                                                                                     ACCEPTED
                                                                                13-14-00383-CV
                                                                  THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                           1/28/2015 4:53:06 PM
                                                                              DORIAN RAMIREZ
                                                                                         CLERK

                               NO. 13-14-00383-CV

                                                         FILED IN
                                                 13th COURT OF APPEALS
                          IN THE COURT OF APPEALS
                                              CORPUS CHRISTI/EDINBURG, TEXAS
                  FOR   THE THIRTEENTH DISTRICT OF1/28/2015
                                                   TEXAS,   4:53:06 PM
                                                   DORIAN E. RAMIREZ
                                                          Clerk

               301 WHITE OAK RANCH, LTD., JOHN D. MANNING,
                   D/B/A JM PROPERTIES AND AURORAS, LLP
                                            Appellants,
                                     v.

           OAKS OF TRINITY HOMEOWNERS’ ASSOCIATION, INC.
                                       Appellee.


                            ON APPEAL FROM THE
          RD
    253        JUDICIAL DISTRICT COURT OF LIBERTY COUNTY, TEXAS


  REPLY BRIEF OF 301 WHITE OAK RANCH, LTD., JOHN D.
   MANNING, D/B/A JM PROPERTIES AND AURORAS, LLP


                         ORAL ARGUMENT REQUESTED


Charles E. Fitch
cfitch@fitchlaw.com
Texas Bar No. 07072000
LAW OFFICES OF CHARLES E. FITCH, P.C.
11 Greenway Plaza, Suite 2820
Houston, Texas 77046
Telephone: (713) 961-1200
Facsimile: (713) 622-6107

Attorney for Appellants 301 White Oak Ranch, Ltd.,
John D. Manning, d/b/a JM Properties and Auroras, LLP
                                          TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................... iii

REPLY ISSUES PRESENTED ................................................................................ ii

SUMMARY OF THE ARGUMENT ........................................................................ 1

ARGUMENT ............................................................................................................. 2

         REPLY ISSUE NO. 1: (Reply to Appellee’s Cross Point No. 1)
         APPELLEE’S CROSS POINT NO. 1 SHOULD BE DENIED BECAUSE
         THIS COURT LACKS APPELLATE JURISDICTION CONCERNING
         APPELLEE’S CAUSE OF ACTION FOR THE DECLARATORY
         JUDGMENT CLAIM THAT THE SUBDIVISION ROADS ARE
         “COMMON AREAS” UNDER THE RESTRICTIONS SINCE THAT
         CLAIM WAS SEVERED INTO A SEPARATE ACTION APART FROM
         THE INSTANT CASE.

         REPLY ISSUE NO. 2: (Reply to Appellee’s Reply Point #1) THE
         SUMMARY JUDGMENT SHOULD NOT BE AFFIRMED BECAUSE
         APPELLEE FAILED TO MEET ITS BURDEN OF PROOF, OR EVEN
         ADDRESS, APPELLANTS’ AFFIRMATIVE DEFENSE OF MUTUAL
         MISTAKE WITH RESPECT TO THE 2005 DEED.

         REPLY ISSUE NO. 3: (Reply to Appellee’s Reply Point # 5) APPELLEE
         HAS NOT SUBSTANTIVELY RESPONDED TO APPELLANTS’ ISSUE
         NO. 4 CONCERNING A FAILURE OF THE 2005 DEED TO
         SUFFICIENTLY DESCRIBE THE LAND PURPORTED TO BE
         CONVEYED.



PRAYER .................................................................................................................. 11

CERTIFICATE OF COMPLIANCE ....................................................................... 13
                                                             ii
                                      INDEX OF AUTHORITIES


Cases

Hall v. City of Austin,
      450 S.W.2d 836 (Tex. 1970) ...........................................................................4

Duncan v. Calhoun County Navigation Dist.,
     392 S.W.3d 707 (Tex. App.—Corpus Christi 2000, pet. denied). ..................4

Bauer v. Jasso,
      946 S.W.2d 552 (Tex.App.—Corpus Christi 1997, no writ.) ........................ 6

Gail v. Berry,
      343 S.W.3d 520 (Tex. App.—Eastland 2011, pet. denied) ............................7

Simpson v. Curtis,
     351 S.W.3d 374 (Tex. App.—Tyler 2010, no pet. h.) .....................................7

Lyons v. Lindsey Morden Claims Management, Inc.,
      985 S.W.2d 86 (Tex. App.—El Paso 1998, no pet. h.) ................................10

State Farm Fire & Casualty Co. v. S.S.,
       858 S.W.2d 374 (Tex.1993) ..........................................................................11


Rules
TEX. R. CIV. P. 48 .....................................................................................................10




                                                           iii
                        SUMMARY OF THE ARGUMENT

         Appellee sought a declaratory judgment on a number of claims, including

the claim that the roads in the Oaks of Trinity subdivision were “Common Areas”

under the subdivision restrictions and as such were reserved for the exclusive use

of its members. (CR 435- 436) In its order granting summary judgment the trial

court specified the reasons and basis for summary judgment, which did not include

the declaratory judgment action concerning the Common Areas Claim.

         Since the declaratory judgment claim that the Common Areas included the

roads was not disposed of by summary judgment, but severed into a separate

action, this Court lacks appellate jurisdiction to consider Appellee’s Cross Point

No. 1.

         The summary judgment with respect to the 2005 deed should be reversed

because Appellee did not meet its burden of proof to maintain the summary

judgment. By rendering a summary judgment that the 2005 deed did not reserve

an easement the trial court adjudicated the mutual mistake defense, which if

successful, would result in a 2005 deed that did reserve an easement. Appellants

are entitled to a trial on the mutual mistake defense because a fact issue was raised

on that issue.

         The sufficiency of the legal description in the 2005 deed was not addressed

by the trial court nor by Appellee. Specifically Appellee made no attempt to



                                          1
substantively address the effect of the failure of the 2005 deed to have a beginning

point that exists on the ground. Because the beginning point of the land to be

conveyed in the 2005 deed was non-existent the 2005 deed failed for lack of a

sufficient identification and the summary judgment should be reversed and

judgment rendered that the 2005 deed was void for lack of a sufficient legal

description.

                                  ARGUMENT

                             A. Reply Issue #1 Restated

REPLY ISSUE NO. 1: (Reply to Appellee’s Cross Point No. 1) APPELLEE’S
CROSS POINT NO. 1 SHOULD BE DENIED BECAUSE THIS COURT DOES
NOT HAVE APPELLATE JURISDICTION TO HEAR THE APPELLEE’S
CAUSE OF ACTON FOR DECLARATORY JUDGMENT CLAIM THAT THE
SUBDIVISION ROADS ARE “COMMON AREAS” UNDER THE
RESTRICTIONS SINCE SUCH CAUSE OF ACTION WAS SEVERED INTO A
SEPARATE ACTION AND NO FINAL JUDGMENT HAS BEEN RENDERED
IN SUCH SEVERED ACTION.

      On February 13, 2014 Appellee filed its Plaintiff’s Fourth Amended

Petition, Request for Declaratory Judgment and Application for Permanent

Injunction. (CR 432). In such pleading declaratory judgment was sought as

follows: (i) that the 2008 Correction Quitclaim Deed was void and unenforceable;

(ii) that the roads were “Common Areas” for the exclusive use of members; (iii)

that Defendants do not have a valid easement; and (iv) that Auroras, LLP does not

have a valid easement. (CR 435-436).

      On May 15, 2014 the trial court signed an Order Granting Final Summary

                                         2
Declaratory Judgment declaring as follows: (CR 853-854)

       That the 2005 deed did “not reserve an easement for ingress and
        egress through the roads in Oaks of Trinity, Section 1;”

       That the 2008 Correction Deed did “not reserve an easement for
        ingress and egress through the roads in Oaks of Trinity, Section 1;”

       That “roads located in the Oaks of Trinity, Section 1, are solely
        owned by Oaks of Trinity Homeowners’ Association, Inc.”

       That “the Defendants do not have authority to grant an easement,
        access or otherwise, for the use of such roads to any third party;”
        and

       “That any easement for access to the Oaks of Trinity roads claimed
        by Defendants, or by Intervenor, AURORAS, LLP is void and
        unenforceable.”

      The Order Granting Final Summary Declaratory Judgment also provided

that “[a]s the remaining causes of action have been severed this judgment is final

and disposes of all parties and all claims and is appealable.” (Emphasis added)

      On May 15, 2014 the trial court signed an Order For Severance of Actions.

(CR 849). The severance order provided that the declaratory actions of the parties

“relating to the existence or non-existence of an easement in favor of Defendants

and/or Intervenor for access, ingress and egress to the roads located in Oaks of

Trinity, Section One (1)” were severed and made final by the Final Judgment.

Thus, all other actions, including the action by Appellee for a declaratory judgment

to construe the roads as “Common Areas” remained, and were “stayed pending



                                         3
outcome of appeal of severed action.” (CR 849)

      The “Common Areas” argument made by Appellee (and reserved for further

action pending this appeal) was not dependent upon the existence or non-existence

of an easement for ingress or egress in favor of Appellants. Rather, it deal solely

with the question of whether the roads were “Common Areas” that were for the

exclusive use of the members. Not only do the severance and summary judgment

orders make this clear, but the trial court stated the following when ruling: “I’m not

finding that the streets are common areas. I don’t think there’s a necessity for that

at this point.” [CR 835].

      Once all other actions were severed there arose two separate lawsuits. “A

severance divides the lawsuit into two or more separate and independent causes”,

Hall v. City of Austin, 450 S.W.2d 836 (Tex. 1970), “each of which terminates in a

separate, final and enforceable judgment”, Duncan v. Calhoun County Navigation

Dist., 28 S.W.3d 707, 710 (Tex.App.—Corpus Christi 2000, pet. denied).

      Aside from certain interlocutory orders, not relevant here, “[t]he

longstanding rule in Texas is that appeals are allowed only from final orders or

judgments.” Duncan, 28 S.W.3d at 710. Appellee is relying on a judgment in the

instant case to dispose of an issue in the case that remains on the trial court’s

docket. Because there is no final judgment in the action in which the “Common

Area” claim is pending this Court should not address Appellee’s Cross Point. In



                                          4
the alternative, for the reasons set forth in Appellant’s Brief at page 23-31 thereof,

Common Areas do not include roads.

                              B. Reply Issue #2 Restated

REPLY ISSUE NO. 2: (Reply to Appellee’s Reply Point #1) THE SUMMARY
JUDGMENT CANNOT BE AFFIRMED BECAUSE APPELLEE FAILED TO
MEET ITS BURDEN OF PROOF TO DEMONSTRATE THERE WAS NO
FACT ISSUE ON APPELLANTS’ AFFIRMATIVE DEFENSE OF MUTUAL
MISTAKE OR SCRIVENER’S ERROR WITH RESPECT TO THE 2005 DEED.

      Appellee contends that the summary judgment should be affirmed because

Appellants’ reformation action was “effectively” severed and can be prosecuted in

the future. The first ground expressed by the trial court in its summary judgment

order was that the 2005 deed did not reserve an easement for ingress and egress

through the roads in Oaks of Trinity, Section 1. There is no dispute that the form

of the 2005 deed that was actually filed for record did not reserve an ingress and

egress easement. In their response to Appellee’s motion for partial summary

judgment Appellants raised the affirmative defense of mutual mistake and/or

scrivener’s error as to the 2005 deed that was filed for record, (CR 803-804) and

supported such defense by competent summary judgment evidence. (CR 732-758,

769-792).

      The question raised is not what the recorded 2005 deed says, but rather what

the parties intended and whether the 2005 deed should be reformed to conform to

those intentions.



                                          5
      The issue is whether Appellee met its burden of proof on its claim that the

2005 deed did not reserve an easement. A plaintiff’s burden of proof with respect

to affirmative defenses in the summary judgment context was address by this Court

in Bauer v. Jasso, 946 S.W.2d 552 (Tex.App.—Corpus Christi 1997, no writ).

      In Bauer Jasso sued Bauer for trespass.        The trial court granted Jasso’s

motion for summary judgment. Bauer asserted the affirmative defense of title by

deed and adverse possession. On the movant’s burden in a summary judgment

case involving affirmative defenses this Court stated the following:

             The crux of Bauer’s point of error is that the trial court erred in
      granting summary judgment because Jasso did not establish *556 his
      entitlement to summary judgment with respect to Bauer’s affirmative
      defense of adverse possession. Bauer complains the trial court
      impermissibly shifted the burden of proof to him to establish his
      affirmative defense instead of requiring Jasso to prove all the elements
      of his cause of action as a matter of law. We agree.

Bauer, at p. 555-556.

   In Bauer this Court reversed the summary judgment and remanded the case.

      The instant case presents an even more compelling situation for reversal

because Appellee admits in its brief to not even addressing the affirmative defense

of mutual mistake and/or scrivener’s error.

      Appellee attempts to justify its failure to address this affirmative defense by

asserting that the reformation action and defense based on mutual mistake was

“effectively” severed.   Appellee Brief at p. 23.       Appellee contends that the



                                          6
summary judgment order does not dispose of Appellants’ reformation action,

grounded in the affirmative defense of mutual mistake and/or scrivener’s error.

      “A party is 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.” Gail v. Berry, 343 S.W.3d 520 (Tex.App.—Eastland 2011,

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.”       Simpson v. Curtis, 351 S.W.3d 374

(Tex.App.—Tyler 2010 no pet. h.) By rendering a summary judgment that the

2005 deed did not reserve an easement the trial court adjudicated the mutual

mistake defense, which if successful, would result in a 2005 deed that did reserve

an easement. Appellants are entitled to a trial on the mutual mistake defense.

      The summary judgment order makes it clear that its purpose was to render a

judgment that the 2005 deed did not reserve any easement. Yet, neither Appellee’s

motion, nor its brief in this court, address the mutual mistake defense, except to say

that it was severed out to be decided another day. If upon a trial it was found that

the 2005 deed that was recorded was the product of a mutual mistake and/or

scrivener’s error the 2005 deed, as reformed, would reserve an easement. Under

those circumstances, the summary judgment order to the extent of the relief set

forth in paragraphs 1.a., 1.d. and 1.e. would be contrary to a reformed deed. If the



                                          7
summary judgment is affirmed and becomes final, the question arises: how would

any effort to reverse it in a different case be possible? There would not be any

basis to attack the validity of the 2005 deed – and all this would result from a

motion for summary judgment that never addressed the affirmative defense of

mutual mistake and/or scrivener’s error and where Appellee admits that it did not

substantively addressing this affirmative defense in this appeal.

                                                                   C. Reply Issue #3 Restated

REPLY ISSUE NO. 3: (Reply to Appellee’s Reply Point # 5) APPELLEE HAS
NOT SUBSTANTIVELY RESPONDED TO APPELLANTS’ ISSUE NO. 4
CONCERNING A FAILURE OF THE 2005 DEED TO SUFFICIENTLY
DESCRIBE THE LAND PURPORTED TO BE CONVEYED.

           The issue raised by Appellants’ Issue No. 4 in its Brief was whether the

following legal description was sufficient to identify the property purportedly

conveyed with reasonably certainty:

                  Property including any improvements: Those roads, streets, and
           medians within the subdivision beginning at FM 1008 to intersection
           with Private Road 6350 (Sweetwood Ct) in "Section 1, Oaks of
           Trinity, Liberty County, Texas.

[CR 530]

              This issue is one of contract (deed) construction. If the legal description in

the 2005 deed was legally sufficient, then the roads were conveyed to Appellee1. If

the legal description was not sufficient then the 2005 deed was void and no roads

                                                                
1
 However, if the 2005 deed description is found to be legally sufficient, a fact issue was raised as to whether a
mutual mistake occurred sufficient to reform that deed by the inclusion of an easement.


                                                                             8
were conveyed to Appellee.

      In its Reply Point 5 Appellee observes that Appellant, for the first time

asserted the legal description issue, as an alternative defense or claim, in its Third

Amended Counterclaim, which was filed March 25, 2014. It is worth noting that

no limitations claim was asserted against the alternative legal description claim.

      Appellee mentions that there are three recorded instruments whereby

Appellants have expressed a conveyance of the ownership of the roads to Appellee.

Appellee then states that in “every single pleading and affidavit filed by Appellants

in this case references” Appellee’s ownership of the roads. This anecdotal

observation seems a bit odd given that in Appellee’s Original Petition, First

Amended Petition, Second Amended Petition and its Third Original Petition, there

was attached a copy of the 2005 deed that had a reservation of an easement, as the

deed that was executed by the Association, contrary to Appellee’s present

contention.

      In their pleadings Appellants claimed that the 2005 deed with the easement

was executed by Appellee, a claim consistent with Appellee’s acknowledgement

(up to its Fourth Amended Petition) that such deed with easement was executed by

it in 2005. Appellants raised the legal description sufficiency defense after the

February 13, 2014 filing by Appellee of its Fourth Amended Petition, which for the

first time alleged that the 2005 deed did not reserve an easement. It was proper for



                                          9
Appellants, in response, to plead an alternative claim that the legal description was

insufficient to support a conveyance. TEX. R. CIV. P. 48. Inconsistencies between

alternative claims or defenses do not operate as judicial admissions. Lyons v.

Lindsey Morden Claims Management, Inc. 985 S.W.2d 86 (Tex.App.—El Paso

1998, no pet. h.)

      Appellee contends that while a disputed ‘fact’ issue of fact may be raised as

to the “alleged existence of an intersection” no ‘fact’ issue is raised as to the

ownership of the roads by Appellee. Appellee has it wrong – the question of the

legal sufficiency of a deed is not a fact question, but a legal one for the court.

Appellants’ Issue No. 4 certainly raised that legal construction issue.

      Appellee asserts that the legal description in the 2005 deed conveyed the

“roads, streets and medians within the subdivision . . .”         As pointed out by

Appellants at page 32 of its Brief, the description did not convey “all private streets

and roads in the Subdivision.”      In the deed the description of the roads to be

conveyed were those “beginning at FM 1008 to intersection with . . . Sweetwood

Ct.”, a point that does not exist. Contrary to Appellee’s assertion there is no fact

issue as to the non-intersection of FM 1008 and Sweetwood Ct. – that is

demonstrated simply looking at the very plat that Appellee relies on. Appellee

made no attempt to substantively address the effect of the failure of the 2005 to

have a beginning point that does not exist on the ground.



                                          10
      Finally, Appellee makes a somewhat confusing argument at the end of its

Reply Point 5 that since the summary judgment was granted on general and non-

specific grounds the summary judgment may be affirmed on appeal if any of the

theories advanced are meritorious. Appellee does not explain how this answers the

legal description issue. Moreover, Appellee does not identify the other ‘theories’

that supposedly will support the summary judgment.          Somewhat surprisingly,

Appellee ends by citing State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374

(Tex. 1993).   State Farm Fire & Casualty Co. does not in any way support

Appellee because in that case the Texas Supreme Court reaffirmed the rule that

where a summary judgment specifies the grounds upon which it is based, only

those grounds will support a summary judgment. Clearly, this is a case where the

summary judgment contained the specific grounds upon which it was based, which

were bolstered and consistent with the oral ruling made by the trial court.



                                     PRAYER

      Appellants 301 White Oak Ranch, Ltd., John D. Manning d/b/a JM

Properties and Auroras, LLP, pray that the trial court’s Final Judgment be reversed

and remanded for trial.




                                         11
                                      Respectfully submitted,

                                  LAW OFFICES OF CHARLES E. FITCH, P.C.
                                     BY:_/s/Charles E. Fitch______________
                                          CHARLES E. FITCH
                                          State Bar No.: 07072000
                                          11 Greenway Plaza, Suite 2820
                                          Houston, TX 77046
                                          Phone: (713) 961-1200
                                          Fax: (713) 622-6107
                                          Email: cfitch@fitchlaw.com

                                  ATTORNEY FOR APPELLANTS, 301
                                  WHITE OAK RANCH, LTD. AND JOHN D.
                                  MANNING d/b/a JM PROPERTIES AND
                                  INTERVENOR AURORAS, LLP

                             CERTIFICATE OF SERVICE

       I hereby certify that on January 28, 2015, a true and correct copy of the
foregoing instrument was served upon Appellee or its counsel of record via
electronic filing, facsimile and/or certified mail, return receipt requested, and to
court personnel via electronic filing.

   Trisha Taylor Farine                                       Via electronic filing
   Daughtry & Jordan, P.C.                        and/or facsimile 281-218-9151
   17044 El Camino Real
   Houston, Texas 77058

   Peter C. Blomquist                                         Via electronic filing
   Shannon, Gracey, Ratliff & Miller, LLP         and/or facsimile 713-655-1597
   1301 McKinney St., Suite 2900
   Houston, Texas 77010

   Stan Nix, Pro Se                                           Via electronic filing
   2607 Cardinal Lane                             and/or facsimile 281-540-8032
   Humble, Texas 77396

                                               /s/ Charles E. Fitch
                                             Charles E. Fitch

                                        12
               CERTIFICATE OF COMPLIANCE

I hereby certify that this Reply Brief contains 3,228 words.

                                         /s/ Charles E. Fitch
                                       Charles E. Fitch




                                  13
