                                                                              ACCEPTED
                                                                          12-15-00177-CV
                                                             TWELFTH COURT OF APPEALS
                                                                           TYLER, TEXAS
                                                                    10/26/2015 1:41:17 PM
                                                                                Pam Estes
                                                                                   CLERK



                     CAUSE NO. 12-15-00177-CV
                                                          FILED IN
                                                   12th COURT OF APPEALS
                              IN THE                    TYLER, TEXAS
                                                   10/26/2015 1:41:17 PM
                       COURT OF APPEALS                   PAM ESTES
                                                            Clerk
                             FOR THE

             TWELFTH COURT OF APPEALS DISTRICT

                                AT

                          TYLER, TEXAS.


         WALTER BOUNDS and wife, CAROLYN B. BOUNDS,
                 Appellants and Cross-Appellees,

                                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,
                       Appellees and Cross-Appellants.


                   BRIEF OF CROSS-APPELLEE


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

                    ATTORNEY FOR APPELLEE



                  ORAL ARGUMENT REQUESTED
                                       TABLE OF CONTENTS


TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page i

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page ii

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 2

         ISSUE NO. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 2

                  DID THE TRIAL COURT ERR IN RULING THAT
                  THE CROSS-APPELLANTS’ DEEDS TO THE
                  BOUNDS WERE AMBIGUOUS?

         ISSUE NO. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 2

                  DID THE TRIAL COURT ERR IN CONSTRUING
                  THE CROSS-APPELLANTS’ DEEDS TO THE
                  BOUNDS TO NOT RESERVE THE MINERAL
                  ESTATE TO THE GRANTORS

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 2

         (Under Issues Numbers 1 and 2). . . . . . . . . . . . . . . . . . . . . . . . . . . . page 2

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 7

PRAYER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 7

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 8

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 8




                                                       page i
                                    INDEX OF AUTHORITIES

STATUTES:

TEX. PROP. CODE, § 5.01(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 3

RULES:

TEX. R. APP. P., 9.4(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 8

TEX. R. APP. P., 9.5.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 8

CASES:

Concord Oil Co. v. Pennzoil Exploration and Prod. Co.,
     966 S.W.2d 451 (Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 4

Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951). . . . . . . . . . . . page 6

Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798 (1956). . . . . . . . . . . . . . page 4

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

Nevel v. TFW Management, Inc., 2012 WL 220252 (Tex. App.
      –Tyler, 2012, no pet.)(mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . page 4

Sharp v. Fowler, 151 Tex. 490, 252 S.W.2d 153 (1952). . . . . . . . . . . . . . . page 3




                                                      page ii
                       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,
                  Appellants and Cross-Appellees,

                                   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,
                       Appellees and Cross-Appellants.


                      BRIEF OF CROSS-APPELLEE


TO THE HONORABLE COURT OF APPEALS:

     Now come WALTER BOUNDS and wife, CAROLYN B. BOUNDS, the

Cross-Appellees in the above styled and numbered matter, and, in reply to

Cross-Appellants’ brief heretofore filed herein, respectfully submits the

following brief of his arguments and authorities. In this brief, the Cross-

Appellees will sometimes be referred to as, “the Bounds,” and the Cross-

Appellants as “the Breens.”
                             ISSUES PRESENTED

                                  ISSUE NO. 1

      DID THE TRIAL COURT ERR IN RULING THAT THE CROSS-

APPELLANTS’ DEEDS TO THE BOUNDS WERE AMBIGUOUS?

                                  ISSUE NO. 2

      DID THE TRIAL COURT ERR IN CONSTRUING THE CROSS-

APPELLANTS’ DEEDS TO THE BOUNDS TO NOT RESERVE THE

MINERAL ESTATE TO THE GRANTORS?

                     ARGUMENT AND AUTHORITIES
                      (Under Issues Numbers 1 and 2)

      The Breens have mischaracterized the transaction by which the Bounds

acquired the property in question as having occurred in two phases. (Cross-

Appellants’ Brief, pg. 5). The circumstances requiring the Breens’ execution of

deeds was clearly explained in Appellants’ Brief previously filed herein, (Brief

of Appellant, pp. 5 -6), and is amply supported by the admissions of the Breen’s

only witness. In order to address the title company’s requirement for issuance

of the title insurance policy that the Prud’hommes were required to furnish as

part of their sales contract, the Breens were required to execute the deeds.

While it is true that the deeds were executed at different times and places, it is

not true that the execution of the deeds was done pursuant to a separate

transaction which did not involve the original contract between the Bounds and

the Prud’hommes. They were executed as a prerequisite for the closing of only

one transaction that required the Prud’hommes to convey to the Bounds a title

                                      page 2
which the insurance company would insure. While closing the sale involved

separate execution of the deeds, there was no evidence offered at the trial that

the sale’s closing occurred in separate transactions, that the Breens’ deeds were

delivered at a different time than the Prud’hommes’ deed or that the Breens

were paid separately from the Prud’hommes at a different time.

Characterization of the events as having occurred in two phases does not

accurately reflect the unity of the entire transaction.

      Cross-Appellants assert that no magic words are needed to create a

mineral reservation and the absence of specific language is not determinative.

(Cross-Appellants’ Brief, pg. 7). While, as a general statement, it may be true

that there is no particular combination of words which are necessary to express

the intention to reserve minerals from a conveyance, some combination of words

that clearly and expressly reveal such an intention are required. TEX. PROP.

CODE, § 5.01(a); Sharp v. Fowler, 151 Tex. 490, 494, 252 S.W.2d 153, 154 (1952);

Johnson v. Connor, 260 S.W.3d 575, 579 (Tex. App. –Tyler, 2008, no pet.). No

matter what words are used, a mineral reservation must be clearly made in

express words and may not be implied. Sharp v. Fowler, 151 Tex. at 494, 252

S.W.2d at 154. In this case, the words on which the Breens rely to establish a

reservation appear after a heading that marks the space provided in a standard

form for the insertion of three legally different contractual conditions of the

conveyance. The phrase which was inserted in the space was an incomplete

statement which failed to clearly and expressly identify the operable terms of a


                                      page 3
reservation or exception from the conveyance. The cases cited by the Breens in

support of their claim that specific language is not required to effect a

reservation are not on point. The mineral reservation in Harris v. Windsor

explicitly provided that “There is, however, Expressly Excepted from this

conveyance and Reserved by the . . .” grantor a specific undivided interest in the

mineral estate. Harris v. Windsor, 156 Tex. 324, 326, 294 S.W.2d 798, 799 (1956).

The issue of construction in that case was not whether a reservation had been

made, but whether a reference in the parties’ prior deeds to other transactions

“for all purposes” diminished the mineral interest that the grantor clearly

reserved. The Concord Oil case did not involve a mineral reservation, but the

construction of a mineral deed that purported to convey an undivided one-ninety

sixth interest in minerals and, in addition, one-twelfth of the rentals and

royalties. Concord Oil Co. v. Pennzoil Exploration and Prod. Co., 966 S.W.2d 451,

453 (Tex. 1998). The issue in that case was not whether the deed was effective

to convey an interest in the minerals, but the proper construction of the effect to

be given the deed’s mention of different fractions in connection with different

aspects of the mineral interests it conveyed. It should be observed that the court

in that case, although it did not expressly acknowledge the general rule,

construed the deed in question to grant the greatest estate that the grantor could

convey. Concord Oil Co. v. Pennzoil Exploration and Prod. Co., 966 S.W.2d at

459. Nevel v. TFW Management, Inc., involved the construction of subdivision

restrictions and was not an oil and gas case. Nevel v. TFW Management, Inc.,


                                       page 4
2012 WL 220252 (Tex. App. –Tyler, 2012, no pet.)(mem. op.). The Breens

misstate the court’s conclusions in that case. The court held that, because the

language of the restrictions in question plainly stated that the fee in question was

part of the maintenance charge that the homeowner’s association could change,

and the absence of any language showing an intent that the fee could not be

changed, the homeowners association could raise the fee. The court’s holding

was, therefore, that the intent expressed by the specific language of the writing

prevails over an unexpressed intent.

      The Breens have offered this court no convincing argument, other than

their own ipse dixit, that would explain why the clause inserted after the heading

should relate only to the term “reservation from conveyance,” rather than to an

“exception to warranty.” The language following the heading contains no

directions concerning what is to happen to the “title to the oil, gas and other

minerals. . .” and does not clearly and expressly declare that the grantors are

reserving or excepting the same from the conveyance. The only other places

where the word, “reservation,” appears are in the operative language of the

deeds and have reference only to the previous section of the deed where the

heading appears. Those subsequent sections contain no additional language

clearly and expressly reserving the minerals to the grantors or clarifying to what

the title to the oil, gas and other minerals related.

      The only express reference in the Breen’s deeds to a “reservation” occurs

in the standard heading provided by a form to designate the space where the


                                       page 5
inclusion of other matters affecting the conveyance, including exceptions from

the sale and from the warranty, might be placed. In arguing that the language

obviously creates a reservation of the minerals and an exception to the

conveyance of those minerals previously reserved, they ignore the possibility that

the space following the heading would typically be used to list other matters

related to the conveyance. Undoubtedly, that space could be used to insert

language making the conveyance “subject to all prior reservations or

conveyances of the oil, gas and other minerals.” The suggested insertion is not

a reservation of the minerals to the grantor nor an exception to the conveyance

of any minerals, but would operate only as a qualification of the grantor’s

warranty of title to the minerals. The rule requiring contracts to be construed

against the scrivener does not permit a court to rewrite the parties contract. See

Dahlberg v. Holden, 150 Tex. 179, 183, 238 S.W.2d 699, 701 (1951)(stating that,

while the courts should avoid, if possible, holding a contract void on the ground

of uncertainty, they have no right to interpolate or to eliminate terms of material

legal consequence in order to uphold it). Even if this court was permitted to

rewrite the parties’ contract for them, there is no logic which would dictate that

it should insert “The Grantors reserve the” title to the oil, gas and other

minerals, in preference to “This conveyance is made subject to the ownership of

the” title to the oil, gas and other minerals.

      As outlined in the “Brief of Appellant” under the “Argument and

Authorities (Under Issue No. 1), (Brief of Appellant, pp. 10 - 10), and for the


                                       page 6
reasons stated therein, the proper construction of the Breens’ deeds required the

trial court to find that they were ambiguous and that, particularly in light of the

contract pursuant to which they were executed, the parties intended to convey

all of their interest in the property, including their mineral interest, to the

Bounds.

                                 CONCLUSION

      The trial court did not err in ruling that the Breen’s deeds to the Bounds

were ambiguous; and

      The trial court did not err in construing the Breen’s deeds to the Bounds

to contain no reservation of the mineral estate to the grantors.

                                    PRAYER

      For the reasons enumerated above and in the “Brief of Appellant” filed

herein on September 22, 2015 , Cross-Appellee prays this court to enter its

orders:

      Affirming that portion of the trial court’s judgment that 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.

      Granting the relief prayed for in the “Brief of Appellant” filed herein on

September 22, 2015;

      Taxing costs against Cross-Appellants; and




                                       page 7
      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(3) , I certify that the word-count

of the foregoing brief is1,484 words.

                                                 /s/ Thomas R. McLeroy, Jr.
                                                 _______________________________
                                                        Attorney for Appellant




                                        page 8
                        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

10/26/2015               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 9
