr.·~iuncl.
11y r~e, Vietor Seguin, R<::giste;•ecl Publlc Surveyor ifo. 1776, on this,
the 1Jth. day of June, 1979.
August, 19?9.
~~ne. z/&£,gi: M.;!1e is
,.fl.JJl;"tJ:l(;\i'.l_!'.ibed to the f.'oregriing in:.tru~ent, and aclrnowledgecl to me that
,.::;:,~p·€J:~, .. fcl).te11 thP. ~ci.mr:- for the 'c.ur···o»eP ~>n<.1. c.onsider"·tion thf':re:i.n e··1,-
:.jf>
. ;... . ' '•:;_ - /
7 .:.l.
·...
~··
ven und.er n1y h;•nd 81ld. seal of Dffioe, ::;n t;'1i::i the
lSt, A. D. 1979.
_
:·})·~ ~
','l..';.J :.
-·1 . . . .• ~w1§EMAN -
' ·>;:~'.Iir:'· ).~·:&?::P~blic in and for e.nd. for Wileon County,
·· ·~;,it-.i:J6'if counw. Texas
~. Be tore mt:r, tl1e undergignea. authority, on thie day personally
re. F.l.r:meared Ivarene Voigt Hosek, };.1101-rn to me to be the person whose mi.me
"""';· if' subscribed to the fol'.'e.·;oing instrument, a.nd acknowledged to me
~- th~f·.. -.;;\:e;xecutecl thE· same f1:ir the puryioAes ::i.nd considere.tion therein
;£$~'!! 'iJ;,, and " " l nf ar~',ce, on thi' the _,[7~
'-~ D. 1979.
··1;'.:i•.·
··::@Jj; -
~\,./ '!:IH FUblic in and tor
. '''.:\.;r:i.~·~·1~· County. Tex.am • for ·,vil"lon Coi.mt.y,
·:;oUH'!'Y OF WILSON
Before mi:, the und.ert".i~;nbi. ·'.~.uthorit;,r, 0I1 ·unii:. da.:; pei:•s(.mally
R.pr,eared. Ros~<-le V•·i~1~ Sn,_,tt, 'm'.JW!J t•) me ·t;cb'e the person 1·rhose no.me
in subso!·ibecl t~::o thr- J'rireg:)in;- instru!l'.ent, a.nd. .oicl<.no•.-r:Le(l§;ed tc· me tliet
v,l1~.-1 ·,ek1)1> ~.·if any
part of the judgment is appealed to the Texas Supreme Court by Writ of Error; and 3)
Page 12
CIVIL
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VOL ···.SCJ PAGE J4-w7·
...
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$ I r; 0"1'.
I
should the petition for review be granted by the Texas Supreme Court
andRosale Scott prevails.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that. judgment 1s
entered as set forth above.
IT IS FURTHER, ORDERED that all court costs incurred by Rosale Scott in
connection with this action are taxed against Plaintiffs, Ivarene Hosek and Victor Hosek;
i IT~IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Judgment sh~ll
draw post-judgment interest at the rate of five .percent (5%) per annum from the date of this
Judgment until it is paid, plus costs of court.
IT IS ·FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant. shall
immediately have all writs, orders and other assistance for collection of this judgment, for which
let execution issue immediately;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all relief not
specifically granted is denied .
This judgment finally disposes of all parties and claims, is appealable and is a final
judgment.
c; ~
SIGNED this
~
/
o .. ·
day of . , 2014.
.
~~·
· FRED SHANNON, JUDGE PRESID'ffiri
Pagej3
212
.., ..• ~
APPROVED AS TO FORM ONLY:
Michele Barber Chi:rrtene
State Bar No. 04207500
THE CHIMENE LAw·FIRM . . .
15203 Newfield Bridge Lane
. .
Sugar Land, Texas 77498
Telephone: 713-474'."5538
Email: michelec@airmail.net
Co-counsel:
ROBERT J. OGLE
State Bar No. 15231350
ROBERTJ. OGLE, ATTORNEY AT LAW
508 E. San Antonio Street
Boerne, Texas 78006
Telephone: (830) 249-9358
Facsifuile: (830) 249-8508
Email: Bob@ogleattorney.com
ATTORNEY FOR PLAINTIFFS,
VICTOR HOSEK AND IVARENEHOSEK .
BARTON, EAST & CALDWELL, L.L.P.
One Riverwalk Place, Suite l 825
700 N. St. Mary's Street
San Antonio, Texas 78205
Telephone: (210) 225-1655
Facsimile: (210) 225.;8999
By: ~~~~-'-'--~~~---'---~~~~~
. G. WADE CALDWELL
State Bar No. 03621020
Email: gcaldwell@beclaw;corn
RAQUEL G. PEREZ
State Bar No. 00784746
Efuail: rpetez@beclaw.com
ATTORNEYS FOR DEFENDANT, ROSALE SCOTT
M:\200012200 OIL AND GAS CLIENTS\121 Hosek v Scou\Plcadings\JUDGMENT.docx.
Pagel 4
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EXHIBIT A
207.77 acres of land, situated about 20 miles S 85 deg. E. from Jourdanton, Texas, and
being made up of 11 acres out of the John Hefron Survey No. 214, Abstract No. 393; 27 acres
out of the H.B. Theobold Survey No. 210, Abstract No. 849; 105.77 acres out of the Geo. W.
Thomas Survey No. 209, Abstract No. 848; and 64 acres out of the John Smith Survey No. 213,
Abstract No. 804; and being a pa11 of Subdivisions Nos. I, II and III of the Robert Krause 1103
acre tract, and said 207. 77 acres, in one body, being described by metes and bounds as follows,
to-wit:
BEGINNING at a corner fence post on the N. W. side of a 20 foot public road traversing
the Robe11 Krause tract of land, the same being the east corner of Subdivision No. Ill, and the
east comer of this tract;
THENCE S. 50 deg. 00' W. 793.0 feet with the North line of said 20 foot road to a stake
set on same for the lower southwest corner of this tract and the lower southeast comer of a 322.6
acre tract; .
THENCE N. 40 deg. 00' W. 1737.5 feet to a stake set for the inner southwest corner of
this tract and the inner southeast corner of said 322.6 acre tract;
THENCE S. 50 deg. 00' W. 1560.0 feet to a stake set for the upper southwest corner of
this tract and a comer of said 322.6 acre tract;
THENCE N. 40 deg. 00' W. 2915.0 feet to a stake set in the south fence line of an 8.6
acre tract for the Northwest corner of this tract and the Northeast corner of said 322.6 acre tract;
THENCE N. 69 deg. 37' E. 112.5 feet with fence line to the Southeast corner offence
post of said 8.6 acre tract;
THENCE N. 0 deg. 33' W. 373.5 feet with fence line to the Nmiheast corner fence post
of said 8.6 acre tract;
THENCE N. 59 deg. 32' E. 570.0 feet with fence line to corner fence post;
THENCE N. 39 deg. 07' W. 363.5 feet with fence line to corner fence post for corner,
same being the West corner of Subdivision No. III;
THENCE N. 53 deg. 31' E. 1432.0 feet with fence line to corner fence post for the
Notiheast corner of this tract, same being the Notih corner of Subdivision No. III;
THENCE S. 40 deg. 00' E. 5083.0 feet with the common boundary fence line of
Subdivisions Nos. III and N to the place of beginning, containing within the above metes and
bounds 207. 77 acres of land, comprised as aforesaid of 11 acres out of the John Hefron Survey
No. 214; 27 acres out of the H.B. Theobald Survey No. 210; 105.77 acres out of the Geo. W.
:;1VIL
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Thomas Survey No. 209; and, 64 acres out of the John Smith Survey No. 213. Surveyed on
April 19, 1948, by John M. Peel, County Surveyor of Atascosa County, Texas.
And being the same land described in deed dated May 6, 1948, from L. W. Stieren to
FRIDOLIN VOIGT and recorded in Vol. 189, Pages 379-382, of the Deed Records of Atascosa
County, Texas.
LESS all that certain tract or parcel ofland containing 38.5 acres ofland, being a portion
of the 207. 77 acres tract described as First Tract, conveyed to Victor Hosek and wife, Ivarene
Voigt Hosek, and Rosale Voigt Scott, by Warranty Deed dated October 9, 1978, of record in
Volume 491, Pages 288-291, Deed Records of Atascosa County, Texas, comprised of 23.10
acres out of the B. B. Theobold Survey #210, Abstract #849, and 15.4 acres out of the Geo. W.
Thomas Survey #209, Abstract #848, said 38.5 acres being more particularly described as
follows:
BEGINNING at a 1/2 inch galvanized pipe set on the Nmtheast boundary line of said
207.77 acre tract for the North corner of this tract, from which Place of Beginning, the Nmth
corner of said 207.77 acre tract bears N. 40 deg. 00 min. W., 1701.00 feet;
THENCE S. 40 deg. E. 3354.20 feet to a 3/4 inch galvanized pipe found on the
Nmthwest Right-of-Way line of an existing 50 feet county road for the East corner of this tract;
THENCE S. 50 deg. 28 min. W. 500.00 feet along the Northwest Right-of-Way line of
said existing 50 foot county road for a 1/2 inch galvanized pipe set for the south corner of this
tract;
THENCE N. 40 deg. 00 min. W. 3354.20 feet to a 1/2 inch galvanized pipe set for the
West corner of this tract;
THENCE N. 50 deg. 28 min. E. 500.00 feet to the Place of Beginning, containing 38.5
acres of land, as surveyed on the ground by Victor Seguin, Registered Public Surveyor No. 1776,
on the 13111 day of June, 1979.
CIVIL -"T•••.:..:_'
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Tab E
Tex. R. App. P. Rule 34
This document is current through March 10, 2015
Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION
TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS
Rule 34 Appellate Record
34.1 Contents. --The appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s
record. Even if more than one notice of appeal is filed, there should be only one appellate record in a case.
34.2 Agreed Record. --By written stipulation filed with the trial court clerk, the parties may agree on the contents of
the appellate record. An agreed record will be presumed to contain all evidence and filings relevant to the appeal.
To request matter to be included in the agreed record, the parties must comply with the procedures in Rules 34.5
and 34.6.
34.3 Agreed Statement of the Case. --In lieu of a reporter’s record, the parties may agree on a brief statement of the
case. The statement must be filed with the trial court clerk and included in the appellate record.
34.4 Form. --The Supreme Court and Court of Criminal Appeals will prescribe the form of the appellate record.
34.5 Clerk’s Record.
(a) Contents. --Unless the parties designate the filings in the appellate record by agreement under Rule 34.2, the
record must include copies of the following:
(1) in civil cases, all pleadings on which the trial was held;
(2) in criminal cases, the indictment or information, any special plea or defense motion that was presented
to the court and overruled, any written waiver, any written stipulation, and, in cases in which a plea of
guilty or nolo contendere has been entered, any documents executed for the plea;
(3) the court’s docket sheet;
(4) the court’s charge and the jury’s verdict, or the court’s findings of fact and conclusions of law;
(5) the court’s judgment or other order that is being appealed;
(6) any request for findings of fact and conclusions of law, any post-judgment motion, and the court’s order
on the motion;
(7) the notice of appeal;
(8) any formal bill of exception;
(9) any request for a reporter’s record, including any statement of points or issues under Rule 34.6(c);
(10) any request for preparation of the clerk’s record;
(11) in civil cases, a certified bill of costs, including the cost of preparing the clerk’s record, showing credits
for payments made;
(12) in criminal cases, the trial court’s certification of the defendant’s right of appeal under Rule 25.2; and
(13) subject to (b), any filing that a party designates to have included in the record.
(b) Request for Additional Items.
(1) Time for Request. --At any time before the clerk’s record is prepared, any party may file with the trial
court clerk a written designation specifying items to be included in the record.
(2) Request Must Be Specific. --A party requesting that an item be included in the clerk’s record must
specifically describe the item so that the clerk can readily identify it. The clerk will disregard a general
ELISA BARENBLAT
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Tex. R. App. P. Rule 34
designation, such as one for ″all papers filed in the case.″
(3) Requesting Unnecessary Items. --In a civil case, if a party requests that more items than necessary be
included in the clerk’s record or any supplement, the appellate court may - regardless of the appeal’s
outcome - require that party to pay the costs for the preparation of the unnecessary portion.
(4) Failure to Timely Request. --An appellate court must not refuse to file the clerk’s record or a
supplemental clerk’s record because of a failure to timely request items to be included in the clerk’s
record.
(c) Supplementation.
(1) If a relevant item has been omitted from the clerk’s record, the trial court, the appellate court, or any party
may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement
containing the omitted item.
(2) If the appellate court in a criminal case orders the trial court to prepare and file findings of fact and
conclusions of law as required by law, or certification of the defendant’s right of appeal as required by
these rules, the trial court clerk must prepare, certify, and file in the appellate court a supplemental clerk’s
record containing those findings and conclusions.
(3) Any supplemental clerk’s record will be part of the appellate record.
(d) Defects or Inaccuracies. --If the clerk’s record is defective or inaccurate, the appellate clerk must inform the
trial court clerk of the defect or inaccuracy and instruct the clerk to make the correction.
(e) Clerk’s Record Lost or Destroyed. --If a filing designated for inclusion in the clerk’s record has been lost or
destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court clerk for
inclusion in the clerk’s record or a supplement. If the parties cannot agree, the trial court must - on any party’s
motion or at the appellate court’s request - determine what constitutes an accurate copy of the missing item
and order it to be included in the clerk’s record or a supplement.
(f) Original Documents. --If the trial court determines that original documents filed with the trial court clerk
should be inspected by the appellate court or sent to that court in lieu of copies, the trial court must make an
order for the safekeeping, transportation, and return of those original documents. The order must list the
original documents and briefly describe them. All the documents must be arranged in their listed sequence and
bound firmly together. On any party’s motion or its own initiative, the appellate court may direct the trial court
clerk to send it any original document.
(g) Additional Copies of Clerk’s Record in Criminal Cases. --In a criminal case, the clerk’s record must be made
in duplicate, and in a case in which the death penalty was assessed, in triplicate. The trial court clerk must
retain the copy or copies for the parties to use with the court’s permission.
(h) Clerk May Consult with Parties. --The clerk may consult with the parties concerning the contents of the
clerk’s record.
34.6 Reporter’s Record.
(a) Contents.
(1) Stenographic Recording. --If the proceedings were stenographically recorded, the reporter’s record
consists of the court reporter’s transcription of so much of the proceedings, and any of the exhibits, that
the parties to the appeal designate.
(2) Electronic Recording. --If the proceedings were electronically recorded, the reporter’s record consists
of certified copies of all tapes or other audio-storage devices on which the proceedings were recorded,
any of the exhibits that the parties to the appeal designate, and certified copies of the logs prepared by
the court recorder under Rule 13.2.
(b) Request for Preparation.
ELISA BARENBLAT
Page 3 of 4
Tex. R. App. P. Rule 34
(1) Request to Court Reporter. --At or before the time for perfecting the appeal, the appellant must request
in writing that the official reporter prepare the reporter’s record. The request must designate the exhibits
to be included. A request to the court reporter - but not the court recorder - must also designate the
portions of the proceedings to be included.
(2) Filing. --The appellant must file a copy of the request with the trial court clerk.
(3) Failure to Timely Request. --An appellate court must not refuse to file a reporter’s record or a
supplemental reporter’s record because of a failure to timely request it.
(c) Partial Reporter’s Record.
(1) Effect on Appellate Points or Issues. --If the appellant requests a partial reporter’s record, the appellant
must include in the request a statement of the points or issues to be presented on appeal and will then be
limited to those points or issues.
(2) Other Parties May Designate Additions. --Any other party may designate additional exhibits and
portions of the testimony to be included in the reporter’s record.
(3) Costs; Requesting Unnecessary Matter. --Additions requested by another party must be included in the
reporter’s record at the appellant’s cost. But if the trial court finds that all or part of the designated
additions are unnecessary to the appeal, the trial court may order the other party to pay the costs for the
preparation of the unnecessary additions. This paragraph does not affect the appellate court’s power to
tax costs differently.
(4) Presumptions. --The appellate court must presume that the partial reporter’s record designated by the
parties constitutes the entire record for purposes of reviewing the stated points or issues. This
presumption applies even if the statement includes a point or issue complaining of the legal or factual
insufficiency of the evidence to support a specific factual finding identified in that point or issue.
(5) Criminal Cases. --In a criminal case, if the statement contains a point complaining that the evidence is
insufficient to support a finding of guilt, the record must include all the evidence admitted at the trial on
the issue of guilt or innocence and punishment.
(d) Supplementation. --If anything relevant is omitted from the reporter’s record, the trial court, the appellate
court, or any party may by letter direct the official court reporter to prepare, certify, and file in the appellate
court a supplemental reporter’s record containing the omitted items. Any supplemental reporter’s record is part
of the appellate record.
(e) Inaccuracies in the Reporter’s Record.
(1) Correction of Inaccuracies by Agreement. --The parties may agree to correct an inaccuracy in the
reporter’s record, including an exhibit, without the court reporter’s recertification.
(2) Correction of Inaccuracies by Trial Court. --If the parties cannot agree on whether or how to correct
the reporter’s record so that the text accurately discloses what occurred in the trial court and the exhibits
are accurate, the trial court must - after notice and hearing - settle the dispute. If the court finds any
inaccuracy, it must order the court reporter to conform the reporter’s record (including text and any
exhibits) to what occurred in the trial court, and to file certified corrections in the appellate court.
(3) Correction After Filing in Appellate Court. --If the dispute arises after the reporter’s record has been
filed in the appellate court, that court may submit the dispute to the trial court for resolution. The trial
court must then proceed as under subparagraph (e)(2).
(f) Reporter’s Record Lost or Destroyed. --An appellant is entitled to a new trial under the following
circumstances:
(1) if the appellant has timely requested a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes
ELISA BARENBLAT
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Tex. R. App. P. Rule 34
and records has been lost or destroyed or - if the proceedings were electronically recorded - a significant
portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or destroyed exhibit, is
necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be replaced by agreement of the
parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a
copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.
(g) Original Exhibits.
(1) Reporter May Use in Preparing Reporter’s Record. --At the court reporter’s request, the trial court clerk
must give all original exhibits to the reporter for use in preparing the reporter’s record. Unless ordered
to include original exhibits in the reporter’s record, the court reporter must return the original exhibits to
the clerk after copying them for inclusion in the reporter’s record. If someone other than the trial court
clerk possesses an original exhibit, either the trial court or the appellate court may order that person to
deliver the exhibit to the trial court clerk.
(2) Use of Original Exhibits by Appellate Court. --If the trial court determines that original exhibits should
be inspected by the appellate court or sent to that court in lieu of copies, the trial court must make an order
for the safekeeping, transportation, and return of those exhibits. The order must list the exhibits and
briefly describe them. To the extent practicable, all the exhibits must be arranged in their listed order and
bound firmly together before being sent to the appellate clerk. On any party’s motion or its own initiative,
the appellate court may direct the trial court clerk to send it any original exhibit.
(h) Additional Copies of Reporter’s Record in Criminal Cases. --In a criminal case in which a party requests
a reporter’s record, the court reporter must prepare a duplicate of the reporter’s record and file it with the trial
court clerk. In a case where the death penalty was assessed, the court reporter must prepare two duplicates of
the reporter’s record.
(i) Supreme Court and Court of Criminal Appeals May Set Fee. --From time to time, the Supreme Court and
the Court of Criminal Appeals may set the fee that the court reporters may charge for preparing the reporter’s
record.
Texas Rules
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.
ELISA BARENBLAT
Tex. R. App. P. Rule 38
This document is current through March 10, 2015
Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION
TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS
Rule 38 Requisites of Briefs
38.1. Appellant’s Brief. --The appellant’s brief must, under appropriate headings and in the order here indicated,
contain the following:
(a) Identity of Parties and Counsel. --The brief must give a complete list of all parties to the trial court’s
judgment or order appealed from, and the names and addresses of all trial and appellate counsel, except as
otherwise provided in Rule 9.8.
(b) Table of Contents. --The brief must have a table of contents with references to the pages of the brief. The table
of contents must indicate the subject matter of each issue or point, or group of issues or points.
(c) Index of Authorities. --The brief must have an index of authorities arranged alphabetically and indicating the
pages of the brief where the authorities are cited.
(d) Statement of the Case. --The brief must state concisely the nature of the case (e.g., whether it is a suit for
damages, on a note, or involving a murder prosecution), the course of proceedings, and the trial court’s
disposition of the case. The statement should be supported by record references, should seldom exceed
one-half page, and should not discuss the facts.
(e) Any Statement Regarding Oral Argument. --The brief may include a statement explaining why oral argument
should or should not be permitted. Any such statement must not exceed one page and should address how the
court’s decisional process would, or would not, be aided by oral argument. As required by Rule 39.7, any party
requesting oral argument must note that request on the front cover of the party’s brief.
(f) Issues Presented. --The brief must state concisely all issues or points presented for review. The statement of
an issue or point will be treated as covering every subsidiary question that is fairly included.
(g) Statement of Facts. --The brief must state concisely and without argument the facts pertinent to the issues or
points presented. In a civil case, the court will accept as true the facts stated unless another party contradicts
them. The statement must be supported by record references.
(h) Summary of the Argument. --The brief must contain a succinct, clear, and accurate statement of the arguments
made in the body of the brief. This summary must not merely repeat the issues or points presented for review.
(i) Argument. --The brief must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.
(j) Prayer. --The brief must contain a short conclusion that clearly states the nature of the relief sought.
(k) Appendix in Civil Cases.
(1) Necessary Contents. --Unless voluminous or impracticable, the appendix must contain a copy of:
(A) the trial court’s judgment or other appealable order from which relief is sought;
(B) the jury charge and verdict, if any, or the trial court’s findings of fact and conclusions of law, if any;
and
(C) the text of any rule, regulation, ordinance, statute, constitutional provision, or other law (excluding
case law) on which the argument is based, and the text of any contract or other document that is
central to the argument.
(2) Optional Contents. --The appendix may contain any other item pertinent to the issues or points presented
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Tex. R. App. P. Rule 38
for review, including copies or excerpts of relevant court opinions, laws, documents on which the suit was
based, pleadings, excerpts from the reporter’s record, and similar material. Items should not be included
in the appendix to attempt to avoid the page limits for the brief.
38.2. Appellee’s Brief.
(a) Form of Brief.
(1) An appellee’s brief must conform to the requirements of Rule 38.1, except that:
(A) the list of parties and counsel is not required unless necessary to supplement or correct the
appellant’s list;
(B) the appellee’s brief need not include a statement of the case, a statement of the issues presented, or
a statement of facts, unless the appellee is dissatisfied with that portion of the appellant’s brief; and
(C) the appendix to the appellee’s brief need not contain any item already contained in an appendix filed
by the appellant.
(2) When practicable, the appellee’s brief should respond to the appellant’s issues or points in the order the
appellant presented those issues or points.
(b) Cross-Points.
(1) Judgment Notwithstanding the Verdict. --When the trial court renders judgment notwithstanding the
verdict on one or more questions, the appellee must bring forward by cross-point any issue or point that
would have vitiated the verdict or that would have prevented an affirmance of the judgment if the trial
court had rendered judgment on the verdict. Failure to bring forward by cross-point an issue or point that
would vitiate the verdict or prevent an affirmance of the judgment waives that complaint. Included in this
requirement is a point that:
(A) the verdict or one or more jury findings have insufficient evidentiary support or are against the
overwhelming preponderance of the evidence as a matter of fact; or
(B) the verdict should be set aside because of improper argument of counsel.
(2) When Evidentiary Hearing Needed. --The appellate court must remand a case to the trial court to take
evidence if:
(A) the appellate court has sustained a point raised by the appellant; and
(B) the appellee raised a cross-point that requires the taking of additional evidence.
38.3. Reply Brief. --The appellant may file a reply brief addressing any matter in the appellee’s brief. However, the
appellate court may consider and decide the case before a reply brief is filed.
38.4. [Deleted by Texas Supreme Court, Misc. Docket No. 12-9190 and Texas Court of Criminal Appeals, Misc.
Docket No. 12-001, effective December 1, 2012.]
38.5. Appendix for Cases Recorded Electronically. --In cases where the proceedings were electronically recorded, the
following rules apply:
(a) Appendix.
(1) In General. --At or before the time a party’s brief is due, the party must file one copy of an appendix
containing a transcription of all portions of the recording that the party considers relevant to the appellate
issues or points. Unless another party objects, the transcription will be presumed accurate.
(2) Repetition Not Required. --A party’s appendix need not repeat evidence included in any previously filed
appendix.
(3) Form. --The form of the appendix and transcription must conform to any specifications of the Supreme
Court and Court of Criminal Appeals concerning the form of the reporter’s record except that it need not
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Tex. R. App. P. Rule 38
have the reporter’s certificate.
(4) Notice. --At the time the appendix is filed, the party must give written notice of the filing to all parties
to the trial court’s judgment or order. The notice must specify, by referring to the index numbers in the
court recorder’s logs, those parts of the recording that are included in the appendix. The filing party need
not serve a copy of the appendix but must make a copy available to all parties for inspection and copying.
(b) Presumptions. --The same presumptions that apply to a partial reporter’s record under Rule 34.6(c)(4) apply
to the parties’ appendixes. The appellate court need not review any part of the electronic recording.
(c) Supplemental Appendix. --The appellate court may direct or allow a party to file a supplemental appendix
containing a transcription of additional portions of the recording.
(d) Inability to Pay. --A party who cannot pay the cost of an appendix must file the affidavit provided for by Rule
20. The party must also state in the affidavit or a supplemental affidavit that the party has neither the access
to the equipment necessary nor the skill necessary to prepare the appendix. If a contest to the affidavit is not
sustained by written order, the court recorder must transcribe or have transcribed those portions of the
recording that the party designates and must file the transcription as that party’s appendix, along with all
exhibits.
(e) Inaccuracies.
(1) Correction by Agreement. --The parties may agree to correct an inaccuracy in the transcription of the
recording.
(2) Correction by Appellate or Trial Court. --If the parties dispute whether an electronic recording or
transcription accurately discloses what occurred in the trial court but cannot agree on corrections, the
appellate court may:
(A) settle the dispute by reviewing the recording; or
(B) submit the dispute to the trial court, which must - after notice and hearing - settle the dispute and
ensure that the recording or transcription is made to conform to what occurred in the trial court.
(f) Costs. --The actual expense of preparing the appendixes or the amount prescribed for official reporters,
whichever is less, is taxed as costs. The appellate court may disallow the cost of any portion of the appendixes
that it considers surplusage or that does not conform to any specifications prescribed by the Supreme Court
or Court of Criminal Appeals.
38.6. Time to File Briefs.
(a) Appellant’s Filing Date. --Except in a habeas corpus or bail appeal, which is governed by Rule 31, an
appellant must file a brief within 30 days - 20 days in an accelerated appeal - after the later of:
(1) the date the clerk’s record was filed; or
(2) the date the reporter’s record was filed.
(b) Appellee’s Filing Date. --The appellee’s brief must be filed within 30 days - 20 days in an accelerated appeal
- after the date the appellant’s brief was filed. In a civil case, if the appellant has not filed a brief as provided
in this rule, an appellee may file a brief within 30 days - 20 days in an accelerated appeal - after the date the
appellant’s brief was due.
(c) Filing Date for Reply Brief. --A reply brief, if any, must be filed within 20 days after the date the appellee’s
brief was filed.
(d) Modifications of Filing Time. --On motion complying with Rule 10.5(b), the appellate court may extend the
time for filing a brief and may postpone submission of the case. A motion to extend the time to file a brief
may be filed before or after the date the brief is due. The court may also, in the interests of justice, shorten
the time for filing briefs and for submission of the case.
38.7. Amendment or Supplementation. --A brief may be amended or supplemented whenever justice requires, on
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Tex. R. App. P. Rule 38
whatever reasonable terms the court may prescribe.
38.8. Failure of Appellant to File Brief.
(a) Civil Cases. --If an appellant fails to timely file a brief, the appellate court may:
(1) dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the
appellee is not significantly injured by the appellant’s failure to timely file a brief;
(2) decline to dismiss the appeal and give further direction to the case as it considers proper; or
(3) if an appellee’s brief is filed, the court may regard that brief as correctly presenting the case and may
affirm the trial court’s judgment upon that brief without examining the record.
(b) Criminal Cases.
(1) Effect. --An appellant’s failure to timely file a brief does not authorize either dismissal of the appeal or,
except as provided in (4), consideration of the appeal without briefs.
(2) Notice. --If the appellant’s brief is not timely filed, the appellate clerk must notify counsel for the parties
and the trial court of that fact. If the appellate court does not receive a satisfactory response within ten
days, the court must order the trial court to immediately conduct a hearing to determine whether the
appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether
retained counsel has abandoned the appeal, and to make appropriate findings and recommendations.
(3) Hearing. --In accordance with (2), the trial court must conduct any necessary hearings, make appropriate
findings and recommendations, and have a record of the proceedings prepared, which record - including
any order and findings - must be sent to the appellate court.
(4) Appellate Court Action. --Based on the trial court’s record, the appellate court may act appropriately to
ensure that the appellant’s rights are protected, including initiating contempt proceedings against
appellant’s counsel. If the trial court has found that the appellant no longer desires to prosecute the
appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief,
the appellate court may consider the appeal without briefs, as justice may require.
38.9. Briefing Rules to be Construed Liberally. --Because briefs are meant to acquaint the court with the issues in
a case and to present argument that will enable the court to decide the case, substantial compliance with this rule
is sufficient, subject to the following.
(a) Formal Defects. --If the court determines that this rule has been flagrantly violated, it may require a brief to
be amended, supplemented, or redrawn. If another brief that does not comply with this rule is filed, the court
may strike the brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief.
(b) Substantive Defects. --If the court determines, either before for after submission, that the case has not been
properly presented in the briefs, or that the law and authorities have not been properly cited in the briefs, the
court may postpone submission, require additional briefing, and make any other order necessary for a
satisfactory submission of the case.
History
Amended by Texas Supreme Court, Misc. Docket No. 08-9115 and Texas Court of Criminal Appeals, Misc. Docket
No. 08-103, effective September 1, 2008; Amended by Texas Supreme Court, Misc. Docket No. 12-9190 and Texas
Court of Criminal Appeals, Misc. Docket No. 12-001, effective December 1, 2012.
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Tex. R. App. P. Rule 39
This document is current through March 10, 2015
Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION
TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS
Rule 39 Oral Argument; Decision Without Argument
39.1 Right to Oral Argument. --A party who has filed a brief and who has timely requested oral argument may argue
the case to the court unless the court, after examining the briefs, decides that oral argument is unnecessary for any
of the following reasons:
(a) the appeal is frivolous;
(b) the dispositive issue or issues have been authoritatively decided;
(c) the facts and legal arguments are adequately presented in the briefs and record; or
(d) the decisional process would not be significantly aided by oral argument.
39.2 Purpose of Argument. --Oral argument should emphasize and clarify the written arguments in the briefs. Counsel
should not merely read from prepared text. Counsel should assume that all members of the court have read the
briefs before oral argument and counsel should be prepared to respond to questions. A party should not refer to or
comment on matters not involved in or pertaining to what is in the record.
39.3 Time Allowed. --The court will set the time that will be allowed for argument. Counsel must complete argument
in the time allotted and may continue after the expiration of the allotted time only with permission of the court.
Counsel is not required to use all the allotted time. The appellant must be allowed to conclude the argument.
39.4 Number of Counsel. --Generally, only one counsel should argue for each side. Except on leave of court, no more
than two counsel on each side may argue. Only one counsel may argue in rebuttal.
39.5 Argument by Amicus. --With leave of court obtained before the argument and with a party’s consent, an amicus
curiae may share allotted time with that party. Otherwise, counsel for amicus may not argue.
39.6 When Only One Party Files a Brief. --If counsel for only one party has filed a brief, the court may allow that
party to argue.
39.7 Request and Waiver. --A party desiring oral argument must note that request on the front cover of the party’s
brief. A party’s failure to request oral argument waives the party’s right to argue. But even if a party has waived
oral argument, the court may direct the party to appear and argue.
39.8 Clerk’s Notice. --The clerk must send to the parties - at least 21 days before the date the case is set for argument
or submission without argument - a notice telling the parties:
(a) whether the court will allow oral argument or will submit the case without argument;
(b) the date of argument or submission without argument;
(c) if argument is allowed, the time allotted for argument; and
(d) the names of the members of the panel to which the case will be argued or submitted, subject to the change
by the court.
A party’s failure to receive the notice does not prevent a case’s argument or submission on the scheduled date.
History
Amended by Texas Supreme Court, Misc. Docket No. 08-9115 and Texas Court of Criminal Appeals, Misc. Docket
No. 08-103, effective September 1, 2008.
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Tex. R. App. P. Rule 39
Texas Rules
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Tab F
Tex. R. Civ. P. 94
This document is current through March 10, 2015
Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES
OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 4. Pleading > C. PLEADINGS
OF DEFENDANT
Rule 94 Affirmative Defenses
In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award,
assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud,
illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations,
waiver, and any other matter constituting an avoidance or affirmative defense. Where the suit is on an insurance contract
which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing
on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the
exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege
that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing
herein shall be construed to change the burden of proof on such issue as it now exists.
Annotations
Notes
SOURCE: Portion of Federal Rule 8(c), unchanged. See Rule 71 for the balance of Federal Rule 8(c).
PUBLICATION REFERENCES. --See Texas Litigation Guide, Ch. 70, Answer.
Case Notes
Antitrust & Trade Law: Consumer Protection: Deceptive Acts & Practices: General Overview
Bankruptcy Law: Claims: Objections
Bankruptcy Law: Debtor Benefits & Duties: Debtor Duties
Bankruptcy Law: Discharge & Dischargeability: General Overview
Bankruptcy Law: Discharge & Dischargeability: Effects of Discharge: General Overview
Bankruptcy Law: Discharge & Dischargeability: Effects of Discharge: Protection
Business & Corporate Law: Corporations: Directors & Officers: Management Duties & Liabilities: Defenses: General
Overview
Business & Corporate Law: Limited Liability Partnerships
Business & Corporate Law: Nonprofit Corporations & Organizations: General Overview
Civil Procedure: Justiciability: Exhaustion of Remedies: General Overview
Civil Procedure: Justiciability: Mootness: General Overview
Civil Procedure: Justiciability: Standing: General Overview
Civil Procedure: Jurisdiction: Subject Matter Jurisdiction: Jurisdiction Over Actions: General Overview
Civil Procedure: Jurisdiction: Subject Matter Jurisdiction: Supplemental Jurisdiction: General Overview
Civil Procedure: Jurisdiction: Subject Matter Jurisdiction: Supplemental Jurisdiction: Same Case & Controversy
Civil Procedure: Pleading & Practice: Defenses, Demurrers & Objections: Affirmative Defenses: General Overview
Civil Procedure: Pleading & Practice: Defenses, Demurrers & Objections: Affirmative Defenses: Accord & Satisfaction
Civil Procedure: Pleading & Practice: Defenses, Demurrers & Objections: Affirmative Defenses: Arbitration & Award
Civil Procedure: Pleading & Practice: Defenses, Demurrers & Objections: Affirmative Defenses: Burdens of Proof
Civil Procedure: Pleading & Practice: Defenses, Demurrers & Objections: Affirmative Defenses: Duress
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Tex. R. Civ. P. 166a
This document is current through March 10, 2015
Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II.
RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 8. Pre-Trial Procedure
Rule 166a Summary Judgment
(a) For Claimant. --A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory
judgment may, at any time after the adverse party has appeared or answered, move with or without supporting
affidavits for a summary judgment in his favor upon all or any part thereof. A summary judgment, interlocutory
in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of
damages.
(b) For Defending Party. --A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory
judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his
favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. --The motion for summary judgment shall state the specific grounds therefor.
Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed
and served at least twenty-one days before the time specified for hearing. Except on leave of court, the adverse
party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written
response. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if
(i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the
motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or
certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with
permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion
or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer
or other response shall not be considered on appeal as grounds for reversal. A summary judgment may be based
on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter
concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear,
positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been
readily controverted.
(d) Appendices, References and Other Use of Discovery Not Otherwise on File. --Discovery products not on file with
the clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence,
or a notice containing specific references to the discovery or specific references to other instruments, are filed and
served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs:
(i) at least twenty-one days before the hearing if such proofs are to be used to support the summary judgment; or
(ii) at least seven days before the hearing if such proofs are to be used to oppose the summary judgment.
(e) Case Not Fully Adjudicated on Motion. --If summary judgment is not rendered upon the whole case or for all the
relief asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file,
interrogate counsel, ascertain what material fact issues exist and make an order specifying the facts that are
established as a matter of law, and directing such further proceedings in the action as are just.
(f) Form of Affidavits; Further Testimony. --Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be
supplemented or opposed by depositions or by further affidavits. Defects in the form of affidavits or attachments
will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity,
but refusal, to amend.
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Tex. R. Civ. P. 166a
(g) When Affidavits Are Unavailable. --Should it appear from the affidavits of a party opposing the motion that he
cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the
application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken
or discovery to be had or may make such other order as is just.
(h) Affidavits Made in Bad Faith. --Should it appear to the satisfaction of the court at any time that any of the
affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall
forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which
the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party or
attorney may be adjudged guilty of contempt.
(i) No-Evidence Motion. --After adequate time for discovery, a party without presenting summary judgment evidence
may move for summary judgment on the ground that there is no evidence of one or more essential elements of a
claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the
elements as to which there is no evidence. The court must grant the motion unless the respondent produces
summary judgment evidence raising a genuine issue of material fact.
Texas Rules
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Tab G
Tex. Civ. Prac. & Rem. Code § 37.009
This document is current through the 2013 3rd Called Session
Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL,
JUDGMENT, AND APPEAL > SUBTITLE C. JUDGMENTS > CHAPTER 37. DECLARATORY
JUDGMENTS
§ 37.009. Costs
In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are
equitable and just.
History
Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985.
LexisNexis ® Texas Annotated Statutes
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Tab H
Tex. Evid. R. 702
This document is current through March 10, 2015
Texas Court Rules > STATE RULES > TEXAS RULES OF EVIDENCE > ARTICLE VII.
OPINIONS AND EXPERT TESTIMONY
Rule 702 Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of
an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.
Texas Rules
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