                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00269-CV

FREDERICK ALONGI AND SHERRY L. ALONGI,
                                   Appellants
v.

ALEXA MICHELLE SCOTT MOSTELLER,
BRONWYN SUZETTE SCOTT WALKER AND
ERIK SHAWN SCOTT,
                                                               Appellees


                           From the 82nd District Court
                             Robertson County, Texas
                          Trial Court No. 07-05-17,809-CV


                           MEMORANDUM OPINION


       Frederick and Sherry Alongi appeal from a judgment which granted a motion for

summary judgment against them, denied their motion for summary judgment, and

awarded attorney’s fees. The Alongis complain (1) that the trial court erred in its

determination that three deed assignments were ambiguous as a matter of law and

therefore were construed improperly, and (2) that the evidence was legally and

factually insufficient to support the award of attorney’s fees.     Because we find no

reversible error, we affirm the judgment of the trial court.
Background

        In 1997, Herbert B. Scott, Jr. executed three identical deed assignments of his

mineral interest in his real property to his three children, giving each a 1/3 undivided

interest. After Herbert Scott, Jr.’s death, the remaining interest in the property was

conveyed to one of the three children, Erik Shawn Scott. Erik Scott conveyed the

property to the Alongis in 2004 but retained a 1/2 interest in the mineral estate. In 2007,

the Alongis filed an action for declaratory judgment and to quiet title regarding the

ownership of the mineral interests in the property. The other two Scott children, Alexa

Michelle Scott Mosteller and Bronwyn Suzette Scott Walker were named as parties in

the Alongi’s suit, and they subsequently filed an action seeking a declaratory judgment

between the three Scott children construing the three deed assignments.

        All parties filed competing motions for summary judgment.           The trial court

granted the motion filed by the Scott children, found that the deed assignments were

ambiguous, and reformed the deeds to convey an undivided 1/3 mineral interest to

each. The trial court later awarded attorney’s fees to the Scott children to be paid by the

Alongis.

Construction of the Deeds

        In their first issue, the Alongis complain that the trial court erred by granting the

Scott children’s motion for summary judgment and denying their motion for summary

judgment based on a finding that the deeds were ambiguous as a matter of law. The

Alongis complaint is limited to the trial court’s determination of ambiguity and they do




Alongi v. Mosteller                                                                    Page 2
not otherwise attack the trial court’s resolution of the ambiguity, which was to reform

the deeds.

Ambiguity

        Whether a deed is ambiguous is a question of law for the court, which we review

de novo. Johnson v. Conner, 260 S.W.3d 575, 579 (Tex. App.—Tyler 2008, no pet.); Gore

Oil Co. v. Roosth, 158 S.W.3d 596, 599 (Tex. App.—Eastland 2005, no pet.). A deed will

be construed to confer upon the grantee the greatest estate that the terms of the

instrument will permit. See Lott v. Lott, 370 S.W.2d 463, 465 (Tex. 1963); McMillan v.

Dooley, 144 S.W.3d 159, 185 (Tex. App.—Eastland 2004, pet. denied); see also Jasper State

Bank v. Goodrich, 107 S.W.2d 600, 602 (Tex. Civ. App.—Beaumont 1937, writ dism.w.o.j.)

(“[T]he law can indulge the presumption that the grantor ‘intends to convey the tract to

which he has title’ . . . when that presumption does not do violence to the language of

the deed.”). A court’s primary goal when construing a deed is to ascertain the true

intention of the parties as expressed in the “four corners” of the instrument. Luckel v.

White, 819 S.W.2d 459, 461 (Tex. 1991).

        If a written instrument, such as a deed, is worded in such a way that a court may

properly give it a certain or definite legal meaning or interpretation, it is not

ambiguous. R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex.

1980); Gore Oil Co., 158 S.W.3d at 599.     However, if a written instrument remains

reasonably susceptible to more than one meaning after the rules of interpretation have

been applied, then the instrument is ambiguous. R & P Enters., 596 S.W.2d at 519; Gore

Oil Co., 158 S.W.3d at 599.

Alongi v. Mosteller                                                                Page 3
The Relevant Language

        Three separate assignments were made by Herbert B. Scott, Jr., each to one of his

three children. The pertinent language of each assignment states:

        Grantor … does hereby grant, bargain, sell, convey, assign, transfer, set
        over and deliver to Grantee and its successors and assigns one-third (1/3)
        of GRANTOR’S RIGHT, TITLE AND INTEREST in and to the Conveyed
        Assets described on the attached Exhibit A. As used herein, “Conveyed
        Assets” shall mean one-third of all of Grantor’s interests in and to: (i) one-
        third of all oil, gas, other hydrocarbons or other minerals, including but
        not limited to one-third of all oil, gas and mineral leasehold estates, and
        rights and interests in oil, gas and mineral leasehold estates, and rights
        and interests in oil, gas and mineral leases, one-third of all royalty
        interests, mineral fee interests, overriding royalty interests, production
        payment interests, reversionary interests, carried and net profits interests
        in oil, gas or other minerals, and one-third of all other interests payable
        out of or on account of oil, gas, other hydrocarbons or other mineral
        production; (ii) one-third of all presently existing unitization and pooling
        agreements and the properties covered and the units created thereby; (iii)
        one-third of all presently existing oil, casinghead gas and gas sales,
        purchase, exchange and processing contracts and agreements, operating
        agreements, farmouts, farmins or any other agreements related to the
        Conveyed Assets; (iv) and one-third of all oil wells, gas wells, water wells
        and injection wells, together with the rights incident thereto and the
        equipment and personal property thereon, appurtenant thereto, or used or
        obtained in connection with the Conveyed Assets. It is the intent of the
        Grantor to convey to the Grantee one-third of any and all interests of
        whatever kind or nature which Grantor owns in the Conveyed Assets.

        Exhibit A contains a metes and bounds description of the property included in

the assignments without reservation. The Alongis contend that the only interpretation

that can be given to the assignments is that each assignment conveyed only a 1/27

interest in the mineral estate rather than a 1/3 interest, which the Scott children

contended that they owned.




Alongi v. Mosteller                                                                      Page 4
        We agree with the trial court’s determination that the assignments were

reasonably susceptible to more than one interpretation and were therefore, ambiguous.

Therefore, the trial court did not err by granting the Scott children’s motion for

summary judgment relating to the ambiguity of the assignments and denying the

motion of the Alongis. The Alongis do not otherwise complain of the trial court’s

granting of the motion for summary judgment after the finding of ambiguity or of the

trial court’s reformation of the deeds. We overrule issue one.

Attorney’s Fees

        The Alongis complain that the trial court erred by awarding attorney’s fees to the

Scott children because the evidence was legally and factually insufficient to sustain the

award. The Alongis also seek a reversal and remand of the award of attorney’s fees

based on the trial court’s improper granting of the motion for summary judgment;

however, because we have overruled that issue, we will overrule this portion of the

issue as well.

        After the trial court granted the motions for summary judgment of the Scott

children, the Scott children filed motions seeking attorney’s fees under the Declaratory

Judgment Act with supporting affidavits attached signed by the attorneys. See TEX. CIV.

PRAC. & REMEDIES CODE ANN. § 37.009 (West 2008). The Alongis filed a response and

objections to the motions.     The trial court conducted a hearing where the Scott

daughters’ and Erik Scott’s trial attorneys gave argument, as did counsel for the

Alongis. No exhibits were offered or admitted into evidence during that hearing. The

trial court took the issue under advisement and later issued an order that granted the

Alongi v. Mosteller                                                                 Page 5
motions in part. The Alongis filed an objection to the award and a request for findings

of fact and conclusions of law, which the trial court signed.

        The Alongis complain that the trial court erred by considering the affidavits filed

by the Scott children that were attached to their motions because they were not formally

offered or admitted into evidence. Further, the Alongis assert that the statements by the

Scott children’s counsel did not constitute evidence because the statements were

unsworn and therefore, were non-testimonial. Because of these errors, the Alongis

contend that there was either no evidence or insufficient evidence to sustain the awards.

The Alongis do not otherwise challenge the amount of the award or whether it was

statutorily proper to award the attorney’s fees pursuant to the facts of the case.

Admission of Evidence

         Many cases have held that evidence treated by the trial court and the parties as

if it had been admitted is, for all practical purposes, admitted. See, e.g., Sanchez v. Bexar

County Sheriff's Dep't, 134 S.W.3d 202, 203-04 (Tex. 2004) (per curiam) (commission

record relied on as evidence by parties and court should be considered by appellate

court even though not formally admitted into evidence); Texas Health Enters., Inc. v.

Texas Dep't of Human Servs., 949 S.W.2d 313, 314 (Tex. 1997) (per curiam) (appellate

court ordered to file administrative record that parties and court treated as admitted

evidence although not formally tendered as evidence); Heberling v. State, 834 S.W.2d

350, 355-56 (Tex. Crim. App. 1992) (exhibit placed before jury and referred to by

witnesses sufficient to sustain verdict although not formally offered or admitted);

Pickering v. First Greenville Nat'l Bank, 479 S.W.2d 76, 78 (Tex. Civ. App.—Dallas 1972, no

Alongi v. Mosteller                                                                    Page 6
writ) (exhibit that was marked, used, and referred to by attorneys and considered by

trial court in rendering its decision was in evidence); Texas Dep't of Pub. Safety v. Latimer,

939 S.W.2d 240, 242-43 (Tex. App.—Austin 1997, no writ) (trial court considered

administrative record in making decision, both parties treated it as evidence, both

referred to the record’s contents, and no objection was made that administrative record

had not been admitted).

Analysis

        Both attorneys for the Scott children referred to the affidavits attached to their

motions in their statements to the trial court relating to the work performed on the case,

the number of hours, and hourly rates requested. The argument put forth by the trial

counsel for the Alongis called upon the trial court to deny the award based on the

language of the statute. No objection was made to the consideration of the affidavits

when they were referred to by the attorneys for the Scott children. The trial court

referred to the substance of the affidavits in its findings of fact and conclusions of law,

which were unchallenged by the Alongis in the trial court. We find that the trial court

did not err by considering the substance of the affidavits because the Alongis waived

any complaint to the affidavits by their failure to object to the trial court’s consideration

of the affidavits. See TEX. R. APP. P. 33.1(a).

Reasonableness of Attorney’s Fees

        The factors that courts have used to determine the reasonableness of attorneys’

fees include




Alongi v. Mosteller                                                                     Page 7
        (1) the time and labor required, the novelty and difficulty of the questions
        involved, and the skill required to perform the legal service properly;

        (2) the likelihood . . . that the acceptance of the particular employment will
        preclude other employment by the lawyer;

        (3) the fee customarily charged in the locality for similar legal services;

        (4) the amount involved and the results obtained;

        (5) the time limitations imposed by the client or by the circumstances;

        (6) the nature and length of the professional relationship with the client;

        (7) the experience, reputation, and ability of the lawyer or lawyers
        performing the services; and

        (8) whether the fee is fixed or contingent on results obtained or
        uncertainty of collection before the legal services have been rendered.

Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). The affidavits filed by the Scott

children meet these requirements and are legally and factually sufficient to support the

award. Because the affidavits are sufficient standing alone to support the award, it is

not necessary for us to consider whether the unsworn statements of counsel at the

hearing constituted evidence. We find that the trial court did not err in its award of

attorney’s fees from the Alongis to the Scott children. We overrule issue two.

Conclusion

        We find that the trial court did not err by granting the Scott children’s motion for

summary judgment or in its award of attorney’s fees. We affirm the judgment of the

trial court.


                                            TOM GRAY
                                            Chief Justice

Alongi v. Mosteller                                                                      Page 8
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 13, 2011
[CV06]




Alongi v. Mosteller                         Page 9
