                                                                                            ACCEPTED
                                                                                        04-14-00655-CV
                                                                            FOURTH COURT OF APPEALS
                                                                                 SAN ANTONIO, TEXAS
                                                                                   6/2/2015 12:12:15 AM
                                                                                         KEITH HOTTLE
                                                                                                 CLERK


                          No. 04-14-00655-CV
                                                                       FILED IN
                     On Appeal to the Fourth Court of Appeals   4th COURT OF APPEALS
                                                                 SAN ANTONIO, TEXAS
                                                                06/2/2015 12:12:15 AM
                               San Antonio, Texas                   KEITH E. HOTTLE
                                                                         Clerk




                            Ivarene and Victor Hosek,
                                   Appellants

                                        v.

                                  Rosale Scott,
                                   Appellee


On Appeal from the 81st Judicial District Court of Atascosa County, Texas, Trial
     Court No. 13-06-0559-CVA, the Honorable Fred Shannon, Presiding


                            Appellants’ Reply Brief



                                             Respectfully submitted,
                                             THE CHIMENE LAW FIRM
                                             Michele Barber Chimene
                                             TBN 04207500
                                             15203 Newfield Bridge Ln.
                                             Sugar Land, TX. 77498
                                             PH: (713) 474-5538; no fax available
                                             michelec@airmail.net

                                             COUNSEL FOR APPELLANTS,
                                             THE HOSEKS

                           Oral Argument Requested
                                                      TABLE OF CONTENTS


Contents
TABLE OF CONTENTS ............................................................................................................................... i
INDEX OF AUTHORITIES......................................................................................................................... ii
REPLY TO STATEMENT OF FACTS ....................................................................................................... 1
REPLY TO APPELLEE’S ARGUMENT .................................................................................................... 4
   1.     The Hoseks did not need to plead ambiguity .................................................................................... 4
   2.     The Court wrongly found that the deed was unambiguous............................................................... 5
   3.     The Hoseks are not claiming that the fact that the parties advance different meanings gives rise to
          ambiguity .......................................................................................................................................... 6
   4.     Application of the Canons of Deed Interpretation ............................................................................ 7
   5.     Parol evidence is admissible ........................................................................................................... 12
   6.     Adequate Competent Testimony Supports the Reversal ................................................................. 13
   7.     Application of the Canons of Construction Was the Province of the Court ................................... 17
   8.     The Trial Court Abused Its Discretion When It Awarded Attorneys’ Fees .................................... 18
   9.     Costs for Additional Documents Should Not Be Born By Appellants ........................................... 18
CONCLUSION & PRAYER ...................................................................................................................... 19
CERTIFICATE OF COMPLIANCE .......................................................................................................... 20
CERTIFICATE OF SERVICE ................................................................................................................... 20
                                                   INDEX OF AUTHORITIES

Cases
Assoc. Oil Co. v. Hart, 277 S.W. 1043 ( Tex. Comm’n App. 1925, holding approved) ............................ 12
Cantu v. Frye & Assoc., PLLC, No. 01-12-00868-CV, 2014 Tex. App. LEXIS 6384 (Tex. App. – Dallas
  June 12, 2014, no pet.)………………………………………………………………………………12,16
Columbia Gas Trans. Corp. v. New Ulm Gas, 940 S.W.2d 587 (Tex. 1996) ............................................... 5
Curdy v. Stafford, 30 S.W.551 (1895)…………………………………………………………………….11
Frost Nat’l Bank v. L & F Distribs, Ltd., 165 S.W.3d. 311 (Tex. 2005) .................................................... 11
Gore Oil Co.v. Roosth, 158 S.W.3d 596 (Tex. App. -- Eastland 2005, no pet.) ......................................... 11
Hancock v. Butler, 21 Tex. 804 (1858) ....................................................................................................... 11
Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118 (Tex. 1996) ............................................................. 17
Hinson v. Noble, 122 S.W.2d 1082 (Tex. Civ. App. -- Fort Worth 1938, no writ………………………… 6
Jacobs v. Chandler, 248 S.W.2d 825 (Tex. App. – Amarillo 1952, no writ) ............................................... 4
Light v. Cruse, No. 01-87-00047-CV, 1987 Tex. App. LEXIS 8436 (Tex. App. – Houston [1st Dist.] Oct.
  1, 1987, writ denied) ................................................................................................................................. 5
Luckel v. White, 819 S.W.2d 459 (Tex. 1991) ......................................................................................... 8,10
McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. 2003) .................................................................................... 15
Nat’l Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517 (Tex. 1995) ...................................................... 12
Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001) ................................................................. 4
Rio Bravo Oil v. Weed., 121 Tex.427(Tex. 1932)....................................................................................... 12
Rutherford v. Randal, 593 S.W.2d 949 (Tex. 1980) ..................................................................................... 4
San Antonio Ry Co. v. Adams, 87 Tex. 125 (Tex. 1894) ............................................................................ 13
Terrill v. Tuckness, 985 S.W.2d 97 (Tex. App. – San Antonio 1998, no pet) .............................................. 4
Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951) ...................................................... 12
Wyman v. Harris, 222 S.W.2d 297 (Tex. Civ. App. – Beaumont 1949) ...................................................... 4
Rules
TEX. R. CIV. P. 94 ....................................................................................................................................... 4


Other Authorities
Bruce M, Krammer, The Sisyphean Task of Interpreting Mineral Deeds and Leases: An Encyclopedia of
Canons of Construction, 24 TEX. TECH. L. REV. 1 (1993)…………………………………………….. 5
<http:legal-dictionary,thefreedictionary.com/severalty>…………………………………………… ….. 10




                                                                             ii
                           No. 04-14-00655-CV

                      On Appeal to the Fourth Court of Appeals
                                San Antonio, Texas


                             Ivarene and Victor Hosek,
                                    Appellants

                                          v.

                                    Rosale Scott,
                                     Appellee


On Appeal from the 81st Judicial District Court of Atascosa County, Texas, Trial
     Court No. 13-06-0559-CVA, the Honorable Fred Shannon, Presiding


TO THE HONORABLE FOURTH COURT OF APPEALS:
      COME NOW, IVARENE and VICTOR HOSEK, and file this, their Reply

Brief. The Hoseks would reply as follows:


                      REPLY TO STATEMENT OF FACTS

      Ms. Scott spent the opening pages of Appellee’s Brief trying to convince this

Court that Counsel for the Hoseks claimed several unsubstantiable facts in

Appellants’ Brief. This is due to the fact that the Clerk who assembled the record

did not paginate the Table of Contents for the two Clerk’s records. As a result, there
was a discrepancy between the page number as indicated by the Word program and

the page number at the bottom of the page. In retrospect, Counsel for the Hoseks

regrets that she did not point out the discrepancy, and note that, because many judges

use computer devices to flip from page to page, she used the pagination supplied by

Word. Counsel will now reference both systems of pagination. The Supplemental

Clerk’s Record has page numbers on the bottom of the page that match the Word

page numbers. After reviewing the citations, Counsel believes that the Court will

find that all citations were correct and all the facts relied upon properly were drawn

from the record:



Fact Reference:                                            Btm of pg: Word:

On Oct. 4, 1978, the Voigts deeded the family farm to SUPP CR           SUPP CR 16
their children.                                          16 (cite to    (cite       to
                                                         warranty       warranty
                                                         deed);         deed); SUPP
                                                         SUPP CR        CR          45
                                                         45             (pleading that
                                                         (pleading      cites to the
                                                         that cites     warranty deed
                                                         to      the
                                                         warranty
                                                         deed
The Hoseks and Ms. Scott then partitioned the tract, but SUPP CR        SUPP CR 19-
made an agreement not to partition the minerals for 19-24; 45           24; 45
twenty-five years or so long as production continued
…the partition deed did not partition the minerals, and SUPP CR         SUPP CR 20-
they were severed from the surface estate                20-22          22
EOG Resources sent a Quit Claim deed to Rosale           CR 45          CR 50
which she declined to sign.
                                          2
“but up until the quit claim deed, the parties treated the (1) CR 43     (1) CR 48
minerals in similar fashion.” and “all parties treated the (2) CR 38     (2) CR 43
minerals as reverting to the surface owner.” Examples: (3) CR 45         (3) CR 50
[Scott] (1) [letter written by Scott] “Victor and Ivarene
Hosek own the mineral rights [under Scott’s tract] for
another 14 years. Then you will get their half.”
(2)[Resp. to Interrog. - Scott’s Admission Against
Interest]
“See the letter of August 22, 1989, wherein Rosale
admits that the mineral interests revert to the surface
owner after the 25 year period referenced in the
partition deed.” [Hoseks] (3) “We [Ivarene and Victor]
are more than willing to…[execute a quit claim deed]
since we fully realize that we no longer own any of the
oil, gas or any other minerals on the land … [Rosale had
owned] .”

“…you [Rosale] later sold [your land and minerals] to CR 45            SUPP CR 50
William W. (Wesley) King and wife Rosie King and the SUPP CR
land (60 acres more or less) that you sold to Evaristo 50
Morales, Jr. and wife Irene Morales, Rodrigo Morales,
and Manuel Morales.” [drawing the conclusion that if
she sold the land, she got the money.]

[Rosale’s lawyer asked] “That we would exchange the SUPP CR SUPP CR 73-
oil and gas mineral rights there, that my sister would get 73-76 76
all of her interest in the minerals under the surface if I
would do the same, you know, exchange.”

[examples of Rosale’s conduct before and after oil was      (1) SUPP   (1) SUPP CR
found] (1) [After] the oil company approached her           CR 67-69   67-69
about signing a quit claim around Feb. 2013. Several        (2 & 3)    (2 & 3)
people told her not to sign the quit claim. (2) Depo Nov.   SUPP CR    SUPP CR 73-
2013: “I thought it would be renegotiated after 25          73-76      76
years.” (3) [Before] In Dec. 6, 1985, Rosale’s lawyer
asked that they not wait 25 yrs to each own the minerals
under their surface.



                                         3
                      REPLY TO APPELLEE’s ARGUMENT

   1. The Hoseks did not need to plead ambiguity

   Much is made in the Appellee’s Brief of the fact that ambiguity was not pled

in this case. The appellee refers to the case of Terrill v. Tuckness, 985 S.W.2d 97

(Tex. App. – San Antonio 1998, no pet), for support. However, that case only holds

that latent ambiguity must be pled. 985 S.W.2d at 101 (emphasis added). Latent

ambiguity is that particular type of uncertainty that arises when the land description

in the deed is applied to the ground. Id. However, the instant case is one of patent

ambiguity, where it is alleged that the ambiguity can be determined from the four

corners of the document. It is similar to a trespass to try title action, where

introduction of the deed introduces all issues relevant to deed construction. Id.;

Jacobs v. Chandler, 248 S.W.2d 825, 831 (Tex. App. – Amarillo 1952, no writ);

Wyman v. Harris, 222 S.W.2d 297, 308 (Tex. Civ. App. – Beaumont 1949). In

Rutherford v. Randal, 593 S.W.2d 949, 952 n. 4 (Tex. 1980), the Texas Supreme

Court held that ambiguity need not be pleaded if it is apparent on the face of the

deed.

        Moreover, Texas Rules of Civil Procedure 94 would not require the Hoseks

to plead ambiguity as they are the plaintiffs. TEX. R. CIV. P. 94. It is the defendant’s

burden to plead an affirmative defense. Quantum Chem. Corp. v. Toennies, 47

S.W.3d 473, 481 (Tex. 2001).

                                           4
      Thirdly, in jurisdictions where ambiguity is an affirmative defense that must

be pled, there are exceptions to this technical rule, for example, when its purposes

are otherwise satisfied and where strict enforcement would not further the equities

of the case. Light v. Cruse, No. 01-87-00047-CV, 1987 Tex. App. LEXIS 8436

(Tex. App. – Houston [1st Dist.] Oct. 1, 1987, writ denied). In Light, a suit for

specific performance, a letter agreement containing ambiguous language was before

the trial court in both appellants’ pleading and testimony, before the appellant raised

an objection. Id. The judge correctly stated that the question was one of law for the

court. The purpose of notice was satisfied. Id. Here, also, the document to be

interpreted is before the court and the parties in pleading and in briefing. The

question of interpretation is one of law for the trial court. The purpose of notice was

satisfied. The Hoseks did not need to plead ambiguity.

   2. The Court wrongly found that the deed was unambiguous

      It is now commonly accepted that most written instruments are unambiguous.

Bruce M. Krammer, The Sisyphean Task of Interpreting Mineral Deeds and Leases:

An Encyclopedia of Canons of Construction, 24 TEX. TECH. L. REV. 1, 3 (1993).

However, it is also true that, if a contract is subject to two or more reasonable

interpretations after applying the pertinent rules of construction, the contract is

ambiguous, which creates a fact issue on the parties’ intent. Columbia Gas Trans.

Corp. v. New Ulm Gas, 940 S.W.2d 587 (Tex. 1996). Appellees appear to argue that


                                          5
appellants are not entitled to application of canons of contract interpretation, because

the meaning of the Partition Deed is so clear. Actually, it is not. The deed does not

say, “whether the minerals would ever be partitioned by the owners remained an

open question.” (Appellee’s Brief, at 15). Actually, the deed says nothing about

whether the minerals are partitioned after the twenty-five years. Maybe they were;

maybe they weren’t but could be. Nothing is said. The issue is left hanging in “mid

air.” The idea that a sentence is somehow missing after the designation of the

twenty-five year period appears as rational and reasonable as the unstated conclusion

that “whether the minerals would ever be partitioned by the owners remained an

open question.” Where there is room for reasonable minds to differ as to the

meaning of the language used, as there is here, canons of construction are necessary.

Hinson v. Noble, 122 S.W.2d 1082 (Tex. Civ. App. – Fort Worth 1938, no writ).

   3. The Hoseks are not claiming that the fact that the parties advance different

      meanings gives rise to ambiguity

      The Hoseks are not claiming that because they advance a different

interpretation than Ms. Scott that fact gives rise to an ambiguity. They are claiming

that the canons of contract interpretation should be applied to determine if there are

two reasonable interpretation of the Partition Deed. Ms. Scott put forth only general

canons of interpretation, without showing how they applied, to reach her conclusion

that the minerals remained unpartitioned, yet there was enough uncertainty in the


                                           6
bare language of the Partition Deed to merit use of the canons of contract

interpretation.

   4. Applications of the Canons of Deed Interpretation

      On page 21 of Appellee’s Brief, counsel attempts to use hypothetical “sur-

rounding circumstances to support her position that the plain language is

unambiguous. The Brief states, “When families partition land, it is very common to

partition the surface but not the minerals. The primary reason for this is the

perceived unfairness that could occur if the sibling who receives half the family farm

ends up with a big oil or gas well, while the other sibling has a dry hole.” Appellee’s

Brief at 21. It is now generally accepted that surrounding circumstances, either

“hypothetical” or actual are not to be used to interpret deeds. Kramer, supra, p. 3.

While the Hoseks intend that only the canons of contract interpretation be used to

decide this case, it is unfair not to allow the Hoseks to dispel the “seeds” of unreality

that have been planted by Ms. Scott. (a) The Hoseks and Ms. Scott do not get along

and, at the time of the deed, had very different plans for the property. The Hoseks

planned to continue to run the family farm, and Ms. Scott planned to dispose of her

interest by sale as soon as possible. (b) Ms. Scott even planned to dispose of Ms.

Hosek’s interest under Ms. Scott’s land, and she did so. ( CR Supp. 77). Oil wells

were drilled on the sold interests after the sale, so no one was cheated by reversion.

In fact, the only ones who are cheated, are the Hoseks, who are cheated by the trial


                                           7
court’s interpretation: Under the trial court’s interpretation, they get 1/4th of the total

minerals and Ms. Scott gets monetary payment for ½ of the minerals plus 1/4th of

the total minerals, totaling 3/4th of the whole. This defeats the whole intent of the

parents, who intended to give equal shares to the women. (CR. 69-71).

       Instead of looking at the surrounding circumstances, the parties’ intent should

be determined from the language used in the Partition Deed. Luckel v. White, 819

S.W.2d 459, 462 (Tex. 1991). The Partition Deed begins as follows:

“      KNOW ALL MEN BY THESE PRESENTS:

       That we Victor Hosek and wife, Ivarene Voigt Hosek, of the County of

Wilson, State of Texas, and Rosale Voight Scott of the County of Bexar, State of

Texas, have and hold in common the lands hereinafter mentioned, and are desirous

of making partition of the same, it is hereby covenanted, granted, and agreed by and

between said parties, and each of them covenants, grants, concludes and agrees for

himself, themselves, his and their heirs and assigns, that a partition of said lands be

made as follows, to-wit:

       First. The said Victor Hosek and wife Ivarene Voigt Hosek shall from

henceforth have, hold, possess and enjoy in severalty by themselves…

    . . .[Partition Deed describes the grant to the Hoseks, and concludes that part with

the following: ]




                                            8
         *This partition does not include any of the oil, gas, and other minerals in, on,

or under the above-described tract of land and *same are to remain undivided for a

period of twenty-five (25) years from the date hereof and as long thereafter as oil,

gas, or other minerals are produced in paying quantities from the above described

land.”

(The Partition Deed goes on to make a similar grant to Ms. Scott of the other half of

the parents’ former land.) (CR 72-77).

         Ms. Scott argues that the two phrases indicated by “*”’s are independent

clauses which do not modify each other, and she does not discuss the rest of the

document to determine the mineral rights passed or held. (CR 72). Because nothing

is said after the phrase, “same are to remain undivided for a period of twenty-five

(25) years…” about the minerals, she argues that nothing further happens without

additional acts by the parties. As such, the summary judgment would be correct,

however, that is not the only reasonable and plausible explanation of the document.

         First and foremost, the document is a “Partition Deed”, whose express

intention from the first paragraph is to partition the realty held. (CR 72-77).

Secondly, the two phrases of the above paragraph are joined by the word “and”. The

latter phrase conceivably modifies the former phrase, such that the present interest

in minerals is not portioned, but a reverter is created.            Thirdly, and most

convincingly, the second paragraph of the document uses the word “severalty.” It


                                             9
states that the Hoseks “shall from henceforth have, hold, posess, and enjoy in

severalty by themselves and to themselves and to themselves and to them and their

heirs and assigns for their part, share, interest, and proportion of said lands and

premises, all that certain part of land situated in Atascosa County, Texas, as

follows…” (CR 72).

      The problem posed, which creates a second reasonable and plausible meaning

for the deed, is the legal definition of “severalty.” It is stated is relation to “land”,

which usually means surface and subsurface, and it means as follows:

      “severalty: title to an estate. An estate in severalty is one which is held by
      the tenant in his own right only, without any other being joined or connected
      with him in point of interest during the continuance of his estate.

<http:legal-dictionary.thefreedictionary.com>, citing John Bouvier, A LAW

DICTIONARY ADAPTED       TO THE   CONSTITUTION    AND   LAWS   OF THE   UNITED STATES

(1856). The use of the word “severalty” suggests that Ms. Scott’s interest has been

removed from the property now owned by the Hoseks, or would be at the time the

twenty-five years (or production) was up. Thus, reverter to the surface owner after

twenty-five years, answering the question of what happens after twenty-five years,

is a second plausible and reasonable interpretation. The canons of deed construction

should be applied.

      Texas Courts apply the four corners rule, Luckel, 819 S.W.2d at 462, and

generally attempt to harmonize provisions in the deed that, at first, appear at odds


                                           10
with each other. Frost Nat’l Bank v. L & F Distribs, Ltd., 165 S.W.3d, 311-12 (Tex.

2005); Hancock v. Butler, 21 Tex. 804, 806 (1858). The Hancock Court wrote as

follows:

      “The governing rule is, that every part of the instrument should be
      harmonized and given effect to, if it can be done. If that cannot be done
      and it is found that the deed contains inherent conflict of intentions,
      then the main intention, the object of the grant being considered, shall
      prevail.

21 Tex. at 806. This would argue for partition of all estates, and the Hoseks’

ownership of 100% of the minerals under their land. Additionally, for the Hoseks

portion of the Partition Deed, Ms. Scott is the grantor. Canons of deed interpretation

provide that deeds shall be interpreted against the grantor, Curdy v. Stafford, 30 S.W.

551 (1895); Gore Oil Co. v. Roosth, 158 S.W.3d 596 (Tex. App – Eastland 2005, no

pet.). Therefore, uncertainty would be resolved to provide for 100% ownership of

the minerals by the Hoseks after the twenty-five years were up if these canons were

applied.

      Ms. Scott argues that the first clause in the Partition Deed, (*This partition

does not include any of the oil, gas, and other minerals in, on, or under the above-

described tract of land), (CR 72), expressly excludes the oil and gas and other

minerals from the partition, ignoring the possibility that the following clause may

modify that first clause, rather than being an independent statement. The canon that

“specific clauses control over general ones”, Gore, 158 S.W.3d at 596, and the


                                          11
holding that a deed can independently transfer the surface estate while reserving the

surface estate, Assoc. Oil Co. v. Hart, 277 S.W. 1043, 1045 ( Tex. Comm’n App.

1925, holding approved), argue for the opposite interpretation – that the minerals

remained undivided after the twenty-five years. (Other canons which may be

applied to favor one or the other interpretation are discussed in Appellants’ Brief.)

      Thus, after application of the canons of deed interpretation, two plausible

interpretations co-exist. The Partition Deed is unambiguous. Universal C.I.T.

Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951). The trial court erred in finding

that it was unambiguous.

   5. Parol evidence is admissible

      Because the Partition Deed is ambiguous, parol evidence was admissible and

should have been considered. Nat’l Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d

517 (Tex. 1995). Such parol evidence was produced with the Hoseks Response to

the Motion for Summary Judgment. (CR 92). Objections were made to the evidence,

but Ms. Scott did not obtain a ruling. Cantu v. Frye & Assoc., PLLC, No. 01-12-

00868-CV, 2014 Tex. App. LEXIS 6384 (Tex. App. – Dallas June 12, 2014, no pet.).

      If any doubt exists as to the intention of the grantors, and a deed is ambiguous,

a practical and reasonable construction given it by the parties thereto before any

controversy has arisen as to its meaning will generally be given controlling effect by

the courts. Rio Bravo Oil., 121 Tex. at 426-47, San Antonio Ry Co. v. Adams, 87


                                          12
Tex. 125, 131 (Tex. 1894). The Affidavit of Ivarene Hosek testifies as to her

understanding, that expressed by her sister at the time (an admission against interest),

and the prior understanding of the oil companies who researched the title. Ms Scott

told buyers of her land that they would own all the minerals under Scott’s land after

the twenty-five years was up. (Supp. CR. 49-50). The deposition of Ms. Scott

herself testified that the Hoseks would own the minerals until the twenty-five year

mark, then they would get them. (Supp. CR. 64). There was testimony that Ms.

Scott tried to break the “no partition” agreement before the twenty-five year mark,

so that she could sell the minerals sooner. (Supp. CR. 76). And in a letter to Mr.

King, one eventual buyer of Ms. Scott’s land and minerals, she told Mr. King he

would get all the minerals under her land in fourteen years. (Supp. CR. 78-79). The

only testimony that Ms. Scott thought the partition would be renegotiated after the

twenty-five years (Supp. CR. 72), came up after the conflict arose and thousands of

dollars of oil money hung in the balance.

      The great preponderance of evidence establishes that the intent of the parties

was that the Hoseks’ minerals had reverted to them and that 100% of the minerals

under the Hoseks belong to them. The trial court’s summary judgment must be

reversed.

   6. Adequate Competent Testimony Supports the Reversal




                                          13
      The Hoseks did not need to produce competent testimony to support every

statement in the text portion of their Response to Defendants’s Motion for

Summary Judgment. The burden is unlike that of an appellate brief, where, as

counsel has pointed out, each statement should cite a source. All the Hoseks

needed to produce was enough evidence of the parties’ intent concerning the

Partition Deed to be a preponderance of the evidence in support of their position.

Because Ms. Scott did not produce any pre-dispute evidence of what either she

or the Hoseks intended the Deed to mean, any competent evidence would be a

preponderance of the evidence. The only evidence Ms. Scott produced in favor

of her interpretation was deposition testimony that was taken after the conflict

was well underway. (Supp. CR. 72). It was not relevant to what the parties

intended when the Partition Deed was drafted.

      The Affidavit and Report of Alan D. Cummings is completely unnecessary

to support the Hosek’s burden to show that the parties intended the minerals to

revert to the surface owner.

      No one is relying upon the Affidavit of Ivarene Hosek to create ambiguity.

Application of the canons of deed construction to the deed created, or, more

properly, determined, that the deed was ambiguous. Because the deed was

ambiguous, the Affidavit of Ivarene Hosek was admissible to show

contemporaneous intent. Testimony of an interested witness can support a


                                      14
response if it is clear, positive, direct, credible, free from contradiction and

uncontroverted even though it could have been readily controverted. TEX. R. CIV.

P. 166a; McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003). Because all of

the testimony given involved facts arising when Ms. Scott was also present, Ms.

Hosek’s testimony could have been readily controverted, but was not.

      Ms. Scott complains that the statements are conclusory. By definition,

“conclusory” statements are those that can be “broken down” into simpler facts.

None of the following, all found at CR Supp. 49, could be “broken down” further.

For example, the sisters did not “draw lots” and Ms. Hosek got the larger number

and then they made an agreement: they simply made an agreement:

● Her sister and Ms. Hosek made an agreement to partition the property they

bought from their parents on October 4, 1978;

● They agreed to let the minerals remain undivided for a period of twenty-five

years and as long thereafter as oil and gas were being produced;

● After that twenty-five years, they agreed that the minerals would vest in the

surface owner. (This is corroborated by Ms. Scott’s testimony and writings);

● This (the Partition Deed) is the document our attorney, Joe R. Wiseman, was

directed to draft;

● It was signed by the Hoseks and Scott on August 17, 1979;

● She and her sister shared the costs; and


                                     15
   ● Her sister knew of the agreement.

Arguably, because these statements cannot be broken down further, they are not

conclusory statements. However, the use of conclusory statements is a defect in the

form of the affidavit. Defects in the form of the affidavit must be ruled upon or they

are waived. Cantu, 2014 Tex. App. LEXIS at 6384. No written ruling is apparent

from review of the record.

      Most importantly, there are a number of pieces of competent evidence which

indicate that it was the intent of both the Hoseks and Ms. Scott that the minerals

revert to the surface owner after twenty-five years or cessation of production. In

deposition, Ms. Scott testified that the Hoseks would own half the minerals for

another 14 years then the buyer of Ms. Scotts land would get (all of) the minerals.

(CR Supp. 64). The deposition was sworn testimony. The exhibits to the deposition

were stipulated as admitted. One of these exhibits was a letter to Mr. Wesley King,

a future buyer of Ms. Scott’s land and minerals. Ms. Scott testified that she

negotiated with Mr. King over the mineral rights. (CR Supp. 62). She wrote, “Victor

and Ivarene will own their half for another fourteen years. Then you will get their

half. I want to keep my half for another 30 years.” This is evidence that she intended

that the minerals revert to the surface owner after twenty-five years. She also gave

her attorney permission to write to Ivarene about the possibility of letting the

minerals revert sooner than 25 years, because the Morales wanted to buy the


                                         16
minerals. (CR Supp 76). The complaint that the evidence cannot be considered

because the deed is not ambiguous has already been shown to be incorrect. The

preponderance of the evidence shows that the Hoseks and Ms. Scott intended the

minerals to revert to the surface owner after twenty-five years.

   7. Application of the Canons of Construction Was the Province of the Court

      Appellants’ Response to Appellee’s Motion for Partial Summary Judgment

was brief because that all that was necessary. The Hoseks argued that the Partition

Deed was not unambiguous.          It was ambiguous and there were “multiple

interpretations of the document.” (CR Supp. 40). The Hoseks argued that the proper

interpretation – and the one that was intended by the parties – was that the minerals

reverted to the surface owner after twenty-five years or cessation of production. (CR

Supp. 39). Then the Hoseks presented the Court with evidence to show that the

intention of the parties at the time was that the minerals reverted to the surface

owner. That is all that was necessary to raise a fact issue. The question of whether

an instrument is ambiguous is a question of law for the Court. Heritage Res., Inc. v.

NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). The canons of interpretation, used

to determine whether a deed is ambiguous should be within the knowledge of the

Court, as tools of law, and should be used by the Court. It was not required that the

Hoseks lecture the Court on the various canons of deed interpretation. Appellee’s

Brief, at pp 26-30 does not show waiver.


                                           17
   8. The Trial Court Abused Its Discretion When It Awarded Attorneys’ Fees

   Appellee suggests that Appellants caused this dispute by filing suit. The Hoseks

point out to the Appellee and this Court that Ms. Scott was holding a number of

draught-starved South Texas ranchers hostage by her actions. Her unwillingness to

sign the quit claim deed meant that EOG, the oil company, was holding back on

paying all the mineral owners in the various units into which the Hoseks’, the

Morales’ and the Kings’ (the latter being the buyers of Ms. Scott’s interests) interests

had been pooled and was considering shutting the wells in, possibly ceasing

production forever. (Once a well is shut in, some formations sustain formation

damage and can never flow again). And this was being done by someone who had

long ago “cashed in” and sold all of her mineral interests for cold cash and who

knew she had done this. She had to have known SHE OWNED NOTHING.

This is the cause of this dispute. Appellants otherwise stand on their arguments

about attorneys fees in Appellants’ Brief. In equity, Appellants should be getting

their attorneys fees paid by Appellee. An award to Ms. Scott is not equitable nor

just.

   9. Costs for Additional Documents Should Not Be Born By Appellants

        Appellants argument on costs was straightforward. Appellee had not filed a

Notice of Appeal. Therefore, Appellee knew she wasn’t adding issues on appeal

that needed additional documents. Appellee knew that issues on appeal had to have


                                          18
been raised first in the trial court. Therefore, when her counsel combined that

knowledge with a reading of the Letter to the Clerk requesting the Record, she knew

what issues were being appealed. The sixteen documents she requested were not

necessary for those issues. (CR 417). Therefore, the Appellants should not have to

pay for them. Would you like some cheese with that whine?


                            CONCLUSION & PRAYER

      Appellants claimed that a Partition Deed was ambiguous and provided ample

evidence that the parties intended that the minerals revert to the surface owner after

the passage of twenty-five years and cessation of production. The trial court’s

judgment that the deed was unambiguous was in error and caused a wrongful

judgment that Appellee owned the minerals under Appellants’ land. In truth,

Appellee had sold all of her minerals years before, and she knew it. The award of

attorneys’ fees to Appellee was not just and equitable. Additionally, an award to

Appellee of costs for the unnecessary documents added to the Clerk’s Record by

Appellee when Appellee brought no cross appeal would be unjust and inequitable.

      WHEREFORE, PREMISES CONSIDERED, Appellants ask that the

summary judgment entered by the Court and the trial court’s final judgment be

reversed, that this appellate court enter a judgment denying attorneys’ fees and costs

to appellee and finding that the Partition Deed is ambiguous and that Appellants own


                                          19
100% of the minerals under their land. Appellants ask for such other and further

relief to which they may be entitled.

                                             Respectfully submitted

                                             _____/s/ MB CHIMENE________

                                             THE CHIMENE LAW FIRM
                                             Michele Barber Chimene
                                             TBN 04207500
                                             2827 Linkwood Dr.
                                             Houston, TX. 77025
                                             PH: 832 9401471; no fax
                                             michelec@airmail.net

                                             COUNSEL FOR THE HOSEKS


                       CERTIFICATE OF COMPLIANCE

      The undersigned certifies that this brief was prepared in 14 pt Times New
Roman proportional font with the required margins and number of words. There
are 4908 words according to Word’s word counter.
                                             ____/s/ MB CHIMENE__________

                          CERTIFICATE OF SERVICE

       On this, the 1st of June, 2015, undersigned counsel served via ECF and email
a true and correct copy of this Reply Brief on the following:
G. Wade Caldwell
gcaldwell@beclaw.com
Raquel Perez
rperez@beclaw.com
                                             _____/s/ MB CHIMENE________




                                        20
