                                                                                   ACCEPTED
                                                                               12-15-00177-CV
                                                                  TWELFTH COURT OF APPEALS
                                                                                TYLER, TEXAS
                                                                          9/22/2015 4:50:16 PM
                                                                                     Pam Estes
                                                                                        CLERK

                     CAUSE NO. 12-15-00177-CV

                                                              FILED IN
                    IN THE COURT OF APPEALS            12th COURT OF APPEALS
                                                            TYLER, TEXAS
                               FOR THE                 9/22/2015 4:50:16 PM
                                                              PAM ESTES
             TWELFTH COURT OF APPEALS            DISTRICT       Clerk


                          AT TYLER, TEXAS.


    WALTER BOUNDS and wife, CAROLYN B. BOUNDS, Appellant,

                                   VS.

JOHN THOMAS PRUD’HOMME, JOSEPH GILBERT PRUD’HOMME,
JOSEPH LYNN PRUD’HOMME, PETER A. BREEN, Individually and as
Successor Trustee of the BREEN FAMILY TRUST, JANET M. SUTRO, SUSAN
E. BREEN, and TERRANCE E. BREEN, individually and d/b/a E. G. AND M.
A. PRUD’HOMME BENEFICIARIES PARTNERSHIP, Appellee.


              On Appeal from the 1st Judicial District Court
                   of San Augustine County, Texas.


                       BRIEF OF APPELLANT


                        Thomas R. McLeroy, Jr.
                           Bar No. 13766800
                             P. O. Box 668
                         Center, Texas 75935
                            (936) 598-2701
                          FAX (936) 598-6086
                       mcleroylaw@sbcglobal.net

                   ATTORNEY FOR APPELLANT




                 ORAL ARGUMENT REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. P., 38.1(a), the following persons are parties to

the trial court’s judgment or other order appealed from and the names and

addresses of all trial and appellate counsel, to-wit:

PARTIES:

      Appellant:         WALTER BOUNDS
                         CAROLYN B. BOUNDS


      Appellee:          JOHN THOMAS PRUD’HOMME
                         JOSEPH GILBERT PRUD’HOMME
                         JOSEPH LYNN PRUD’HOMME
                         PETER A. BREEN,
                         The BREEN FAMILY TRUST
                         JANET M. SUTRO
                         SUSAN E. BREEN
                         TERRANCE E. BREEN
                         The E.G. AND M.A. PRUD’HOMME
                         BENEFICIARIES PARTNERSHIP




                                         i
COUNSEL OF RECORD:

    Attorney for Appellant:

                        Thomas R. McLeroy, Jr.
                           Bar No. 13766800
                             P. O. Box 668
                         Center, Texas 75935
                            (936) 598-2701
                          FAX (936) 598-6086
                       mcleroylaw@sbcglobal.net

    Attorney for Appellee:

                          Robert G. Hargrove
                           Bar No. 24032391
                      Osborn, Griffith & Hargrove
                    515 Congress Avenue, Suite 2450
                          Austin, Texas 78701
                            (512) 476-3529
                          FAX (512) 476-8310
                       rob@texasenergylaw.com




                                   ii
                                       TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . i
    PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
    COUNSEL OF RECORD.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         page 3
     ISSUE NO. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   page 3
     ISSUE NO. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   page 3
     ISSUE NO. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   page 3

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 3

ISSUE NO. 1
     (Restated). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 9

SUMMARY OF THE ARGUMENT
   (Under Issue No. 1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 9

ARGUMENT AND AUTHORITIES
   (Under Issue No. 1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 10

ISSUE NO. 2
     (Restated). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 20

SUMMARY OF THE ARGUMENT
   (Under Issue No. 2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 21

ARGUMENT AND AUTHORITIES
   (Under Issue No. 2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 22

ISSUE NO. 3
     (Restated). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 31

SUMMARY OF THE ARGUMENT
   (Under Issue No. 3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 31

                                                        iii
ARGUMENT AND AUTHORITIES
   (Under Issue No. 3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 32

CONCLUSION AND PRAYER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 40

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . page 42

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 43

TAB 1
     (Trial Court’s Judgment). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -I-

TAB 2
     (Trial Court’s Findings of Fact and Conclusions of Law). . . . . . . . . -IX-

TAB 3
     (Farm and Ranch Contract).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -XXIV-

TAB 4
     (Prud’homme Partnership Deed). . . . . . . . . . . . . . . . . . . . . . . . . . . . . -XL-

TAB 5
     (Breen Deeds).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -XLVI-

TAB 6
     (Title Insurance Commitment No. SA01-135 Schedules). . . . . . . . -LXII-

TAB 7
     (Bounds’ Title Insurance Policy). . . . . . . . . . . . . . . . . . . . . . . . . . -LXXIII-




                                                     iv
                                     INDEX OF AUTHORITIES


RULES:

TEX. R. APP. P., 38.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TEX. R. APP. P., 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 42

TEX. R. APP. P., 9.5.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 43



STATUTES:

TEX. BUS. & COM. CODE, §26.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 30

TEX. CIV. PRAC. & REM. CODE, §16.051. . . . . . . . . . . . . . . . . . . . . . . . . . page 33

TEX. CIV. PRAC. & REM. CODE, §§37.001, et seq.. . . . . . . . . . . . . . . . . . . . page 2

TEX. PROP. CODE, § 5.01(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 15



CASES:

Alford v. Crum, 671 S.W.2d 870 (Tex. 1984). . . . . . . . . . . . . . . . . . . . . . . page 14

Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991). . . . . . . . page 22

B.M.C. Software Belgium, N.V. v. Marchand, 83 S.W.3d 789
(Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 23, page 24

Bagby v. Bredthauer, 627 S.W.2d 190 (Tex. App. –Austin,
1981, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 12

Bass v. Harper, 441 S.W.2d 825 (Tex. 1969). . . . . . . . . . . . . . . . . . . . . . . page 12

Brown v. Havard, 593 S.W.2d 939 (Tex. 1980). . . . . . . . . . . . . . . . . . . . . page 33

Cherokee Water Co. v. Forderhause, 741 S.W.2d 377 (Tex. 1987). . . . . page 24

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). . . . . . . . . . . . . . . . page 23
                                                         v
City of Stamford v. King, 144 S.W.2d 923 (Tex. Civ. App.
–Eastland, 1940, writ ref’d.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 14

Coker v. Coker, 650 S. W. 2d 391 (Tex. 1983). . . . . . . . . . . . . . . . . . . . . . page 10

Davis v. Grammar, 750 S.W.2d 766 (Tex. 1988). . . . . . . . . . . . . page 30, page 31

Dewitt County Electric Coop. v. Parks, 1 S.W.3d 96
(Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 10, page 11, page 17

Farm & Ranch Investors, Ltd., v. Titan Operating, L.L.C.,
369 S.W. 3d 679 (Tex. App. –Ft. Worth, 2012, pet. denied). . . . . . . . . . page 14

Garrett v. Dills, 157 Tex. 92, 299 S.W.2d 904 (1957). . . . . . . . . . . . . . . . page 14

Hardy v. Bennefield, 368 S.W.3d 643 (Tex. App. –Tyler,
2012, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 24, page 25

Houston Exploration Co. v. Wellington Underwriting
Agencies, Ltd., 352 S.W.3d 462 (Tex. 2011).. . . . . . . . . . . . . . . . page 16, page 17

Johnson v. Conner, 260 S.W.3d 575 (Tex. App. –Tyler,
2008, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 14, page 15

Lott v. Lott, 370 S.W.2d 463 (Tex. 1963). . . . . . . . . . . . . . . . . . . . . . . . . . page 14

Luckel v. White, 819 S.W.2d 459 (Tex. 1991). . . . . . . page 10, page 11, page 14

Ortiz v. Jones, 917 S.W.2d 770 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . . . . page 23

Pich v. Langford, 157 Tex. 335, 302 S.W.2d 645 (1957). . . . . . . page 11, page 12

Sharp v. Fowler, 151 Tex. 490, 252 S.W.2d 153 (1952). . . . . . . . . . . . . . page 15

Simpson v. Curtis, 351 S.W.3d 374 (Tex. App. –Tyler, 2010,
no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 24, page 25, page 30

Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608 (1956). . . . . . . . . . . . . . page 11

Sullivan v. Barnett, 471 S.W.2d 39 (Tex. 1971). . . . . . . . . . . . . . . . . . . . . page 33

Tex. Dep’t of Pub. Safety v. Stockton, 53 S.W.3d 421
(Tex. App. —San Antonio 2001, pet. denied). . . . . . . . . . . . . . . . . . . . . . page 24


                                                       vi
Walker v. Foss, 930 S.W.2d 701 (Tex. App. –San Antonio,
1998, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 15

Waters v. Ellis, 158 Tex. 342, 312 S.W.2d 231 (1958). . . . . . . . . . . . . . . . page 14

Williams v. Glash, 789 S.W.2d 261 (Tex. 1990).. . . . . . . . . . . . . . . . . . . . page 25



OTHER AUTHORITIES:

Blacks Law Dictionary (10th ed. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . page 12




                                                         vii
                         CAUSE NO. 12-15-00177-CV


                       IN THE COURT OF APPEALS

                                  FOR THE

               TWELFTH COURT OF APPEALS DISTRICT

                             AT TYLER, TEXAS.


     WALTER BOUNDS and wife, CAROLYN B. BOUNDS, Appellant,

                                      VS.

JOHN THOMAS PRUD’HOMME, JOSEPH GILBERT PRUD’HOMME,
JOSEPH LYNN PRUD’HOMME, PETER A. BREEN, Individually and as
Successor Trustee of the BREEN FAMILY TRUST, JANET M. SUTRO, SUSAN
E. BREEN, and TERRANCE E. BREEN, individually and d/b/a E. G. AND M.
A. PRUD’HOMME BENEFICIARIES PARTNERSHIP, Appellee.


                           BRIEF OF APPELLANT


TO THE HONORABLE COURT OF APPEALS:

      Now come WALTER BOUNDS and CAROLYN B. BOUNDS, the

Appellants in the above styled and numbered matter, and respectfully submit the

following brief of their arguments and authorities:

                        STATEMENT OF THE CASE

      The Appellants, hereinafter referred to as the “Bounds,” filed this suit to

recover a mineral interest that the Appellees, hereinafter referred to as the

Prud’hommes,” agreed to convey to the Bounds but later claimed they reserved.

The conveyance was accomplished by six almost identical deeds from the

Prud’hommes to the Bounds. (Appendix, Tab 4, Tab 5). The Bounds sought
relief in the trial court under the statute and rules governing Trespass to Try

Title suits, for a construction of their instruments of conveyance under the

Uniform Declaratory Judgment Act, TEX. CIV. PRAC. & REM. CODE, §§ 37.001,

et seq., for reformation, if necessary, of their instruments of conveyance due to

fraud, accident, mistake or scriveners’s error and for cancellation of certain

mineral leases executed by the Prud’hommes as a cloud upon the Bounds’ title

to the minerals. The Prud’hommes answered with their plea of “not guilty,” a

general denial and a plea of limitations. After a bench trial, District Judge Craig

M. Mixon entered a judgment denying the Bounds recovery of an undivided

45% interest in the mineral estate from the Prud’hommes and awarding the title

to and possession of those minerals to the Prud’hommes. The judgment awarded

Bounds title to and possession of an undivided 5% interest in the mineral estate

claimed by Appellants, Peter A. Breen, individually and as Successor Trustee of

the Breen Family Trust, Janet M. Sutro, Susan E. Breen, and Terrance E. Breen.

(Appendix, Tab 1). The Bounds appeal from the judgment denying them relief

with respect to the 45% interest awarded to the Prud’hommes.




                                       page 2
                             ISSUES PRESENTED

                                ISSUE NO. 1
          (I CR, pg. 91, “Findings of Fact and Conclusions of Law,”
                         Conclusion of Law Nos. 1 - 2)

      WHETHER THE TRIAL COURT INCORRECTLY CONSTRUED THE

DEEDS FROM THE PRUD’HOMME PARTNERSHIP TO THE BOUNDS TO

UNAMBIGUOUSLY RESERVE THE GRANTORS’ MINERALS.

                                 ISSUE NO. 2
      (I CR, pp. 86, 90, 92, “Findings of Fact and Conclusions of Law,”
          Findings of Fact Nos. 19, 43 - 45, Conclusion of Law No. 6)

      WHETHER THE TRIAL COURT INCORRECTLY RULED THAT THE

DEEDS FROM THE PRUD’HOMMES TO THE BOUNDS WERE NOT

SUBJECT TO REFORMATION DUE TO FRAUD, ACCIDENT, MISTAKE

OR SCRIVENER’S ERROR.

                                 ISSUE NO. 3
        (I CR, pp. 90 - 92, “Findings of Fact and Conclusions of Law,”
         Findings of Fact Nos. 46 - 48, Conclusions of Law Nos. 3 - 5)

      WHETHER THE TRIAL COURT INCORRECTLY RULED THAT THE

STATUTE OF LIMITATIONS BARRED THE BOUNDS FROM SEEKING

RELIEF BY WAY OF REFORMATION.

                           STATEMENT OF FACTS

      In 2001, Walter Bounds and his wife, Carolyn Bounds, decided to

purchase a tract of rural property in order to fulfill Mrs. Bounds’ dream of land

ownership. (I RR, pg. 32, lines 1 - 15; pg. 71, line 20 - pg. 72, line 8). Because

they were inexperienced in the process of acquiring and managing land, they


                                      page 3
enlisted the assistance of their son-in-law, Terry Scull, who was experienced in

the matters of real estate acquisitions and management. (I RR, pg. 32, line 6 -

18; pg. 70, lines 7 - 21). Through his contacts and connections, Mr. Scull was

aware that the Prud’hommes desired to sell the 126.632 acre tract involved in

this suit. (I RR, pg. 33, line 16 - pg. 34, line 3; pg. 71, lines 5 - 19). The parties

referred to the tract as the pine “plantation.” (I RR, pg. 32, line 21 - pg. 33, line

9; pg. 122, lines 15 - 25). From the beginning, the Prud’hommes’ offer included

the sale their mineral interest. (I RR, 38, line 3 - pg. 40, line 4; pg. 73, lines 9 -

21; pg. 121, lines 8 - 24; pg. 122, lines 15 - pg. 123, line 20; II RR, Plaintiff’s

Exhibit 28; Exhibit P-27, pg. 65, line 25 - pg. 66, line 12). The Bounds, along

with Mr. Scull, inspected the property, discussed its merits and advantages,

including benefits of owning the minerals, and, in due course, determined that

it would be a suitable acquisition. (I RR, pg. 33, lines 10 - 13; pg. 38, line 3 - pg.

40, line 4; pg. 71, lines 5 - pg. 72, line 8; pg. 74, line 9 - pg. 74, line 2). The

Bounds relied upon their son-in-law to negotiate the terms of the sales contract

and arrange for the closing. (I RR, pg. 34. lines 11 - 23; pg. 72, line 72 - pg. 73,

line 3; pg. 74, line 24 - pg. 75, line 2). Neither the Bounds nor Mr. Scull had any

direct dealings with the Prud’hommes during the negotiations or the closing of

the sale. (I RR, pg. 34. line 24 - pg. 35, line 7; pg. 74, lines 3 - 7). Both Mr. Scull

and the Prud’hommes communicated with each other through Mr. John

Gorham, a consulting forester, and John Crawford, a realtor and the

Prud’hommes’ consulting forester. (I RR., pg 71, lines 9 - 16;pg. 73, lines 9 -16;


                                        page 4
pg. 74, lines 3 -10; pg. 122, lines 15 - 25; pg. 123, line 21 - pg. 124, line 8).

      As a result of the negotiations, a written sales contract between the Bounds

and the E. G. and M. A. Prud’homme Beneficiaries Partnership was executed.

(I RR, pg. 35, line 20 - pg. 36, line 18; pg. 74, lines 11 - 23; pg. 76, line 16 - pg. 78,

line 6; pg. 112, line 25 - pg. 113, line 23; pg. 121, lines 8 - 17; pg. 125, lines 2 - 4;

II RR, Plaintiffs’ Exhibit 21). In compliance with the Prud’hommes’ offer, the

contract provided that “All minerals owned [by the Seller are] to be conveyed”

and did not provide for the retention of any interest by the Seller. (II RR,

Plaintiffs’ Exhibit 21, Paragraph 2(A), 2(A)(2)). The contract, also, provided

that closing of the sale would occur on or before September 2, 2001, or within 7

days after objections to matters disclosed in the title insurance commitment have

been cured, whichever date is later. (II RR, Plaintiffs’ Exhibit 21, Paragraph 9).

Upon failure to close, specific remedies were available to the non-defaulting

party. (II RR, Plaintiffs’ Exhibit 21, Paragraph 9). In the case of the Seller’s

failure to close for any reason other than Seller’s failure to make timely casualty

repairs or deliver the title insurance commitment, the Buyer’s remedy included

enforcement of specific performance, seeking any other relief provided by law,

or both. (II RR, Plaintiffs’ Exhibit 21, Paragraph 15).

      The sale closing did not occur on September 2, 2001. (I RR, pg. 114, lines

6 - 10). When the title insurance commitment was issued, it showed title to the

property to be vested in certain individual members as well as the E.G. and M.

A. Prud’homme Beneficiaries Partnership, and required execution of the


                                          page 5
proposed deed to the Bounds by the individual members of the partnership,

including Eleanor Prud’homme Breen.              (II RR, Exhibit D-23).      Eleanor

Prud’homme Breen had died testate two years earlier, survived by her husband,

Hal Joseph Breen, and four children, Appellees Terrance J. Breen, Susan E.

Breen, Peter A. Breen and Janet M. Breen Suttro. (II RR, Plaintiffs’ Exhibit 4).

Her will left her estate to a family trust of which her husband was the trustee.

(II RR., Plaintiffs’ Exhibit 4). The requirement that they execute the deeds

delayed the closing. (I RR, pg. 114, lines 6 - 25; pg. 116, line 19 - pg. 118, line 3;

pg. 147, line 7 - pg. 148, line 10; II RR, Exhibit P-27, pg 67, lines 6 - 17). The

Breens initially objected to signing the deeds, but eventually agreed to do so and

permit the partnership to receive the funds. (I RR., pg. 143, line 15 - pg. 145, line

11; pg. 150, lines 5 - 14).       The closing was, therefore, delayed by the

Prud’hommes’ inability or unwillingness to execute the conveyances required by

the title insurance company as a prerequisite to insuring the Bounds’ title. By

the time the title insurance company’s requirements were addressed, closing had

been delayed until after the Breens last deed was executed on October 17, 2001.

(II RR, Plaintiffs’ Exhibits 7 - 9).

      John Griffin, the Bounds’ lawyer, prepared the deeds that the

Prud’hommes’ signed. (II RR, Exhibit P-27, pg. 43, line 16 - pg. 44, line 14; pg.

53, line 17 - pg. 54, line 1; pg. 55, lines 2 - 9). Each of the deeds contained a

paragraph bearing the heading, “Reservations from and Exceptions to

Conveyance and Warranty:” (II RR, Plaintiffs’ Exhibit 5; Plaintiffs’ Exhibits


                                        page 6
6 - 9). Beneath each of the headings, the deeds contained the following

statement:

      “TITLE to any of the oil, gas and other minerals, in, under and that
      may be produced from the above-described real property, together
      with all rights, privileges and immunities relating thereto, including
      the following:
             “1. MINERAL RESERVATION as set forth in instrument
      from Roy Atkinson to V. R. Marlow, dated November 7, 1934, and
      recorded in Vol.74, Page 542, Deed Records of San Augustine
      County, Texas, reserving one-half (½) of the minerals and/or royalty
      interests, the royalties, bonuses and rentals in connection therewith.
             “2. MINERAL RESERVATION as set forth in the
      instrument from E. G. Prud’homme, et ux, to Eck G. Prud’homme,
      et al, dated May 22, 1971, recorded in Vol. 166, Page 239, Deed
      Records, San Augustine County, Texas, reserving one-half (½) of the
      minerals and/or royalty interest, the royalties, bonuses and rentals
      in connection therewith.” (II RR, Plaintiffs’ Exhibits 5 - 9).

      The first two clauses of the paragraph quoted above are essentially

identical to the corresponding provisions of Schedule B “Exceptions from

Coverage” item 9(f) of the title insurance commitment and Schedule B

“Exceptions from Coverage” item 6(f) of the Owner Policy of Title Insurance

issued in connection with the Bounds’ purchase. (II RR, Exhibits D-23, D-24).

Other than the names of the grantors, each of the deeds was identical to the

others except that the Breen deeds contained an additional sentence preceding

the above quoted paragraphs that read, “This Deed is intended to convey all of

the Grantor’s interest in and to the above-described real property.” (II RR.,

Plaintiff’s Exhibits 6 - 9). Mr. Griffin intended the text following the heading in

question to be exceptions to the grantors’ warranties, and not reservations of

their mineral interest or exceptions from the conveyance, and was of the opinion


                                       page 7
that the text was effective to do so. (II RR., Exhibit P-27, pg. 6, [pg. 21, lines 8 -

20]; pg. 7, [pg. 25, lines 6 - 23]; pp. 12 - 13, [pg. 47, lines 12 - 18; pp. 48, line 13 -

pg. 49, line 13; pp. 49, line 20 - pg. 50, line 16]; pg. 18, [pg. 71, line 21 - pg 72,

line 13]; pg. 19, [pg. 73, line 6 - pg. 74, line 20]). Mr. Scull and the Bounds were

of a like opinion. (I RR., pg. 83, line 3 - pg. 86, line 9; pg. 87, line 19 - pg. 88, line

9; pg. 96, line 2 - pg. 87, line 2). When the Prud’hommes received the deeds,

however, they claim that they construed the text as a mineral reservation,

assumed that the Bounds had unilaterally changed the parties’ agreement and

closed the transaction without revealing their assumptions to the Bounds or the

Bounds’ representatives. (I RR., pg. 116, line 19 - pg. 117, line 11; pg. 118, lines

8 - pg. 119, line 6; pg. 139, line 2 - pg. 140, line 11; pg. 143, line 23 - pg. 145, line

2; pg. 145, line 12 - pg. 146, line 24; pg. 147, line 7 - pg. 149, line 13).

      The meaning and legal effect of the text in the quoted portion of the deeds

is the basis of this suit. The Bounds claimed that the text creates only an

exception to the Grantors warranties under the deeds and that, if it should be

construed otherwise, the deeds should be reformed to reflect that the Bounds

acquired whatever mineral interest the Grantors owned at the time of the

conveyance. (I CR, pp. 9 - 69). In order to circumvent their contractual

agreements, the Prud’hommes claimed that the deeds unambiguously reserved

their mineral interest and that evidence of contemporary transactions was

inadmissable to show that they did not. (1 RR, pg. 8, line 13 - pg. 9, line 6). The

trial court ruled that the deed from the E. G. and M. A. Prud’homme


                                          page 8
Beneficiaries Partnership unambiguously reserved the minerals to the

partnership. (1 RR, pg. 26, line 24 - pg 27, line 23; 1 CR, pg. 9, “Findings of Fact

and Conclusions of Law,” Conclusions of Law Nos. 1, 2). By contrast, the trial

court found that Breen deeds were ambiguous and construed them to convey the

grantors’ minerals to the Bounds. (1 RR, pg. 26, line 24 - pg. 27, line 23; I Cr,

pg. 10, “Findings of Fact and Conclusions of Law,” Conclusions of Law Nos. 7 -

11).

                                  ISSUE NO. 1
                                   (Restated)

       Whether the Trial Court Incorrectly Construed the Deeds from the

Prud’hommes to the Bounds to Unambiguously Reserve the Grantors’ Minerals.

                      SUMMARY OF THE ARGUMENT
                           (Under Issue No. 1)

       The trial court construed the deed conveying the property in question from

the E.G. and M.A. Prud’homme Beneficiaries Partnership to the Bounds as

unambiguously reserving the partnership’s interest in the oil, gas and other

minerals. In doing so, the trial court erred. The deed clearly did not contain an

express reservation of minerals by the grantors. The trial court failed to

construe the deeds most strongly against the grantor to confer upon the grantee

the greatest estate permitted by the terms of the deed and to convey, in the

absence of language clearly showing an intention to convey a lesser interest, all

of the grantor’s interest. The trial court, also, ignored the policy which does not

favor reservations or exceptions by implication. The trial court’s construction


                                       page 9
of the partnership deed is inconsistent with its construction of the other deeds

executed as part of the parties’ contract. If the deeds are construed in the light

of the facts and circumstances surrounding their execution, it becomes clear that

the text in question was intended as a limitation of the grantors’ warranty and

not intended as a mineral reservation or exception. A proper application of the

traditional rules of construction dictate that the text in question should have

been construed as unambiguously limiting the grantors’ warranties.

                       ARGUMENT AND AUTHORITIES
                            (Under Issue No. 1)

      The trial court construed the deed conveying the property in question from

the E.G. and M.A. Prud’homme Beneficiaries Partnership to the Bounds as

unambiguously reserving the partnership’s interest in the oil, gas and other

minerals. (I RR., pg. 26, line 23 - pg. 27, line 4; pg. 27, lines 16 - 23; I CR, pg. 91,

“Findings of Fact and Conclusions of Law,” Conclusion of Law Nos. 1-2). The

trial court erred in its construction.

      Construction of an unambiguous deed is a question of law for the court.

Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). Contract language is not

ambiguous when it can be given a certain or definite meaning and the court is

obligated to interpret the language as a matter of law. Coker v. Coker, 650 S. W.

2d 391, 393 (Tex. 1983). A term is not ambiguous because of a simple lack of

clarity, nor does an ambiguity arise merely because parties to an agreement

proffer different interpretations of a term. Dewitt County Electric Coop. v. Parks,

1 S.W.3d 96, 100 (Tex. 1998). An ambiguity results if the application of

                                         page 10
established rules of construction leaves the agreement susceptible to more than

one meaning. Id. Both potential meanings must be reasonable. Id. The ultimate

purpose in construing a deed is to ascertain the intention of the grantor. Luckel

v. White, 819 S.W.2d at 461; Smith v. Allison, 157 Tex. 220, 229, 301 S.W.2d 608,

614, (1956). When this intention is ascertained, that construction which carries

the intention into effect governs and controls. Smith v. Allison, 157 Tex. at 229,

301 S.W.2d at 614.

      As a matter of law, the Prud’homme partnership deed did not

unambiguously reserve the grantors’ minerals. The deeds in question were

prepared from a State Bar of Texas form. (II RR, Exhibit P-27, pg. 11 [pg. 44,

lines 10 - 20]). The text that the trial court found to be an unambiguous began

with a heading supplied by the form that read, “Reservations from and

Exceptions to Conveyance and Warranty.” (II RR, Exhibit P-27, pg 12 [pg. 47,

lines 19 - 25]). The quoted text is a heading and, in the absence of any other

following text, would clearly not, of itself, create any legal rights or relationships

between the grantors and the grantee. The subject referenced in the heading

was not limited solely to “reservations.” The references are to four different and

distinct aspects of Deeds.

      Although they are often used interchangeably, the words “exception” and

“reservation are not strictly synonymous. Pich. v. Langford, 157 Tex. 335, 342,

302 S.W.2d 645, 650. (1957). A “reservation” is a creation by and on behalf of

the grantor, of a new right issuing out of the thing granted that did not exist


                                        page 11
before the grant. Pich v. Langford, 157 Tex. at 343, 302 S.W.2d at 650; Bagby v.

Bredthauer, 627 S.W.2d 190, 195, (Tex. App. –Austin, 1981, no writ). On the

other hand, an “exception” is an exclusion from the grant in favor of the grantor

only to the extent that such interest as is excepted may then be vested in the

grantor and not outstanding in another. Pich v. Langford, 157 Tex. at 343, 302

S.W.2d at 650; Bagby v. Bredthauer, 627 S.W.2d at 195.

      Likewise, there is a distinction between a “conveyance” and a “warranty.”

A “conveyance” is a voluntary transfer of a right or of property. Blacks Law

Dictionary (10th ed. 2014). It is equivalent to the noun, “grant.” see Blacks Law

Dictionary, (10th ed. 2014). A “warranty,” on the other hand, is a separate

covenant from the grant and is not a part of the conveyance; It neither

strengthens, enlarges nor limits the title conveyed but is a contract on the part

of the grantor to pay damages in the event of failure of title. Bass v. Harper, 441

S.W.2d 825, 827, (Tex. 1969).

      If the heading would have no legal significance without following text

expressing the parties’ intentions, what text did the deeds contain that

unambiguously expressed the parties intent for the Prud’hommes to reserve

their minerals? The text following the heading in the Prud’hommes’ deed read,

“TITLE to any of the oil, gas and other minerals, in, under and that may be

produced from the above-described real property, together with all rights,

privileges and immunities relating thereto . . .” followed by specific references

to reservations by the prior owners in two instruments appearing earlier in the


                                      page 12
Prud’hommes’ chain of title. (II RR, Plaintiffs’ Exhibits 5 - 9). The text used

closely tracked the text that the Bounds’ title insurer used to exclude mineral

ownership from the title insurance coverage. (II RR., Exhibit D-23, page

PRU_0127, Schedule B, paragraph 9(f)). The deeds’ text is not a complete

sentence and contains no verb. The language in the title insurance commitment

was part of paragraph 9(f) of Schedule B, Exceptions from Coverage, that began,

“In addition to the Exclusions and Conditions and Stipulations, your Policy will

not cover loss, cost, attorney’s fees, and expenses resulting from:” followed by

a list of numerous matters, one of which was the disclaimer of coverage for the

title to the minerals. The text of paragraph 9(f) was part of a sentence that

expressly related the language to what the insurance would or would not cover.

Unlike the commitment, the text of Prud’hommes’ deeds was not part of a

clearly articulated statement identifying what was to be done about the title to

the minerals. There is no express declaration that the grantors “reserve” to

themselves the “title to” the mineral interests nor that they “excepted” the “title

to” the mineral interests from the conveyance. The text merely refers to the

“title to” the oil, gas and other minerals, without mentioning a “reservation” or

an “exception.” There is nothing in the paragraphs following the heading that

would clearly specify that a reservation or exception of the title to the minerals

was intended by the grantors rather than merely a limitation of the grantors’

warranty of title with respect to the minerals. In order to construe the text

otherwise than as only a limitation of the grantors’ warranty, the trial court had


                                      page 13
to complete the sentence by supplying the missing subject and verb, “Grantors

reserve . . .” title to the oil, gas and other minerals. Such a construction in the

absence of express words or some other affirmative expression indicating that

the title to the minerals was to be reserved or excepted from the both the

conveyance and warranty, and not just the grantors’ warranty, is arbitrary. A

court must construe the instrument as it is written and has no right to alter it by

interpolation or substitution. Alford v. Crum, 671 S.W.2d 870, 872, (Tex. 1984).

      If a deed is not ambiguous, it is to be construed under the “four corners”

rule. Luckel v. White, 819 S.W.2d at 461. The court, when seeking to ascertain

the intention of the parties, attempts to harmonize all parts of the deed. Id. If

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. Johnson v. Conner,

260 S.W.3d 575, 579 (Tex. App. –Tyler, 2008, no pet.). There are a number of

applicable construction aids that courts have consistently employ to determine

the meaning of the language in a deed. Deeds are construed most strongly

against the grantor. Garrett v. Dills, 157 Tex. 92, 95, 299 S.W.2d 904, 906 (1957);

Farm & Ranch Investors, Ltd., v. Titan Operating, L.L.C., 369 S.W.3d 679, 681

(Tex. App. –Ft. Worth, 2012, pet. denied); City of Stamford v. King, 144 S.W.2d

923, 927 (Tex. Civ. App. –Eastland, 1940, writ ref’d.). A deed will be construed

to confer upon the grantee the greatest estate that the terms of the instrument

will permit. Lott v. Lott, 370 S.W.2d 463, 465 (Tex. 1963); Waters v. Ellis, 158

Tex. 342, 312 S.W.2d 231, 234 (1958). A general warranty deed conveys all of


                                      page 14
the grantor’s interest unless there is language in the instrument that clearly

shows an intention to convey a lesser interest. Johnson v. Connor, 260 S.W.3d

at 579. The courts do not favor reservations by implication. Sharp v. Fowler,

151 Tex. 490, 494, 252 S.W.2d 153, 154 (1952); see TEX. PROP. CODE, § 5.01(a)

(mandating that, “An estate in land that is conveyed . . . is a fee simple unless the

estate is limited by express words. . . [emphasis added]).

      The trial courts finding that the Prud’hommes’ deed contains an

unambiguous reservation of the minerals finds no support by an examination of

the deed’s “four corners.” The form’s granting clause states that the Grantor,

“. . . subject to the reservations from and exceptions to conveyance and

warranty, grants, sells and conveys to the Grantee, the property.” The principal

function of the “subject to” clause in the conveyance is to protect the grantor

against a claimed breach of warranty. Walker v. Foss, 930 S.W.2d 701, 706 (Tex.

App. –San Antonio, 1998, no writ). Subject to” in its ordinary sense means

“limited by” or “subordinate to” and does not have the effect of creating any

affirmative rights. Id. In conveyances, “subject to” is a term of qualification

and does not create new interests. Id. If use of the phrase, “subject to,” creates

no new interest, it cannot create any new right in favor of the grantor that is

consistent with the definition of a “reservation” where no such right was created

under the “Reservations and Exceptions from Conveyance and Warranty”

clause.   Nor can it preserve for the grantor a right included within the

description of the “property” conveyed that is not expressly excluded from the


                                       page 15
conveyance, either by the definition of the property conveyed or by the

provisions of the clause in question. The deed’s warranty clause contains none

of the ambiguities discussed above. It clearly binds the grantor to warrant the

title conveyed, “. . . except as to the reservations from and exceptions to

conveyance and warranty,” thereby excluding those matters from breach of

warranty claims. Looking at the whole instrument, what is apparent is that it

did not clearly and expressly reserve the minerals to the grantors or except the

minerals from the conveyance. Because it did not, the only method by which the

deed could be construed to contain a reservation in the grantors’ favor is to

imply that a reservation was intended. That implication violates the rules of

construction that require a reservation or exception to be made in clear and

express terms and that, in the absence of clear and express terms, the deed

should be construed to convey the greatest possible estate.

      If the circumstances involving the negotiation for and preparation of the

deeds are considered, the proper construction of the deeds’ text becomes a

matter of certainty. A trial court is properly authorized to examine those

circumstances. A written contract must be construed to give effect to the

parties’ intent expressed in the text as understood in the light of the facts and

circumstances surrounding the contract’s execution. Houston Exploration Co.

v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 469 (Tex. 2011). The

parole evidence rule applies when parties have a valid, integrated written

agreement and precludes enforcement of prior or contemporaneous agreements.


                                     page 16
Id. The rule does not prohibit consideration of surrounding circumstances that

inform, rather than vary from or contradict, the contract text. Id. Under

generally accepted principles of contract interpretation, all writings that pertain

to the same transaction will be considered together, even if they were executed

at different times and do not expressly refer to one another. Dewitt County

Electric Coop. v. Parks, 1 S.W.3d at 102. The negotiations of the parties may

have some relevance in ascertaining the dominant purpose and intent of the

parties embodied in the contract interpreted as a whole. Houston Exploration

Co. v. Wellington Underwriting Agencies, Ltd., 352 at 469 - 470.

      Both Bounds and the Prud’hommes’ agree that the Prud’hommes initial

offer to sell the property in question included the sale of the minerals and did not

provide that the Prud’hommes would reserve the minerals. (I RR, 38, line 3 - pg.

40, line 4; pg. 73, lines 9 - 21; pg. 121, lines 8 - 24; pg. 122, line 15 - pg. 123, line

20; II RR, Plaintiff’s Exhibit 28; Exhibit P-27, pg. 17 [pg. 65, line 25 - pg. 66, line

12]). When an agreement for the sale had been concluded, a written contract

was prepared which provided that the Prud’hommes would convey “. . . [a]ll

minerals owned . . .” (I RR, pg. 35, line 20 - pg. 36, line 18; pg. 74, lines 11 - 23;

pg. 76, line 16 - pg. 78, line 6; pg. 112, line 25 - pg. 113, line 23; pg. 121, lines 8 -

17; pg. 125, lines 2 - 4; II RR, Plaintiffs’ Exhibit 21). The deeds to be used to

close the transaction were prepared by John Griffin, an experienced attorney

whose practice included real estate transactions. (II RR, Exhibit P-27, pg. 3, [pg.

9, line 8 - pg. 10, line 3]; pg. 7, [pg. 25, lines 6 - 23]; pg. 11, [pg. 42, line 24 - pg.


                                         page 17
44, line 20]; pp. 17 - 18, [pg. 68, line 24 - pg. 70, line 17]). The text following the

heading in question in all 6 deeds executed by the Prud’hommes or Breens was

identical, the only variance in the Breen deeds being the insertion of a sentence

between the property description and the heading that expressly stated that the

deed was intended to convey all of the grantor’s interest in the above-described

property. (II RR., Plaintiff’s Exhibits 5 - 9). Although the Breen deeds

contained a more specific declaration of the grantors’ intent, the trial court

found them to be ambiguous and construed them to convey the grantors’ mineral

interests. (I CR., pp. 92 - 93, “Findings of Fact and Conclusions of Law,”

Conclusion of Law No. 7 - 11). The trial court offered no explanation for the

inconsistent construction of same text in the Prud’homme partnership deed and

the Breen deeds, although both sets of instruments were executed pursuant to the

same agreement and the added statement of the general rule of construction in

the Breen deeds that would have been implied even if it had not been specifically

stated was the only difference in two the sets.

      From the beginning, Mr. Griffin was aware that the contract provided that

the Prud’hommes were to convey their minerals. (II RR., Exhibit P-27, pp. 7 -

8, [pg. 27, line 14 - pg. 29, line 9]; pg. 17, [pg. 65, line 25 - pg. 67, line 2]). Mr.

Griffin explained that, in the area of his practice, none of the title insurance

companies offered title insurance coverage for minerals but commonly listed

prior transactions concerning the mineral estate. (II RR, Exhibit P-27, 9, [pg.

34, line 10 - pg. 35, line 23]; pg. 19, [pg. 75, line 23 - pg. 76, line 7). When


                                        page 18
preparing real estate documents, he commonly relied on the title company for

information about the minerals and made the conveyance subject to them. (II

RR, Exhibit P-27, pp. 9 - 10, [pg. 35, line 24 - pg. 37, line 8]). If the grantor was

to reserve the minerals, he explained, he would include a separate, express

statement that the grantors reserve the minerals. (II RR., Exhibit P-27, pp. 12

-13, [pg. 48, line 2 - pg. 49, line 13], pg. 18, [pg. 70, line 18 - pg. 71, line 4]; pg. 18,

[pg. 70, line 18 - pg. 71, line 4; pg. 71, lines 6 - 21]).

       In preparing the deeds, Mr. Griffin inserted the title insurance

commitment’s text following the heading dealing with reservations and

exceptions. (II RR., Exhibit P-27, pg. 12, [pg. 48, lines 13 - 19]; pg. 13, [pg. 49,

line 20 - pg. 50, line 16]). His intention in using the commitment’s text was to

limit the grantors’ warranties. (II RR., pg. 19, [pg. 73, lines 6 - 21]). Mr.

Griffin’s opinion was that the matters following the heading in question were

effective as exceptions to the grantors’ warranties, and not reservations of their

mineral interest or exceptions from the conveyance. (II RR., Exhibit P-27, pg.

6, [pg. 21, lines 8 - 20]; pg. 7, [pg. 25, lines 6 - 23]; pp. 12 - 13, [pg. 47, lines 12 -

18; pp. 48, line 13 - pg. 49, line 13; pp. 49, line 20 - pg. 50, line 16]; pg. 18, [pg.

71, line 21 - pg 72, line 13]; pg. 19, [pg. 73, line 6 - pg. 74, line 20]).

       Because the text of the deed contains no clear and explicit reservation of

minerals, it plainly did not unambiguously reserve the grantors’ minerals.

Viewing the documents in question within their “four corners,” the text used

after the heading is reasonably capable of construction as a limitation of the


                                          page 19
grantors’ warranty and the trial court erred as a matter of law in failing to

construe it that way. Application of the appropriate rules of construction

require this result because of the absence of any clearly expressed reservation

or exception and the disfavor of implied reservations or exceptions. The

construction of the text following the reservations and exceptions heading only

as a limitation of the grantors’ warranty gives effect to text consistently with the

requirements that deeds are construed most strongly against the grantor to

convey the greatest possible estate and avoids the necessity of having to imply the

existence words of reservation or exception that were not in fact used in

connection with the mineral estate. Construing the text as a limitation of the

grantors’ warranties, also, avoids inconsistencies in the construction of the other

deeds which were part of the same transaction.           The correctness of this

construction is confirmed by examining the circumstances surrounding the sale

that show the intention of the parties, the scrivener’s reasons for using the text

and his opinion of the meaning of the text used. The trial court, therefore, erred

as a matter of law in its construction of the Prud’homme partnership deed.

                                  ISSUE NO. 2
                                   (Restated)

      Whether the Trial Court Incorrectly Ruled That the Deeds from the

Prud’hommes to the Bounds Were Not Subject to Reformation Due to Fraud,

Accident, Mistake or Scrivener’s Error.




                                       page 20
                     SUMMARY OF THE ARGUMENT
                          (Under Issue No. 2)

      The trial court concluded as a matter of law that there was no mutual

mistake of the parties in regard to the execution of the deeds in question. The

conclusion was based on its findings that the Bounds and the Prud’hommes

understanding of the legal effect of the text used in the deeds in question was

different and that, as a result, the parties did not have a mutual intent and

understanding of the deeds in question. The trial court’s conclusion misapplies

the law to the facts found. If it was true that the Prud’homme partnership deed

unambiguously reserved the grantors’ minerals and that the Bounds and

Prud’hommes each thought the current agreement contained different terms, the

undisputed evidence shows that each of them labored under a common

misconception that the deeds complied with the contract that was current in

their understanding. That the parties had a different understanding of the terms

of the agreement or the meaning of the deeds is not determinative. The mistaken

fact was that the deeds complied with the contract and was, therefore, a mutual

mistake. The undisputed evidence, moreover, shows that, if the Bounds’ mistake

was not shared by the Prud’hommes, their mistake, when coupled with the

Prud’hommes’ silence, was legally equivalent to a mutual mistake. As a result,

the trial court’s conclusion of law that there was no mutual mistake was not

supported by legally sufficient evidence and the only evidence supporting such

a conclusion is so against the great weight and preponderance of the evidence as

to be clearly wrong and unjust.

                                     page 21
                      ARGUMENT AND AUTHORITIES
                           (Under Issue No. 2)

      The court concluded as a matter of law that the Bounds did not prove by

clear, exact and satisfactory evidence that a mineral reservation was included in

the Prud’homme partnership’s deed by a mutual mistake of the parties. (1 CR.,

pg. 92, “Findings of Fact and Conclusions of Law,” Conclusion of Law No. 6).

The court’s legal conclusion was based on its finding that, at the time Gilbert

Prud’homme executed the deed dated September 7, 2001, from the E. G. and M.

A. Prud’homme Beneficiaries Partnership to the Bounds, he understood that it

reserved the minerals in and under the 126 acres to its grantors. (I CR, pg 86,

“Findings of Fact and Conclusions of Law,” Finding of Fact No. 19). The court,

further, found that, although the Bounds believed they were acquiring whatever

mineral interest the Prud’hommes owned with respect to the property being

purchased, the Prud’hommes believed they were reserving the minerals. (I CR.,

pg. 90, “Findings of Fact and Conclusions of Law,” Findings of Facts Nos. 43 -

44). As a result, the trial court found that the Bounds’ and Prud’hommes’ did

not have an identical intent and understanding at the times the deeds in question

were executed. (I CR., pg. 90, “Findings of Fact and Conclusions of Law,”

Finding of Fact No. 45). The evidence adduced at trial was legally and factually

insufficient to support the trial court’s findings of fact and conclusions of law.

      Findings of fact in a bench trial have the same force and dignity as a jury

verdict and are reviewable for legal and factual sufficiency of the evidence by the

same standards as applied in reviewing a jury’s findings. Anderson v. City of

                                      page 22
Seven Points, 806 S.W.2d 791, 794, (Tex. 1991). To determine whether legally

sufficient evidence supports a challenged finding of fact, the reviewing court

must credit favorable evidence if reasonable jurors could, and disregard

contrary evidence unless reasonable jurors could not. See City of Keller v.

Wilson, 168 S.W.3d 802, 827, (Tex. 2005). The final test for legal sufficiency

must always be whether the evidence at trial would enable reasonable and

fair-minded people to reach the verdict under review. Id. A reviewing court

must sustain a legal sufficiency or no evidence challenge when the record

discloses one of the following situations: (1) there is a complete absence of

evidence of a vital fact; (2) the court is barred by rules of law or of evidence from

giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence

establishes conclusively the opposite of the vital fact. Id. at 810.

      In reviewing a trial court's findings for factual sufficiency, the reviewing

court must weigh all of the evidence in the record and may overturn a finding

only if the finding is so against the great weight and preponderance of the

evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772,

(Tex. 1996).

      Appellate courts review a trial court’s conclusions of law de novo. B.M.C.

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794, (Tex. 2002). An

appellant may not challenge a trial court’s conclusions of law for factual

insufficiency; however the reviewing court may review the trial court’s legal


                                       page 23
conclusions drawn from the facts to determine their correctness.               Id.

Conclusions of law will not be reversed unless they are erroneous as a matter of

law. Tex. Dep’t of Pub. Safety v. Stockton, 53 S.W.3d 421, 423, (Tex. App. —San

Antonio 2001, pet. denied).

      The underlying objective of reformation is to correct a mutual mistake

made in preparing a written instrument, so that the instrument truly reflects the

original agreement of the parties. Cherokee Water Co. v. Forderhause, 741

S.W.2d 377, 379, (Tex. 1987). Reformation requires two elements: (1) an original

agreement; and (2) a mutual mistake, made after the original agreement, in

reducing the original agreement to writing. Id. A party is, therefore, entitled to

reformation of a deed when it proves that it reached an agreement with the other

party but the deed does not reflect the true agreement due to a mutual mistake.

Hardy v. Bennefield, 368 S.W.3d 643, 650, (Tex. App. –Tyler, 2012, no pet.). A

mutual mistake is one common to both or all parties, wherein each labors under

the same misconception respecting a material fact, the terms of the agreement,

or the provision of a written agreement designed to embody such an agreement.

Hardy v. Bennefield, 368 S.W.3d at 650; Simpson v. Curtis, 351 S.W.3d 374, 378 -

379, (Tex. App. –Tyler, 2010, no pet.). If a mistake has been made by a scrivener

or typist, an instrument may be reformed and modified by a court to reflect the

true agreement of the parties, if the mistake was a mutual mistake. Simpson v.

Curtis, 351 S.W.3d at 379. A mutual mistake is generally established from all of

the facts and circumstances surrounding the parties and the execution of the


                                      page 24
instrument. Id. The parole evidence rule does not bar extrinsic proof of a

mutual mistake.       Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990).

Reformation is unavailable, however, unless the party claiming mutual mistake

presents “clear, exact and satisfactory evidence.” Hardy v. Bennefield, 368

S.W.3d at 648.

      If this court determines that the Prud’hommes’ deeds unambiguously

reserved the grantors’ minerals, the evidence that they did so as the result of a

mutual mistake or scrivener’s error is clear, exact and satisfactory. The

Prud’hommes’ own testimony establishes the mutual mistake. It is undisputed

that the parties entered into a sales contract that required the Prud’hommes to

convey their minerals to the Bounds. When Gilbert Prud’homme, the partner’s

general manager, signed the contract, he expressly agreed on behalf of the

partnership to convey whatever minerals the partnership owned. (I RR, pg. 113,

lines 7 - 23; pg. 121, line 8 - pg. 125, line 4). After the sales contract was signed,

the title insurance company raised an objection to the property’s title and

required a conveyance from all of the individual partners of the E. G. and M. A.

Prud’homme Beneficiaries Partnership, including Eleanor P. Breen, who was

then deceased. (I RR, pg. 114, lines 6 - 15; pg. 116, line 19 - pg. 117, line 11; pp.

122 - 131; II RR., Plaintiffs’ Exhibit 4; Exhibit D-23, pg. PRU_0122, Schedule A,

paragraph 3; pp. PRU_0128 - 0129, Schedule C, paragraph 4(g)). Deeds were

prepared by John Griffin and sent by him or by the title company to Gilbert

Prud’homme. (II RR., Exhibit P-27, pg. 11, [pg. 42, line 24 - pg. pg. 44, line 20]).


                                        page 25
Mr. Prud’homme received the deeds on September 7, 2001. (I RR, pg. 139, lines

2 - 6). When he received the deeds, Mr. Prud’homme reviewed them and

assumed from their text that the grantors were reserving the minerals. (I RR.,

pg. 118, lines 8 - 17). Although he was aware that the original contract provided

that the Bounds were to get the minerals, he did not immediately call this matter

to the attention of Mr. Griffin, the Bounds or Mr. Crawford, but, rather,

assumed that the terms of the sale had changed and did nothing. (I RR., pg. 118,

18 - pg. 119, line 6; pg. 139, line 2 - pg. 140, line 11). Mr. Prud’homme was

aware that the sales contract pursuant to which deeds had been prepared

clearly stated that, “Closing of the sale will be on or before September 2, 2001,

or within 7 days after objections to matters disclosed in the Commitment . . .

have been cured, whichever date is later,” [emphasis added]. (I RR., pg. 147, line

7 - pg. 148, line 14; II RR, Plaintiffs’ Exhibit 21 [page 5]). He, also, understood

that the title insurance company had required the execution of deeds from the

Breen heirs. (I RR., pg. 114, lines 6 - 25; pg. 143, line 15 - pg. 145, line 2; pg. 148,

line 8 - pg. 149, line 3). Mr. Prud’homme, nevertheless, presumed incorrectly

that the contract had expired even though there had been no communication

between Mr. Prud’homme and Mr. Prud’homme’s agent, Mr. Crawford, Mr.

Griffin or the Bounds and even though the Breens delayed for over a month in

signing the deeds. (I RR., pg. 116, line 19 - pg. 117, line 11; pg. 139, line 2 - pg.

140, line 11; pg. 143, line 23 - pg. 145, line 2; pg. 145, line 12 - pg. 146, line 24; pg.

147, line 7 - pg. 149, line 13; II RR., Plaintiff’s Exhibits 7 - 9).


                                         page 26
      When Mr. Prud’homme received the deeds from Mr. Griffin, he

forwarded the Breen deeds to the others. (I RR, pp. 117, line 23 - 118, line 3).

The deed from the partnership and its living members was signed between

September 8, 2001, and September 12, 2001, about a month before Mr.

Prud’homme tried to confirm his assumption that the terms of the sale contract

had changed with any other person. (I CR, pg. 86, “Findings of Fact and

Conclusions of Law,” Finding of Fact No. 16). The Breen deeds were all signed

between October 5, 2001, and October 17, 2001. (II RR., Plaintiffs’ Exhibits 6,

7, 8, 8A and 9). At that time, Mr. Prud’homme had not confirmed with any of

the other parties his understanding that the original contract had expired and

that the deeds represented a new contract between the Prud’hommes and the

Bounds. He stated that his understanding that the expiration of the contract and

the change in the terms of the sales agreement was an “implicit” understanding

between him and Mr. Griffin, even though it was never articulated and “just

assumed” between Mr. Griffin and Mr. Prud’homme. (1 RR., pg. 139, lines 7 -

23). There was no discussion about Mr. Prud’homme’s assumptions with any

other party to the transaction until mid October, 2001, when he called Mr.

Griffin’s office to find out if the deeds affected only half of the minerals or all of

them. (I RR., pg. 140, line 12 - pg. 146, line 24). That discussion was not with

Mr. Griffin, nor the Bounds, nor his agent, Mr. Crawford, but with an

unidentified girl in Mr. Griffin’s office. (I RR., pg 139, line 24 - pg. 140, line 11;

pg. 145, line 12 - pg. 146, line 24). The only discussion Mr. Prud’homme had


                                        page 27
directly with Mr. Griffin related to the Breens reluctance to comply with the title

insurance company’s requirement that they sign deeds conveying the property

to the Bounds. (I RR., pg. 143, line 15 - pg. 146, line 24).

      The Bounds understood from the time of the Prud’hommes’ initial offer

that they were to receive the Prud’hommes’ minerals. (I RR., pg. 36, lines 1 - 18;

pg. 37, line 22 - pg. 40, line 24; pg. 45, line 7 - pg. 52, line 14; pg. 63, lines 1 - 6;

pg. 65, line 7 - pg. 66, line 25). Likewise, the Bounds’ son-in-law, Terry Scull,

who assisted them in concluding the sale, understood that the Prud’hommes’

minerals were to be conveyed. (I RR., pg. 73, lines 9 - 21; pg. 80, line 22 - pg. 81,

line 3). Mr. Griffin, who drafted the deeds, knew that the Bounds were to

receive the minerals from the time he received the sales contract and discussed

that specific fact with Mr. Prud’homme. (II RR., Exhibit P-27, pg. 17, [pg. 65,

line 25 - pg. 66, line6]). He did not believe or intend that the deeds would be

effective to reserve the Prud’hommes’ mineral interests to the grantors. (II RR.,

Exhibit P-27, pg. 6, [pg. 21, lines 8 - 20]; pg. 7, [pg. 25, lines 6 - 23]; pp. 12 - 13,

[pg. 47, lines 12 - 18; pp. 48, line 13 - pg. 49, line 13; pp. 49, line 20 - pg. 50, line

16]; pg. 18, [pg. 71, line 21 - pg 72, line 13]; pg. 19, [pg. 73, line 6 - pg. 74, line

20]). The first time that either he or the Bounds became aware of the

Prud’hommes’ claim of mineral ownership through a reservation was late in the

year, 2010, or early in the year, 2011. (I RR., pg. 47, line 10 - pg. 50, line 2; pg.

81, lines 4 - 16). Even then, upon examination of the documents as a result of the

Prud’hommes’ claim, Mr. Scull believed that the deeds properly conveyed the


                                         page 28
Prud’hommes’ minerals to the Bounds. (I RR., pg. 83, line 3 - pg. 86, line 9; pg.

87, line 19 - pg. 88, line 9; pg. 96, line 2 - pg. 87, line 2).

      That the text of the deeds that Mr. Griffin prepared in order to complete

the contract is subject to reasonable interpretation in different ways is shown in

the arguments contained herein under Issue No. 1. That the deeds’ text was in

fact interpreted in different ways by the Bounds and the Prud’hommes may be

inferred by the testimony outlined above.              It is clear that, despite Mr.

Prud’homme’s assumptions about a new agreement, no such contract change

was ever discussed with, or agreed to by, the Bounds, or anyone else on their

behalf.   The Prud’hommes, in this case, seek to avoid their contractual

obligations to Bounds by unilaterally choosing to ignore what would have been

an obvious mistake in drafting the deeds and then rationalizing that the Bounds

had agreed to a contract change that they had never agreed to. Thereafter, by

remaining silent about the imaginary contract until the oil companies required

curative work on their mineral titles, they insured that the Bounds would not

learn of their misappropriation for years.            Should this court permit the

Prud’hommes assertion of a phantom contract entered into by only one party to

the agreement to prevent the assertion of a mutual mistake in drafting the deeds

by the other party who did not agree to the change and who had no knowledge

of its existence, it will have provided unscrupulous persons a new and convenient

vehicle for avoiding their disadvantageous but otherwise legally binding

contracts.


                                         page 29
      Mr. Prud’homme was a lawyer and should have been aware of the

requirement that real estate sales contracts must be in writing, yet there is no

evidence that he signed such a document containing a new agreement addressing

a mineral reservation or requested a copy of it for review. See, TEX. BUS. &

COM. CODE, §26.01(a), (b)(4). As a lawyer, he should have known that the sales

contract expressly provided that the date of closing depended on addressing the

title insurance company’s requirements, but chose to ignore those requirements

when he unilaterally decided that the contract under which the curative deeds

had been sent to him had expired. And, as a lawyer, he should have known that

his silence in the face of an apparent mistake in the drafting of the deeds would

be justification for reforming the deeds. See Davis v. Grammar, 750 S.W.2d 766,

768, (Tex. 1988) (holding that a unilateral mistake by one party, and knowledge

of that mistake by the other party, is equivalent to mutual mistake).

Nevertheless, without taking the precaution of verifying his assumptions, but

keeping them to himself, Mr. Prud’homme presumed that the deeds were sent

pursuant to a new agreement that he had not made with the Bounds.

      The only mutual agreement between the parties to the deed was reflected

in the original sales contract. Both the Bounds and the Prud’hommes were,

however, under the impression that the deeds followed the terms of their sales

agreement. If both parties were wrong in their assumption, then both parties

labored under the same misconception that the deeds correctly reflected the

current agreement. See Simpson v. Curtis, 351 S.W.3d at 379. Mr. Prud’homme,


                                     page 30
moreover, believed that the deeds failed to comply with the written sales

contract, but did not advise the Bounds of this circumstance. Even if the

Bounds’ understanding of the documents was a unilateral mistake, it amounts

to a mutual mistake when coupled with the Prud’homme’s silence with regard

to the failure of the documents to comply with the contract. See Davis v.

Grammar, 750 S.W.2d at 768. The trial court’s findings of fact that the parties

to the sale did not have the same understanding of the agreement do not,

therefore, address the issue of whether they labored under a mutual mistake.

There was no credible evidence that either of the parties did not think that the

deeds effectively complied with their existing real or imagined agreements. Mr.

Prud’homme’s testimony conclusively establishes that he believed the deeds were

drawn in conformity to a new contract that the Bounds had offered but that he

remained silent about his assumptions. Because it’s findings of fact were not

supported by legally and factually sufficient evidence, the trial court’s conclusion

that there was no mutual mistake was an error of law.

                                  ISSUE NO. 3
                                   (Restated)

      Whether the Trial Court Incorrectly Ruled That the Statute of Limitations

Barred the Bounds from Seeking Relief by Way of Reformation.

                      SUMMARY OF THE ARGUMENT
                           (Under Issue No. 3)

      The evidence was legally and factually insufficient to support the trial

court’s findings that the Bounds were on notice that the Prud’hommes’ deeds


                                       page 31
contained a mineral reservation from at least the time they received their title

insurance policy. The unchallenged evidence establishes that the Bounds

reasonably construed the deeds to convey all of the Prud’hommes’ mineral

interests and had no actual notice of the Prud’hommes’ construed the deeds

otherwise until less than 3 years before this suit was filed. The Prud’hommes did

not inform the Bounds of their interpretation of the deeds or their imagined new

agreement concerning the minerals until December, 2010. The title insurance

policy issued to the Bounds does not provide any greater notice of the

Prud’hommes’ claim than a reading of the deeds would give and does not excuse

the Prud’hommes’ silence with regard to their assumptions about the changed

contract terms.

                     ARGUMENT AND AUTHORITIES
                          (Under Issue No. 3)

      The trial court found that the Bounds failed to exercise reasonable

diligence to discover that the deeds in question did not convey the Prud’hommes’

minerals because they had constructive notice of the contents of the deeds from

the time they were delivered to the Bounds or from the time they received their

title insurance policy. (I CR., pp. 90 - 91, “Findings of Fact and Conclusions of

Law,” Findings of Fact Nos. 46 - 48). Based on those findings, the trial court

concluded as a matter of law that the statute of limitations bars Bounds’ action

for reformation of the deed. (I CR., pg. 92, “Findings of Fact and Conclusions of

Law,” Conclusions of Law Nos. 3 - 5). The trial court erred as a matter of law

in concluding that the statute of limitations had run because its findings of fact

                                      page 32
are supported by legally and factually insufficient evidence.

      The Prud’hommes claim that the Bounds suit is barred by the four year

statute of limitations. A suit for reformation of a deed is governed by the four

year statute of limitations. TEX. CIV. PRAC. & REM. CODE, §16.051; Brown v.

Havard, 593 S.W.2d 939, 943, (Tex. 1980). The frequently stated rule is that a

party is charged with knowledge of the contents of his deed from the date of its

execution, and that limitations begins to run on such date against any action to

correct it. See Sullivan v. Barnett, 471 S.W.2d 39, 45, (Tex. 1971). This rule has

not been strictly applied in the past and courts have noted numerous exceptions

over the years. Id. at 45 - 46. The presumption can be rebutted and there are

various circumstances which will excuse a delay in discovery of the mutual

mistake. Id. at 45. Once the presumption of immediate knowledge is rebutted,

however, the statute of limitation will begin to run when the mutual mistake was,

or in the exercise of reasonable diligence should have been, discovered. Brown

v. Havard, 593 S.W.2d at 944; Sullivan v. Barnett, 471 S.W.2d at 45). As between

the original parties to a transaction, the statute of limitation does not commence

to run against actions for cancellation and reformation of deeds on the basis of

mutual mistake and fraud until four years after the mistake was, or in the

exercise of reasonable diligence should have been, discovered. Sullivan v.

Barnett, 471 S.W.2d at 47). The question of when a mistake should have been

discovered is one of fact. Brown v. Havard, 593 S.W.2d at 944.

      The Bounds’ action for reformation is not barred under the four year


                                      page 33
statute of limitations. The trial court’s findings of fact assume that the Bounds

were “on notice” of the Prud’hommes’ claimed mineral reservation from the

date of the execution of the deeds or the receipt of their title insurance policy

from the title company. The trial court returned no other finding of fact with

respect to when the Bounds discovered, or could have, in the exercise of

reasonable diligence, discovered that the deeds failed to transfer the

Prud’homme’s minerals.

      The facts are largely undisputed. The Bounds received copies of their

deeds and their title insurance policy at or before November, 2001. As explained

in the argument under Issue No. 1, the deeds in question did not clearly and

expressly reserve the minerals to the grantors. They were not so plainly worded

that resort to the rules of construction and the examination the contemporary

background of the transaction are not needed to explain their meaning.

Although Mr. Prud’homme was a lawyer, the Bounds were not and had no

experience in real estate matters. (I RR., pg. 31, lines 12 - 25; pg. 67, lines 1 - 7).

They did not possess the sophistication necessary to determine the meaning of

the text in the deeds or the title insurance policy and had to rely on the opinion

of others. (I RR., pg. 32, lines 6 - 15; pg. 64, line 3 - pg. 65, line 6; pg. 66, lines 5

-12). Their son-in-law, upon whom the Bounds relied and who was better

acquainted with the legal aspects of land ownership, and Mr. Griffin, the lawyer

who prepared the deeds, believed that the text amounted only to an exclusion of

minerals from the Prud’hommes’ warranties, and not a mineral reservation. (1


                                         page 34
RR., pg. 95, line 15 - pg. 97, line 2; Exhibit 27, pg. 6 [pg. 21, lines 8 - 20]; pg. 7,

[pg. 25, lines 6 - 12]; pp. 12 - 13 [pg. 47, line 7 - pg. 49, line 13). Because they

both believed that the deeds were effective to convey the minerals, no inquiry of

them would have revealed any reason to believe the Prud’hommes possessed a

contrary claim. (I RR., pg. 45, lines 14 - 18). If professions dealing with such

matters on a regular basis would have formed an opinion that the deeds did not

reserve the minerals, it is unreasonable to expect that the Bounds, who had no

experience in or understanding of these matters, to be placed on notice that the

Prud’hommes might claim that the effect of the language in the deeds was to

reserve the grantors’ minerals.

      The Prud’hommes admitted that they failed to talk to the Bounds, Mr.

Griffin or to Mr. Gorham about their changed understanding of the sale terms,

thus permitting them to believe that the original offer to convey their minerals

had not been withdrawn or superceded . (1 RR., pg. 139, line 7 - pg. 146, line

24). The Prud’hommes presented no evidence of any new contract to which the

Bounds had expressly agreed, either directly or through their representatives,

to complete the sale on the terms that Mr. Prud’homme imagined. The only

contact that Mr. Prud’homme had with anyone about the text relating to the

minerals was a conversation he alleges he had with an unidentified girl in Mr.

Griffin’s office, whose authority and competence was not shown, in which he

inquired, “Whats the deal. Do you understand? Whats the deal. Is it a half

interest or is it a full interest?” (I RR., pg. 140, lines 20 - 23). Although Mr.


                                        page 35
Prud’homme documented many of his contacts with Mr. Griffin in his time

sheets, they did not show this discussion and Mr. Prud’homme depended on his

recollection to fix the time at which the discussion occurred. (I RR., pg. 141, line

10 - pg. 143, line 14).

       There is nothing to impeach the Bounds evidence that they lacked actual

knowledge of the Prud’homme’s claim. The Bounds were unaware that the

Prud’homme defendants claimed to own the minerals under the property in

question until December, 2010. On that date, they received a telephone call from

Gilbert Prud’homme requesting the Bounds to execute a correction deed to the

property to correctly state the terms of the conveyance with respect to the

minerals. (I RR., pg. 47, line 10 - pg. 50, line 24; pg. 51, line 22 - pg. 52, line 14;

pg. 95, line 15 - 20; pg. 80, line 22 - pg. 83, line 2; pg. 87, line 19 - pg. 88, line 9;

pg. 92, line 8 - pg. 93, line 1; pg. 95, lines 15 - 20; II RR., pg. 5, [pg. 18, line 9 - pg.

20, line 12], pg. 6, [pg. 21, line 8 - pg. 22, line 17; pg. 23, line 4 - pg. 23, line 22]).

In that call and his subsequent dealings, Mr. Prud’homme suggested that the

minerals should be split, even though he believed the assumed new agreement

had permitted the grantors to keep all of their minerals. (I RR., pg. 49, line 15 -

pg. 50, line 2; pg. 80, line 22 - pg. 61, line 16; pg. 87, line 25 - pg. 88, line 9; II

RR., pp. 19 - 20, [pg. 76, lines 9 - 22; pp. 77, line 8 - pg. 78, line 8]). In January,

2011, the Bounds declined Mr. Prud’homme’s request. (I RR., pg. 47, line 25 -

pg. 49, line 20; pg. 87, line 25 - pg. 88, line 12).

       Mr. Prud’homme’s communication prompted the Bounds to search the


                                          page 36
real estate records, where it was discovered that the Prud’hommes had leased

the mineral interest under the property they had sold. (I RR., pg. 80, line 22 -

pg. 83, line 2; pg. 88, line 19 - pg. 90, line 12). This suit was filed October 28,

2013, less than four years after Mr. Prud’homme first made the Bounds aware

that the original deeds required revision because of the mistake in drafting the

provisions relating to the minerals.

      The Prud’hommes assert that the Bounds were placed on notice of the

Prud’hommes’ mineral reservations because of the statements contained in the

title insurance policy they received by November of 2001. Schedule B of that

title insurance policy listed numerous exceptions from insurance coverage. That

schedule provided, as follows:

      “This policy does not insure against loss of damage . . . which arise
      by reason of . . . the following matters:
                                         ***
      “6. The following matters and all terms of the documents creating
      or offering evidence of the matters . . .:
            “f. Title to any of the oil, gas and other minerals in, under
                   and that may be produced from the insured premises.
                   The following is provided for informational purposes
                   only:
                                         ***
                   “(iii) Mineral Reservation as set forth in multiple
                           Warranty Deeds from Eck G. Prud’homme, et al,
                           to Walter Bounds and wife, Carolyn B. Bounds,
                           all dated September 7, 2001, and recorded in the
                           Real Property Records of San Augustine County,
                           Texas, as follows: Vol. 24, Page 20; Vol. 24, Page
                           25; Vol. 24, Page 28; Vol. 24, Page 31; Vol. 24,
                           Page 34; and Vol 24, Page 37;
      “Title to said interests has not been investigated subsequent to the
      dates of the aforesaid instruments.”

      It may be initially observed that the title insurance policy itself was a

                                       page 37
contract between the Bounds and third parties, and not the Prud’hommes. A

fair summary of the meaning of the text is that the policy doesn’t insure the title

to the oil, gas and other minerals. The subject addressed by the language,

therefore, is the general exclusion of the liability of the title insurance company

for failure to the title to any of the minerals, and not specific title defects. The

language relied upon by the Prud’hommes as notice to the Bounds appears after

a statement that the following references are given for informational purposes

only. If the following references had been omitted, the title insurance coverage

would still not have included the specific matters referred to and, as far as the

policy was concerned, the additional text was surplusage.

      The last reference in the title insurance policy was to the “mineral

reservation” contained in the Prud’hommes’ deeds to the Bounds. Those deeds

were not so plainly written that their meaning was obvious upon inspection. As

shown above in the Bounds’ argument under Issue No. 1, the text of those deeds

was not clearly a “reservation” and requires consideration of additional factors

to construe correctly. If the Bounds possessed the same legal understandings as

Mr. Scull and Mr. Griffin, an inspection of those deeds would have produced the

opinion that they were exceptions from the grantors’ warranties, and not

reservations. Neither the references in the title insurance policy or the text of the

deeds, even if they could be read to permit the Prud’hommes assert a claim to

the minerals, gave any notice that the Prud’hommes, in fact, were claiming them.

The fact that the third party instrument mischaracterized the effect of the deeds’


                                       page 38
text might put the Bounds on notice that their title insurance would not pay for

their loss of the minerals, but would not give notice that the Prud’hommes

claimed to reserve the minerals. This is particularly true where the text of the

deeds is unclear. The Prud’hommes cannot, in this case, rely on a third party to

provide the disclosure to the Bounds that they were obligated to give but did not

give until December, 2010. The text, even if it could be read to permit the

Prud’hommes assert a claim to the minerals, gave no notice that they, in fact,

were claiming them.

      The only evidence, therefore, in this case establishes that the Bounds, and

those who advised them, reasonably believed that the deeds from the

Prud’hommes were effective to comply with their sales contract’s requirement

for the Prud’hommes to convey all of their minerals, that the Prud’hommes

believed or came to believe that the deeds represented a new contract between

the parties that permitted them to keep their minerals, but that the

Prud’hommes remained silent about their assumptions and did not apprise the

Bounds of their claims until at least December of 2010. Consequently, the

evidence offered to show when the Bounds were on notice of the possible claim

that the deeds contained a mineral reservation conclusively establishes that the

text of the deeds was not so clear and express that it unambiguously gave notice

of a reservation, that, before December, 2010, the Bounds were not aware that

the Prud’hommes might have a possible claim that the text reserved their

mineral interest, that the Prud’hommes remained silent about their claim


                                     page 39
throughout that time and that this suit was filed within four years of when the

Bounds first learned, or could have learned through the exercise of reasonable

diligence, of the Prud’hommes’ claim. There was no evidence that the Bounds

had actual notice of the claim prior to Mr. Prud’hommes contact in December

of 2010, and any contradictory evidence there may have been was no more than

a mere scintilla. The trial court’s findings that the Bounds had notice of the

reservation by at least November of 2001 is so against the great weight and

preponderance of the evidence as to be clearly wrong and unjust.

                        CONCLUSION AND PRAYER

      The trial court erred as a matter of law in construing the deed in question

to unambiguously reserve the grantors’ minerals and in failing to construe the

deed as a limitation of the grantors’ warranty.

      The evidence was legally and factually insufficient to support the trial

court’s findings of fact that the parties did not labor under a mutual mistake and

the trial court erred as a matter of law in concluding that an action for

reformation of the deeds based on a mutual mistake of the parties would not lie.

      The evidence was legally and factually insufficient to support the trial

court’s findings of fact upon which it’s legal conclusion that the Bounds suit is

barred by the statute of limitations and the trial court erred as a matter of law

in so concluding.

      For the reasons enumerated above, Appellant prays this court, alternately,

to enter its orders:


                                      page 40
      Modifying the trial court’s judgment to award Appellant recovery against

the Appellees, John Thomas Prud’homme, Joseph Gilbert Prud’homme, Joseph

Lynn Prud’homme, Peter A. Breen, Individually and as Successor Trustee of the

Breen Family Trust, Janet M. Sutro, Susan E. Breen, and Terrance E. Breen,

Individually and d/b/a E. G. and M. A. Prud’homme Beneficiaries Partnership,

of the title to and possession of an undivided fifty percent, (50%), of the oil, gas

and other minerals situated in, on or under the real property described in the

trial court’s judgment, or otherwise modifying said judgment, and affirming the

judgment as modified;

      Reversing the judgment of the trial court, in whole or in part, and

rendering the judgment that the trial court should have rendered; or

      Reversing the judgment of the trial court, in whole or in part, and

remanding this cause for further proceedings in the trial court consistent with

this court’s orders or the interests of justice;

      Taxing costs herein against Appellee; and




                                       page 41
      Granting such other and further relief to Appellant as they may show

themselves entitled.

                                                Respectfully Submitted:

                                                     Thomas R. McLeroy, Jr.
                                                          P. O. Box 668
                                                      Center, Texas 75935
                                                         (936) 598-2701
                                                       FAX (936) 598-6086



                                                BY: /s/ Thomas R. McLeroy, Jr.
                                                      Attorney for Appellant.

                       CERTIFICATE OF COMPLIANCE

      In compliance with TEX. R. APP. P., 9.4(i)(3) , I certify that the word-count

of the foregoing brief is 10,712 words.

                                                /s/ Thomas R. McLeroy, Jr.
                                                _______________________________
                                                       Attorney for Appellant




                                      page 42
                        CERTIFICATE OF SERVICE

      In compliance with TEX. R. APP. P., 9.5, I hereby certify that service of the

foregoing pleading was this date made upon counsel for all parties to this appeal

as follows:

                                                          Name and Address
   Date            Manner of Service                      of Persons Served

9/22/2015                eservice                      Mr. Robert G. Hargrove
                                                    Osborn, Griffith & Hargrove
                                                   515 Congress Avenue, Suite 2450
                                                        Austin, Texas 78701
                                                           (512) 476-3529
                                                         FAX (512) 476-8310
                                                      rob@texasenergylaw.com
                                                          Bar No. 24032391


                                                /s/ Thomas R. McLeroy, Jr.
                                                       Attorney for Appellant




                                      page 43
         TAB 1
(Trial Court’s Judgment)




           -I-
-II-
-III-
-IV-
-V-
-VI-
-VII-
-VIII-
                         TAB 2
(Trial Court’s Findings of Fact and Conclusions of Law)




                          -IX-
-X-
-XI-
-XII-
-XIII-
-XIV-
-XV-
-XVI-
-XVII-
-XVIII-
-XIX-
-XX-
-XXI-
-XXII-
-XXIII-
         TAB 3
(Farm and Ranch Contract)




          -XXIV-
-XXV-
-XXVI-
-XXVII-
-XXVIII-
-XXIX-
-XXX-
-XXXI-
-XXXII-
-XXXIII-
-XXXIV-
-XXXV-
-XXXVI-
-XXXVII-
-XXXVIII-
-XXXIX-
          TAB 4
(Prud’homme Partnership Deed)




            -XL-
-XLI-
-XLII-
-XLIII-
-XLIV-
-XLV-
   TAB 5
(Breen Deeds)




    -XLVI-
-XLVII-
-XLVIII-
-XLIX-
-L-
-LI-
-LII-
-LIII-
-LIV-
-LV-
-LVI-
-LVII-
-LVIII-
-LIX-
-LX-
-LXI-
                      TAB 6
(Title Insurance Commitment No. SA01-135 Schedules)




                       -LXII-
-LXIII-
-LXIV-
-LXV-
-LXVI-
-LXVII-
-LXVIII-
-LXIX-
-LXX-
-LXXI-
-LXXII-
            TAB 7
(Bounds’ Title Insurance Policy)




            -LXXIII-
-LXXIV-
-LXXV-
-LXXVI-
-LXXVII-
-LXXVIII-
-LXXIX-
-LXXX-
-LXXXI-
-LXXXII-
