                                                                                                ACCEPTED
                                                                                           01-14-00135-CV
                                                                                 FIRST COURT OF APPEALS
                                                                                         HOUSTON, TEXAS
                                                                                       1/7/2015 9:53:11 AM
                                                                                      CHRISTOPHER PRINE
                                                                                                    CLERK

                              Case Number 01-14-00135-CV

                       IN THE COURT OF APPEALS             FILED IN
                                                    1st COURT OF APPEALS
               FOR THE FIRST JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS
                              AT HOUSTON            1/7/2015 9:53:11 AM
                                                                  CHRISTOPHER A. PRINE
                                                                        Clerk
       Peter Hardsteen, Paulina Mayberg Hardsteen, and Texas Farm Bureau
                               Insurance Company,
                                                                  Appellants,
                                         vs.
                               Dean’s Campin’ Company,
                                                                  Appellee.

ON APPEAL FROM THE 506TH JUDICIAL DISTRICT COURT OF GRIMES COUNTY, TEXAS
                           CAUSE NO. 27885

  APPELLANTS’ RESPONSE TO APPELLEE’S MOTION FOR LEAVE

BAKER BOTTS L.L.P.                             T. Ernest Freeman
Michael Cancienne                              State Bar No. 07431600
State Bar No. 24055256                         The Freeman Law Firm, P.C.
Caroline Carter                                1770 St. James Place, Suite 120
State Bar No. 24078318                         Houston, Texas 77056
910 Louisiana Street                           Telephone: (713) 973-1000
Houston, Texas 77002-4995                      Facsimile: (713) 229-2703
Telephone: (713) 229-6200
Facsimile: (713) 229-6100                      ATTORNEY FOR APPELLANTS PETER
michael.cancienne@bakerbotts.com               HARDSTEEN AND PAULINE MAYBERG
caroline.carter@bakerbotts.com                 HARDSTEEN

Joe Falco, III
State Bar No. 06793001
1903 Dove Crossing, Suite C
P.O. Box 907
Navasota, Texas 77868-0907
Telephone: (936) 825-6533

ATTORNEYS FOR APPELLANT
TEXAS FARM BUREAU INSURANCE COMPANY
                  Appellee Dean’s Campin’ Company (“Appellee”) seeks leave to file a

post-submission brief to make yet another attempt at reading key language out of

the Settlement Agreement between Appellants Peter and Pauline Hardsteen and

Texas Farm Bureau (“Appellants”) and Rexhall Industries, Inc. (“Rexhall”), which

Appellee is seeking to enforce. 1 Appellants respectfully request that the Court

deny Appellee’s motion because justice does not require the introduction of

Appellee’s proposed brief, which rehashes arguments that Appellee previously

made and attempts to provide the Court with yet another interpretation of the

Settlement Agreement, which should have been raised in earlier briefing and at

oral argument. TEX. R. APP. P. 38.7; Rogers v. City of Fort Worth, 89 S.W.3d 265,

284 (Tex. App.—Fort Worth 2002, no pet.) (“Ordinarily, an issue raised for the

first time in a post-submission brief is not preserved for appellate review.”) (citing

Romero v. State, 927 S.W.2d 632, 634 n. 2 (Tex. 1996)).2

                  More importantly, Appellee’s latest attempt to interpret this

Settlement Agreement fares no better than its earlier efforts. Appellee’s post-

1
        As argued in Appellants’ Brief and Reply, Appellee lacks standing to enforce the
Settlement Agreement. Nevertheless, because Appellee’s post-submission brief only addresses
the interpretation of the Settlement Agreement, Appellants will respond only to the issues raised
in that brief.
2
       Appellee suggests that the issue it seeks to raise in its brief—the interpretation of the
indemnity provision of the Settlement Agreement—was raised for the first time in rebuttal. See
Post-Submission Brief at 1. To the contrary, this issue was discussed extensively in both
Appellants’ initial presentation and Appellee’s presentation at oral argument. Appellee’s desire
to have the last word on this issue does not entitle it to file a post-submission brief to present
arguments that easily could have been raised during its argument.


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submission brief makes clear that the only way the Settlement Agreement can be

read to establish that Appellants owed a duty of indemnity to Rexhall is to ignore

language from the indemnity provision limiting indemnity to specified situations

“relating to the Occurrences or the Suit to the extent such parties may be found

liable in any way to Plaintiff, Pauline Hardsteen or Intervenor.”                1 CR 688.

Ignoring such language is contrary to Texas law requiring that a contract be read to

give meaning to every term and that indemnity provisions be read in favor of the

alleged indemnitor.

                  A contract for indemnity is read as any other contract. In
                  construing a contract, courts give the language its plain
                  grammatical meaning unless it would defeat the intention
                  of the parties.      Indemnity agreements are strictly
                  construed in favor of the indemnitor. This rule prohibits
                  the extension, by construction or implication, of the
                  indemnitor's obligations beyond the precise terms of the
                  agreement. Strictly construing indemnity agreements is a
                  rule of substantive law that applies only after the parties'
                  intent has been ascertained through ordinary rules of
                  construction.
Kellogg Brown & Root Int’l, Inc. v. Altanmia Commercial Mktg. Co. W.L.L., No.

CIV.A. H-07-2684, 2008 WL 5114962, at *19 (S.D. Tex. Dec. 3, 2008) (quotation

marks and internal citations omitted); see also Appellants’ Brief at 21. Appellee’s

argument that the final part of the indemnity provision can be ignored because the

intent of the parties can be inferred from other language in the Settlement

Agreement runs counter to these basic principles of contract interpretation and the



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plain language of the Settlement Agreement. Moreover, it is unsupported by any

evidence of the parties’ intent.

                  To the extent that Appellee is attempting to imply that the Settlement

Agreement is ambiguous, Appellee has presented no evidence in support of its

interpretation of the agreement. If the Court finds that the Settlement Agreement is

ambiguous, summary judgment was therefore inappropriate, and this case should

be reversed and remanded. See Appellants’ Reply Brief at 6 n.2.3

                                           P RAYER

                  In the event that the Court permits Appellee to file its brief,

Appellants respectfully request that this Court consider the above response as a

response to the brief.




3
       Despite making the bald assertion that the Settlement Agreement should be read against
Appellants as its drafters, see Post-Submission Brief at 5, Appellee likewise presents no evidence
that Appellants were the drafters of this agreement.


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                      RESPECTFULLY SUBMITTED,

                      BAKER BOTTS L.L.P.

                      By: /s/ Michael Cancienne____
                          Michael Cancienne
                          State Bar No. 24055256
                          Caroline Carter
                          State Bar No. 24078318
                          910 Louisiana Street
                          Houston, Texas 77002-4995
                          Telephone: (713) 229-6200
                          Facsimile: (713) 229-6100
                          michael.cancienne@bakerbotts.com
                          caroline.carter@bakerbotts.com

                         Joe Falco, III
                         State Bar No. 06793001
                         1903 Dove Crossing, Suite C
                         P.O. Box 907
                         Navasota, Texas 77868-0907
                         Telephone: (936) 825-6533

                       ATTORNEYS FOR APPELLANT
                       TEXAS FARM BUREAU

                      By: /s/ T. Ernest Freeman_____
                          T. Ernest Freeman
                          State Bar No. 07431600
                          The Freeman Law Firm, P.C.
                          1770 St. James Place, Suite 120
                          Houston, Texas 77056
                          Telephone: (713) 973-1000
                          Facsimile: (713) 229-2703

                       ATTORNEY FOR APPELLANTS PETER
                       HARDSTEEN AND PAULINE MAYBERG
                       HARDSTEEN




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                         C ERTIFICATE      OF   C OMPLIANCE
            Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that,
according to the word count of the computer program used to prepare this
document, the document contains 695 words.

                                                       /s/ Michael Cancienne
                                                       Michael Cancienne



                            C ERTIFICATE       OF   S ERVICE
             I hereby certify that on this 7th day of January, 2015, a copy of the
foregoing was served by electronic mail and certified mail, return receipt
requested, on the following counsel of record:

         Glenn J. Fahl
         Fahl & Associates, P.C.
         Attorneys at Law
         3900 Essex Lane, Suite 330
         Houston, Texas 77027

         James A. Rodman
         The Rodman Law Firm
         1515 W. 35th Street, Building C
         Austin, Texas 78703

                                                       /s/ Michael Cancienne
                                                       Michael Cancienne




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