                                                                                     ACCEPTED
                                                                                 12-14-00262-CV
                                                                    TWELFTH COURT OF APPEALS
                                                                                  TYLER, TEXAS
                                                                            7/10/2015 3:09:49 PM
                                                                                   CATHY LUSK
                                                                                          CLERK


                     No. 12-14-00262-CV
                                                                 FILED IN
                             in the                       12th COURT OF APPEALS
                    Twelfth Court of Appeals                   TYLER, TEXAS
                                                          7/10/2015 3:09:49 PM
                          Tyler, Texas
                                                               CATHY S. LUSK
                                                                   Clerk
                      Charles and Mary Lou Alford,
                               Appellants,

                                      v.

           Robert Thomas McKeithen; EOG Resources, Inc.;
                   and Central Texas Land Services,
                               Appellees.

                       Appealed from the District Court
                       of San Augustine County, Texas

                          Appellee’s Brief
               of EOG and Central Texas Land Services



Jason R. Mills
Bar No. 24041494
Graham K. Simms
Bar No. 24060610
Joshua C. Ashley
Bar No. 24078161
Freeman Mills PC                                     Oral Argument
110 N. College, Ste. 1400                   Conditionally Requested
Tyler, Texas 75702
903.592.7755 phone
903.592.7787 fax
jmills@freemanmillspc.com
gsimms@freemanmillspc.com
jashley@freemanmillspc.com




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                       i
                       PARTIES & COUNSEL

               Appellant:    Charles and Mary Lou Alford

    Appellant’s Counsel:
                   Tom Rorie
      (trial & appellate)
                   Attorney at Law
                   210 North Street
                   Nacogdoches, Texas 75961
                   936.559.1188 phone
                   936.559.0099 fax
   _____________________________________________
                Appellee:    Robert Thomas McKeithen

      Appellee’s Counsel:    Noel D. Cooper
       (trial & appellate)   Law Ofﬁces of Noel D. Cooper
                             117 North Street, Ste. 2
                             Nacogdoches, Texas 75961
                             936.564.9000 phone
                             936.715.6022 fax

                             Bill McWhorter
                             Bill McWhorter & Associates
                             119 North Street, Ste. A
                             Nacogdoches, Texas 75961–5200
                             936.564.2676 phone
                             936.564.6455 fax

                Appellee:    EOG Resources, Inc.
                             Central Texas Land Services

      Appellees’ Counsel:    Jason R. Mills
       (trial & appellate)   Graham K. Simms
                             Joshua C. Ashley
                             Freeman Mills PC
                             110 North College, Ste. 1400
                             Tyler, Texas 75702
                             903.592.7755 phone
                             936.592.7787 fax


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.          ii
                                              CONTENTS
Parties & Counsel ........................................................................................ ii
Contents ..................................................................................................... iii
Authorities ....................................................................................................v
Statement Regarding Oral Argument ......................................................... viii
Issues ........................................................................................................... ix
Introduction .................................................................................................. 1
Facts ............................................................................................................. 2
    A. In 2003, the Alfords bought the Jessups’ pasture and home site. .........2
    B. No one mentioned minerals in the handshake deal. .............................2
    C. The deed the Alfords were shown at closing contains a mineral
       reservation in Exhibit A, but the Alfords did not read it. .....................3
    D. The Alfords sue nearly a decade later, seeking title through the
       interpretation of the deed. ................................................................... 3
    E. The trial court rules that the deed is ambiguous, and the jury ﬁnds
       that the Alfords do not have title to the minerals and are not
       entitled to reformation. ...................................................................... 4
Summary of the Argument........................................................................... 4
Argument..................................................................................................... 6
    A. The trial court rightly held that the Alfords’ deed is ambiguous. .........7
         1. A deed is ambiguous when its meaning is uncertain and doubtful, or
            when the deed is reasonably susceptible to more than one meaning. ........7
         2. The Alfords’ deed is ambiguous because the eﬀect of the mineral
            reservation is at best unclear and there are two reasonable
            interpretations of the deed. .............................................................. 10
              a. Because the Alfords and the Jessups did not discuss minerals
                 when negotiating the deed, the deed’s circumstances do not
                 aﬀect the ambiguity analysis. ............................................................ 10
              b. The eﬀect of the mineral reservation in the deed is at best
                 unclear, and there are two reasonable interpretations of the
                 deed. ............................................................................................... 10



Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                                                   iii
                  i. The Alfords’ deed should not be construed against the
                     grantors because both parties had an equal opportunity to
                     control the contents of the deed and the Alfords admit that
                     they did not read the whole deed before signing. ........................ 13
                  ii. The Alfords’ nonbinding cases on incorporation by reference
                       do not render EOG’s interpretation of the deed
                       unreasonable. ............................................................................... 16
    B. The Alfords’ attempt to seek title through the interpretation of a
       voidable deed is time-barred because they waited nearly ten years
       to sue. ...............................................................................................20
    C. Even if the Alfords have title, the Court should aﬃrm the take-
       nothing judgment in EOG’s favor because the Alfords did not
       present suﬃcient evidence of damages. ............................................. 22
         1. There is no basis in this case for a remand on damages. ...................... 23
         2. The Court should enter a take-nothing judgment on the Alfords’
            damages, because the Alfords did not present suﬃcient evidence of
            damages. ....................................................................................... 24
Conclusion .................................................................................................. 25
Certiﬁcate of Compliance ........................................................................... 27
Certiﬁcate of Service................................................................................... 27
Appendix .................................................................................................... 28




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                                                 iv
                                        AUTHORITIES
Cases
Alford v. Kuhlman Elec. Corp.,
   716 F.3d 909 (5th Cir. 2013) .................................................................... 17

Arnold v. Ashbel Smith Land Co.,
  307 S.W.2d 818 (Tex. Civ. App.—Houston 1957, writ ref’d n.r.e.) ..... 13, 14

Bob Montgomery Chevrolet, Inc. v. Dent Zone Cos.,
   409 S.W.3d 181 (Tex. App.—Dallas 2013, no pet.) ....................... 13, 19, 20

Coker v. Coker,
  650 S.W.2d 391 (Tex. 1983) .......................................................... 5, 7, 8, 10

Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc.,
  999 S.W.2d 814 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ........ 20, 22

Dupnik v. Hermis,
  No. 04-12-00417-CV, 2013 WL 979199 (Tex. App.—San Antonio
  Mar. 13, 2013, pet. denied) ............................................................... 20, 21

Ford Motor Co. v. Castillo,
   444 S.W.3d 616 (Tex. 2014) .................................................................... 15

Ford v. Exxon Mobil Chem. Co.,
   235 S.W.3d 615 (Tex. 2007)..................................................................... 21

Foster Wheeler Ener� Corp. v. An Ning Jiang MV,
   383 F.3d 349 (5th Cir. 2004) ................................................................... 17

Glidden Co. v. CDNE, Inc.,
   No. 12-09-00283, 2011 WL 686286 (Tex. App.—Tyler Feb. 28,
   2011, no pet.) ........................................................................................... 9

Guerini Stone Co. v. P.J. Carlin Constr. Co.,
  240 U.S. 264 (1916) ................................................................................ 16

Hill & Combs v. First Nat’l Bank,
   139 F.2d 740 (5th Cir. 1944) .................................................................... 17



Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                                          v
J.M. Davidson, Inc. v. Webster,
   128 S.W.3d 223 (Tex. 2003) ............................................................. 7, 8, 11

Koepke v. Martinez,
   84 S.W.3d 393 (Tex. App.—Corpus Christi 2002, pet. denied) ............... 22

Larson v. Cactus Util. Co.,
   730 S.W.2d 640 (Tex. 1987) .................................................................... 23

McBride v. Hutson,
  306 S.W.2d 888 (Tex. 1957) .................................................................... 14

Oryx Ener� Co. v. Shelton,
  942 S.W.2d 637 (Tex. App.—Tyler 1996, no writ) ................................... 24

Owen v. Hendricks,
  433 S.W.2d 164 (Tex. 1968)................................................................ 11, 16

Poag v. Flories,
   317 S.W.3d 820 (Tex. App.—Fort Worth 2010, pet. denied) ............. 20, 21

Progressive Cnty. Mut. Ins. Co. v. Kelley,
   284 S.W.3d 805 (Tex. 2009) (per curiam) ................................................ 9

Ralson Purina Co. v. Barge Juneau & Gulf Caribbean Marine Lines, Inc.,
   619 F.2d 374 (5th Cir. 1980) .................................................................... 17

RSUI Indemn. Co. v. The Lynd Co.,
  No. 13-0080, 2015 WL 2194201 (Tex. May 8, 2015) .................................. 7

Slaughter v. Qualls,
   162 S.W.2d 671 (Tex. 1942) ..................................................................... 21

Sullivan v. City of Galveston,
   17 S.W.2d 478 (Tex. Civ. App.—Galveston 1928), aﬀ’d by 34 S.W.2d
   808 (Tex. Comm’n App. 1931, judgm’t adopted) ............................... 17, 18

Sullivan v. City of Galveston,
   34 S.W.2d 808 (Tex. Comm’n App. 1931, judgm’t adopted) ................... 18




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                                 vi
Tribble & Stephens Co. v. RGM Constructors, L.P.,
   154 S.W.3d 639 (Tex. App.—Houston [14th Dist.] 2004, pet.
   denied).............................................................................................. 18, 19

Other Authorities
28 Tex. Jur. 3d Damages § 222 ..................................................................... 24

Bruce M. Kramer, The Sisyphean Task of Interpreting Mineral Deeds and
   Leases: An Encyclopedia of Canons of Construction
   24 Tex. Tech L. Rev. 1 (1993).................................................................. 14

Rules
Tex. R. App. P. 43.3 ..................................................................................... 23

Tex. R. App. P. 44.1 ..................................................................................... 24




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                                         vii
        STATEMENT REGARDING ORAL ARGUMENT
   Appellee believes the decisional process of the Court will not be signiﬁ-
cantly aided by oral argument. But if the Court grants Appellants’ request for
oral argument, Appellee requests the opportunity to respond in oral argu-
ment.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                            viii
                                  ISSUES
                                       1.
   Deed interpretation. A deed is ambiguous when its meaning is uncertain
or doubtful, or when the deed is reasonably susceptible to more than one
meaning. The Alfords’ deed states that the property being conveyed is

“more particularly described by metes and bounds on Exhibit ‘A’, attached
hereto,” and the metes-and-bounds description included a mineral reserva-
tion. But the deed also has a section labeled “Reservations from conveyance

and Warranty,” that describes a reservation of a life estate. Was the trial
court wrong to conclude that the deed was ambiguous regarding the mineral
reservation?
                                       2.
   Limitations. A grantee seeking title through the interpretation of a voida-
ble deed must sue within four years of the deed’s execution. In 2012, the Al-

fords sued for title through the interpretation of a voidable 2003 deed. Is the
Alfords’ suit time-barred?
                                       3.

   Damages. The burden is on the plaintiﬀ to establish its damages with rea-
sonable certainty to enable a jury to compute them. The only basis given by
the Alfords for computing their damages is a single royalty check to McKei-

then. Neither the Alfords’ lease nor McKeithen’s was in evidence. Does the
check to McKeithen under one lease enable the jury to compute the Alfords’
damages under a diﬀerent lease with unknown terms?


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                             ix
                                INTRODUCTION
   Having lost in the trial court because the mineral reservation in their deed
was intentional and not the product of mutual mistake, and because, even if
the reservation was a mistake, they failed to exercise due diligence in reading
their deed, the Alfords seek to push the reset button. The Alfords now argue

that there never should have been a trial—that, as a matter of law, the min-
eral reservation attached to their deed unambiguously is not part of the deed.
   But the trial court and the jury were right to ﬁnd: (1) that the deed was

ambiguous; (2) that the mineral reservation was part of the deed; (3) that the
inclusion of the mineral reservation was not a mutual mistake1; and (4) that
the Alfords were not diligent in reading their deed.
   The Alfords focus their appeal entirely on ambiguity: they say the trial
court erred because, as a matter of law, the mineral reservation is unambigu-
ously not part of the deed. The two grounds for the Alfords’ argument are an

inapplicable rule of construction and a fractured line of nonbinding and inap-
plicable cases discussing how one document may incorporate another.
   Assuming the Alfords’ cases are correct, the Alfords’ interpretation of the
deed may be reasonable (even though no one in this case except the Alfords
has adopted it so far). But the question is not whether the Alfords’ interpre-
tation is reasonable; the question is whether EOG and McKeithen’s view is



   1  Despite the jury’s ﬁnding that there was no mutual mistake, the Alfords state in their
brief that it “is clear” that the inclusion of the mineral reservation was a mistake. Alfords’
Br. at 2.


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                     1 /28
unreasonable. If EOG and McKeithen’s view is not unreasonable, then the
deed is ambiguous, and the trial court’s judgment must stand.


                                    FACTS

   A. In 2003, the Alfords bought the Jessups’ pasture and home site.
   The Alfords leased the Jessups’ 117-acre pasture for several years before
buying the pasture, along with the Jessups’ 2-acre home site, in 2003. 2 The

Alfords bought the land for an $80,000 note payable to the Jessups over eight
years with no interest. 3


   B. No one mentioned minerals in the handshake deal.
   The purchase was basically a handshake deal. 4 Ms. Alford doesn’t think
mineral rights were ever mentioned. 5 That makes sense because Ms. Alford
admits that minerals were never part of the agreement. 6 (The Alfords and the

Jessups did, however, discuss a life estate to the Jessups in the home site. 7)
The Alfords would have bought the property with or without the minerals. 8




   2 3RR17, 22.
   3 3RR19, 20.
   4 3RR56

   5 3RR20; 3RR56.

   6 3RR53.

   7 3RR22.

   8 3RR53.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                         2 /28
   C. The deed the Alfords were shown at closing contains a mineral
      reservation in Exhibit A, but the Alfords did not read it.
   When the Alfords got to the title company for the closing, someone at the
title company went over the terms of the conveyance with Ms. Alford.9

Ms. Alford is sure she saw Exhibit A to the deed (the exhibit with the prop-
erty description containing the mineral reservation) at the title company, but
she admits that she didn’t read it. 10 Mr. Alford didn’t read Exhibit A either. 11


   D. The Alfords sue nearly a decade later, seeking title through the
      interpretation of the deed.
   In 2012, nearly a decade after signing the deed, the Alfords ﬁled suit seek-
ing a judgment declaring their title to 50% of the mineral rights under the pas-
ture, or for reformation of the deed based on mutual mistake. 12 EOG was

joined because, even though EOG has leases from both the Alfords and
McKeithen, EOG had paid McKeithen royalties that the Alfords now claim
should have gone to them. 13

   The Alfords moved for summary judgment on deed interpretation, asking
the court to declare the mineral reservation to be unambiguously not part of
the deed. 14 The trial court denied that motion, and the Alfords re-urged the




   9 3RR29.
   10 3RR30.

   11 3RR86.

   12 1CR7-9.

   13 All references to EOG in this brief also include Central Texas Land Services.

   14 2CR110.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                   3 /28
issue just before trial in a “Motion to Construe Document.”15 The Alfords
also ﬁled a supplemental petition alleging that the deed is ambiguous. 16


   E. The trial court rules that the deed is ambiguous, and the jury ﬁnds
      that the Alfords do not have title to the minerals and are not
      entitled to reformation.
   The trial court ruled that the deed was ambiguous. 17 The jury found that
the Alfords did not have title to the minerals, that the Alfords were not enti-

tled to reformation based on mutual mistake, and that the Alfords were not
diligent in reviewing their deed. 18
   The Alfords now argue that the trial court erred in ﬁnding the deed am-
biguous.


                   SUMMARY OF THE ARGUMENT
   This case is a poor vessel for “testing the limits of incorporation.” 19 The
Court need not trouble itself with the Alfords’ complicated theory of
incorporation cobbled together from disparate federal-court and state-court
opinions.
   The trial court ruled that the deed in this case was ambiguous. 20 Thus,

the interpretation of the deed was a question for the jury, and the Alfords


   15 3CR87, 118.
   16 3CR125.

   17 1Supp. CR4.

   18 2Supp. CR8-10.

   19 Alfords’ Brief at 2.

   20 1 Supp. CR4.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                         4 /28
have not challenged the jury’s ﬁndings. See Coker v. Coker, 650 S.W.2d 391,
394 (Tex. 1983) (interpretation of an ambiguous instrument is a fact issue).

   The trial court did not err in ruling that the deed was ambiguous. A deed
is ambiguous when its meaning is uncertain and doubtful or the deed is
reasonably susceptible to more than one meaning. Id. at 393. The Alfords’
deed states that the property being conveyed is “more particularly described
by metes and bounds on Exhibit ‘A’ attached hereto,” and the metes-and-
bounds description includes a mineral reservation. 21 Does the deed contain a

mineral reservation?
   Maybe. The Alfords’ complicated incorporation law just goes to show
that the deed is ambiguous. Of course it’s reasonably possible that the deed
incorporated Exhibit A only for the part of Exhibit A that strictly deﬁnes the
metes and bounds. But it’s equally within reason that the mineral reservation
included in the metes-and-bounds description (in the same font and text
block) was also incorporated: after all, the reservation was part of the metes
and bounds, and the deed language referring to Exhibit A is not clear about
what is incorporated.

   The Court should therefore aﬃrm the trial court’s ruling that the deed
was ambiguous.
   On top of that, there are two more reasons to aﬃrm. One, under Texas

law, the Alfords had four years to sue seeking title through the construction


   21   App. A, Deed.


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                        5 /28
of a voidable deed. The Alfords, after failing to read their deed before
signing, waited nearly a decade to sue. Their claim is therefore time-barred.

   And two, even if the Court ﬁnds that the Alfords have title, the Alfords
still have not proved that they are owed damages by EOG. The only evidence
of damages oﬀered by the Alfords was a royalty check from EOG to
McKeithen, the other alleged owner of the minerals at issue. But the Alfords
have not shown how the check to McKeithen provides a legal measure of the
Alfords’ damages. Therefore, even if the Court ﬁnds that the Alfords have

title, the Court should aﬃrm the take-nothing judgment in favor of EOG.

                               ARGUMENT
   The Court should aﬃrm the trial court’s judgment in EOG’s favor for
three reasons.
   First, the trial court correctly determined that the Alfords’ deed was am-
biguous. Even if the Alfords’ interpretation of the deed is reasonable, that
still leaves the deed ambiguous, because EOG’s interpretation is also reason-
able. And the Alfords have not challenged the fact issue of the ambiguous
deed’s interpretation.
   Second, the Alfords’ suit for title through a voidable deed is time-barred
because the Alfords waited nearly a decade to sue.
   And third, even if the Court finds that the Alfords own the minerals, the
Court should still affirm the take-nothing judgment in EOG’s favor because

the Alfords did not produce sufficient evidence of damages due from EOG.



Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                        6 /28
   A. The trial court rightly held that the Alfords’ deed is ambiguous.
   If the Court aﬃrms that the deed is ambiguous, that is the end of the ap-
pellate analysis. The reason is that while the Alfords have challenged the trial
court’s predicate ﬁnding of ambiguity, the Alfords have not challenged the
jury’s factual ﬁnding that the mineral reservation was part of the deed. See

Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983) (interpretation of an ambigu-
ous instrument is a fact issue). So if the deed is ambiguous, then the jury’s
ﬁnding that the mineral reservation was part of the deed must be aﬃrmed.

And the deed is ambiguous.


   1. A deed is ambiguous when its meaning is uncertain and doubtful, or
      when the deed is reasonably susceptible to more than one meaning.
   When interpreting documents, the court “examine[s] and consider[s] the
entire writing in an eﬀort to harmonize and give eﬀect to all the provi-
sions…so that none will be rendered meaningless.” J.M. Davidson, Inc. v.
Webster, 128 S.W.3d 223, 229 (Tex. 2003).
   A document is unambiguous “if it can be given a deﬁnite or certain legal
meaning.” Id. at 229. But if its meaning is uncertain and doubtful, or if it is
reasonably susceptible to more than one meaning, then the document is am-
biguous. Id.; Coker, 650 S.W.2d at 393; see RSUI Indemn. Co. v. The Lynd Co.,

No. 13-0080, 2015 WL 2194201, at *3 (Tex. May 8, 2015) (“[I]f both con-
structions present reasonable interpretations of the [contract]’s language, we
must conclude that the [contract] is ambiguous.”).




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                          7 /28
   The court may look at the circumstances of the document’s formation
when deciding ambiguity. Coker, 650 S.W.2d at 394. Whether a document is

ambiguous is a question of law; but once a document is found ambiguous, its
interpretation is a question of fact. Webster, 128 S.W.3d at 229.
   Several cases in the Supreme Court and this Court illustrate when a docu-
ment is ambiguous.
   In J.M. Davidson, Inc. v. Webster, the Supreme Court found a document
ambiguous because it was unclear how two provisions in the document re-

lated to one another. 128 S.W.3d at 229. The one-page document, entitled
“Alternative Dispute Resolution Policy” and “Employment Application Lan-
guage,” stated in one paragraph that the employee agreed to arbitrate all em-
ployment-related disputes, and in a later paragraph that the employer “re-
serves the right to unilaterally abolish or modify any personnel policy without
prior notice.” Id. at 225–26.
   The Court could not give the document a deﬁnite meaning because it was
unclear whether the employer’s right to unilaterally modify “personnel poli-
cies” included the right to terminate the arbitration agreement, thus render-
ing the arbitration agreement illusory and nonbinding. Id. at 229. Because the
Court could not interpret the document “by reading the agreement’s terms,”
the Court found the document ambiguous. (The Court also noted that the
court of appeals and even the Supreme Court was divided on how to inter-
pret the document. Id. at 229–31.)




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                       8 /28
   In Progressive Cnty. Mut. Ins. Co. v. Kelley, the court of appeals found that
two separate insurance documents unambiguously constituted two separate

insurance policies, and the Supreme Court reversed, ﬁnding that it was am-
biguous whether the documents created one policy or two. 284 S.W.3d 805
(Tex. 2009) (per curiam). Although the documents had separate policy num-
bers, the second document referred to a “multi-car discount” but only listed
one car (the ﬁrst document listed four cars). Id. at 807. The Supreme Court,
ﬁnding “some ambiguity” on that basis, considered parol evidence to inter-

pret the parties’ understanding, but still concluded that their intent was am-
biguous, and remanded. Id. at 807-08.
   Finally, in Glidden Co. v. CDNE, Inc., No. 12-09-00283, 2011 WL 686286
(Tex. App.—Tyler Feb. 28, 2011, no pet.), this Court aﬃrmed the trial
court’s award of contract damages based on one deﬁnition of “costs” over
another, ﬁnding that the contract was ambiguous about the meaning of that
term. Id. at *4. The Court considered the dictionary deﬁnition of “costs”
and how the term was used in the parties’ agreement, and determined that
“the term ‘costs’ is reasonably susceptible to more than one meaning.” Id.
The Court therefore held the contract ambiguous, and found that the evi-
dence supported the trial court’s fact ﬁnding on its interpretation. Id.
   Like the documents in these cases, the Alfords’ deed is also ambiguous.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                         9 /28
   2. The Alfords’ deed is ambiguous because the eﬀect of the mineral
      reservation is at best unclear and there are two reasonable
      interpretations of the deed.
   Even if the Alfords’ interpretation of the deed is reasonable, the deed is
ambiguous because EOG’s interpretation is equally reasonable.


   a. Because the Alfords and the Jessups did not discuss minerals when
      negotiating the deed, the deed’s circumstances do not aﬀect the ambiguity
      analysis.
   While a document’s circumstances are part of the ambiguity analysis,

Coker, 650 S.W.2d at 394, here the circumstances do not push the analysis
one way or the other. The reason is that, by Ms. Alford’s admission, the min-
erals were never mentioned when the deed was negotiated. 22 Thus, the cir-
cumstances here are silent.


   b. The eﬀect of the mineral reservation in the deed is at best unclear, and there
      are two reasonable interpretations of the deed.
   The Alfords’ deed, after describing the property by reference to an earlier
deed, states that the property is “more particularly described by metes and

bounds on Exhibit ‘A’ attached hereto.” 23 The tract at issue is tract one in the
deed. And the description of tract one in Exhibit A includes, in the same text
block and font as the metes-and-bounds description, a mineral reservation. 24

The metes-and-bounds description of tract two does not include a mineral



   22 3RR20.
   23 App. A, Deed.

   24 App. A, Deed.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                           10 /28
reservation. 25 But a life-estate reservation in tract two is stated on the face of
the deed.26

   One interpretation of the deed—the one urged by EOG and McKeithen
and found by the jury—is that the reference to Exhibit A is not limited to a
single purpose, and so the mineral reservation is part of the deed. The deed

refers to Exhibit A, relies on Exhibit A, and never states that Exhibit A is at-
tached only for a certain purpose. 27 (The deed does not state, as the Alfords
claim in their brief, that the parties “were attaching Exhibit A for the sole
purpose of providing a metes and bounds description.” 28)
   In support of EOG and McKeithen’s view is established contract law, un-
der which all parts of a document are to be given meaning, and none are to be
rendered meaningless. J.M. Davidson, Inc., 128 S.W.3d at 229. EOG’s view
eﬀectuates the mineral reservation, while the Alfords’ view nulliﬁes it. See
Dupnik v. Hermis, No. 04-12-00417, 2013 WL 979199, at *5 (Tex. App.—San

Antonio Mar. 13, 2013, pet. denied) (ﬁnding that a reservation of “none” on
the face of a deed, combined with the phrase “surface only” in the attached
property description, unambiguously reserved the mineral estate).
   Another point in support of EOG and McKeithen’s view is the long line
of Texas cases, including Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex. 1968),



   25 App. A, Deed.
   26 App. A, Deed.
   27 App. A, Deed.

   28 Alfords’ Br. at 7.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                          11 /28
stating that the “language used [to incorporate another document] is not im-
portant provided the document signed…plainly refers to another writing.”

The mineral reservation in Exhibit A meets the Owen standard for incorpora-
tion (the deed “plainly refers” to Exhibit A), and is therefore part of the
deed.
   The Alfords make much of the fact that the only reservation stated on the
face of the deed was a life estate in tract two (the home site), 29 but that makes
sense considering that a life estate was not already included in the metes-and-
bounds description for tract two on Exhibit A. The parties did not have to re-
peat a mineral reservation for tract one on the face of the deed because the
reservation was already included on Exhibit A. And as for having the parties
initial the life-estate reservation, that too makes sense: the Jessups presuma-
bly cared much more about conﬁrming the reservation of a life estate in their
home than they did about a mineral estate that couldn’t keep the rain oﬀ

their backs.
   The other interpretation of the deed—the one urged by the Alfords—is
that the deed incorporates Exhibit A only for the metes and bounds descrip-

tion (without the mineral reservation), and so the mineral reservation is not
part of the deed. The points in favor of this view are that, while the deed
does not expressly limit its incorporation of Exhibit A, the deed does refer to
Exhibit A in the context of a metes-and bounds-description. Buttressing this


   29   Id. at 8–9.


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                         12 /28
view is the line of mostly federal cases (with a few state court-of-appeals
cases) seeming to go beyond Owen in discussing the incorporation of docu-

ments for a narrow purpose. See Bob Montgomery Chevrolet, Inc. v. Dent Zone
Cos., 409 S.W.3d 181, 189 (Tex. App.—Dallas 2013, no pet.).
   Both of these views are reasonable, and therefore the deed is ambiguous.
The Alfords, however, argue that two things make EOG’s interpretation un-
reasonable: (1) the rule of construing reservations and deeds against the gran-
tor; and (2) the law of incorporation of documents. The Alfords are wrong

that these points make EOG’s interpretation unreasonable.

   i. The Alfords’ deed should not be construed against the grantors because
      both parties had an equal opportunity to control the contents of the
      deed and the Alfords admit that they did not read the whole deed before
      signing.
   The Alfords argue that the familiar rule of construing reservations and
deeds against the grantor requires favoring the Alfords’ interpretation over
EOG’s. 30 There are two reasons why the Alfords are wrong.

   First, this rule of construction does not apply without a predicate ﬁnding
of ambiguity. See Arnold v. Ashbel Smith Land Co., 307 S.W.2d 818, 824 (Tex.
Civ. App.—Houston 1957, writ ref’d n.r.e.) (citation and quotation omitted)
(“[The rule of strict construction against the grantor] is not applicable in the
absence of ambiguity.”); but see Bruce M. Kramer, The Sisyphean Task of In-
terpreting Mineral Deeds and Leases: An Encyclopedia of Canons of Construction


   30   Alfords’ Br. at 4.


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                       13 /28
24 Tex. Tech L. Rev. 1, 108–111 (1993) (questioning the requirement of re-
quiring ambiguity before construing against the drafter). The Alfords argue

that their deed is unambiguous, so under their view this rule of construction
cannot apply here. (The Alfords are not challenging the jury’s interpretation
of the deed.)
   Second, the Alfords ignore the rationale of the “construe against the gran-
tor” rule, and the rationale does not apply here. The rule “is never used as a
hypercritical and overly literal tool,” as the Alfords want to use it. Arnold,

307 S.W.2d at 824 (quotation and citation omitted). The rule has a common-
sense purpose: “The underlying rationale for this canon is that the scrivener,
who is usually the grantor, should be responsible for the lack of clarity in the
use of the language.” Kramer, supra at 116. Thus, “[i]n cases where…both
parties are equally responsible for the drafting of the instrument, this canon
should not apply.” Id. (citing McBride v. Hutson, 306 S.W.2d 888, 891–92
(Tex. 1957) (construing instrument in favor of grantor when drafted by
grantee)).
   Therefore, it’s important to know who drafted the deed in a particular
case. Here, an assistant at the title company prepared the closing documents,
and they were reviewed by an attorney there. 31 The assistant, who walks the
parties through the closing, testiﬁed that her practice was to go over all the
documents with both parties and makes sure everything is correct. 32 She said

   31   4RR25, 53.
   32   4RR17.


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                         14 /28
that she would “review all of the information on the document…. Anything
that’s on that document, I would review with [the parties].” 33 Asked about

“the source of your information to know what to prepare when you prepare
the documents,” 34 the assistant said: “The parties of the transaction would
come in and give us the information.” 35 The assistant conﬁrmed that this

practice was applied in every case, in every situation. 36
   So the evidence in this case is that the Alfords had an equal opportunity
to contribute to the deed’s contents and to review those contents before sign-
ing.37 The real problem is that the Alfords weren’t diligent in reviewing Ex-
hibit A before signing the deed. The Alfords’ lack of diligence is not a valid
reason for construing the deed against the Jessups.
   Thus, the “construe against the grantor” rule does not render EOG’s in-
terpretation of the deed unreasonable.




   33  4RR18.
   34  4RR18.
    35 4RR18.

    36 4RR19. Ms. Alford did testify that the deed was already prepared when she arrived

at the title company, 3RR21–22, but she admits that the assistant went over the terms of
the deed with her. 3RR29. And Ms. Alford admits that she held the deed for a few days be-
fore ﬁling it, to make sure the Jessups were comfortable with the sale. 3RR32. This implies
that during those days the deal was not, in Ms. Alford’s mind, ﬁnished, and thus could be
altered.
    37 When reviewing the suﬃciency of the evidence supporting a jury verdict, the court

“must view the evidence in the light most favorable to the verdict” and “assume jurors
made all inferences in favor of the verdict if reasonable minds could, and disregard all
other inferences.” Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620–21 (Tex. 2014) (quota-
tions and citations omitted) (upholding jury verdict of fraudulent inducement).


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                 15 /28
   ii. The Alfords’ nonbinding cases on incorporation by reference do not
       render EOG’s interpretation of the deed unreasonable.
   The Alfords also argue that the doctrine of incorporation by reference
makes their interpretation reasonable and EOG’s interpretation unreasona-

ble. 38 The caselaw cited by the Alfords, however, does not support their argu-
ment. Here is why.
   The Alfords admit that there appears to be a split in the cases dealing with
incorporation by reference. 39 One line, which the Alfords call the Owen line,
after Owen v. Hendricks, says that the incorporation language used is not im-
portant so long as one document plainly refers to the other. 433 S.W.2d 164,
166 (Tex. 1968). Here the deed refers to Exhibit A as being “attached
hereto,” which, under Owen, would incorporate the mineral reservation be-
cause the mineral reservation is on Exhibit A.40

   The other line of cases cited by the Alfords begins with a hundred-year-
old United States Supreme Court case, Guerini Stone Co. v. P.J. Carlin Con-
str. Co., 240 U.S. 264 (1916), and runs through several Fifth Circuit and Texas
court-of-appeals cases. 41 This line of cases states that a reference to another
document “for a particular purpose” incorporates the document only for that
purpose. Id. at 277. The Alfords cite four federal cases and three Texas cases

that refer to the Guerini rule. None of these cases controls here.


   38 Alfords’ Br. at 2, 4–6.
   39 Alfords’ Br. at 4–5.
   40 App. A, Deed.

   41 Alfords’ Br. at 5–6.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                        16 /28
   Only one of the federal cases cited by the Alfords arises under Texas law.
But that case, Hill & Combs v. First Nat’l Bank, 139 F.2d 740 (5th Cir. 1944),

did not cite any Texas law on incorporation, and aﬃrmed a jury verdict on in-
terpretation because the contract was ambiguous, which is the result that
EOG urges here. Id. at 743.
   The other three federal cases cited by the Alfords are not relevant either.
Each of those cases arose in another state and was governed by other law. See
Ralson Purina Co. v. Barge Juneau & Gulf Caribbean Marine Lines, Inc.,

619 F.2d 374, 374–75 (5th Cir. 1980) (admiralty case originating in Louisiana
involving a federal maritime statute); Foster Wheeler Ener� Corp. v. An Ning
Jiang MV, 383 F.3d 349, 358–59 (5th Cir. 2004) (admiralty case originating in
Louisiana involving a federal maritime statute and an international maritime
agreement); Alford v. Kuhlman Elec. Corp., 716 F.3d 909, 913 (5th Cir. 2013)
(contract case originating in Mississippi applying Mississippi law). 42

   The ﬁrst Texas case cited by the Alfords is Sullivan v. City of Galveston, 17
S.W.2d 478 (Tex. Civ. App.—Galveston 1928), aﬀ’d by 34 S.W.2d 808 (Tex.
Comm’n App. 1931, judgm’t adopted). Sullivan involved two sureties who

backed their principal’s obligation to pay a certain rate of interest on a bond
issued to the city. Id. at 480–81. The sureties agreed to pay “the rate stipu-
lated in [the principal’s] written obligation of even date herewith.” Id. at 480.


   42 Each of these federal cases is also distinguishable on the facts and the holdings, but
EOG will not discuss those distinctions because it is suﬃcient that the cases do not in-
volve Texas law.


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                   17 /28
But there was no written interest obligation “of even date herewith”—the
“written obligation” (a bond to the city) stating the interest rate was dated

several months before. Id. at 481. The sureties claimed that their surety obli-
gation was therefore void, but the court of appeals found that “it is clear
from all the facts and circumstances in evidence that all the parties to the
transaction understood what paper was referred to, and that it was referred to
only for the purpose of ﬁxing the rate of interest.” Id. at 490. The court went
on, citing Guerini but no Texas cases, to note that the outside document had

no eﬀect on the referring document other than to supply the interest rate. Id.
   Apart from not being binding on this Court, Sullivan does not apply here
for two reasons. One, Sullivan was based on “all the facts and circum-
stances” evidencing the parties’ understanding, not on the particular words
of incorporation. So the Guerini reference is merely dicta. And two, the
Commission of Appeals opinion in Sullivan (which the Alfords did not cite)
relied not on Guerini but on common sense: the interest rate, said the Com-
mission of Appeals, “can be…ascertained” without the referenced document
because the rate was stated in the city board’s resolution authorizing the
bond in the ﬁrst place. 34 S.W.2d at 811–12. Thus, according to the Commis-
sion of Appeals, “the fact that the reference was made to a written instru-
ment which did not exist becomes immaterial.” Id. at 811.
   The second Texas case cited generally by the Alfords (without a pin cita-
tion or any quoted language) is Tribble & Stephens Co. v. RGM Constructors,
L.P., 154 S.W.3d 639 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                        18 /28
Tribble was, like Guerini, a construction-contract case. Id. at 663–64. Tribble
held that a “ﬂow down” provision in the contractor–subcontractor contract

did not as a matter of law incorporate an alternate-dispute-resolution provi-
sion of the contractor–owner contract. Id. at 663–64. The court found that
“fact issues exist as to the intent of the parties” to bind the subcontractor to
the ADR provision. Id. at 669. Thus, this case favors EOG and not the Al-
fords.
   The ﬁnal Texas case cited by the Alfords as support for Guerini is Bob

Montgomery Chevrolet, Inc. v. Dent Zone Cos., 409 S.W.3d 181 (Tex. App.—
Dallas 2013, no pet.). Dent Zone involved a one-page application for Dent
Zone’s “PDR Linx Service Program.” The application said that “Additional
beneﬁts, qualiﬁcations, and details of the [program] are available for your re-
view at our website: [url].” Id. at 184 n.1. When Dent Zone sued and the
Chevrolet dealership objected to Texas jurisdiction, Dent Zone cited a fo-
rum-selection clause listed on the website referenced in the application. Id. at
184–85.
   After citing Texas law on incorporation by reference, including Owen, the
court of appeals referred to “the general principal of contract law that refer-
ence to a document for a particular purpose incorporates that document only
for the speciﬁed purpose.” Id. at 189. For this “general principal,” the court
of appeals cited not a single Texas case, but rather a section in Corpus Juris
Secundum. Id. at 189. The court of appeals then found that the internet docu-
ment was not incorporated into the application for any purpose, but instead


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                        19 /28
contained “informative material only, not binding terms and conditions.” Id.
at 190. Thus, the “particular purpose” language in Dent Zone is dicta. The

court found that there was no incorporation at all.
   Therefore, the incorporation cases cited by the Alfords do not show that
EOG’s interpretation of the deed is unreasonable.


   B. The Alfords’ attempt to seek title through the interpretation of a
      voidable deed is time-barred because they waited nearly ten years
      to sue.
   In addition to ambiguity, there is another ground for aﬃrmance: limita-
tions. 43 EOG and McKeithen pleaded limitations as a defense in the trial

court and moved for a directed verdict on limitations. 44 This claim may be
decided as a matter of law, because when a claim accrues is a question of law.
Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003).
   A suit seeking title through the interpretation of a voidable deed must be
brought within four years of when the claim accrues. Poag v. Flories, 317
S.W.3d 820, 826 (Tex. App.—Fort Worth 2010, pet. denied) (suit seeking to
quiet title through interpretation of deed is barred by four-year statute); Dup-
nik v. Hermis, No. 04-12-00417-CV, 2013 WL 979199, at *2–*3 (Tex. App.—
San Antonio Mar. 13, 2013, pet. denied) (trespass-to-try-title suit where par-

ties sought interpretation of deed is barred by four-year statute).


   43 Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814, 818
(Tex. App.—Houston [1st Dist.] 1999, no pet.) (noting that an appellee may, by cross-
point, present an additional ground for aﬃrmance).
   44 3CR106, 112; 4RR76–87.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                 20 /28
   A deed is void when it has no legal eﬀect. Poag, 317 S.W.3d at 825–26
(quoting Slaughter v. Qualls, 162 S.W.2d 671, 676 (Tex. 1942)). A deed is void-

able when it “operates to accomplish the thing sought to be accomplished,
until the fatal vice in the transaction has been judicially ascertained and de-
clared.” Id.
   The legal injury caused by a voidable deed occurs when the deed is rec-
orded, or, in limited cases, when the ﬂaw is discovered. Id. at 827; Dupnik,
2013 WL 979199, at *4; see also Ford v. Exxon Mobil Chem. Co., 235 S.W.3d

615, 617 (Tex. 2007) (recorded instruments in a grantee’s chain of title gener-
ally establish an irrebuttable presumption of notice of defects).
   The Alfords’ deed is voidable, not void, because it admittedly accom-
plished a transfer of title to the Alfords: the Alfords received the surface es-
tate conveyed in the deed.
   The Alfords’ deed was recorded in April 2003. 45 The Alfords sued in

2012.46 The Alfords’ claims accrued when they executed and recorded their
problematic deed. Poag, 317 S.W.3d at 827. And even if the Alfords’ claims
could be tolled by the discovery rule, the discovery rule does not apply here

because the Alfords admit that they did not read all of the deed. 47 Dupnik,
2013 WL 979199, at *4. On top of that, the jury found that the Alfords were
not diligent.48

   45 App. A, Deed.
   46 1CR4.
   47 3RR30, 86.

   48 2Supp. CR10.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                        21 /28
   The Alfords’ suit is therefore time-barred because they waited nearly ten
years to sue.


   C. Even if the Alfords have title, the Court should aﬃrm the take-
      nothing judgment in EOG’s favor because the Alfords did not
      present suﬃcient evidence of damages.
   Even if the Court ﬁnds that the Alfords, rather than McKeithen, have title
to the minerals, the Court should aﬃrm the take-nothing judgment in favor
of EOG, because the Alfords have no evidence of damages owed by EOG. 49
   The jury did not answer the damages question in the charge because they
found that the Alfords did not own the minerals. 50 But EOG moved for a di-

rected verdict on the Alfords’ damages. 51 A directed verdict is proper when
“the evidence oﬀered on a cause of action is insuﬃcient to raise an issue of
fact.” Koepke v. Martinez, 84 S.W.3d 393, 395 (Tex. App.—Corpus Christi
2002, pet. denied). Because the trial court denied EOG’s motion for directed
verdict, this Court may review that denial under a legal suﬃciency or no-evi-
dence standard. Id. 52




   49  This basis for aﬃrmance is being raised under the same authority as EOG’s limita-
tions argument: Dean, 999 S.W.2d at 818 (noting that an appellee may, by cross-point, pre-
sent an additional ground for aﬃrmance).
    50 2Supp. CR8, 12.

    51 4RR88.

    52 EOG is not required to raise this point as an appellant, because a win on this issue

does not increase EOG’s trial-court relief. See Dean, 999 S.W.2d at 818 (noting that an ap-
pellee may, by cross-point, present an additional ground for aﬃrmance that does not ex-
pand the relief sought).


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                 22 /28
   1. There is no basis in this case for a remand on damages.
   The Alfords ask the Court, upon determining the mineral ownership, to
remand on the issue of damages for removal of the minerals. But there is no
basis for a remand on damages.
   The Rules of Appellate Procedure state that “[w]hen reversing a trial

court’s judgment, the court must render the judgment that the trial court
should have rendered.” Tex. R. App. P. 43.3; see also Larson v. Cactus Util.
Co., 730 S.W.2d 640, 641 (Tex. 1987) (“If a court of appeals holds that there

is no evidence to support a damages verdict, it should render a take nothing
judgment as to that amount.”). The only exceptions are when “a remand is
necessary for further proceedings” or “the interests of justice require a re-
mand for another trial.” Tex. R. App. P. 43.3(a)–(b).
   If this Court ﬁnds that the Alfords have mineral title, then the Court
should render the judgment that the trial court should have rendered. No

further proceedings are necessary, because the parties have already tried this
case to a verdict on damages. 53 Nor are there any special circumstances in-
voking the “interest of justice” exception.

   Therefore, if the Alfords have title, the question on appeal is what judg-
ment the trial court should have rendered on the Alfords’ damages. The an-
swer is a take-nothing judgment.54


   53   2Supp. CR13.
     54 If the Court does remand for a trial on damages, the Court should remand on liabil-

ity as well. Tex. R. App. P. 44.1 (“The court may not order a separate trial solely on
unliquidated damages if liability is contested.”).


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                                 23 /28
   2. The Court should enter a take-nothing judgment on the Alfords’
      damages, because the Alfords did not present suﬃcient evidence of
      damages.
   “The burden is on the plaintiﬀ to establish its damages with reasonable
certainty to enable a jury to compute them.” Oryx Ener� Co. v. Shelton, 942
S.W.2d 637, 642 (Tex. App.—Tyler 1996, no writ). “A plaintiﬀ must prove,
with some degree of certainty, a factual basis to support the amount of dam-

ages awarded.” 28 Tex. Jur. 3d Damages § 222.
   Because EOG owns a mineral lease covering the Alfords’ land, the only
damages the Alfords could be entitled to if they own the minerals are unpaid
royalties. Apparently recognizing this, the only evidence oﬀered by the Al-
fords to show damages is a check from EOG to McKeithen (as guardian of
the Jessups’ estate) for $167,000 with the memo: “Royalty Account.” 55 The

check does not state what the royalty is attributable to, but McKeithen testi-
ﬁed that it was from the Jessups’ property (the property claimed by the Al-
fords). 56

   The basis for EOG’s directed-verdict motion was that the Alfords put
forth no evidence of (1) the amount of production from their claimed miner-
als; (2) the revenue produced from the minerals; or (3) their royalty interest

in the minerals. 57 Thus, EOG argued, the jury cannot calculate what the Al-
fords’ damages are. 58

   55 3RR69 at Ex. 13.
   56 3RR69.
   57 4RR88.

   58 4RR88.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                      24 /28
   The Alfords responded to EOG’s motion by pointing solely to the
“amount [EOG] paid McKeithen,” as evidenced by the royalty check.59 But

that check cannot enable the jury to compute the Alfords’ damages.
   The jury cannot compute what the Alfords should have been paid based
solely on the check to McKeithen because the Alfords and McKeithen have

diﬀerent leases. And neither the Alfords’ lease nor McKeithen’s lease was in-
troduced at trial, so the Alfords have not proved that the lease terms under
which McKeithen was paid are the same as the lease terms under which the
Alfords would be paid if they owned the minerals. 60
   Because the Alfords have not given the jury (and thus this Court) a suﬃ-
cient factual basis to compute the damages owed to them, the Court should
aﬃrm the take-nothing judgment in favor of EOG.


                               CONCLUSION
   This Court should aﬃrm the trial court’s judgment in EOG’s favor for
three reasons.
   First, the trial court was right to find the Alfords’ deed ambiguous. Even

if the Alfords’ interpretation of the deed is reasonable, that still leaves the
deed ambiguous, because EOG’s interpretation is also reasonable. And the
Alfords have not challenged the jury’s interpretation of the ambiguous deed.


   59  4RR88.
    60 The Alfords introduced a memorandum of their lease, but the memorandum merely

states the primary term of the lease, not the royalty terms. 5RR at Ex. 10. No part of
McKeithen’s lease was introduced.


Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                            25 /28
   Second, the Alfords’ suit for title through a voidable deed is time-barred
because the Alfords waited nearly a decade to sue.

   And third, even if the Court holds that the Alfords own the minerals, the
Court should still affirm the take-nothing judgment in EOG’s favor because
the Alfords did not produce sufficient evidence of damages due from EOG.




                                              Respectfully submitted,

                                              /s/ Jason R. Mills
                                              Jason R. Mills
                                              Bar No. 24041494




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                     26 /28
                CERTIFICATE OF COMPLIANCE
Counsel certifies that this brief contains, as counted by MICROSOFT WORD,
6184 words. It was typed in 14-point Equity.

Dated: July 10, 2015                /s/ Jason R. Mills
                                    Jason R. Mills


                      CERTIFICATE OF SERVICE
Counsel certifies that this brief was served on the following parties through
e-filing on July 10, 2015.

Tom Rorie
Attorney at Law
210 North Street
Nacogdoches, Texas 75961
936.559.1188 phone
936.559.0099 fax

Noel D. Cooper
Law Ofﬁces of Noel D. Cooper
117 North Street, Ste. 2
Nacogdoches, Texas 75961
936.564.9000 phone
936.715.6022 fax

Bill McWhorter
Bill McWhorter & Associates
119 North Street, Ste. A
Nacogdoches, Texas 75961–5200
936.564.2676 phone
936.564.6455 fax


                                       /s/ Jason R. Mills
                                       Jason R. Mills




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.                      27 /28
                            APPENDIX
1. Appendix A — Deed, Apr. 25, 2003.




Brief of Appellee EOG Res. & Cent. Tex. Land Servs.   28 /28
Appendix
   A
 to Appellee’s Brief
        —
 Deed, April 25, 2003
•«S   X




                                                                                                    AT«5,*00                        W.
                                                                                                    01ANA KOVAR, COUNIY ClfRX
                                                                                                    SANAUGUSnNE CO, TEXAS
                                                                                                    BY         k^/^/AAy           jo/m
                                               WARRANTY PEEP WITH VENDORS URN




          Date: Ajttil 25»2003

          GrutOK JACK P. JESSUP AND WIFE, ANNIB ELIZABETH JESSUP

          Grantor's Mallb^ Address (indndlngooBaty)t Route 3,Box484, SanAugutbe, SanAugustine Coun^,Texas 75972
          Grantee: CHARLES ALFORD AND WIFE, MARY LOU AUPORD

          Grantee's Maffing Address Ondudlng couotjO: Route 1.Box 529, San Augustme, San Augostise Cous^, Texas 75972
          Cenddaratlon:
          ' (i) The sum ofTEN AND NO/ICO DOLLARS ($10.00) and other good and vahidile considetations toGianun paid, twR
            inhand, byGiantee herein, die receipt ofwUdi isIteiefay aeknowled^d; and
           9) Anote ofevendate duct isindiepiine^aBxnanof$80,000.00 and isexecutedbyGrantee, p^dile todie
           orderof Qrannn. It is securedby a vendor'slienteniaed in this deed andby a deed of inixtofevendate fiom Granteeto J.
          KenMuekeboy, Iknstee.

          Pn^erty Ondnding any fntprovemenls):
          ntACTONB:
          BEING 117.50 acrea of land, silnated on Ctntis Jemqi Survey, about seven nsQes west of dw towu of San Augustme, fax
          San Augusdne County, XlBXBt, andbeing dieproper^ described inDeed fitnn T.B.Foustatn endwife, hfimde Fountain, C.
          a Bums andwift. Maty Bmu, and J. S. Jessnp and wift,UnaJesstp, to JaekJessi^, dated May 24.1950. recorded in
          VoL 105, Pege 498, Deed Records, Sen Augusdne County, Texas, and being more pailieulBify described bymstes and
          bounds on Biddbit "A" attached heteto.

          TOACTTWOt
          BEING 2acres, more orless, and being ad(hat certain tract; lotorparcel ofland, situated inSanAognsdne County, Texas,
           and being out ofand apart ofdis Curtis Jessnp Survey, about 8ixdles Westofdwtown ofSan Augistine, Texas, and b^
           die property described in Deed fiotn J. S. Jessi^(Sharp Jeasup) andwife, UnaJessqi. to J. P. JcBSiqi and wife, Annie
           EliabediJessie,dated October 17, 1958, recorded in VoL 122, Page 206, Deed Records, SanAugustine County, Texas,
           sndbeing more partisulailydesaibed bymetes andbounds anE:diibit''A"atta^edhaeto.
           TRACT THREE:
           BEINGid ofOrantK8(7ackF.Je3Sup's) undividedinterest in and to 9 aetes of dot eeitain 110.5 sen tract as describedin
           Deed of Gift fiost Jenetde Jbssiqi Stotts, GlennRay Jessnp end Johnnie DeE Jesst^ Dumesnil, dated June 23, 1982,
           feootded in VoL235,Page424,DeedRecords, SanAugustiiie County, Texas.
           ReservattensfiromConvqunce and Warranty: ForGxainor,8                         fdiefidl   ssesslon, benefit, and use of
           IVact Two for die lemainderofdielldi ofGrantor, ssalift estate.                                      YVAco ^
           Exe^dons to Convsyanee and Warranty:
           Eiwwnrnti, ii^]la4f>way andpmsatytive ri^ds, wfaeSiei of tecord of not; bU ptesendy recorded restiictioiis, reservations,
           mveiisiila.ciHidilifliB.oflandBMlBas^fB3iicMlaevefwieMMMt                       nAeTrtwn1i«n»iwHfl(vmii»y>iv»«i»_ dial Effect
           Aepnpcity.

           Grantor, fordiecuosideTadan and sid^ect tothereservationa fiom and exeeptiona toconveyance andwarranty, gwnrta, geUs
           and conveys to Grantee the property, together with all and sbigubtr the rights and appurtenanses thereto in anywise,
           belonging, to have and to bold It to Gmtee, Oiantes's heirs, executors, adaaiBiatmton, suooeasora, or assigns forever.
           Grantor binds Grantor andGrantor's belts, cxecutoia, adndnistiaton, andsnccesseaa to waxraiit andfbiever defend bU and
           aingular dttproperty toGrantee and Grantee's heirs, executors, adndniittators, successors, and assigns against every person
           vduniBoever lawfiiUy dahnhig ortoclahndw same oranypart disieof except astothe reservations fiom and excqitlons to
           conveyance and warranty.

           The veodor'a lien against and snpexior dde to die propeity ate retained unta each note itescribed isfiiUy paid accoiding to
           its tenns, at wideh dnm this Deed shall become absolute.

           When dtecontext requites, singularnouns andpronouns include diephnaL




                                                                                                                                           PLAINTIFFS'
                                                                                                                                           EXHIBIT 2
      LZ




THE STATE OF TEXAS
COUNTY OF SAN AUGUSTINE

         ThisiastninienttrosadmowledgedbsfoseinebyJACKP. JESSUP ANDWIFE,ANNIEELIZABETH JESSUP,
on this the 25th day ofApril, 2003.

                             oonnisvmjsmn
                                NotuyPi^e
                                Stataedltaia
                           MyComrriMtonBiplfM                       NOTARY PUBLIC FO



PREPARED BY: J. KEN MUCKELROY, ATTORNEY AT LAW, P.C.
                     104 Souft Btoadmgr, SsaAugustine, Texas 759^
                    Phone: (936) 275<2304 Pax: (936) 275-2305
AFTER RECORDATION, PLEASE RETURN TO 3. KEN MUCKELROY, ATTORNEY

iinirAe:Isndyatup4lfa(d.ol\ev,JKM; TC




                                                                                             3?
r   U"
             }K




                 .|         Jfaot br pMcer af land attu'atM on. Ourtib Jeaott© aurveS' about aeviin
                 ^^ BlfflSnlM''n?^fcHi®s^w'" of Soii^AuKUBtiria;-Id Sa®-Augqatioe CountyVTexao,
                  j': ««naSk®^f''iJMjhr'"'"' ""T" " "»»H.6T E.S^/b w.coraer'la on
                                                                      vrB.,3ra,N-9 EB5'.vx'8.to thd ninth
                  J2?^? IT £           J68BUP aur*ey oh the Ueat banfe'br a braaoh thla Is
             • il oSrtai r25'51ii4£ W4 5 ao^e ahrvey bat or thb CUrtia JeBsup aurvey.K.W.
               •' bSfiwJh £S?«k 44 2w w 2 ?j* 2®® ^foba are gohe.tbenoe abwh the aald
                                                                                                                        sul   vre
                  ^^''l^OrB'to'sSski'' J.*®®*®" E.150S^ol
                                                       vre;Si^anch
                                                              etSuH.Ie.SOr.W.SO vrB.'7tB.lf?f7f§o'^.
                                                                   28*' *x»xEXm s, 1 E,7.6 vra?
                                                         Theftoe ir«S8' 17« 7B vrs»t6 oornbr o'tt' Sbuth bank
                      2 wS  2 S'2®-i Thehoe up abid creek, Xatise-SO E.184 vra^ 2ad.S.80.30
                  '• fitb a'Sn ?2 2'2S  • ?*^9® y".4th.S.68 Eo70 vrb, Sth.N.sfoo vra.
                  • T^bce S oi .iS"!®.™'
                          S.2S.45             Iron,
                                  W.lXTS vra .to    stakejtriff,
                                                 bagljip    Southao©fe«>Baak,NeoJper
                                                                           <*^fT 117.5 creek.
                                                                                       aorea of innd
                  f'Ij that the pantora
                                   4."° J®  2^ reaervea
                                        herein     kgreedIn"bytheir
                                                                and bet«e&
                                                                    own riighttheoneparties
                                                                                      haXf ofhereto*
                                                                                               all                        if
                                                          ktod and chaTector which may be on or under the

                  |;.' other
                       2?S«2 «??                 purpoaa of nlnSng
                             lalXeralB without interference        and or
                                                            of aaalgne drllXlng for oil and
                                                                          hla aaaigna.                                    ir^
                                                                                                                          l!


         K   *




             ^TOgF'^oi
                  that oertaln tract, lot •or poroal of Ippd, situated in Sea Augi^Hna County, Soxaa, belag all
                                                                                                            out
                  Of uid a part of the Ourtia Jeeeup Burvey, ahout Bnilea We8t o;s tSe town of San Ausuetino,
                  Texaa, and beins out of the let. tract doacrlbed in an oil, gaa-W nineral lease enecuted by
                  Sharp Jesspp and wife, to T. W. Blount and W, ?. Haya, reoorded in Volume 92, p. 319 of the
                  Deed fiecord. ofSan Auguatine County, Sexae. boiag known as a 75 aere traet. and being 2 acres
                  of land, and thus deeeribedt
                                BSMHHlHft at a point in the 2BL of said 75 aore, B. 24 V2 deg. Bast 2«0 feet from the
                  HI come, of said 75 acre tract in the B.Boak of Heoipor Creek (now called Becky Creek),
                       2HBSCB South 2h 1/2 deg, B. with the EEL of said 75 acre tract, 30O feet,
                       2HBH0B at right anglea to said SBL (approxiaatoly 8. 66 deg. W.) 290 1/2 feet,
                       MBMOB Berth 24 1/2 deg. West parallel with the BBL oXeaid 75 acre tract 500 feet,
                                7HSH0B at right angles (approximately H. 66 deg. Baat) 290 1/2 feet to the beginning,
                  oontalnlns-2 acrosj store or Iosob

                             •      :                               . .Vv'v.,./.-
                      • '   •                                                                              ./V .


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                                                               EXHTOIT "A"




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