                                                                                   ACCEPTED
                                                                               03-15-00051-CV
                                                                                       5156207
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                           5/5/2015 1:17:11 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK



                03-15-0051-CV                        FILED IN
                                              3rd COURT OF APPEALS
                                                  AUSTIN, TEXAS

               IN THE COURT OF APPEALS FOR THE5/5/2015 1:17:11 PM
               THIRD APPEALS DISTRICT OF TEXAS JEFFREY    D. KYLE
                                                      Clerk
                    SITTING AT AUSTIN, TEXAS


                          TRENT LINDIG,

                                                 Appellant,
                                v.

           PLEASANT HILL ROCKY COMMUNITY CLUB,

                                                 Appellee.


     On Appeal from the 33rd District Court, Blanco County, Texas
         Hon. J. Alan Garrett, presiding; Cause No. CV 07580


                       APPELLEE’S BRIEF


Norman L. Nevins                     Jeff Small
State Bar No. 14936000               State Bar No. 00793027
THE NEVINS LAW FIRM                  LAW OFFICE OF JEFF SMALL
206 West Main St.                    12451 Starcrest Dr, Suite 100
Fredericksburg, TX 78624             San Antonio, TX 78216.2988
830.990.0557/F: 830.990.0559         210.496.0611/f: 210.579.1399
nnevinslaw@yahoo.com                 jdslaw@satx.rr.com

                     COUNSEL FOR APPELLEE
                                      TABLE OF CONTENTS

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

ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

        Have the circumstances occurred to trigger the reverter clause in the
        1927 Albert Lindig Deed?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

        The trial court properly found that the possibility of reverter set out in
        the 1927 Deed never occurred and, thus, Trent Lindig cannot
        demonstrate superior title as he must to prevail on his trespass to try
        title claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

                 A.   The construction of a deed is based on what it actually says
                 not what the grantor meant, but failed to say.. . . . . . . . . . . . . . 5

                 B.    The limitation in the deed here — the possibility of reverter
                 — must be strictly construed against Trent to give PHRCC the
                 largest estate possible and avoid a forfeiture if another reasonable
                 construction is possible.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                 C.    The contested clause in Albert Lindig’s 1927 Deed specifies
                 only one limitation resulting in a reverter — the property reverts
                 only if the “School house is removed from said land.”.. . . . . . . . 7

                 D.    Stewart v. Blain was wrongly decided, but even if it were
                 not, the language here has a significant difference.. . . . . . . . . . 8

CONCLUSION and PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                                                         ii
                                INDEX OF AUTHORITIES

Cases

Alford v. Krum,
      671 S.W.2d 870 (Tex. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Criswell v. European Crossroads Shopping Center, Ltd.,
     792 S.W.2d 945 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Curdy v. Stafford,
     88 Tex. 120, 30 S.W. 551 (1895).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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

Davis v. Skipper,
     83 S.W.2d 318 (Tex. 1935). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fair v. Arp Club Lake, Inc.,
      437 S.W.3d 619 (Tex. App.— Tyler 2014, no pet.). . . . . . . . . . . . . . . . 5

Hedick v. Lone Star Steel Co.,
     277 S.W.2d 925 (Tex. Civ. App.–
     Texarkana 1955, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Humble Oil & Ref. Co. v. Harrison,
    146 Tex. 216, 205 S.W.2d 355 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Hunt v. Heaton,
     643 S.W.2d 677 (Tex. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Jones v. N.Y. Guar. & Indem. Co.,
     101 U.S. 622 (1879). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Land v. Turner,
     377 S.W.2d 181 (Tex. 1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Luckel v. White,
     819 S.W.2d 459 (Tex. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                                                    iii
Martin v. Amerman,
     133 S.W.3d 262 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rogers v. Ricane Enters.,
     884 S.W.2d 763 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Stewart v. Blain,
     159 S.W. 928 (Tex. Civ. App. – Galveston 1913, no writ).. . . . . . . . . . 8

Terrell v. Graham,
     576 S.W.2d 610 (Tex. 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Terrill v. Tuckness,
      985 S.W.2d 97 (Tex. App.--San Antonio 1998, no pet.).. . . . . . . . . . . 5

Statutes

TEX. PROP. CODE § 22.001(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Other Authorities

14 TEX.JUR., sec. 138, p. 138. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

http://dictionary.reference.com/browse/but.. . . . . . . . . . . . . . . . . . . . . . . . 9

http://legal-dictionary.thefreedictionary.com/precatory. . . . . . . . . . . . . . . 9

http://tinyurl.com/p84zxnw. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

http://www.thesaurus.com/browse/but.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                     iv
                                   ISSUE PRESENTED

     Have the circumstances occurred to trigger the reverter clause in the
1927 Albert Lindig Deed?

                                STATEMENT OF FACTS

       Appellee Pleasant Hill-Rocky Community Club (“PHRCC”) takes issue

with Appellant Trent Lindig’s1 statement of facts. Trent presents as fact self-

serving statements on disputed issues including, among other things,

statements regarding the payment of taxes and the grant of permission.

PHRCC will set forth only the very few facts necessary to establish the context

of the current controversy – has the possibility of reverter as drafted by Albert

Lindig in his 1927 Deed been triggered.

       Albert Lindig, Trent’s great-grandfather, executed a deed on September

10, 1927 conveying a parcel of land to J.C. Goar, T.E Patton, Scott Klett, J.J.

Fuchs and Gus Artzt, the Blanco County Board of Trustees and their

successors in office. CR 96. That deed is recorded at Volume 44, Page 467-

468, in the Official Public Records of Real Property of Blanco County, Texas

(the “Property”). CR 96. From 1927 until 1951 or 1952, the Trustees used the

Property as a school. CR 32, 56-57.

       On August 4, 1952, the Blanco County Board of Trustees at the time,


       1
         Because there are other Lindig men referred to here, this brief will refer to Appellant Trent
Lindig by his first name for the Court’s ease of reference.

                                                  1
Aaron Posey, Edgar Heins, Joyce Goar, C.W. Freer and Oscar Jones, Jr.,

executed a deed and conveyed the Property to Louis Lindig, Alfred Brodbeck,

August Ludwig, Earnest Petri, Levi Deike, Emil Hartmann and Walter Ludwig

and their successors in office, as Trustees of the Pleasant Hill Improvement

Association, to be maintained and cared for “as a Community Center for the

benefit of Pleasant Hill Community in Blanco County, Texas.” CR 41-42.

Neither the 1952 Blanco County Board of Trustees nor the 1952 Trustees of the

Pleasant Hill Improvement Association, including Louis Lindig, Albert’s

brother, thought they were violating the 1927 Deed in that the 1952

conveyance made explicit reference to the 1927 Deed and Albert’s reversionary

interest contained in it. See CR 56-57.

      Referring to the 1927 Deed, the 1952 Deed states that the conveyance is

“for as long as the above described premises are used for Public and

Community purposes.” CR41, 44-45. E.D. Harrison, County Judge, Blanco

County, Texas, witnessed and acknowledged the signatures of the Pleasant

Hill Improvement Association Trustees on the 1952 Deed, and it was recorded

in the Blanco County deed records on August 8, 1952. CR42.

      The Pleasant Hill Improvement Association took possession of the

Property in 1952 and, later changed its name from Pleasant Hill Improvement

Association to Pleasant Hill-Rocky Community Club. CR 60-61. The Property


                                      2
has been used for public and community purposes continuously since 1952.

CR 62-63. Since 1958, the Pleasant Hill-Rocky Community Club (“PHRCC”)

has continuously presented an annual benefit dinner, called the Smorgasbord

with all of the proceeds being given to Pleasant Hill-Rocky community

charitable organizations and causes the entire time. CR 61.

     Whether the Property was used for school purposes was never

questioned from 1952 to 2013, even by the Lindigs who are, or were, members

of the PHRCC, until a commercial enterprise offered to rent the school

property from Trent. CR 61, 63.




                                     3
                   SUMMARY OF THE ARGUMENT

      A limitation such as the possibility of reverter contained in the 1927

Deed at issue here is strictly construed against the grantor to give the grantee

the largest estate possible and to avoid a forfeiture whenever another

reasonable interpretation is possible. In construing a grantor’s intent, this

Court is bound to interpret the language actually used as opposed to inferring

what the grantor may have meant, but failed to say.

      That said, any uncertainty in the construction of Albert Lindig’s 1927

Deed must be resolved against him and his heirs. While Albert referred to

“school purposes,” there is a clear separation between those expressions and

the reverter clause, which states only one limitation/reverter – the removal of

the school building.

      Accordingly, this Court should strictly interpret the 1927 Deed in favor

of Pleasant Hill-Rocky Community Club and affirm the trial court’s judgment

that the possibility of reverter has not occurred.




                                       4
                                ARGUMENT

The trial court properly found that the possibility of reverter set
out in the 1927 Deed never occurred and, thus, Trent Lindig cannot
demonstrate superior title as he must to prevail on his trespass to
try title claim.

      “The [Trespass to Try Title] statute expressly provides that it is "the

method for determining title to . . . real property.” Martin v. Amerman, 133

S.W.3d 262, 267 (Tex. 2004) (quoting TEX. PROP. CODE § 22.001(a) (emphasis

added)); see Fair v. Arp Club Lake, Inc., 437 S.W.3d 619, 623-24 (Tex. App.—

Tyler 2014, no pet.).

      To recover in a trespass to try title action, the plaintiff must recover
      upon the strength of his own title. Hunt v. Heaton, 643 S.W.2d 677, 679
      (Tex. 1982); Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964). The
      plaintiff may recover (1) by proving a regular chain of conveyances from
      the sovereign, (2) by proving a superior title out of a common source, (3)
      by proving title by limitations, or (4) by proving prior possession, and
      that the possession has not been abandoned. Turner, 377 S.W.2d at 183.

Rogers v. Ricane Enters., 884 S.W.2d 763, 768 (Tex. 1994).

      A. The construction of a deed is based on what it actually
      says not what the grantor meant, but failed to say.

      Construction of an unambiguous deed is a question of law. Terrill v.

Tuckness, 985 S.W.2d 97, 101 (Tex. App.--San Antonio 1998, no pet.) (noting

that rules of contract construction ordinarily apply to construction of a deed).

“The primary duty of the courts in interpreting a deed is to ascertain the intent

of the parties.” Alford v. Krum, 671 S.W.2d 870, 872 (Tex. 1984) (citing


                                       5
Terrell v. Graham, 576 S.W.2d 610, 612 (Tex. 1979)). A deed is subject to the

same rules of interpretation and construction as a contract. See Luckel v.

White, 819 S.W.2d 459, 461-62 (Tex. 1991).

      “[T]he question is not what the parties meant to say, but the meaning of

what they did say.” Alford, 671 S.W.2d at 872. This Court “must construe

th[e] language as it is written and [cannot] alter it by interpolation or

substitution.” See Dahlberg v. Holden, 238 S.W.2d 699, 701 (Tex. 1951).

      B. The limitation in the deed here — the possibility of
      reverter — must be strictly construed against Trent to give
      PHRCC the largest estate possible and avoid a forfeiture if
      another reasonable construction is possible.

      “A court of equity abhors forfeitures, and will not lend its aid to enforce

them.” Jones v. N.Y. Guar. & Indem. Co., 101 U.S. 622, 628 (1879).

“Covenants or restrictive clauses in instruments concerning real estate must

be construed strictly, favoring the grantee and against the grantor, and all

doubts should be resolved in favor of the free and unrestricted use of the

premises.” Davis v. Skipper, 83 S.W.2d 318, 321 (Tex. 1935). Any doubt in

construction must be interpreted in favor of the grantee to avoid forfeiture if

another reasonable interpretation is available. Criswell v. European

Crossroads Shopping Center, Ltd., 792 S.W.2d 945, 948 (Tex. 1990).

      The only possibility of reverter in the 1927 Deed focuses on the school

“building” and its presence on the site conveyed to the Trustees, NOT the

                                       6
property’s school “use” or “purpose.” CR 96. If Albert Lindig intended for the

property to revert if the property was no longer used for school purposes, he

could have included that stipulation in the reverter clause just as easily as he

mentioned it in other places in the document. He did not! See CR 96.

      C.    The contested clause in Albert Lindig’s 1927 Deed
      specifies only one limitation resulting in a reverter — the
      property reverts only if the “School house is removed from
      said land.”

      Trent’s four-corners argument urging the Court to “harmonize” the

language of the deed ignores the only sentence that is relevant to the

limitation analysis — the reverter clause — and that clause never mentions

“school purposes.” See CR 96. The only possibility of reverter in the 1927 Deed

and the only language at issue here is the following:

      But it is understood that in case the said School House or any other
      house which may be built and used for a School house is removed from
      said land herein described then the said above described land shall
      revert back to me, my heirs, assigns or legal representatives.

CR 96.

      “The language of a deed is the language of the grantor, and if there be a

doubt as to its construction, it should be resolved against him.” Curdy v.

Stafford, 88 Tex. 120, 123, 30 S.W. 551, 552 (1895); see Hedick v. Lone Star

Steel Co., 277 S.W.2d 925, 928 (Tex. Civ. App.– Texarkana 1955, writ ref’d

n.r.e.) (citing 14 TEX.JUR., sec. 138, p. 138; Humble Oil & Ref. Co. v. Harrison,


                                        7
146 Tex. 216, 224, 205 S.W.2d 355 (1947)).

      Had Albert Lindig intended for the property to revert if it failed to be

used as a school, it was incumbent upon him to say so. He did not!

      D. Stewart v. Blain was wrongly decided, but even if it were
      not, the language here has a significant difference.

      In order to arrive at the decision it did, the Stewart v. Blain court had

to go beyond the express language of the deed. See, e.g., Stewart v. Blain, 159

S.W. 928, 930-31 (Tex. Civ. App. – Galveston 1913, no writ) “Neither of the

parties to the deed had in mind any such distinction. . . . It seems to us that

these provisions mean . . .”). Rather than relying on the words actually used,

the Stewart court attempted to divine what the parties meant from what it

thought the parties intent to be. See id. To rule as it did, the Stewart court

had to go one step beyond the language used and infer that the drafter of the

deed intended the failure to use the schoolhouse as a school was the same as

“the removal of the school house” from the property thereby triggering the

reversion of the property. See id. at 931.

      A strict construction of the deed at issue there would not permit such an

inference because there, as here, the language of the deed must be resolved

against the drafter. Stewart v. Blain is wrong because the court made its

decision based on what the court concluded the drafter meant to say, rather

than upon the words actually used.

                                       8
       Even so, Albert’s references here to the use of the property for “school

purposes” are not part of the reverter clause. See CR 96. And there is a clear

separation between the references to “school purposes” and the sole clause of

limitation, which would result in a reversion to Albert or his heirs. The

possibility of reverter clause here, unlike the expressions of purpose in

Stewart v. Blain, is distinctly separate from Albert’s “school purpose”

expressions. Here the reversion limitation is a separate sentence introduced

by the word “but.” See CR 96.

       In Albert’s 1927 Deed “but” is “used to introduce something contrasting
                                                          2
with what has already been mentioned.”                        Among many others, “but” is

synonymous with “yet, nevertheless, nonetheless, even so, however, still,

notwithstanding” all of which connote a contrast with what has preceded it.3

What has gone before in the 1927 Deed are precatory statements,4 which have

no bearing on the possibility of reverter because they are separate and distinct



       2
           http://tinyurl.com/p84zxnw
       3
         http://tinyurl.com/p84zxnw ; http://dictionary.reference.com/browse/but (“But, however,
nevertheless, still, yet are words implying opposition (with a possible concession). But marks an
opposition or contrast, though in a casual way: We are going, but we shall return.”) ( emphasis in
original); http://www.thesaurus.com/browse/but.
       4
        “precatory” adj. referring to a wish or advisory suggestion which does not have the force
of a demand or a request which under the law must be obeyed.

http://legal-dictionary.thefreedictionary.com/precatory


                                                9
clauses and are nothing more than advisory.

CONCLUSION and PRAYER

      Ascertaining Albert Lindig’s intent from the context and words actually

used, the Court must assume that his failure to include the “use of the

property for school purposes” as a limiting condition in the reverter clause

means that only one thing can trigger the reversion and that is what the Deed

actually states — the removal of the School house from the property.

      Accordingly, Appellee Pleasant Hill-Rocky Community Club respectfully

asks that this Court find as a matter of law that the possibility of reverter has

not occurred and that the Court affirm the judgment of the trial court.

                                            Respectfully submitted,




                                             /S/   Jeff Small
Norman L. Nevins                            Jeff Small
State Bar No. 14936000                      State Bar No. 00793027
THE NEVINS LAW FIRM                         LAW OFFICE OF JEFF SMALL
206 West Main St.                           12451 Starcrest Dr, Suite 100
Fredericksburg, TX 78624                    San Antonio, TX 78216.2988
830.990.0557/F: 830.990.0559                210.496.0611/f: 210.579.1399
nnevinslaw@yahoo.com                        jdslaw@satx.rr.com

         Counsel for Appellee Pleasant Hill Rocky Community Club




                                       10
                  CERTIFICATE OF COMPLIANCE

In accordance with Texas Rule of Appellate Procedure 9.4, by signature below
I certify that the foregoing computer-generated brief contains 2069 words.


                     CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of May 2015, a true and correct copy of
Appellee’s was served on counsel of record/interested parties in accordance
with the Texas Rules of Civil Procedure.

Samuel V. Houston, III                    Zachary P. Hudler
State Bar No. 24041135                    State Bar No. 24032318
HOUSTON DUNN, PLLC                        ZACHARY P. HUDLER, P.C.
4040 Broadway, Suite 440                  100 E. Pecan Street, Suite One
San Antonio, Texas 78209                  Johnson City, Texas 78636
210.775.0882/f: 210.826.0075              830.868.7651/f: 830.868.7636
sam@hdappeals.com                         zachary@hudlerlaw.com

                    Counsel for Appellant Trent Lindig


                                           /S/   Jeff Small
                                          Jeff Small
                                          Norman L. Nevins




                                     11
