                                                                                           ACCEPTED
                                                                                      04-14-00655-CV
                                                                           FOURTH COURT OF APPEALS
                                                                                SAN ANTONIO, TEXAS
                                                                                  3/8/2015 8:28:17 PM
                                                                                        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
                                                                3/9/2015 11:00:00 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’ 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
                               No. 04-14-00655
                                    Hosek v. Scott

                           IDENTITY OF PARTIES

In the Trial Court:
Plaintiffs/Appellants:
Ivarene and Victor Hosek
Trial Counsel:
Robert J. Ogle
TBN 15231350
bob@ogleattorney.com
508 E. San Antonio St.
Boerne, TX. 78006

Defendant/ Appellee:
Rosale Scott
Trial Counsel:
G. Wade Caldwell
TBN 03621020
gcaldwell@beclaw.com
Raquel G. Perez
TBN 00784746
rperez@beclaw.com
Zachary Fanucchi
TBN 24028548
zfanucchi@beclaw.com
Barton, East & Caldwell, P.L.L.C.
One Riverwalk Place, Ste. 1825
700 N. St. Mary’s St.
San Antonio, TX. 78205
Additional Appellate Counsel for the Hoseks on Appeal:
Michele Barber Chimene
TBN 04207500

                                          i
IDENTITY OF PARTIES, cont’d.
michelec@airmail.net
The Chimene Law Firm
15203 Newfield Bridge Ln.
Sugar Land, TX. 77498




                               ii
                                                        TABLE OF CONTENTS

Contents
IDENTITY OF PARTIES.............................................................................................................................. i
TABLE OF CONTENTS ............................................................................................................................. iii
INDEX OF AUTHORITIES......................................................................................................................... v
STATEMENT OF THE CASE .................................................................................................................... vi
STATEMENT ON ORAL ARGUMENT.................................................................................................... vi
ISSUES PRESENTED................................................................................................................................ vii
STATEMENT OF FACTS ........................................................................................................................... 1
SUMMARY OF ARGUMENT .................................................................................................................... 3
ARGUMENT & AUTHORITIES ................................................................................................................ 5
   ARGUMENT ON FIRST & SECOND ISSUES ...................................................................................... 5
      The trial court erred in granting summary judgment in favor of Ms. Scott
      because the petition deed is ambiguous and the summary judgment evidence
      establishes that a general issue of material fact exists whether the minerals reverted
      to the surface owner after twnety-five years and cessation of produc-
      tion. ....................................................................................................................................................... 5
      This summary judgment was harmful error because the partition deed was
      ambiguous and summary judgment evidence conclusively establishes that
      the minerals reverted to the surface owner after the expiration of 25 years ......................................... 5
   STANDARD OF REVIEW ON FIRST AND SECOND ISSUES ........................................................... 5
   ARGUMENT & AUTHORITIES: ........................................................................................................... 6
   ARGUMENT AND AUTHORITIES ON THIRD ISSUE: .................................................................... 13
      The trial court abused its discretion in awarding attorneys' fees because
      sides benefitted equally from an interpretation of the deed and an award to
      Ms. Scott was not fair and equitable. .................................................................................................. 13
   STANDARD OF REVIEW ON THIRD ISSUE: ................................................................................... 13
   ARGUMENT & AUTHORITIES: ......................................................................................................... 13
   ARGUMENT & AUTHORITIES ON FOURTH ISSUE:...................................................................... 15
      The trial court abused its discretion in allowing the possibility of forcing the Hoseks to pay the costs
      of necessary and irrelevant documents which were included in the record at the demand of Ms.
      Scott’s counsel merely to raise
      the cost of the appeal for the Hoseks. ................................................................................................. 15


                                                                                iii
   STANDARD OF REVIEW ON FOURTH ISSUE: ............................................................................... 15
   ARGUMENT & AUTHORITIES: ......................................................................................................... 15
CONCLUSION & PRAYER ...................................................................................................................... 17
CERTIFICATE OF COMPLIANCE .......................................................................................................... 18
CERTIFICATE OF SERVICE ................................................................................................................... 18
APPENDIX:................................................................................................................................................ 20




                                                                            iv
                                                      INDEX OF AUTHORITIES

Cases
Bagby v. Bredhauer, 627 S.W.2d 190 (Tex. App. – Austin 1981, no writ) ................................................ 10
Berrand, Inc. v. Whataburger, Inc., 214 S.W.3d 122 (Tex. App – Corpus Christi 2006, pet denied).......... 6
Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) ........................................................................................ 13
Brown v. Havard, 593 S.W.2d 939 (Tex. 1980) ........................................................................................... 7
City of Temple v. Taylor, 268 S.W.3d 852 (Tex. App. – Austin 2008, pet. denied) ................................... 13
DeWitt Cty. Elec. Co-Op, Inc. v. Parks, 18 S.W.3d 96 (Tex. 1999) ............................................................. 7
Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280 (Tex. 1996) ..................................................... 6
Frost Nat’l Bank v. L & F Distribs, Ltfd., 165 S.W.3d 310 (Tex. 2005) ...................................................... 8
Houchins v. Devon Energy Prod. Co., LP, No. 01-08-00273-CV, 2009 Tex. App. LEXIS 8064 (Tex. App.
  –Houston [1st Dist.] Oct. 15, 2009, pet denied) ........................................................................................ 7
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) ..................................................................... 6
Luckel v. White, 819 S.W.2d 459 (Tex. 1991) .............................................................................................. 8
National Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517 (Tex. 1995) ................................................ 11
Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508 (Tex. 1995) ............................................................... 6
Plainsman Trading Co. v. Crews, 898 S.W.2d 786 (Tex. 1995) .................................................................. 8
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003).................................................. 5
Reilly v. Rangers Mgmt, Inc. 727 S.W.2d 527 (Tex. 1987) .......................................................................... 9
Rio Bravo Oil Co. v. Weed, 121 Tex. 427 (Tex. 1932) .......................................................................... 10-11
San Antonio St. Ry Co. v. Adams, 87 Tex. 125 (Tex. 1894). ...................................................................... 12
Securtec, Inc. v. County of Gregg, No. 06-01-00164-CV, 2002 Tex. App. LEXIS 8812 (Tex. App. –
  Texarkana Dec. 11, 2002, no pet.) .......................................................................................................... 14
T C Dallas #1, LP v. Republic Underwriters Ins. Co., 316 S.W.3d 832 (Tex. App. – Dallas 2010, no pet.)
   .................................................................................................................................................................. 6
Tanglewood Homes Ass’n v. Henke, 728 S.W.2d 39 (Tex. App. – Houston [1st Dist.] 1987, writ ref’d
  n.r.e.) ....................................................................................................................................................... 14
Terrill v. Tuckness, 985 S.W.2d 97 (Tex. App. – San Antonio 1998, no pet.) ............................................. 6
Thomason v. Bradgett, No. 02-12-00303-CV, 2013 Tex. App. LEXIS 8576 (Tex. App. – Fort Worth July
  11, 2013, pet. denied) ................................................................................................................................ 8
Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951) .................................................. 7, 11
Western Invs. v. Urena, 162 S.W.3d 547 (Tex. 2005) .................................................................................. 6
Statutes
TEX. CIV. PRAC & REM. CODE § 37.001 et seq .................................................................................................. v
Rules
TEX. R. CIV. P. 166(a)................................................................................................................................. 4




                                                                                  v
                          STATEMENT OF THE CASE

Trial Court:                          This case was a declaratory judgment action
                                      under Texas Civil Practice and Remedies
                                      Code § 37.001 et seq.. (CR 1-5). The Hoseks
                                      requested construction of a deed of partition
                                      to determine whether they owned all or half
                                      of the minerals under their land in Atascosa
                                      County.     (CR 75-77). Partial summary
                                      judgment was granted in favor of Ms. Scott
                                      owning an undivided one-half interest in the
                                      minerals under the Hoseks’ land. (Supp. CR
                                      89-90). A hearing was held on the issue of
                                      attorneys’ fees, (RR 1-60), after which Judge
                                      Shannon awarded Ms. Scott attorneys’ fees
                                      of $39,500, plus $2,500 if a Motion for New
                                      Trial was filed, 12,500 for appeal to this
                                      court, $3,500 if petition for review was filed,
                                      and $12,500 if the petition was granted. (CR
                                      208-213). Final Judgment was June 19,
                                      2014. (CR 212).

Post-trial and appeal:                Finding of Facts and Conclusions of Law
                                      were requested. (CR 227). The Hoseks filed
                                      a Motion for New Trial. (CR 248-250). The
                                      Court made Findings of Fact only as to attor-
                                      ney fees. (CR 345; 405-12). Notice of
                                      Appeal was filed on June 19, 2014. (CR 415).



                     STATEMENT ON ORAL ARGUMENT

      The Hoseks believe that the issues in this case are straightforward and that

oral argument will not help decide the case. However, if Ms. Scott is granted oral

argument, the Hoseks wish to be allowed to argue.


                                         vi
                               ISSUES PRESENTED

       The trial court erred in granting summary judgment in favor of Ms. Scott
because the partition deed is ambiguous and summary judgment evidence establishes
that a genuine issue of fact exists whether the minerals reverted to the surface owner
after the expiration of 25 years and cessation of production.1
      This summary judgment was harmful error because the partition deed is
ambiguous and summary judgment evidence conclusively establishes that the
minerals reverted to the surface owner after the expiration of 25 years and cessation
of production.
       The trial court abused its discretion in awarding attorneys’ fees because both
sides benefitted equally from an interpretation of the deed and an award to Ms. Scott
was not fair and equitable.
       The trial court abused its discretion in allowing the possibility of forcing the
Hoseks to pay the costs of unnecessary and irrelevant documents which were
included in the record at the demand of Ms. Scott’s counsel merely to raise the cost
of the appeal for the Hoseks.




1
 There was no actual production during the twenty-five year period to extend the
agreement not to partition.
                                          vii
                          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 COURT OF APPEALS:
      COME NOW, IVARENE and VICTOR HOSEK, and file this, their

Appellants’ Brief in the above-referenced case. The Hoseks will show as follows:


                           STATEMENT OF FACTS

      On October 4, 1978, Fridolin Alex Voigt and his wife, Pearl Schnautz Voigt,

deeded the family farm to their children, Ivarene Voigt Hosek (and her husband

Victor) and Rosale Voigt Scott, in equal undivided shares. (Supp CR 16; 45). The

Hoseks and Ms. Scott then partitioned the tract, but made an agreement not to

partition the minerals for twenty-five years or so long as production continued.
                                        1
(Supp. CR 19-24; 45). Because the twenty-five years started with the present, the

partition deed did not partition the minerals, and they were severed from the surface

estate. (Supp. CR 20-22). The partition read as follows:

      “This partition does not include any of the oil, gas, or other minerals in, on
      or under the above described tract of land, and same are to remain undivided
      for a period of twenty-five years from the date hereof and as long thereafter
      as oil, gas, or other minerals are produced in paying quantities from the above
      described lands.”

(Supp. CR 20-22). The deed was unclear what happened to the minerals after the

twenty-five years was up. The intent of the deed was clearly a partition of interests,

(Supp. CR 19-24), yet did the statement that the partition did not include the minerals

just mean that the minerals were not partitioned during the time the parties had

agreed to not partition them, or did it leave them unpartitioned forever? And if they

were left unpartitioned forever, why was a twenty-five year period mentioned,

instead of just saying that the deed did not partition the minerals? This was an

ambiguity that would much later cause an oil company landman to send a quit claim

deed to Ms. Scott for signature, and begin this lawsuit, but up until the quit claim

deed, the parties treated the minerals in similar fashion.

      After the twenty-five years had passed, (in 2004), both parties treated the land

as though the minerals had reverted to the respective surface owners. Ms. Scott sold

parts of her property to the Moraleses in 1986, (Supp. CR 28), and to the Kings in

1990. (Supp. CR 31). She told the buyers that they would own the 50% of the


                                           2
minerals owned by the Hoseks under Ms. Scott’s tract after the twenty-five years

expired. (Supp. CR 49, 62, 64, and 78). The buyers paid Ms. Scott, not Ms. Hosek,

for the minerals. (Supp. CR 50). Ms. Scott even asked the Hoseks to ignore the

agreement to not partition and have the minerals revert to the surface owner before

the twenty-five years were up so that she could please her buyer and convey 100%

of the minerals immediately. (Supp. CR 73-76). There are even current wells pooled

with the land Ms. Scott sold, and the Hoseks are not getting paid any royalties on the

hydrocarbons produced, because all parties have treated the minerals as reverting to

the surface owner. Only when oil was found on the Hoseks’ land, and an oilman

asked Ms. Scott to sign a quit claim deed to cure the ambiguity in the poorly-drafted

Partition Deed did Ms. Scott make her claim. (Supp. CR 50).




                          SUMMARY OF ARGUMENT

      The Partition Deed at the heart of this case, (Supp. CR 19-24), is ambiguous

because it does not say what happens to the minerals after a twenty-five year

agreement not to petition and two possibilities are valid: (1), the Partition is

completed and the minerals revert to the surface owner, or (2) the minerals stay

unpartitioned forever. The trial court erred in saying the deed was unambiguous.

This brief discusses the many rules of contract interpretation which cause the deed

to be ambiguous.
                                          3
      Subsequent treatment of the minerals by the parties before the conflict arose

provides airtight proof as to what the parties intended. Ms. Scott told two buyers for

her land that the minerals would revert to the surface owner, and after the twenty-

five years were up, they would own the minerals. Ms. Scott attempted to bring to a

close the agreement not to partition the minerals before the twenty-five years were

up, so as to give what was the temporarily the Hosek’s minerals to the buyer

immediately. If the minerals did not revert to the surface owners, Ms. Scott has sold

the Hosek’s minerals under Ms. Scott’s land without paying the Hoseks for them,

and there are now wells pooled on that land that the Hoseks also aren’t getting paid

for. The landmen for current wells believe that the Hoseks own all the minerals

under their tract and the buyers own all the minerals under Ms. Scott’s tract. They

only gave Ms. Scott a quit claim deed to sign because the deed was ambiguous. The

trial court’s summary judgment should be reversed and the Hoseks found to own the

minerals (100%) under their land.

      Both parties needed this ambiguous deed interpreted, so attorneys’ fees should

not have been awarded to either side. Such was not equitable and just.

      The costs of an unnecessarily-long Clerk’s Record requested by Ms. Scott’s

counsel should not be assessed against the Hoseks. This point is not moot because

the appellate court could still do this, and such would not be just and equitable.

Expanding the record beyond what was proper was just one of the many techniques
                                          4
of gamesmanship Ms. Scott’s counsel used to make the appeal cost the Hoseks more

than it should.


                           ARGUMENT & AUTHORITIES

ARGUMENT ON FIRST & SECOND ISSUES

        The trial court erred in granting summary judgment in favor of Ms. Scott
        because the partition deed is ambiguous and summary judgment evidence
        establishes that a genuine issue of fact exists whether the minerals reverted
        to the surface owner after the expiration of 25 years and cessation of produc-
        tion.2

        and

        This summary judgment was harmful error because the partition deed is
        ambiguous and summary judgment evidence conclusively establishes that
        the minerals reverted to the surface owner after the expiration of 25 years
        and cessation of production.

STANDARD OF REVIEW ON FIRST AND SECOND ISSUES

        To prevail on a summary judgment, the movant is required to prove that there

is no genuine issue as to any material fact and that movant is entitled to judgment as

a matter of law. TEX. R. CIV. P. 166(a). The appellate court reviews the trial court’s

grant of a summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, the Court



2
    Again, noting that there was no production during the twenty-five years.
                                           5
must accept as true evidence favoring the non-movant, indulging in every reasonable

inference and resolving all doubts in the non-movant’s favor. Park Place Hosp. v.

Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995); Western Invs. v. Urena, 162

S.W.3d 547, 550 (Tex. 2005).

      When an instrument is unambiguous, and the dispositive facts are not in

dispute, a court may grant summary judgment and render a declaratory judgment

regarding the parties’ rights under the instrument. Berrand, Inc. v. Whataburger,

Inc., 214 S.W.3d 122, 131-32 (Tex. App – Corpus Christi 2006, pet denied); T C

Dallas #1, LP v. Republic Underwriters Ins. Co., 316 S.W.3d 832, 837 (Tex. App.

– Dallas 2010, no pet.). Extrinsic evidence of intent is admissible if the deed is

ambiguous on its face. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280,

283 (Tex. 1996).

ARGUMENT & AUTHORITIES:

      In construing a written agreement, we must ascertain and give effect to the

parties’ intentions as expressed in the agreement. Terrill v. Tuckness, 985 S.W.2d

97, 101 (Tex. App. – San Antonio 1998, no pet.). The Hoseks believe that the

Partition Deed is ambiguous. (Supp. CR 21-22). Deciding whether a deed is

ambiguous is a question of law for the courts. J.M. Davidson, Inc. v. Webster, 128

S.W.3d 223, 229 (Tex. 2003).      The court may look to principles of contract

interpretation to determine whether a deed term is ambiguous. Brown v. Havard,

                                         6
593 S.W.2d 939, 942 (Tex. 1980). A deed term is not ambiguous because of a simple

lack of clarity. DeWitt Cty. Elec. Co-Op, Inc. v. Parks, 18 S.W.3d 96, 100 (Tex.

1999). A deed term is not ambiguous simply because the parties disagree on its

meaning. Houchins v. Devon Energy Prod. Co., LP, No. 01-08-00273-CV, 2009

Tex. App. LEXIS 8064 (Tex. App. – Houston [1st Dist.] Oct. 15, 2009, pet denied).

An ambiguity arises only after the application of established rules of construction

leave a deed susceptible to more than one meaning. Id.; Universal C.I.T. Credit

Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951). For an ambiguity to exist, both

potential meanings must be reasonable. Id.

      The conflict over the interpretation of the Partition Deed arises out of the

failure of the document to state what will occur after the expiration of the twenty-

five year period and cessation of production. (Supp. CR 21-22, infra, pg. 2). Either

the mineral rights revert to the surface owner or they do not. The conflict also arises

as to whether the phrase, “This partition does not include any of the oil, gas, or other

minerals in, on or under the above described tract of land…” stands on its own, to

leave the minerals undivided until another act partitions them, or whether it is over-

riding that this phrase is joined with the conjunction “and” with “same are to remain

undivided for a period of twenty-five years…” to mean that the minerals are

undivided only for the twenty-five years set out in the same sentence.

      Arguing for ambiguity are the following principles of deed interpretation:


                                           7
(1) Texas courts apply the “four corners” rule, Luckel v. White, 819 S.W.2d

   459 (Tex. 1991), and (a) look not at isolated terms but consider the

   instrument as a whole, (b) to convey on the grantee the greatest estate that

   the terms of the deed will permit. Plainsman Trading Co. v. Crews, 898

   S.W.2d 786, 789 (Tex. 1995); Thomason v. Bradgett, No. 02-12-00303-

   CV, 2013 Tex. App. LEXIS 8576 (Tex. App. – Fort Worth July 11, 2013,

   pet. denied). The phrase “This partition does not include any of the oil,

   gas, or other minerals in, on or under the above described tract of land…”

   is an isolated phrase. (Supp. CR 21-22). It should not be interpreted alone

   from the phrase to which it is joined: “same are to remain undivided for a

   period of twenty-five years…” (Supp. CR 21-22). It also should not be

   allowed to contradict the patent purpose of the document: to partition the

   estate. While on first blush, the fact that the partition is said to not include

   the minerals may be interpreted to mean the minerals are never partitioned,

   if the whole document is read harmoniously, Frost Nat’l Bank v. L & F

   Distribs, Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005), the isolated phrase

   that the minerals are not partitioned should be read with the phrase which

   immediately follows it and with the fact that this is a partition deed. This

   gives the equally logical interpretation that the minerals are not partitioned

   for twenty-five years to allow for sharing of current production, but that


                                     8
   they are partitioned after twenty-five years, to accomplish full partitioning

   of the estates, the stated goal of the document. (Supp. CR 19-24).

(2) The consideration of the whole document, in harmony, comes from “a

   utilitarian standpoint bearing in mind the particular business activity

   sought to be served, and a court will avoid when possible and proper a

   construction which is unreasonable, unequitable, and oppressive.” Reilly

   v. Rangers Mgmt., Inc. 727 S.W.2d 527, 530 (Tex. 1987). While it is

   inequitable to deprive one party of presently-occurring or soon-to occur

   production that they may be counting on, (although this turned out to be

   wishful thinking), it is oppressive to omit the minerals from eventual

   partition, when two people who may have different businesses and

   different goals are trying to partition their estates.

(3) There is the presumption that when lands are partitioned among co-

   owners, the whole of the land is partitioned, unless some portion of the

   land is expressly excepted from the partition. Pewitt v. Renwar Oil Corp.,

   261 S.W.2d 904, 906 (Tex. Civ. App. – Houston 1962, writ ref’d n.r.e.).

   In this case, reading entire sentences as a whole, the only thing that is

   expressly excepted are the minerals for twenty-five years. (Supp. CR 19-

   24).




                                     9
(4) The presumption is that the grantor, (Ms. Scott in the case of the land the

   Hoseks will receive), intends to convey to her grantee (the Hoseks) all of

   the appurtenant rights incident to the beneficial enjoyment of property

   which she had conveyed. Rio Bravo Oil Co. v. Weed, 121 Tex. 427 (Tex.

   1932). In this case, conveyance of all of the appurtenant rights would

   mean the minerals revert to the surface owners after the twenty-five years

   or production are up.

(5) Where the instrument is capable of two constructions, one of which will

   give effect to the whole of the instrument while the other would defeat it

   in whole or in part, preference is given to the construction that will uphold

   the instrument. Bagby v. Bredhauer, 627 S.W.2d 190 (Tex. App. – Austin

   1981, no writ). This is a partition deed, and reverter of the minerals to the

   respective surface owner after twenty-five years upholds the whole

   instrument. (Supp. CR 19-24). Reverter does not ignore the phrase that

   the minerals are not (presently) partitioned, because that phrase is

   implemented for the twenty-five years of the agreement not to partition.

   (Supp. CR 20-22).

Thus, there are two reasonable interpretations of the Partition Deed: one in

which the minerals remain unpartitioned after the twenty-five years (thwarting

the full effect of partition) and one in which the minerals revert to the


                                   10
      respective surface owner after the twenty-five years are up (giving full life to

      the partition document).      Therefore, the Partition Deed is ambiguous.

      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.

      If a contract or deed is ambiguous, then parol evidence is admissible for the

purpose of ascertaining the true intentions of the parties. National Union Fire Ins.

Co. v. CBI Indus., 907 S.W.2d 517 (Tex. 1995). Such parol evidence was admitted

with the Hoseks’ Response to Motion for Partial Summary Judgment. (Supp. CR

42-82). The Affidavit of Alan Cummings, Board Certified Attorney in Oil and Gas

and noted Tittle Examiner uses statutory construction similar to just presented to

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

twenty-five years. (Supp. CR 51). The Affidavit of Ivarene Hosek testifies as to her

present understanding, that expressed by her sister at the time, and the present

understanding of the oil companies who researched title. (Supp. CR 49-50). All

believe that the minerals were intended to revert to the respective surface owner.

(Supp. CR. 49-50).

      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 St. Ry Co. v. Adams, 87


                                          11
Tex. 125, 131 (Tex. 1894).       There was testimony from several parties, and

correspondence written before the controversy arose that the parties treated the

minerals as reverted to the surface owners. Ms. Hosek testified via affidavit that her

sister told buyers of Ms. Scott’s land that they would own all the minerals under

Scott’s land after reversion. (Supp. CR. 49-50). The deposition testimony of Rosale

herself testified that the Hoseks would own the minerals for 14 more years, and then

the buyer would get the minerals under the Scott tract. (Supp. CR. 64). There was

testimony that Ms. Scott attempted to break the non-partition agreement before the

twenty-five years was up so as to be able to transfer all of the minerals under her

land to prospective buyers. (Supp. CR. 76). And in a letter to Mr. King, one eventual

buyer of Ms. Scott’s land and minerals, Ms. Scott told Mr. King he would get all the

minerals under the land in fourteen years. (Supp. CR 78-79). This is especially

credible because it all occurred before any controversy came up. (Supp. CR 68).

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 much oil

money hinged in the balance.

      Thus, the great preponderance of the evidence establishes that the intent of the

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

minerals under the Hoseks’ land belong to them. Therefore, the deed was originally

ambiguous, not unambiguous as the trial court decided, and the parol evidence


                                         12
conclusively established that the minerals reverted to the surface owners after

twenty-five years. The summary judgment was harmful because there are currently

producing oil units into which the minerals under the Hoseks’ land are pooled, but

half the money due the Hoseks is not being paid to them, due to Ms. Scotts’ false

claim. (Supp. CR 50). Other royalty owners are also being denied payment and the

wells may even be abandoned. (Supp. CR 50). The trial court’s summary judgment

must be reversed.

ARGUMENT AND AUTHORITIES ON THIRD ISSUE:

      The trial court abused its discretion in awarding attorneys’ fees because both
      sides benefitted equally from an interpretation of the deed and an award to
      Ms. Scott was not fair and equitable.

STANDARD OF REVIEW ON THIRD ISSUE:

      The standard of review for an award of attorneys’ fees on a declaratory

judgment is abuse of discretion. City of Temple v. Taylor, 268 S.W.3d 852, 858

(Tex. App. – Austin 2008, pet. denied). Whether attorneys’ fees are equitable and

just is a matter of law. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). The

UDJA does not require an award of attorneys’ fees to the prevailing party. Id.

ARGUMENT & AUTHORITIES:

      In this case, reversal of the attorneys’ fees award is necessary regardless of

whether the summary judgment is reversed.

                                        13
      If a court reverses a declaratory judgment, it is usually equitable and just to

reverse the award of attorneys’ fees to the former winner. Tanglewood Homes Ass’n

v. Henke, 728 S.W.2d 39 (Tex. App. – Houston [1st Dist.] 1987, writ ref’d n.r.e.);

Scottsdale Ins. Co. v. Travis, 68 S.W.3d 72 (Tex. App. -- Dallas 2001, pet. denied).

In this case, if the Court reverses, it is because all parties treated the minerals as

having reverted to the surface owner. Ms. Scott even sold mineral interests that she

could only sell if the rights had reverted.3 It was therefore dishonest of her to claim

that the minerals did not revert. She should just have signed the quitclaim deed and

there never would have been a lawsuit with attorneys’ fees. (Supp. CR 49-50). It is

not equitable and just to award attorneys’ fees to someone whose defense was

dishonest.

      Even if this Court does not reverse the summary judgment, the attorneys’ fees

award is not just and equitable and should be reversed. “Just and equitable” should

in most cases be tied to the party who caused the necessity of the suit. Where one

party caused the suit by having an improper interpretation, they may often be liable

for attorneys’ fees. However, it is not necessary to award attorneys’ fees to the

prevailing party. Securtec, Inc. v. County of Gregg, No. 06-01-00164-CV, 2002

Tex. App. LEXIS 8812 (Tex. App. – Texarkana Dec. 11, 2002, no pet.). In this case,



3
 Her testimony is that she thought she kept her half and only sold the Hoseks’
half! (Supp. CR 77).
                                          14
both parties “caused” the suit in that they both needed the Partition Deed interpreted,

regardless of who had the right interpretation, as a 50% interest in minerals was at

stake, so there is no party who “caused” the lawsuit more than the other, and no party

should receive attorneys’ fees. This court should reverse and render on the question

of attorneys’ fees.

ARGUMENT & AUTHORITIES ON FOURTH ISSUE:

      The trial court abused its discretion in allowing the possibility of forcing the
      Hoseks to pay the costs of necessary and irrelevant documents which were
      included in the record at the demand of Ms. Scott’s counsel merely to raise
      the cost of the appeal for the Hoseks.



STANDARD OF REVIEW ON FOURTH ISSUE:

       A trial judge has discretionary authority to assess court costs against either
of the parties or to apportion such costs between them in a fair and equitable
manner. San Antonio Hous. Auth. v. Underwood, 785 S.W.2d 25 (Tex. App. – San
Antonio 1989, no writ).

ARGUMENT & AUTHORITIES:

      Many unnecessary steps were engaged in by opposing counsel in this case in

an apparent effort by opposing counsel to raise the cost of the case prohibitively for

the Hoseks. For example, Ms. Scott engaged in lengthy tactics to make the Hoseks

add parties they did not wish to add, when she could have just added them herself at

minimal expense. Ms. Scott’s legal bills, which she sought to make the Hoseks pay,


                                          15
contained duplication and triplication of effort, and even when cut almost in half,

were more than those of the Hoseks counsel by more than ten thousand dollars.

      The most outrageous effort, however, was a request for approximately sixteen

documents which Ms. Scott’s counsel asked to be added to the record on appeal.

(CR 417). The trial court overruled the Hoseks’ objection to these additions and left

it an open question whether the Hoseks would be forced to pay for this addition.

(CR 427). This was an abuse of discretion, because it was not a fair and equitable

addition. It slowed down the appeal and added to the cost for no reason. Ms. Scott

had not perfected any appeal. (CR 423). The issues on appeal were two: (1) the

interpretation of the Partition Deed and (2) the award of attorneys’ fees. (CR 423).

Pleadings which had been superseded, or documents, such as documents relevant to

abatement or supercedeas, which were not relevant to any issue on appeal, should

not have been included in the appellate record and the Hoseks ask that this Court

rule that they are not charged the cost of adding these documents to the record, as

such would not be fair and equitable and would be an abuse of discretion.

Gamesmanship should not be tolerated when it may affect a party’s ability (and

constitutional right) to present its case. See Pennzoil Co. v. Arnold Oil Co., 30

S.W.3d 494 (Tex. App. – San Antonio 2000, orig. proceeding).




                                         16
                           CONCLUSION & PRAYER

      Bad drafting of a partition deed created an ambiguous document, contrary to

the trial court’s conclusion that the deed was unambiguous. A great preponderance

of the evidence of how the Hoseks and Ms. Scott treated the deed, before the conflict

arose, conclusively established that the minerals reverted to the surface owner after

the twenty-five year agreement not to partition included in the deed ended. This

evidence proves that the Hoseks own 100% of the minerals under their land,

therefore, the trial court’s judgment was harmful because it caused an incorrect

judgment to result and a whole neighborhood of royalty owners to have their royalty

payments withheld – not a small matter when ranching income in the area is

currently limited by a pervasive drought.

      Both parties needed the deed interpreted, so the award of attorneys’ fees

against just the Hoseks should be reversed. “Just and equitable” is a question of law,

so a judgment proving that neither side should recover attorneys’ fees should be

entered.

      Again, the assessment of costs must be “just and equitable.” Therefore a

judgment should be entered that the Hoseks not pay for the extra Clerks’ Record the

counsel for Ms. Scott required.

      WHEREFORE, PREMISES CONSIDERED, the Hoseks ask that the

summary judgment entered by the trial court be completely reversed, and judgment

                                         17
entered that the deed is ambiguous and the Hoseks own 100% of the minerals under

their land. The Hoseks ask for such other and further relief as may be just.

                                              Respectfully submitted,

                                              ______/s/ MB CHIMENE_______

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

                                              COUNSEL FOR THE HOSEKS


                       CERTIFICATE OF COMPLIANCE

     The undersigned certifies that this brief was produced in 14 pt Times New
Roman font with the required margins and number of words. There are 5373
words in this brief according to my computer’s word counter.
                                             _______/s/ MB CHIMENE_______



                          CERTIFICATE OF SERVICE

      On this, the 8th day of March, 2014, undersigned counsel has served via ECF
and email a true and correct copy of this brief according to the Rules of Civil
Procedure on this following, as witnessed by my hand.

G. Wade Caldwell                       rperez@beclaw.com
TBN 03621020                           Zachary Fanucchi
gcaldwell@beclaw.com                   TBN 24028548
Raquel G. Perez                        zfanucchi@beclaw.com
TBN 00784746                           Barton, East & Caldwell, P.L.L.C.

                                         18
One Riverwalk Place, Ste. 1825
700 N. St. Mary’s St.
San Antonio, TX. 78205           _______/s/ MB CHIMENE_________




                                  19
                               APPENDIX:

A   Texas Civil Practice and Remedies Code §§ 37.001 et seq
B   Final Judgment
C   Findings of Fact
D   The Partition Deed
E   Response to Motion for Partial Summary Judgment




                                    20
                                 TAB A
A   Texas Civil Practice and Remedies Code §§ 37.001 et seq




                                    21
Texas Civil Practice & Remedies Code
CPRC 37.001
In this chapter, “person” means an individual, partnership, joint-stock company,
unincorporated association or society, or municipal or other corporation of any
character
CPRC 37.002
   (a) This chapter may be cited as the Uniform Declaratory Judgments Act.
   (b) This chapter is remedial; its purpose is to settle and to afford relief from
       uncertainty and insecurity with respect to rights, status, and other legal
       relations; and it is to be liberally construed and administered;
   (c) This chapter shall be so interpreted and construed as to effectuate its general
       purpose to make uniform the law of those states that it enact it and to
       harmonize, as far as possible, with federal laws and regulations on the
       subject of declaratory judgments and decrees;
CPRC 37.003
   (a) A court of record within its jurisdiction has power to declare rights, status and
       other legal relations whether or not further relief is or could be claimed. An
       action or proceeding is not open to objection on the ground that a declaratory
       judgment or decree is prayed for;
   (b) The declaration may be either affirmative or negative in form and effect, and
       the declaration has the force and effect of a final judgment or decree;
   (c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the
       exercise of the general powers conferred in this sectionin any proceeding in
       which declaratory relief is sought and a judgment or decree will terminate the
       controversy or remove an uncertainty;
CPRC 37.004
   (a) A person interested under a deed, will, written contract, or other writings
       constituting a contract or whose rights, status, or other legal relations are
       affected by a statute, ordinance, contract or franchise may have determined
       any question of construction or validity arising under the instrument, statute,
       ordinance, contract or franchise and obtain a declaration of rights, status, or
       other legal relations thereunder;
   (b) A contract may be construed either before or after there has been a breach;
   (c) Notwithstanding Section 22.001, Property Code, a person described by
       subsection (a) may obtain a determination under this chapter when the sole
       issue concerning title to real property is the proper boundary between
       adjoining properties.


CPRC 37.005
A person interested as or through an executor or administrator, including an
independent executor or administrator, a trustee, guardian, other fiduciary, creditor,
or of the estate of a decedent, an infant, mentally handicapped person, or insolvent
may have a declaration of rights or legal relations in respect to the trust or estate:
   (1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or
       others;
   (2) To direct the executors, administrators, or trustees to do or abstain from doing
       any particular act in their fiduciary capacity;
   (3) To determine any question arising in the administration of the trust or estate,
       including questions of construction of wills and other writings; or
   (4) To determine the rights or legal relations of an independent executor or
       independent administrator regarding fiduciary fees and the settling of
       accounts.


CPRC 37.0055
   (a) In this section, “state” includes any political subdivision of that state.
   (b) A district court has original jurisdiction of a proceeding seeking a declaratory
       judgment that involves:
   (1) a party seeking declaratory relief that is a business that is:
        (A)organized under the laws of this state or is otherwise owned by a resident
            of this state; or
        (B) a retailer registered with the comptroller under Section 151.106, Tax
            Code;

   (2) a responding party that:
   (A)is an official of another state and
   (B) asserts a claim that the party seeking the declaratory relief is required to
       collect sales or use taxes for that state based on the conduct of the business
       that occurs in whole or in part within this state.
   (c) A business described by Subsection (b)(1) is entitled to declaratory relief on
       the issue of whether the requirement of another state that the business collect
       and remit sales or use taxes to that state constitutes an undue burden on
       interstate commerce under Section 8, Art I, United States Constitution.
   (d) In determining whether to grant declaratory relief to a business under this
       section, a court shall consider:
       (1) The factual circumstances of the business’s operations that give rise to the
           demand by the other state, and
       (2) The decisions of other courts interpreting Section 8, Art. I, United States
           Constitution.
CPRC 37.006
   (a) When declaratory relief is sought, all persons who have or claim an interest
       that would be affected must be made parties. A declaration does not prejudice
       the rights of a person not a party to the proceeding.
   (b) In any proceeding that involves the validity of a municipal ordinance or
       franchise, the municipality must be made a party and entitled to be heard, and
       if the statute, ordinance, or franchise is alleged to be unconstitutional, the
       attorney general of the state must also be served with a copy of the proceeding
       and is entitled to be heard.
CPRC 37.007
If a proceeding under this chapter involves the determination of an issue of fact, the
issue may be tried and determined in the same manner as issues of fact are tried and
determined in other civil actions in the court where the proceeding is pending.
CPRC 37.008
The court may refuse to render or enter a declaratory judgment or decree if the
judgment or decree would not terminate the uncertainty or controversy giving rise
to the proceeding.
CPRC 37.009
In any proceeding under this chapter, the court may award costs and reasonable and
necessary attorneys’ fees as are equitable and just.
CPRC 37.010
All orders, judgments and decrees under this chapter may be reviewed as other
orders, judgments and decrees.
CPRC 37.011
Further relief based on a declaratory judgment or decree may be granted whenever
necessary or proper. The application must be by petition to a court having
jurisdiction to grant the relief. If the application is deemed sufficient, the court shall,
on reasonable notice, require any adverse party whose rights have been adjudicated
by the declaratory judgment or decree to show cause why further relief should not
be granted forthwith.
   TAB B
Final Judgment
                                            CAUSE NO, 13-06~0559-CVA

      IVARENE HOSEK AND VICTOR                             §                     . IN THE DISTRlCT .COURT
      HOSEK,                                               §
                                                           §
             Plaintiffs,                                   §
                                                           §
      v.                                                   §                        8lsT JUDICIAL DISTRICT
                                                           §
      ROSALE SCOTT,                                        §
                                                           § .
             Defendant.                                    §                ATASCOSA COUNTY, TEXAS

                                                 FINAL JUDGMENT

             The Court; having ·considered the pleadings~ .the file,. the evidence presented~ and the

      argument of counsel, finds that the followingfmal judgment should be entered.
                                   '                                        .          '          .'

             On March 3, 2014, the Court issued          an Order Granting Defendant's Motion for Partial
      Summary Judgment. That Order provided, and the Court hereby incorporates that Order, and

      orders, adjudges and.decrees as follows:

                     The Court rules that the Deed ofPartition dated August 17,.1979 between

             Plaintiffs IVARENE. HOSEK and VICTOR HOSEK (the · "Hoseks''} and .

             Defendant ROSALE SC.OTT ('~Scott") recorded at VoL 510, Page 126, Real ·

             roperty Records of. Atascosa County, Texas (the "Partition Deed") is

             unambiguous as a matter of law and ~as the effect as urged by .Defendant.

                   ·. IT IS THEREFORE·ORDERED that judgment. is gr:anted in favor of

             Defendant ROSALE SCOTT and that: (1) the Partition Deed is u,rtambiguous as a

            . matter of law; (2) the .Partition Deed partitioned the surface, but did not partition

           . the minerals; (3) as to the mine,s, the Hoseks and Scott agr~d not On! y tha~ they

             were not      part1t1orted~   but also ;th~t they. would .not part1tron them until ·the
                                             .                     .fLB)   OJ ·. 37        0'0.()0<.-fl ,M . .
                                                                   MARGARET E. urn.ETON. DISTRICT a.ERK
                                                                                                                 Page 1·1




210
i•
                      expiration of the stated titne limits, and whether the minerals would ever be

                       partitioned by the ownets remained an open· question and the Hoseks and .Scott

                       continued. to own an. undivided
                                               .· . .
                                                       one-half of the minerals, each; and
                                                                  '                '     ..
                                                                                            (4) that since

                       there has been no subsequent 1)artitiort of the mirtera~s, Defendant ROSALE

                       SCOTT therefore currently owns fifty percent (50%) of.the minerals under the
                                              .                                        .                 .     .                   .

                       169.27 ac.res ofiand, the surface of which was deededtothe:Hoseks on .pages 1-3

                       of the Partition Deed, whose legal description is. attached as .$xhibit                                             "A" and
                       incorporated by reference. ·

                      On Jm1e 18, 2014, the Court issued an Order Granting Defendant's Notice of.Nori-Suit

           ·WithourPrejudice Of Defendant's Remaining Counterc~afms Agliinst Plaintiffs, which non-suited

           . Defendant's counterclaimsfotbonuses and royalties against Plaititiff.

                       On June 18, 2014, the Court issued                 an   Order Granting Attorneys' Fees, which granted

            Defenda~t attorneys' fees as ~]lo:wn inthatOrder. Therefore, it is or4ered,:adjudged and decreed
           -that Defendant ROSALE SCOTT have and r~cover judgroent against Plaintiffs IVARENE
              .   .                   .           .        .      .   .                .    .                      :           .           -        '



            HOSEK and VICTOR HOSEKin the following amounts:                                          . .                               .       .        .         .

                       1. $      ~ 1, 57J70. @_.··in attorney's fees tbroughenttyofjudgmentand·setting of
                           a supersedeas bond. .


                      . 2. A conditional award o[additi<:mal reasonable and necessary attorney's fees of$ _ __

I
!
                      .f 1--, $!) ~in
                           f .     . . ·. .
                                                      the event a ne:w trial is sought in the trial court and Rosale Scott
                                                                                       '.        .                         .·

                           prevails, plus if an appeal occurs and Rosale Scott prevails, in the following amounts:
                                 ..                   <.e.-=- .                .                ..                  ..                             ~..            ..
                           1)    $11-- )'T'D ·            for an appeal .to the Court of Appeals; 2) $                          7., )-rT'O ·                 if any
                                                                                                     .                                                  .
                           part of the judgment is appealed to the Texas Supreme Court by Writ.ofEn-or; and 3)


                                                                                                                                                            Page 12

                                                                                                                           .
                                                                                                             c•~•: }~r~"~t::~~:_::::-:'·~:~~:, ...
                                                                                                             VOL.
                                                                                                                       0

                                                                                                                                       8?2         PAGE - .,     t/tJi;"T .
     211
    ...
          ,,,..   "l.;
                   l<                             ··cB--                     .       .       .. · .·. ... .                       ·.
                                      $   l J.-;, ~-       should the petition for review be granted
                                                                     .                          . .  by the Texas Supreme Court

                                      and Rosale Scott prevails.


                                THEREFORE, IT IS ORDE~D, ADJUDGED AND DECREED· that. judgment is

                         entered as set forth above ..·
                                .                      .                 .       .                                    .                .

                                 IT IS FURTHER,             ORDE~D       that all court costs   in~urred    by Rosale Scott in ·

                         conpection with this action are taxed against Plaintiffs; Ivaiene Hosek and Victor Hosek;

i                               IT·~IS FURTHER ORDERED, ADJUDGED, AND DECREED .thaUhis Judgment shall

                         draw post-judgment interest at the rate of five ,percent (5%) per anbtim from the date of this

                         Judgment until it is paid, pius costs o.fcourt. ·
                                                                                 .       .
                                 IT IS ·FURTHER ORDERED, ADJUDGED; ANI:> DECREED that Defendant. shall

                         immediately have all writs, orders and. other assistancefor collection ofthisjudgment, for which

                         let execution issue immedfately;

                                 IT. IS FURTHER ORDERED, ADJUDGED. AND· DECREED that all relief not·

                         specifically granted is denied .

                                · This judgment finally disposes of all parties and claims, is appealable and is a final

                         judgment.·

                                    SIGNED this                   dayof .·       ~              ~2014.

                                                                         .0~~~

                                                                                                                                           Pagej3
                                                                                                    : ,;:CIVIL }3:¥~~1(~~·~~;:~~'<tY·'i;:~·:,;,.,, · ·-

                                                                                                       VOL           8'CJ        PAGE          J!::f~{P-~:
          212
      •
                    APPROVED AS TO .FORM ONLY:



                    Michele Barber Chitrtene .
                    State Bar No. 04~07500     . .
                    THE CHIMENE LAW FIRM
                    15203 Newfield Bridge Lane .
                    Sugar Land, Texas 77498
                    Telephone:. 713-474~5538
                    Email: .micbelec@airmail.net

                    Co-counsel:

                    ROBERT J. OGLE .
                    State SarNo. 15231350
.I                  ROBERTJ. OGlE~ ATTORNEY AT LAW
                    508 E; San Antonio Street
                    Boerne, Texas 78006
                    Telephone: (830) 249-9358
                    Facsifuile: (830) 249-8508
                    Email: ·Bob@ogleattorney,com

                    ATTORNEY FORPLAINTIFFS,
                    VICTOR HOSEK AND IVARENE HOSEK •


                "                                                .
                    BARTON,:EAST & CALDWELL; L.L.P.
                    One.RiverWalk Place,Suite 1825 ·
                    700N. St Macy's Street
                    San Antonio; Texas 78205
                    Telephone: (210) 225;.1655
                    Facsimile: (21 0) 225.:8999 ·


                    By: ~------~~~~--~--~--~--
                       .G. WADECALDWELL
                         State Bar No . .03621020.
                         Email: gcaldwell@beclaw;com
                         RAQUEL G. PEREZ
 I.                     ·State BarNo. 00784746
 I                      ·Email: ·q;erez@beclaw.com

                    ATTORNEYS FORDEFENDANT, RO~AL:E SCOTT
                    M:\2000\2.200 OIL AND OAS CLIENTS\ Ill Hosek v SCottiP,IeadlrigsllUDOMENT.do<'.

                                                                                                                           Pagel4
                                                                                                      ·ciVIL

                                                                                                      VOL      3'S .PAGE     [L/:1£1.
          213
    TAB C
Findings of Fact
                                                                                   FLED    £..t : I t, o·a.oCKLM
                                                                                   MARGARET E. UITl.ETON, DISTRICT Q.ERI(



                                                                                           SEP - 2 2014

                                                                                   :-~
                                      CAUSE NO. 13-06-0559-CVA

      IV ARENE HOSEK AND VICTOR                       §                     . IN THE DISTRICT~
      HOSEK,                                          §
                                                      §
             Plaintiffs,                              §
                                                     §
      v.                                              §                      81 ST JUDICIAL DISTRICT
                                                      §
      ROSALE SCOTT,                                   §
                                                      §
             Defendant.                               §                   ATASCOSA COUNTY, TEXAS
                                                                                              --    ·•    ..... ~-   -- ··-- . --       -
                                                                                                                                    .....

                           FINDINGS OF FACT AND CONCLUSIONS OF LAW

             On this day came on to be considered Defendant Rosale Scott's Proposed Findings of

      Fact and Conclusions of Law and the Hosek's Proposed Findings of Fact and Conclusions of

      Law.

             The Court, after considering the Proposed Findings of Fact and Conclusions of Law of

      both parties, finds the Defendant's proposed Findings and Conclusions as to attorneys' fees are

      consistent with its previously declared rulings, and should be entered as the Court's Findings of

      Fact and Conclusions of Law. The Court declines to adopt the Plaintiffs' Proposed Findings of

      Fact and Conclusions of Law. The Court declines to make Findings of Fact and Conclusions of

      Law-as_to_the_.merits of the Summary Judgment for
                                                 '   '
                                                     "'
                                                        the reasons- set. - forth in Defendant's
                                                          "   .   '   ~        "




      Objections to the Hoseks' Proposed Findings of Fact and Conclusions of Law.

             With respect to the granting of attorneys' fees to Defendant, the Court now makes the

      following findings of fact and conclusions oflaw.

                                                     I.
                                          FINDINGS OF FACT

             1.      An award of attorneys' fees to Defendant Rosale Scott is reasonable and

      necessary.


                                                                                                         Page 11

405
      ~'
i .
; i
       '
,I

                    2.       G. Wade Caldwell is the attorney for Defendant Rosale Scott and provided live

             testimony, an affidavit, and time records that were entered into evidence to support Defendant's

             Motion for Award of Attorneys' Fees.

                     3.      Mr. Caldwell Yias licensed to practice law in the state of Texas in 1984 and has

             practiced in San Antonio, Texas.

                     4.      Mr. Caldwell practices law primarily in civil litigation and oil and gas and is

             familiar withJhe.fees customarily charged in Bexar
                                                           .. - .   --
                                                                and Atascosa counties-· on cases
                                                                                         . ,_    .such
                                                                                             ·-"'"   ___..,_this..... ___ ... _..
                                                                                                    "' as            .              _




             one.

                     5.      Mr. Caldwell is familiar with the factors taken into account by the State Bar of

             Texas and courts in the state of Texas in determining reasonable and necessary attorney's fees.

                     6.       Mr. Caldwell is familiar with the fees charged for similar cases in Atascosa

             County, Texas.

                     7.      Since Mr. Caldwell has practiced law in the state of Texas since 1984, he is

             familiar with the range of billing rates for legal services rendered by attorneys possessing his

             experience, skill, knowledge, reputation, and background in the civil litigation field.

                     8.       Attorneys from Bexar County frequently practice law in Atascosa County because

             of, the_~lO.§.€?. ,p_rox!:rpi!y between Bexar and Atascosa Counties. Therefore, it is reasonable to

             charge attorney fee rates from Bexar County in Atascosa County.

                     9.       Mr. Caldwell has experience handling appeals in Texas State appellate courts.

                     10.      Practicing in the civil litigation field regarding mineral titles is a complex area of

             practice.

                     11.      Mr. Caldwell obtained a positive result for Defendant because Defendant

             prevailed on her Motion for Partial Summary Judgment.



                                                                                                                  Page 12
       406
                  12.       Plaintiffs did not achieve a benefit by filing the instant litigation to the extent that

           the court found in favor of Defendant.

                   13.      This case was defended by defense counsel on a contingency fee basis for forty

           percent (40%) of the gross amount recovered by Defendant. Defense counsel also advanced

           expenses incurred in this litigation.

                   14.      Even though the law firm of Barton, East & Caldwell, P.L.L.C. defended the case

           on a.contingency basis, the attorneys and legal    st~ff that   worked on the case tracked thei~ tj_me Qn

           an hourly basis.

                   15.      Defendant Rosale Scott submitted copies of time records from the law firm of

           Barton, East and Caldwell, P.L.L.C. reflecting time spent by attorneys and legal staff from May,

           2013 to March 2014. Privileged information was redacted from the time records. The time

           records were attached to Defendant's Motion for Award of Attorneys' Fees and were admitted

           into evidence.

                   16.      The amount of $315.00 per hour ($240.00 for associates) is a fair, reasonable and

           customary hourly fee for an attorney practicing in Atascosa County with the knowledge, skill

           and experience of Mr. Caldwell for this type oflawsuit.

                _U.:.._ ,. TheJe.CLcharged     in this case is well within the parameters of the customarily

           charged fee in Atascosa County, Texas for civillitiga.tion matters.

                   18.      The rates of legal assistants reflected in the time records submitted by Defendant

           are reasonable and necessary and their work was done under the supervision of an attorney.
'I
 I
                   19.      The work reflected on the time records submitted by Defendant was reasonable

           and necessary.




                                                                                                            Page   13
     407
..     •   <




                      20.     The time records submitted by Defendant reflect that slightly less than 355 hours

               were spent on the claims which allow recovery of attorneys' fees between May 2013 and

               February 28, 2014. This is a reasonable amount of time in light of the fact that the parties

               engaged in written discovery, took depositions, filed and argued a Plea in Abatement, filed a

               Motion for Partial Summary Judgment, filed a Motion to Strike Expert Report and Exclude

               Expert, filed Motions to Compel, and were set for trial in January 2014.

                      21.     Between the date last reflected in the time records submitted by Defendant,

               additional legal work was performed by Mr. Caldwell as well as other members of his legal staff,

               including preparing, filing and arguing the Motion for Attorneys' Fees, preparing a Final

               Judgment, subpoenaing records from EOG Resources, Inc., and setting the objections of EOG

               Resources, Inc. for hearing.    In his affidavit, Mr. Caldwell estimates that this involves an

               additional 50 hours ofwork. This additional legal work was both reasonable and necessary.

                      22.     Mr. Caldwell provided evidence both in the form of live testimony before the

               court as well as in an affidavit admitted into evidence as to how the fees of his law firm were

               segregated, as required by Texas law.

                      23.     Defendant segregated and did not include, in the fees that Defendant is seeking,

                            - __
               fees which are related
                                ,... ...only to the counterclaim or other non-recoverable case matters.

                      24.     The total hours reflected on the time records submitted by Defendant total

               approximately 381.73. From this amount, Defendant segregated and deducted approximately

               28.8 hours that reflected legal services performed for solely non-recoverable claims or other non-

               recoverable case matters.

                      25.     Defendant segregated the attorneys' fees relating to the Motion for Partial

               Summary Judgment and requested 100% of those fees.



                                                                                                          Page 14
     408
               26.              Non-segregable time entries are time entries where the legal services advance

      - both recoverable and non-recoverable claims and the time entries were not clear if the work

       related solely to the claims which allow recovery of attorneys' fees.

               27.              Mr. Caldwell provided evidence that in his opinion, eighty percent (80%) of these ·

       non-segregable time entries are for work attributable to the claims which allow recovery of

       attorneys' fees and twenty (20%) is related to work attributable to non-recoverable claims.

       Therefore, subtracting the non-recoverable entries and reducing the non-segregable entries by

       twenty percent (20%), the reasonable and necessary attorneys' fees incurred through the last

       invoice on the time records submitted by Defendant are swnmarized and calculated as follows:

       (a) non-segregable fees are $57,945.83; (b) recoverable fees relating to the Motion for Partial

       Summary Judgment are $17,832.49; (c) non-recoverable fees relating to EOG are $6,502.50; and

       (d) non-recoverable fees relating to the counterclaim are $368.00. Accordingly, total attorneys'

       fees are $82,648.82.

               28.              Defendant then segregated and reduced the total attorneys' fees of $82,648.82 by

       the following amounts: (a) $11,589.17 which constituted a 20% reduction ofthe non-segregable

       fees; (b) $6,502.50 which constituted the non-recoverable fees relating to EOG; and (c) $368.00

           .         .   ....   -·-
       which constituted non-recoverable fees relating to the counter-claim.

               29.              Accordingly, the total attorney fees sought by Defendant through February 28,

       2014 total $64,189.15. These attorneys' fees are both reasonable and necessary.

               30.              Defendant then requested an additional $10,000 of attorneys' fees for additional

       work performed from the date last reflected on the time records through the collection of

       judgment.

               31.              Accordingly, Defendant sought total attorneys' fees in the amount of$74,189.15.



                                                                                                          Page 15
409
    ..     .!!' •
              •



                           32.    $74,189.15 is a reasonable and necessary attorney's fee for the legal services

\                   performed on behalf of Defendant for the claims which allow recovery of attorneys' fees, for the

I                   work reflected on the time records thru February 28, 2014 and performed thru the entry of a

                    supersedeas bond.

                           33.    If a motion for new trial 'is necessary, a reasonable and necessary, attorneys' fee

                    would be $3,500.00.

                           34.    In the event any part of the judgment is appealed to the appropriate Court of

                    Appeals and Defendant prevails, a reasonable and necessary, attorneys' fee would be

                    $30,000.00.

                           35.    In the event any part of the judgment is appealed to the Texas Supreme Court by

                    Writ or Error and Defendant prevails, a reasonable and necessary, attorneys' fee would be

                    $15,000.00.

                           36.    Should the petition for .review be granted by the Texas Supreme Court and

                    Defendant prevails, a reasonable and necessary, attorneys' fee would be $25,000.00.

                                                             II.
                                                     CONCLUSIONS OF LAW

                           37.    Under the Declaratory Judgment Act, a court may award reasonable and

                    necessary'attomeys' fees as are equitable and just. GuideOne Elite Ins. v. Fielder Rd. Baptist

                    Ch., 197 S.W.3d 305,311 (Tex. 2006); Bocquetv. Herring, 972 S.W.2d 19,21 (Tex. 1998).

                           38.     The Texas Supreme Court has adopted eight factors to be used by the fact finder

                    to determine the reasonableness of attorneys' fees. Arthur Andersen & Co. v. Perry Equipment

                    Corp., 945 S.W.2d 812 (Tex. 1997).

                           39.     The Arthur Anderson factors are also considered in contingency fee cases. Id. at

                    818.


                                                                                                             Page 16

         410
..     I' •




                    40.      The eight Arthur Anderson factors are:

                             a.     The time and labor required, the novelty and difficulty of the questions
                                    involved, and the skill required to perform the legal services properly;

                             b.     The likelihood that the acceptance of the particular employment will
                                    preclude other employment by the attorney;

                             c.     The fee customarily charged in the locality for similar legal services;

                             d.     The amount involved and .the results obtained;

                             e.     The time limitations imposed by the client or by the circumstances;

                             f.     The nature and length of the professional relationship with the client;

                             g.     The experience, reputation, and ability of the attorney performing the
                                    services; and

                             h.      Whether the fee is fixed or contingent on results obtained - that is, the
                                     uncertainty of collection before the legal services have been rendered.

                     Arthur Anderson, 945 S.W.2d at 818·819.

                     41.     A party is not required to present evidence on all eight Arthur Anderson factors.

              Academy Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex.App.-

              Houston [141h Dist] 2000, no pet).

                     42.     Defendant Rosale Scott submitted sufficient evidence of the relevant Arthur

              Anderson factors.

                     43. -   Itenuzea time records can establish the time and labor required in a case.   Morrell

              Masonry Sup. v. Lupe 's Shenandoah Reserve, LLC, 363 S.W.3d 901, 909 (Tex. App. -

              Beaumont 2012, no. pet.).

                     44.      An award of attorneys' fees to Defendant Rosale Scott is equitable and just.

                     45.      Although $74,000.00 is a reasonable and necessary attorneys' fee for the work

              performed by defense counsel in this case through the entry entry of a supersedeas bond, it is

              equitable and just to reduce such fee to $39,500.00.


                                                                                                          Page 17

     411
                 46.          If a motion for new trial is necessary, a reasonable and necessary attorneys' fee

      would be $3,500.00, however, it would be equitable and just to reduce such fee to $2,500.00.

                 47.          In the event any part of the judgment is appealed to the appropriate Court of

      Appeals and Defendant prevails, a reasonable and necessary attorneys' fee would be $30,000.00,

      however, it would be equitable and just to reduce such fee to $12,500.00.

                 48.          In the event any part of the judgment is appealed to the Texas Supreme Court by

      Writ or Error and Defendant prevails, a reasonable and necessary attorneys' fee would be

      $15,000.00, however, it would be equitable and just to reduce such fee to $3,500.00.

                  49.         Should the petition for review be granted by the Texas Supreme Court and

      Defendant prevails, a reasonable and necessary attorneys' fee would be $25,000.00, however, it

      would be equitable and just to reduce such fee to $12,500.00.

                  SIGNED this                Y~           day of August, 2014.




                                                                                            ~DJ.SHANNON
                                                                                                  Presiding Judge




      G. AD CALDWELL
      State Bar No. 03621020
      BARTON, EAST & CALDWELL, P.L.L.C.
      One Riverwalk Place, Suite 1825
      700 N. St. Mary's Street
      San Antonio, Texas 78205
      Telephone: (210) 225-1655
      Facsimile: (210) 225-8999

      ATTORNEYS FOR DEFENDANT
      M:\200012200 OIL AND GAS CLIENTS\12 I Hosek v Scon\Pieadings\Order Adopting Defs FOF.docx




                                                                                                                    Page   18
412
   TAB D
Partition Deed
J.



                                 •                               DEED 510
                                                                                                               •
                   V:l.c:l:or Hoaek, at a1 to ltoaala Voigt Scott, at a1




                         Th'lt        '~<'·'·    V1ct,r     H-:~aelt   ant\ l·til"e, !V'I\r"~:le '/o1,t Hn13ek,              ot the
     Chunty or \·!p ""ln, St··~e of Te~as, and RoeB.le Voi;&t Scott of the County
     of i3(>x,.r, State or 'l'exA.a,                          ll~tve        nnd hold 1n oo::tlan the lPnda here1na:t'ter
     m~~~1oned,              ~nd ~re               dee1roua or          maki~g          partition of           tb~   akm&, it is
     hereby covunanteC!, grllnted, and agreed by and be"t;-r.-en Raid par1:1es, and
     eaoh       or~      ther.l covenl!'.n':a, 5rants, conoludea, a.nd. agrees :f'o:r                                   b1~~tael.f,

     t!'le::!lselvep, hie and their heirs and assigns,. tllat a :partition o:t' said
     lP.nda be :ra<le aa follows, to-w1t:
                         F!~·at.           The SPi:'l. V!otor H"sek ani                      ~•Ue,     lverene Voigt Hosek,
     sh,ll        fro~       henceforth bnve, hold,                            poesee~        and enJoy in severalty by
     ti1f!"l!!<   lvt>fl     >'~nd         to thP.msel.vea nn(\               t<:~    tnem   ar~'\   their heirs l.'.nd     as31~-na

     for     th~1r 'i<~rt,                      ahR:"e, 1ntl;!:t" st.1tn<l            ;;,roport1~m     or     r.!il.1d \Eonde and
     prer.rl.!ef!. Rll thP.t CE"t•tl\1n                         !){'1:"\i    or      l ... nl\ Si tu='ted in Atascosa County,


                         207.??            ~or~~       or   ~nn~,      situRte~          ooout 20 m1len S 85 deg. E.
     fr'l'll J"lu\"'<\"n~'"~n, '.:'fi':-:R.~, R.:"ld be.in!S m."l.:.te U"tl of ll acres out oi" the John
     f!n~~..lll S"<lT'7<!:f :to. 21.:.., Abstrll'.ot ilo. J9J·· 27 r.oreR out of the H. B.
     Tht->..,"b:!l.l'l ~u;rVE<:f Ih. 2l.O, Ab"!l'tr"rct Uo. e49; l.0$.?7 s.croen out o'f' the
     Gn"l, '''· Th(l!!l·"Ae SurvF-y ~lfl. 209, Abstr·•11t li':l. S:.05; l!lnrl 64 acres out
     ot thr-: Jol':.'"l S'i'lith l!•Ir\'"!:f Ho. 21J, Ab'!t "let ~':!. SOL:.; >'\nd be1n'{ a :-.art
     ?.i' 5u'bC!.1•r1o1.ona !Iva. I, II, r,..nd III ot the Robert ICJ'9use l.l.OJ P.cre
     tr"'r.-:;, e.1d          r.~o~.i\1.   207.77 acr•}s-, in one body,                         b•!!ln~     daaor1bed by metes
     r.n<l. bcundl'           ::.1!     fnl"':.ovr., t?-'·'it:
                  s.:::.:J-!;~:~;::·!.1 at a c"r::~or fflnt'IEI ::.ost on thit ~- l"l. side ot (\. 20
     f'lot n•..;':l:!.1e ro"d trRVl:-:-ein~ '!::t." R':lbert ?.':::'t".use tr:tct oJ' lanfl, tbF. ss.me
     h!!1ng· -:;he east oorncr o!' Suod1V1.<."1cn Uo. III. and the eRst -:~o:rner o:t'.
     ti'U.~ tr!"r.-:;

                  ??i:::::o::.: s • .50 de;s. ">? • ··r. 793 .o :'.'l"<'t ..,1 ;;::,. tho North line ?f'
     ,..,_ trl 20 t'•Jnt ro·•d to ,:. e: t":te ::~et on lll\1!1':1 1'or tbe ~o-.;er GQ'J. th111Ut
     r~l')rn"r <:~f' ;;i;1a tr•-:ct :md tllt1 J.o•:t~r eouth':~tsi: corn!.'!.' of a JZ2.6 £\are
     tr,1c~;

                         ?~U~               :-t. uo    dec\. O"J 1 1:1. 1?:37 • .5 tfet to                2   s'&·,.ite oet tor the
     \:l:wr        south•test corner of' th111 tr1et e.nn ti\!;) 1n"lor a•JUthes.i!!t" corne-r
     ?~    ocld 32'2.6 tta-re                       tr;,~t;


                           :'HE':o:a: s. 50 deg. 00' iT. lS6o.o teet                      'C•J :\ str~e s:et t'or the
       u••:·;e?'        ::t•outh·~P.rt           f!l')rne-,. Oj' thtP trl'at 'l\nd a Cl·:>::ont·::" or &"in J22.6 aere
       tt"t•... tJ ~;




                                                                  12H
                                                                                                                                       f.
                                                                                                                                       ;:.,.,
                                                                                                                                       .......
                                                                                                                                           ~     .
                                                                                                                               -··· .

                        •                                                                         •
                                                                                                                           .

                                      ·( JEED 51 0 .'l
                                        ...-.,... ........""!',"!•-.---....._ ...




             TF':::i~CE t'l'. 40 deg. 00' \i. ?.91.5.0 teet t., :~ stl\kf. set in tl:P.
    acmth f·;nce line c1' an 5.6 11ors 1::!:"1\0'C for thb llorth•·:-e-at no!"ner of
    this traot B.n!\ tlla Northe,st corner of :Jflic.t 32'-· 6 !'ere tro~tet;
                '?H!l:i~·JE N. 69 r\llg. 3?' E. :t.l?. • .5 feet wlt!'l t&ncP Hne to the
    ~~uthe~st      r.?!"ner fF-noe      ~ost          of   sn1~         8.6         ~ere tr~c~;

                    THS!H:~E N. 0 de:)• 33 W, :3?3 • .5 rr~e'C llllth ftt:tDe line to the
                                                  1
    nol:'tht> .. ':'!t corner fence !'loet of snid 8,6 Acre troct;
                T~NCE         N• .59 deg. 32 1 E • .5?0.0 teet With fenoe line to
    oornar tenoe        ~oat;


              TW.IiCE N. 39 deg. 'J7 1 "II. 363 • .5 teet ~"1th t'elloe 11ne to corner
    fence Tl:Jf.lt foi' aoi'nt: I" 1 SRJ!le being the ''lea-:: cornei' or Bubdi v1aion
    No. III;
             'l'HEllCE ~If • .53 deg. 31 1 E. 14)2.0 feet ,.,1 ~h !'ence line to
    !lorner r~nce :uo~>t t'?r the Northear.t oornt•r of this trqot, sa!l!fl being
    the No7'th corner or 9ubdl-.riaion No. III;
                '!'H!!:?tCE 5. 40 deg. 00 1 E • .508).0 feet "'ith the co:n£on
    h?u.nc\a:-y f:•nce lin~ of SubcUv1s1'lnB llos. III i!..n:t IV to the :place of
    b" !!1n!'l1n•; 1 ctJnt'l1ninz ,.,1 thin tht- ab,ve metes <~n•l b:rund:! 207. ?7 'ltlres
    or l~n~, oom~I'i~e~ a~ aforanaid of 11 ~cres out o~ the J~hn Herron
    eurv•·y l1n. 214; 2.7 'lCl'Pt;J n•1t o'f thP. .!f. B. 'l'l'u'o'l:mJ.d Survey I:n. 210;
    10.5.7? rnt'li!f1 out or thP :leo. t-1. '!'h':!'V'I.'! Su;•v:!y N.-,. 209; a~ 6q. Rcreo
    out o'!' th:· J"l!m S!r.i th &1:-VP.Y No. ?:t). Su""Vf!ycd on AJ'or1J. 19 1 1948,
    by John,,;. ?P.•'l, C•n1nty Surveyor of Atr~ncoett C"'unty, TrY.fl9.
    And b~1n3 the Sll!!lH 1P.nd neeor1be<l in dee1l c!.l!.:cd )ir;y 6, 1945, t'.rom
    L. 'il. SUe7'en to FlUDOLill VOIGT an.;L retJ.:trdRc.'l. in Vo1. l.59 1 Pa3eo
    3?9-382, of the DR~ct R~oor~~ llf Atn~oos~ County, 'l'ox~~ •
    .t..:.:ss
            Pli. th~t":: cert11.1n t:-e.ot or TIP.!"cel of J.:m=". c·:.nt1~:11ns 38-5 scr~s
    of' l.Rnd, b<:?:ln~ a :•ort,.on of a 207-77 not"es t~.. ,ot t'le;;crlbed as Firat
    'l'r~ot 1 convAyud to Victor H:~sek and ,.tile, IV(\'t'ene Vo1,;t Hc.sEok, •md
    RQsRle V'llgt Scott, ....,,., :{art"P.nty Deed r'lated C:lt·iiJ~r 9, 1~?6, ot record
    1n 'lolurne t~91, PRges 288-291 1 DPecl. Re'lordP or At~u:o'l!l':l County, 'l't-:;.'ls,
    comnriP~~ of 2).10 eareo out of the H. B. 'l'heob~lc\ Survey ff210•
    Ab"!'tt'"!Ct #81+9, Pnd 15.4 e.c!•es out ox• th~ Geo. \1. Tho!:!'\!\ Survey 1'i?09,
    AbRtr.. ct #8l~3, r.;;o1<:'1 )8.5 .~J.arr.a beinf; r.tore Jll:l.rtiaula:oly described ~g
    fol:to•·ro::
                  B;;;.Jnm:rtiG at a 1/2 inch ~a1vsnized pipe set on th~ Northes11t
    lJnundRl"Y' J.ine or !0'•11\ 20?.?? nore t"t"not 1'or th~ ~o:rt?l r:or·1-.·r or l:hlo
    t'l' .. nt, f-ror.1 which Pl.Roe or Be~int,ing 1 the lforth corner of sJJ1d. 20?.?7
    Acre t,.Pct be .. re N. 40 deg. 00 r.t1n. ;·r. • l?Ol.OO teet;
                          40 1\e;, E. 33.51+.20 feet to a J/4 tnoh &a.lvan1~ed
                TH.~:~n:: S.
    '01'~"' f~un:1 on thr·Nnrth•••est Right-of-URy line: ot an edat1n~ SO f~::et
    'lOUnty l:'n"'d for th~ Es:tst CIJJ"nfii' or ~hi!i! trlll)t;
                '!':f·~!TCE   S • .50 cle!;. 28 "lin. '1/, .50').00                     r~.1et a.l::m~   the Ilorth•'l'est
    R1~ht-of-w~;~y line of said ex1!!t1ng SO ·f'JO'Ii C:!')unty l'oad for                                    a 1/2 inch
    ~ll.lVP.ni,;l'r't pi!"f.' set f'or 'the Sou'th eQt•n'!:r of' eh~ll tz:-nct;




                                                                 -2-


                                                       12?



h
                                                                                                                  ··~'-'····

.

.
.                                                                                                                                       84
.
•
                         •                                   DEED 510
                                                                                                 •                                     1.:·




                     ':'~Z:lCE          !·:.    l~'j ·~eg.   00 nln. :1. J3,54.?.0 ree1; to n 1/2 1nch
    ,··· !.v ·r~~~~,.~~!l   .~.i.nP.      n,'t i'?t' th?. Uv s: _,ot'"nt r :>:.. th1R t!'r:ot:

                  r:-:t:::G.::. ll. 50 'te?;. 28 :nl.:-. E. 500.00 feet ttl the Pla..::e ot
    ~ ..·,:1n:'!1n-::,   ,., .. :'1~~<~1n!.n; )3 • .5 a.::r·l< of l11n.:, as su::-veyad on the ground
    t·~' J:Jr., 'vl.'\T.?r Se;,;:.~.1n, Regiatcr; ..~ Public Slu•vf.yor No. 1'1'16, on 10!:Us,
    t!1,.. l;th. ::•·:· f'J'i'                 Jum~,     1977.
                     ~h1s       ?art1t~nn d~ea                   not lnnlude      ~ny   of' the oil,              ~as ~nd      other
    ·.i.n'"r·•'o:: ln,          ..,:-~,ol'       un:\er the above del'lcri'bed            t~at       oi'    l"~nd,       and sP.me
    arP. t<;'l l"P-o1n undivided for ;;. r·eri'l<f of t~~entY-f1V"e (25) :ye"'.rl!l t'ro;n

    d<~teo    h1Jr<:o1' nno. as                  l~mg     there£>.f'ter a.a oil, g':'.t.l or other £1nera.J.e
    P':'E' m•o•1uned 1n '!laying qunnt1tieo frorn the above desnr1bed l.and.
                     Sc~·>nd.                  Thr, '!"lid R>o?.le Voli.)t Snot::; sh;tll,            f't>'ll!l   hence!'orth




                Flrert Tt• ·~t: :aatnii J..J•';.77 :~cr!!$ o::' l.an:l 1n <:he Gen ~r. 'ln'lmas,
    J•1"'n Ct•"1"'., l'!n<~ o::l. Het'!'lant!..::r. SUJ".ru;ril, a!'d ht':in,x ':eccrlbed b:r metes
    1•'1<i bn·Jni'.. n t:Jl ;'ollo•·•r.:
                     s:::-;.:,~.i!;M· at ~  s.t.1'"" ~"'-.:: n•• the S'Ju1fh.'e"!l: line· of' ·an old
     :'10 t4>)•)~ r·,n.f\ P:\1 tt..v. :'l-Jr:1~a '-: :..1ne      nr a ti!""at or 249~ a.cr+s oon-
    v·~y-:~ t•• :.!. :: .. .:\1-!:;ut 'ly C. ;.. :~orif1' of ··r?-..1:::!!. th1, t:rP.ct iS e. J..Srt,
    :>r't'' et··"'.'l "oe1n:! r:et for th'l! •;;;1;':: "~•:•n'!:l' :.~ a l,S::l-'J/k- acre tr11.c'C and
    t?-:·· tl!'"r ~~~'!"''!' "l:' t:;l.!' trfl'"lt "nf. th•: lo•·rer :l''JI'1l!:l. corner of ~' us;.Q4
    ,. ., I'!' t\"1' ('! t;
                     TH::O:!!·J:: 1~. 40 de:{• '1. :J?.:lJ feet li'ith t..'l" s<>•lth-'e!lt line of
     !"''1. ' 20 ro·~'l.. ror.·.l "n:1 thl!l nn !'1.t.t e.st llne of' ot'lginfi'l ?.49!- li'.()re tr~·C'!t
    to~ FT.'k<:> qpt f'>'!' t'ho n.,r-::h 'l"lr>n<-T' of' t'i'i'!! t:-•·>;>t :on.'i the north oorner
    r.~ ~Dt~ ~r1 ~\~"l ~4~~ R~~e tr~~t;
                    'l'!!Ti':! s. 50 •le·;. 17' :1. 2.58~ fee:t ~1!i0h the n•.>uthea<Jt li:lft of
     n ro"'d ,,:-t-.. t:..:1 !'!">:•::r.··ttnt llnl! 'if sa.1·1. ~.lr9t ll"'re trac-t;;
                     '!'~:: ·::;:: 5. 40 ne·: . =:. 4'?()!) t'ec:t; w1 ~::. t~ .. J:li)U~':l 'E'et f'~:l~G line
     o!" "".l·' '?!<.:?~ r•:-.rP. !:·.\;.,... 1.;;1,.. •..,"1 to a nt<tke s~t or. 61\.'!U! ror t!'l'!l IH>'.:,th
     t'.r;~.rv r- "'j,. i;h\~ t-"'C't. :"In~;_ thl.! t·reet com-r or n lJ.9.04 e.nre 't'r'l\(\'C;
                     ';'if·~::~=: !% • •?'J 1.erf. "E. 1154.,; fe9t t'J tt al'l--t!ilor: C:ll"ner of" 'tihil
     i;t'·;~t un.-• 119.01.;. C'O ... ~ tr:""ot•
                     7?... ;1:::!: !t, JS •!e.;. 3~ 1 :1. 108?.5 feet ·dth f~w:e line to o.
     'lt."i':P f"e't 'J:'I S!l<:!.'.' !''J!' " ::O""•l'Jn C">l':l' 1:' 'l!' thts tro;.ot Rnd lJ.9.04 ·~ore
     t!"·~fltj
                      'l'~:;:oi:.        '"·     .50    'I.e:. E. ';!?.'·· fr:et t!'t a post:    lle'C t'o!' o         OO::l';!On
     •"l!':lA!" nf t't:1'1 't!''Wt                     cnn. 119.04 an!"e tr••c't;
                    'l'a::::t::r~ !{. l.:.O            '1.'!3, i:f. }0!.. feet to l'l ]"•l)!!t   'tf!li   for a        COtl!:IOn
     nr:-r-:1.e.·r of ul-: ~A t!'·...~~";         nn·l. 119 .a!:. nnre tr!!:::t;
                      :rrr!:.:'::lii:     :1. ,50 Q.e:{• E:. :J8L• reo'.; to <~ 3t"l.k·· s,:t I'or                 P    oo:.l'lO::l
     :1''·''!1''!' o~     tl'.:s >;;r;: •t 11nd. 119.01~ n.ere trP.'Jt;
                     'J"'rl'·::;~'l: 3. !J.I) clei. E. J.70?., faet, pnra~l\.•l to t.:'nd :)0 f'eet
         :~· th.· n p•t!:'l•·::-.-t ll.n'll or !'le.1n 21•9'f r;qrl'! subd1V1;:~l•m :rn•.l ""'utnmu:t
        tn" of c:-:1·1. 2~ fc;r;t rol'lcl to ::>. Atrlt" set for "'· c·J~Mon o~n:·ner ?f t'!11s
        :or.-::t <~n•. ll;l.04 ~>nre trr-.ct;
                                                                         _,_

                                                                                                                                              85
·"
                                             •                       (DEED 510
                                                                      ·-·;-'1--·---rwr--·-···                           •
                                                                                 -··
                                                                                 ·"-"-::tr·




                                  Th"Zif'::!: H• .5? •le~. 'a: • .30 :'.,ctto the place -.;t' Be~inning.
                                  An:l. bf;'1n1" tn:- URi'le lllnd nt>nv~·ye:'\ 'Co i"rl:t.:,ll.n A. Voii!jt ~t u.-::
                   by ··:. H. T}lA!:le, et U'::, by de~c,_ r';.t•~d Jon·.:.u.:.•y ~9, 194..5, a)l}Jft£1.. t•1:'1S C\!'
                   !'~'"'!"'re'. in ·!-.l.Lu·ne l?J, PlilgP.:'I oOl-oO:J 'Jt tlls DPe:! a-·~ords of At<l!loo!':e.
                   O'lt.tn~y, T: ;.;s s.

                                SPil'):tr'l Tr!\o::t. Al.l ti:!.Rt otrtu1n t::o~·ct 0~ :;t;.rceJ. or land.
                   cont ... in!.ng 38 • .5 n"'!rer.. of J.ancl, bein~ a portlnn ot.., 2.07.77 !lort' tl'... ;,t
                   •lt>••orihccl,. ,..,, Fir3i: 'rraet, con\·~yed to Viator Ho!!ek und ;·rift:, I·ra.rt>ne
                   Yni~t Hn11a::, qnrl. !hs:;~le Voi'lt Baott, by ll~.rr!lnty Deed de ted C:~t.,b!'r 9,
                   19?8, of rP.aord in Volu~e 491, Pag~B 288-~1, De~~ ReaordB of Atasccna
                   OountyL Tf'XR!! 1 oor.~m•1Aed of 23.10 RClt•rs Ollt ·7ll~ the H. B. TheoiJold
                   6urveyi'i2lO, Ab!'-rtoot #849, Rnd 15.1:. noree out or th!! Geoo, 1i'. 'rhomPe
                   Su~vey #209, AbRtr~ct #8~8, C91d J8.5 Rcres being ~ore p&rtioUlRrly
                   ~er.cri~ed          ~~     ~oll~w~:
                                   '9~G-!l'!'!InG R.t
                                                  11 J./2 1:1ch galvAn7.1ed pi~ set ?n the llorth.·~st
                   br:nndHr:r J.1."le- ?f P."~id 207.7? ,ore trr1ct f'>r the Hort!'l. ncrner ot' this
                   tr,.nt. 1'r1Jm •·t'h1'1h ;1Pneo of 'b~t;inning, th"' ~h~th oorn·r of B9id 2:J7,77
          ·Ul      'lnr;, trP-::t '!Je!l.rA !·1. 40 ne.:~. 00 min.      J.'i'Ci~ i'r.et;      ··1.
          -fooo6
                                '!'n~:?!CF 8. L:.n •1~.,;. E. 335~.20 feet t" n ';/ll. 1.!1oh i!inlvnni~an
                   ni!)'' fou':'l~. 'ln t!l:.- lhrt~"J!!'It right-o."-N'l.Y linr· or 11.n ex!.3tlnjS 50 ro·~t
                   ""t')llnty rr..nf! 1'o:r t~! :::~.:tW o,rnf·r of' thi -=1 tC'' ~ti

                                   r::-i:snc;;;       '3. 50 de:;;. ~g :nin. it. 500.00 t'E·et l'lon:; the No:oth~.. ~~-:.
                   r1<;bt-of-•,·<>y li!l!!                o: !IPic'l e:~'!.s"~!.nr;;. 50 I"a-:t C:~l'lr.t~· road :for If .1/2 1:1nh
                   .~;~1.,•ani:<~r·       ~-,:t~e !le~           tor the SrJuth cot':1(:·r           r,i'   -;:-::..o -::r,ot;
                                    T:E!JC::: ~. 40 deg. oo :nln. \'/, 3:35u.20 r.~.:~'t to r:                                   :/z   inch
                   ;;::t.l ..IJ=~.ni···o:i·\ pi,.;!
                                               .:;:..:t, for tl~e ':/f:!•!t '1Jl.. "".f· ;- ct -:.'":.!.;: t:. . . ,~-:;;

                                                                         tew!t to 'the J:a.ne 'l-r
                              'r~!E:!i*1-;: !. ~1 . 1E'~. 2e rn1n. E., 500.00
                   bf-~1nn1!~F;, ~·mt:;.inlng :38.5 a-~rea of J.;m·t, as eurv·ye'i on the grnund
                   'o~· Me, Vi(,tor SeijU~n, R~~i!!ts~t•cl Pu.bllo Suroveyor i.1o. 1776, on th1.a,
                   thP J.:3t~!. :l<lY of June, 1979.
                                    '!'his :•".rt:~:-:~:1 doe~ not 1nclu·l!-t n:~~··:-,f •::.e oil, ·;e.s P.nt\ other
                   ~· !lerP.l~        1n, on ::or '.l!lc'ter th!J Pbcve d·· '!'lr1-.,ed.                      't:l'·~ct'l   ..,:• lr.nf!., an•l Rn::~e
                    arEl to rem~'J.n un~;.·rit't"'r', for a pr.r1Qd ~r· tlJf"nty-fiv~ (?S) yeRrs- t"t•or.:




                                     '·''itn<>~u        -,u::o   ~'1nds   thin




                                                                             U?H


     ~
                                                                                                                                               .......
                                                                                                                                                         86
     .'
..-.
                                    ••



                               B•    :.-,-;oe ::t··,     th~ U:1·\~r·l15n<'-! ···tthorl ty, on t!Us dey peraonal.ly
             ~""':"':•.' ...,rt:'r1 I•Jt:~·C"~t!:l~   V"J:\.gt H:">q,;t, ·::11':)'"'11 1:"". m•:t t'J be the por:1on whose !lPme
             1.1' ~U'!)"':Or!b~~! 'ii'J               t?lP   r':;-.:.' :~!~Er i!l~t:-~~cnt,                  e.n~     !i~?.Jl"J~tlet1.gr-d      to ::!e
             "~1'\ir;~~. r•Y.ecute{L ';hf                     ~;ar.:'= ~·or th~ 1.'.11')•QAL'~ •1ml c'J:\31•1!-rl.'.tion tr..;.re-1n
           .r..~:..l'-l·~.-1?'~··
          ;{·~:-.~·.;;::,::);;.;··~~          •.n::te'' m:r     !",,..:-~·~   n:1. t   .!   ·:~   -.:-   or·~.:-,.,     :J:1   "::hi~;~   the
       ; 2-: ~~l-.7 . . of.:.' AU l;~ J,         .k. D.      1'./?~.
       /!. .\-. :~ t-·> ...//:/
         ·-.:::..~;:·iro:l!l :Ro:;l9:tsEl.lAN                   -
           ·. .: :~·t.t.r.'TY 'Public in and :ror_
                 ~-ila.on county. oxexaa




             ;:or; :.ii!':Y CIF \'IILSON




                                                                                                                                                  /7~
                                                                                                                                                -----

                                                                                            ;JO!!: R. WISDWi
                                                                                            Mt.Ol'V Public 1!-1 aud ~iii!.
                                                                                            W1l11on County,             ~ex.aa




                                                                                                                                                          87
                                               l.. I.I&..LU        J    .L   U
                                                 - · - : - - - - _ _ _ P' _ _ _ ., _ _ _




                                ········--                       ·::-~·
                                                                             ·--··-·---,t·t---
                                                                                       :1




        Filed for record A11gust: _ _ _ _2_2_,_ _..:A.D. • 1979

        duly recorded August _ _ _ _ _2_3.;.'--....:A.D., 1979 at
                                                                                 >lt




        Atascosa Couaty Deed Records, Volume _ _ _ _ _ _ _ _ _S;...;l:;,;O;__ __..jPagea
                                                                                           2:10

                                                                                           8r30
                                                                                                  o'Clock

                                                                                                  o'Clock
                                                                                                            ----
                                                                                                               P. M. and

                                                                                                            ---·...:·
                                                                                                               A M
                                                                                                             126-131
                                                                                                                        :ln




.·.··


                                                                                                                              88
                                          EXIDBITA


        207.77 acres of land, situated about 20 miles S 85 deg. E. from Jourdanton, Texas, and
being made up of 11 acres out ofthe John Hefron Survey No. 214, Abstract No. 393; 27 acres
out of the H. B. Theobold Survey No. 210, Abstract No. 849; 105.77 acres out of the Geo. W.
Thomas Survey No. 209, Abstract No. 848; and 64 acres out of the John Smith Survey No. 213,
Abstract No. 804; and being a part of Subdivisions Nos. I, II and Ill of the Robert Krause 1103
acre tract, and said 207.77 acres, in one body, being described by metes and bounds as follows,
to-wit:

        BEGINNING at a corner fence post on theN. W. side of a 20 foot public road traversing
the Robert Krause tract of land, the same·being~the east corner of Subdivision No. III, and the
east corner of this tract;

        THENCE S. 50 deg. 00' W. 793.0 feet with the North line of said 20 foot road to a stake
set on same for the lower southwest corner of this tract and the lower southeast corner of a 322.6
acre tract;

         THENCE N. 40 deg. 00' W. 1737.5 feet to a stake set for the inner southwest corner of
this tract and the inner southeast corner of said 322.6 acre tract;

         THENCE S. 50 deg. 00' W. 1560.0 feet to a stake set for the upper southwest corner of
this tract and a corner of said 322.6 acre tract;

        THENCE N. 40 deg. 00' W. 2915.0 feet to a stake set in the south fence line of an 8.6
acre tract for the Northwest corner of this tract and the Northeast corner of said 322.6 acre tract;

       THENCE N. 69 deg. 37' E. 112.5 feet with fence line to the Southeast corner offence
post of said 8.6 acre tract;

        THENCE N. 0 deg. 33' W. 373.5 feet with fence line to the Northeast corner fence post
of said 8.6 acre tract;

       THENCE N. 59 deg. 32' E. 570.0 feet with fence line to corner fence·post;

      THENCE N. 39 deg. 07' W. 363.5 feet with fence line to corner fence post for corner,
same being the West corner of Subdivision No. III;

      THENCE N. 53 deg. 31' E. 1432.0 feet with fence line to corner fence post for the
Northeast corner of this tract, same being the North corner of Subdivision No. III;

      THENCE S. 40 deg. 00' E. 5083.0 feet with the common boundary fence line of
Subdivisions Nos. Til and IV to the place of beginning, containing within the above metes and
bounds 207.77 acres of land, comprised as aforesaid of 11 acres out of the John Hefron Survey
No. 214; 27 acres out of the H. B. Theobald Survey No. 210; 105.77 acres out of the Geo. W.




                                                                                                       92
Thomas Survey No. 209; and, 64 acres out of the John Smith Survey No. 213.            Surveyed on
April 19, 1948, by John M. Peel, County Surveyor of Atascosa County, Texas.


      And being the same land described in deed dated May 6, 1948, from L. W. Stieren to
FRIDOLIN VOIGT and recorded in Vol. 189, Pages 379-382, of the Deed Records of Atascosa
County, Texas.

        LESS all that certain tract or parcel of land containing 38.5 acres of land, being a portion
of the 207.77 acres tract described as First Tract, conveyed to Victor Hosek and wife, Ivarene
Voigt Hosek, and Rosale Voigt Scott, by Warranty Deed dated October 9, 1978, of record in
Volume 491, Pages 288-291, Deed Records of Atascosa County, Texas, comprised of 23.10
acres out ofth~_ll. B. Theobold Survey #210, Abstract #849, and 15.4 acres out of the Geo. W.
Thomas Survey #209, Abstract #848, said 38.5 acres being more particularly described as
follows:

       BEGINNING at a 112 inch galvanized pipe set on the Northeast boundary line of said
207.77 acre tract for the North comer of this tract, from which Place of Beginning, the North
comer of said 207.77 acre tract bears N. 40 de g. 00 min. W ., 1701.00 feet;

      THENCE S. 40 deg. E. 3354.20 feet to a 3/4 inch galvanized pipe found on the
Northwest Right-of-Way line of an existing 50 feet county road for the East corner of this tract;

       THENCE S. 50 deg. 28 min. W. 500.00 feet along the Northwest Right-of-Way line of
said existing 50 foot county road for a 1/2 inch galvanized pipe set for the south corner of this           I
tract;

      THENCE N. 40 deg. 00 min. W. 3354.20 feet to a 1/2 inch galvanized pipe set for the
West comer of this tract;
                                                                                                            )
        THENCE N. 50 deg. 28 min. E. 500.00 feet to the Place of Beginning, containing 38.5
acres ofland, as surveyed on the ground by Victor Seguin, Registered Public Surveyor No. 1776,
on the 13 1h day of June, 1979.
                                                                                                            I
                                                                                                            I



                                                                                                       93
                    TAB E
Response to Motion for Partial Summary Judgment
                         •           NO.lJ-06-0559-CVA
                                                                   •                   t('
                                                                                 Fn.ED \    ' dl
                                                                                                3
                                                                                                      CYO..~
                                                                                 MARGARET E. UlTlETON, DISTRICT Q.ERK



                                                                                           rJi\N. _:G--2~1; ..
IVARENE HOSEK AND VICTOR                        §    IN THE DISTRICT       couWf'~~
HOSEK                                           §
Plaintiffs,                                     §
                                                §
v.                                              §    81ST JUDICIAL DISTRICT
                                                §
ROSALE SCOTT                                    §
Defendant                                       §    ATASCOSA COUNTY, TEXAS

                         PLAINTIFFS.' RESPONSE TO
            DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

       NOW COME Plaintiffs, Ivarene Hosek and Victor Hosek, Non-Movants herein, and

request this Honorable Court to DENY Movant's Motion for Partial Summary Judgment.

                                                L

                                       INTRODUCfiON

       A.     When a movant files a motion for summary judgment based on summary

judgment evidence, the court can grant the motion only when the movant's evidence proves, as a ·

matter of law, all the elements of the movant's cause of action or defense, or disproves the facts

of at least one element in the non-movant's cause or defense.

       B.     When evaluating a motion for summary judgment, the court must:

              1.      Assume all the non-movant's proof is true;

              2.      Indulge every reasonable inference in favor of the non-movant; and

              3.      Resolve all doubts about the existence of a genuine issue of material fact

       against the movant.

                                               II.

       A.     The Hoseks, the Non-Movants in this cause, filed a declaratory judgment action

                                                1

                                                                                                              37
I




    """'
           lr.

           r                               •                                         •
                 against Movant Scott, seeking an interpretation of a Partition Deed. The Partition Deed is

                 attached hereto as Exhibit "A". The Partition Deed reads as follows:

                         "This p~ition 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 date hereof and as long thereafter as oil, gas or other minerals are produced in paying

                 quantities from the above described land."

                         The conflict over the interpretation of this Deed arises out of the failure of the document

                 to state what will occur after the expiration of the 25 year period and cessation of production.

                 The Deed does not expressly state what happens upon that occurrence, and thus the conflict was

                 born.

                         The deed was drafted by an attorney who is deceased. The Hoseks are aware that the

                 language was intended that the undivided mineral interests revert to the surface owners after the

                 expiration of 25 years and cessation     ~f   production, which occurred in 2004. The Hoseks,

                 together with Ms. Scott, instructed the attorney to prepare an instrument which gave effect to

                 their intention.

                         Movant Scott sold her land with the minerals and received cash consideration for the sale.

                 She now seeks one half of the minerals beneath the Hoseks' land, citing the defective deed as the

                 source of her title. In the letter attached as Exhibit "5" to   S~ott's   deposition, Scott tells her

                 prospective buyer that he will receive the minerals under the land she will sell him after the

                 expiration of the 25 year period.

                         Movant filed a counterclaim against Non-Movants seeking affirmative relief for damages

                 and a declaration that she owns one-half of the minerals under the Hoseks' land. Movant is aware

                 that the Hoseks have leased their minerals to an oil company and that royalties are being



                                                                  2

                                                                                                                         38
                           •                                           •
 withheld until this conflict is resolved. During the course of exploration and development of the

 minerals on the Hoseks' property, no oil company or title examiner opined that Movant Scott

 owned any interest.

        The Hoseks' retained expert, title examiner Allen D. Cummings, opines that the most

 natural interpretation of the Partition Deed language is that the minerals reverted to the surface

 owner after the expiration of 25 years and cessation of production. The report of Mr. Cummings,

 as well as his CV, are attached to his affidavit, being Exhibit "C" hereto.

        B.      Movant alleges there is no genuine issue of material fact as to any element of

 interpretation of the Partition Deed. The very existence of this litigation disproves this claim. The

 wording is susceptible to multiple meanings by virtue of the Movant's claim that the language

 did not have its commonly accepted meaning.

         C.     Non-Movants claim a genuine issue of material fact exists as to Movant's

 counterclaim and submit affidavits, discC?very, documentary evidence and Movants' pleadings, as

 summary judgment evidence, referenced in an appendix attached hereto, filed with this response

· and incorporated by such reference for all purposes as if recited verbatim herein.

                                                 III.

        A.      Non-Movants filed a claim against Movant seeking affirmative relief for the

 interpretation of a Partition Deed.

         B.     Movant alleges Movant is entitled to a partial summary judgment as a matter of

 law, and alleges that Movant can prove her counterclaim.

                1.     - Non-Movants claim a genuine issue of material fact exists as to Movant's

         claim and submit affidavits, discovery, documentary evidence and Movants' pleadings, as

         summary judgment evidence, referenced in an appendix attached hereto, filed with this
f.'   :   i

                                   •                                         •
                 response and incorporated by such reference for all purposes as if recited verbatim herein.

                                                        IV.
                 A.      The Court should deny Movant's Motion for Partial Summary Judgment and

          pennit evidence to be presented and heard to establish the proper interpretation of the Partition

          Deed made the basis of this lawsuit. The very existence of this dispute proves that there are

          multiple interpretations of the document, and the evidence presented in this pleading establishes

          that the Non-Movants' interpretation is the proper meaning of the document.



                                                     PRAYER

                 WHEREFORE, PREMISES CONSIDERED, Non-Movants pray that this Court will

          deny Defendant's Motion for Partial Summary Judgment, or order such other relief as may be

          appropriate.




                                                      Respectfully submitted,




                                                      By: ----~------+---~----~~------­
                                                      Robert J. Ogle
                                                      Texas BarNo. 1523135
                                                      508 E. San Antonio St.
                                                      Boerne, TX 78006
                                                      Tel. (830) 249-9358
                                                      Fax. (830) 249-8508
                                                      Attorney for Plaintiffs
                                                      Ivarene Hosek and Victor Hosek




                                                         4

                                                                                                               40
.
r




                              •                                     •
                                    CERTIFICATE OF SERVICE

          I certifY that on   .J,.._ ~•cr3 ,2014 a true and correct copy of PlaintiffS' Response
    to Motion for Summary Judgment was served by electronic mail on G. Wade Caldweli at
    gcaldwell@beclaw.com.




                                             5


                                                                                              41
                            •         NO. 13-06-0559-CVA
                                                                   •
IVARENE HOSEK AND VICTOR                        §   IN THE DISTRICT COURT
HOSEK                                           §
Plaintiffs,                                     §
                                                §
v.                                              §   81ST JUDICIAL DISTRICT
                                                §
ROSALE SCOTT                                    §
Defendant.                                      §   ATASCOSA COUNTY, TEXAS


                               APPENDIX TO
                          PLAINTIFFS' RESPONSE TO
             DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

                                     TABLE OF CONTENTS

        All summary judgment evidence in this appendix is incorporated by reference into
Plaintiffs' Response to Defendant's Motion for Partial Summary Judgment.

      I.       Pleadings

                                                                                      Exhibit A

      II.      Affidavits

               Affidavit of Ivarene Hosek.
                                                                                      ExhibitB
               Affidavit of Allen D. Cummings, expert witness
                                                                                      ExhibitC

      III.     Discovery




      1.       Deposition Excerpts

               True and correct copies of excerpts from the transcript of the
               deposition ofRosale Scott with a true copy of the certificate of the
               deposition officer and the affidavit of Robert J. Ogle.
                                                                                      Exhibit D



                                                6

                                                                                                  42
                         •                                         •
                                      NO.   \3· 0(,. 0591.        cv A
 IVARENE HOSEK AND VICTOR                        §    IN THE DISTRICT COURT
 HOSEK                                           §
 Plaintiffs,                                     §
                                                 §
 v.                                              §   ~JUDICIAL DISTRICT
                                                 §
 ROSALE SCOTT                                    §
 Defendant.                                      §    OF ATASCOSA COUNTY, TEXAS

                                  ORIGINAL PETITION
                              FORDECLARATORYJUDGMENT

 TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COME Ivarene Hosek and Victor Hosek, Plaintiffs herein, filing this Petition for

 Declaratory Judgment, pursuant to the Texas Uniform Declaratory Judgments Act, Chapter-37 of

the Texas Civil Practice and Remedies Code, and would show the Court the following:

                           I. DISCOVERY CONTROL PLAN LEVEL

       Plaintiffs intend that discovery be' conducted under Discovery Level 2.

                                    ll. PARTIES AND SERVICE

       A.        Plaintiff, Ivarene Hosek brings this action individually.     Plaintiff resides in

Wilson ·County, Texas.

       B.        The last three numbers of Ivarene Hosek's driver's license number are 673. The

last three numbers of Ivarene Hosek's social security number are 641.

       C.      Plaintiff, Victor Hosek brings this action individually. Plaintiff resides in Wilson

County, Texas.

       D.      The last three numbers of Victor Hosek's driver's license number are 194. The
                                .                     .
last three numbers of Victor Hosek's social security number are.212.

       E.                                                                                                  I
                                                                                                      44
,.

                               •                                            •
       with process at her home at the following address: 1032 Hanover, New Braunfels, Texas 78132.

       Service of said Defendant as described above can be effected by personal delivery.

                                     ill. JURISDICTION AND VENUE

              A.      The subject matter in controversy is within the jurisdictional limits of this court.

              B.      Plaintiffs seek:

                      1.      monetary relief of $100,000 or less and non-monetary relief.

              C.      This court has jurisdiction over the parties because Defendant is a Texas resident.

              D..     Venue in Atascosa County is proper in this cause under Section 15.011 of the

      Texas Civil Practice and Remedies Code because this action .involves real property as provided

      by said Section, and this county is where all or part of the·real property is located.

                                                  IV. FACTS

              On October 4, 1978, Fridolin ~ex Voigt and wife, Pearl Schnautz Voigt, deeded the

      family farm to their children, Ivarene Hosek (and her husband Victor) and Resale Scott, in

     undivided shares. Ivarene and Rosale then partitioned the property on August 17, 1979, but

     reserved minerals for twenty five years, so that each would have a one half mineral interest in the

     ·entire tract. The partition gave Ivarene a tract of 207.77 acres, less a 38.5 acre tract, and gave

     Rosale a 130.77 acre tract, plus the 38.5 acres reserved out of Ivarene's 207.77 acres. Ivarene

     then purchased back from Rosale the 38.5 acres on October 16, 1979, so that she possessed the

     original 207.77 acre tract. The 38.5 acre purchase also reserved minerals for 25 years. After 25

     years, on August 17, 2004, the minerals reverted back to the owner of the respective tracts.

     Resale sold approximately 60 acres of her acreage to Evaristo Morales and wife, Rene Morales

     on March 4, 1986. Then Rosale sold approximately 70 acres to William W. King and wife, Rosie

     King on January 29, 1990. Ivarene still owns her 207.77 acres together with her husband, Victor




                                                                                                        2
.;
:




       Hosek.
                               ••                                        •
                Ivarene has attempted to lease her acreage for oil and gas production, and Rosale claims

       an interest in some of the minerals under Ivarene's land. Rosale's claims are unfounded in law

       and in fact and are costing Ivarene substantial potential oil and gas income by making a claim for

     · payment of funds to which she is not entitled.

                                         V. RELIEF REQUESTED

              There exists a genuine controversy between the parties herein that would be terminated

      by the granting of declaratory judgment. Plaintiffs therefore request that declaratory judgment

      be entered as follows;   ·

             A.       A judgment of the court that Ivarene Hosek and Victor Hosek own one hundred

      per cent of the minerals, including oil and gas, lying under their property, described in Exhibit A

      attached hereto and made a part hereof, and a judgment of the court that Rosale Scott owns no

      minerals lying under the said tract.


                                         VI. ATTORNEY'S FEES

             Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, request is

     made for all costs and reasonable and necessary attorney's fees incurred by Plaintiffs herein,

     including all fees necessary in the event of an appCftl of this cause to the Court of Appeals and

     the Supreme Court of Texas, as the Court deems equitable and just.

                                                 PRAYER

             WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendant be cited to

     appear and answer herein, and that on final trial hereof declaratory judgment be granted as

     .requested herein and Plaintiffs be awarded costs and reasonable and necessary attorney's fees,

     and for such other and further relief that may be awarded at law or in equity.


                                                                                                      3     46
:!"-   ...




             •                             •
                  Respectfully submitted,




                  By:      ~ltJrf-
                  RobertJ.~1
                  Texas Bar No. 15231350
                 508 E. San Antonio St.
                 Boerne, TX 78006
                 Tel. (830) 249-9358
                 Fax. (830) 249-8508
                 Attorney for Plaintiffs
                 Ivarene Hosek and Victor Hosek




                                                  4
                                                      47
    ..
                                     ••                                                                      •
                                      20?.77       ROrP.~    ot    l~nd,      eituatc~      Qbout 20         ~leo   9 85 deg.      s.
                       t'r,,.., J"Ju\'1\ .. n'l:l'ln, ':'A;o:R.'F, R.:"ld 'be1n~ m:ute uo o'i' 1l acres ou't of' tbe John
                       n""'~·m Sur"Tey ~o. 211.:., Ablltreot iJo • .39:3;" 2? •cree out l)f the H. B.
                       '!'hl'.,bnl.o:\ 'Sul"ve:r 14-l. :?.l.O, .r\b11tn-ct Un. 849r l.0~.77 I!Ool'Ein out o'!' the
                      Gr.-.. tf. Th(li!V!\11 Survl'y Nl'l. 209, AbRtr·'r.:t 11?.                    s...s;   ancl 64 ac;reg out
                      of t!lP. Jol':"' Srr.ith Sll':'\"~Y He. 21:3, :\b'7t '!let !fo. BOt:.: "'•JlL'!. bein-=S" a ;:art
                      ?f Subc'!.1"1!!l..ons !lws. I, II, :=.nd III ot tbe Robert !Crause ll03 P.cre
                      tr,.~-::, a:td r,P,i1\ 2.07.77 IHJ:'r.lr, 1n one body, 'beln:r d!lser1'bed by mettts
                      ::nc1 bcundfl        :II! f'nl-;.oH:~,     t?-"~1t:

                                :9.::3-!ir.~::::~G at ll. o~Jr:lar frnce •..oost on thfl :1. '1. side ot a 20
                      fl)ot po.:~l1c rot1d tr'"'E-!"sin..I tttt Robert 2'.:::-a.~se tract err land., thft same
                      being ':he e'll.st I'IO.t"1'1or ot Subdivis!cn Ito. III, end. tile eRst corner of
                      thl.c tr:-t:~;
                                     ~::Z:IC.::   s.     SO de,:r. ')')' ··t. 79:3.0 :'i"""t ""it!l the North l!ne 'Jf'
                      !.''l\d 20                    to :< st,.:ce ::~et on 1)1\1!1\" :ror tbe 1o·.,;er at.>u.thl·rest
                                     t.''JI'J"; ro<~d.
                      ~"rnP.r o!        'Cilia trr.;ot nnd the lo•:1n• SQu.th':A.st: cornl.'r of a ;22.6 acre
                      ttwr1C~:

                                 '!'!-!Ei!J?: ~~. La.O de& .. 0' 1 l·T. l?)?.S ffoet to !. ali".ke set tor the,
                      t~::tor Sl')uth•feet corner of "::!'1111 tr'lc":: e.nn the 1n"'or s,ut!le~e~ corner
                      ?!.' s~ld 322.6 acre tr~·nt;

                                      :'H:::•;oz: S.     50 de!J. 00 1 \I, lS60.0 :t'aet t;tJ :\ atrlte set !'or the
                       u•r:P.~· !!•mth·~Art          nl'lrnf'T' of' th'\.~ tract Md a C!O:'tlt'!' or t:"1r:\ ;22.6 aczoe
                       tt't;.,iJ~:



                                 ~~~*CE       B. 40       4e~.    oo• w.      ?.~ts.o     feet     t~ ~ s~.         set 1n   tt~
                  Bonth f'~noe line or an !.6 acre 'Cl'I\CI1i foro th~r tlort"n"'E'I!ti no:rner of'
                  th1a tzos~t ann the Northe~st corner or 9~1d '2?..6 •ere tr&ct;
                           ?:iSN~ N. 6~ ~eg. 3? 1                        E. ll~.S teet ~lt~ t&n=P line tn t~e
                  ~')Uthe~~t C'lr.l!:"ner te:noe 'flOGt             or    snid 8.6 111.are trqa~;
                                TE::flCE: N. 0 de:). ,,, w. ;j?, • .; reoet With :t'i!Me Une to tbe
                 l~ortht' .. '.'!toorner fence !"O'Ift of ea.1d 8.6 ll'lore troct;
                                TH3NOE N. 59             de~ •    .32 1 E. 570.0 feet with ftinoa line to
                 corner tenoe            ~oet;

                                'l'HZ'.NCE N. 39 deg. TJ7 1 ~·t. :;6.3.5 teet ~"ith te"3e Une to corner
                 r~noe n~gt ro~            corner, same being the Wea~ corner ot Subdivision
                 No. J.::O:;
                          TBEilCE N. 53 deg. 3J.I E. J.4)2.0 teet td ~h :renee line to
                 corner rr.nee ~cat f~r the Northea$t eorn~r of this tr-ct, sama being
                 the North corne~ or Subd1v1e1on No. III;
                                TP.~NOE      S. 40 deg. 001 E. 5083.0 fe&t ¥1th the co3E.on
                 ~unl\e.ry f:•nce J.1nll of Subd.iv1s1nns I~os. III in.ll!l. IV to the pl&oe                                  ot
                 b 4 ~1n~1ru;,      CQn~inin~ within th~ ab?ve metes ~n~ b~ndH 207.77 ~ores
                 or   J.~n~      com~r1ped. a~ Arora~a1d o~ J.J.-~ares out ot the J~hn Herron
                 Surv17 fm.         2lll.; 27 llC:t"U n•11l 01' thP: !:!. B. !?h.Pobo1<L Survey li:,. 210;
                 105.77       ~o't"en out or tbP ~eo. i'l, 'l'h-:!'11'1."1 Su't'V':!Y N'·'~· 2ilSI; ene. 6l!- Act'eB
         I   •
                 out ot>      th:· J?hn S!r.i th Surv'AY No. ?J.;3. 5u"'Vt~yod. on A}'1rll J.9, 1948,
                 by Joh.'l ,.; • Pe•• 1, Oflllnty            Surve~or         of   .1\t:~Beoee.   01unt,y, !P.,·JI s.
                 And bP.1n3 the SrnBH l~nd c\e<>cr1bed in dee!\ ·da.;td. Ml!,y 6, l9Lo5, from
                 L. \·1. SUeren to .f'RI'DOl.Ill VOIG1' '!l.n.;l. reoo'l:"di'IC\ 1n Vol. 159, Pag-eo
                 '79-:382, of thP. DA~ct R~o~rna of Atn=oos~ Oount~. To~~r..




                                           EXHIBIT A
                                                                                                                                        48
-~,,,------------·-------------------------------------------
                         •           N0.13-06-0559-CVA

IVARENE HOSEK AND VICTOR                        §   IN THE DISTRICT COURT
HOSEK                                           §
Plaintiffs,                                     §
                                                §
v.                                              §   81ST JUDICIAL DISTRICT
                                                §
ROSALE SCOTT                                    §
Defendant.                                      §   ATASCOSA COUNTY, TEXAS

                                         AFFIDAVIT

       BEFORE ME, the undersigned authority, personally appeared Ivarene Hosek, who being

du1y sworn, deposed as follows:

       "My name is Ivarene Hosek. I am at least 18 years of age and of sound mind. I have

personal knowledge of the facts alleged in Plaintiffs' Response to Defendant's Motion for

Summary Judgment.      I hereby swear that the following statements in support of Plaintiffs'

Response to Defendant's Motion for Summary Judgment are true and correct.

       "My sister and I made an agreement to partition the property we bought from our parents

on October 4, 1978. We 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 time, the minerals

would be vested in the surface owner. This is the document that our attorney, Joe R. Wiseman,

was directed to draft, and it was signed by us on August 17, 1979. My sister and I shared the cost

of the attorney fees to Joe Wiseman to prepare this document. My sister knew of our agreement

regarding the minerals and told this to her buyers, who purchased her property after my sister

told them they would own the minerals after the expiration of the twenty five year period, being

August 17, 2004.

       My sister only made this claim for one half of the minerals under my property after being




                                                                                                     49
                                                                   •
asked by the oil company to sign a title curative document to address the poorly drafted Partition

Deed. The oil companies who researched the title read this document and presumed that my

husband and I owned all the minerals under our property after the expiration of the twenty five

year period. My sister is fully aware of this. My sister has sold her land with the minerals and

been paid for them, now she wants half of my minerals. Her actions have prevented me and all

mineral owners of the pooled well unit from being paid any royalties. The oil company, EOG,

has made it known to me that it may need to either abandon the well unit that has been drilled or

exclude our acreage from the pooled unit if this issue is not resolved. I and many other mineral

owners may be adversely affected by my sister's claims." ·

                                               g~ ~<btoJ./
                                            Ivarene Hosek


     SUBSCRIBED AND SWORN TO BEFORE ME on                        ~~;:( l ~ 0/ tf             , by
\ VD4-re,.ne Ho~e}(


                     PATRICIA L OGLE
                  MY COMMISSION EXPIRES
                     December 19, 2014




                                                                                                     50
                        •                                             •
                                           NO. 13-06-0559-CVA

IVARENE HOSEK AND VICTOR                           §   IN THE DISTRICT COURT
HOSEK                                              §
Plaintiffs,                                        §
                                                   §
v.                                                 §   81ST JUDICIAL DISTRICT
                                                   §
ROSALESCOTT                                        §
Defendant.                                         §   ATASCOSA COUNTY, TEXAS
                       AFFIDAVIT IN SUPPORT OF
                       PLAINTIFFS' RESPONSE TO
          DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

       BEFORE :ME, the undersigned authority, personally appeared Allen Cummings, who

being duly sworn, deposed as follows:

       "My name is Allen D. Cummings. I am at least 18 years of age and of sound mind. I

have personal knowledge of the facts alleged herein, which are true and correct.

       "My qualifications as a board certified oil and gas attorney and title examiner are

attached hereto. I frequently perform title opinions for drilling and exploration for oil companies,

including EOG, who, I have been advised, has a lease on the Hoseks' minerals. I have reviewed

the Partition Deed which is in dispute, and I prepared my professional opinion as a title examiner

in the form of the report which is attached hereto. This is my opinion based upon my knowledge

and experience, and this is a true and correct copy of my report."

       SIGNED    o~.9, 2013.
                                                Allen D. Cummings,

       SUBSCRIBED AND SWORN                    0 BEFORE ME on        /1e,~ 30, ~0(.3, by
Allen D. Cummings ..



             .     ROSA YBARRA
            NOtary PubUc, State of Texas
              My commission Expires



                                                                                                c
                 January 16, 2017




                                                                                                       51
..·
                                                  •
      Allen D. £ummings - - - - - - - - - - - - - - - - - - -
                                                                                                •
      Auorner at Law                                            Prilleipalotlice,S.AIIImlia: 1771N!Loop410, Sult.EOO, SanAII!oaio, TOl!U78217
      l1«<qq Cln/JN ~011. GAt 111111 MlnmiiLIIW                             HOUIIoll Office: 4801 Wooclwlly Drive, Sui1e 300 Eul, Hous!1m. TOl!U 770'6
      Dw Btltlld fi/Upl ~bliell
                                                           l'boiWI'a: 1-8811-832-1115 l!allil: -~m.,.~a- ~.




        November 29, 2013

        Robert J. Ogle, Esq.
        The Law Offices of Robert J. Ogle, P.C.
        508 E. San Antonio St.
        Boerne, TX 78006

        Re:          Deed of Partition dated 8/17/1979, recorded 510 DR 126, Atascosa County, Texas, by
                     and between Victor Hosek, and wife, Ivarene Voigt Hosek and Rosale Voigt Scott.

        Dear Mr. Ogle:

       You have asked me to provide you my opinion, based solely on my review of the above-
       referenced Deed of Partition, concerning the ownership of the oil, gas and other minerals in and
       under the lands described in said Deed of Partition. The lands in Deed of Partition are described
       as a 207.77-acre tract ofland, described by metes and bounds, in the "First" section of the Deed
       of Partition and tracts of 130.77 acres and 38.5 acres, each described by metes and bounds, in the
       "Second" section of the Deed of Partition. The Deed of Partition recites that the parties hold the
       lands described in common. Following the description of the lands in each section of the Deed
      ;of Partition is the following clause:
                     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 years from the date hereof and as long thereafter as oil, gas
                     or other minerals are produced in paying quantities from the above descn'bed
                     land.
       This clause does not say what is the effect of the Partition Deed at the end of 25 years, i.e. on
       8/17/2004, if there was not then, and thereafter, production in paying quantities from the lands
       described. Therefore, in order to detennine the present ownership of the oil, gas and other
       minerals in the lands described in the Deed of Partition, assuming there has not been continuous
       production in paying quantities, we must determine the effect of this clause.

       Whether this clause renders the Deed of Partition ambiguous is a question of law to be
       detennined by a court. However, the cases on construction of deeds and contracts show that the
       courts will first apply the rules of construction to determine from the four comers of the
       instrument the intent of the parties as expressed in the instrument, regardless of what may have
       been the subjective intent of the parties to the instrument. Luckel v. White, 819 S.W.2d 459
       (Tex. 1991). If. after the application of the rules of construction, there are two or more
       reasonable interpretations, then a court may find the instrument is ambiguous. Universal C.l T.
       Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951).




                                                                                                                                                         52
        Robert J•. Ogle
        November 29,2013
        Page2of2
                                                 •                            •
        It is well settled that a partition deed does not convey title, but rather dissolves the. tenancy of
        lands owned' in comrtlon and segregates the possession and use of the·landS anicmg individual co-
        owne~ .. Houston 0!/. Co. ofTexas v. Kirkindr;zll, 1.45 s~w.2d 1074 (Te~. l94l). In addition,
        there is a presumption tlla,t wb,en lands. are partitioned among co-owners; the whole of the land is
        partitioned, unless some portion of the lapd is expressly excepted from the partition. Pewitt v.
        RenwarOi/ Corp., 261 S~W.2d 904, 906 (Tex. Civ-. App.- Houston, 1962,.-wrlt refused n.r.e.)

        Readi~g the above clauseJn light of these twO principles, It would appeat tht1t the parties.to the
        Deed. of Partition, expressly excluded from the partition the oil, gas al1Cl othet minerals in the
        lands for a tet.ni detli1ed as "twenty-five years ~ . . and as long thereafter as ·oil, gas or other
        minerals are produced i.n paying qiJ!intities from the above described land." It woulc;I also appear
        the most reasonable construction of this clause, even though it Is not expressly stated~ is the
        parties fntended, after the expressly excluded term, that ilie use and posseS.sion of the oil, gas and
        other minerals would ·be segregated to the owners of the individual trE).cts described in· the first
        and second section~ of the Deed of Partition. In other words, the exclusio~ from the wtended
        partition of possession and use of all the lands as to. oil, gas and other minerals ends after 25
        years or, if there is production in paying quantities from theJands, then when there is no longer
        production in paying quantities. ItJs,important tO note again, the partition deed does hot affect
        title to the {a(lds, but only the se~gation of possession and use.

    You:haye as~ed me ~o provide you my opinion about whether such a construction of the Deed of
    Partition violates the Rule AgainSt Perpetuities (the "Rule")~ The Rule i~ applicable to. a future
    estate? which may not vest during lives in being plus twenty·one year~; it has no application to
    present interests or •to provisions which m~y postpose possession beyond a period of lives in
    being and twenty·one years. See generally, Kelly v. WQmack, 268 S. \V. 2g 903, 905 (Tex. 1954)
    and Hamman v. Bright &Co., 924 S.W:2d 168, (Tex. App• ., Amarillo 1996). In as much as the
    Deed of Partition does not affect title,_ but only the segregation of the use and possession of the
                                                                   in
   :oil, gas and other minerals by the co-owners whojoined the partition, it would appear that the
   above construction would not be subject to the Rule. Because the parties. own title to the lands
    subject. to the Deed of Partition in common, only the segre.gatio+t of use and possession of the oil,
    gas and other minerals is postponed for the Stated term. Without this clause, ilie oil,_ gas and
    other minerals woUld have been partitioned upon exec1.rtion and delivery of the. Deed o(Partition.

    Based on the foregoing, it is my opinion that use .and posse~sion of t~e oil. gO$ a~d other
    miner.:Us in the lands descdbed in the Deed of Partition; is vested in the party to vv~()m the
    individul,ll tia9ts are partitioned therein, absent continuous production in paying· quantities from
    and after 8/1712004. This opinion is based on solely on examination ofthe Deed ofPattition as a
    single document and without ilie benefit ofother instrum~nts in the chain of ti:tle that could affect
    my opini_on on the effect ofthe Deed of partition.                               .


        ~-~~~-·
          truly,.· ~ ·•.
        t   .         . . .·                .
    ;             '      .'
 f...       .:.           • ...... ,   .·   ..




/ Allen D. Cumming




                                                                                                                 53
ALLEN D. CUMMINGS
                         •                                              •
                                                                    BIOGRAPIDCAL INFORMATION


                                    ALLEN D. CUMMINGS
                                     ATTORNEY AT LAW
                     4801 Woodway Drive, Suite 300 East, Houston, Texas 77056
                       1777 NE Loop 410, Ste. 600, San Antonio, Texas 78217
                                Telephone and Fax 888-832-1115
                                acummings@acummings-law.com


EDUCATION:

J.D. Southern Methodist University, Dallas, Texas- 1974
M.B.A. University of Phoenix- 2005
B.A. State University ofNew York at Buffalo, Buffalo, New York- 1964

PROFESSIONAL ACTIVITIES:

Admitted: Texas- 1975
Board Certified Oil, Gas and Mineral Law, Texas Board of Legal Specialization   1987

Haynes and Boone, LLP - February 1999 to February 2006
Cotton, Bledsoe, Tighe & Dawson, P.C.- 1980 to January 1999
Attorney, Texas Oil & Gas Corp.- 1978-1980
Attorney, Otis Engineering Corporation, a subsidiary ofHalliburton Company- 1975-1978

Member, State Bar of Texas Pattern Jury Charges Oil and Gas Committee, August 2013
Member, Texas Board of Legal Specialization Oil, Gas and Mineral Law Exam Commission, February
    2013
Chair, The American Association of Professional Landmen, Annual Meeting Workshop, June 2007
Co-Chair, Rocky Mountain Mineral Law Foundation Special Institute, Development Issues and Conflicts
    in Modem Oil and Gas Plays, November 2004
Oil, Gas and Energy Resources Law Section, State Bar of Texas: Chairman (2001-2002)
    Officer (1997-2001), Council Member (1994-1997) Editor, Section Report (1996-1997)
Course Director, Advanced Oil, Gas and Energy Resources Law Course 2001, State Bar of Texas
Course Director, 22nd Annual Oil, Gas & Mineral Law Institute, University of Texas School of Law and
     Oil, Gas and Mineral Law Section, State Bar of Texas
Oil, Gas and Mineral Law Section, Houston Bar Association, Editorial Board Section Newsletter ( 1991-
     1993), Officer (1993-1996), Chairman (1996-1997)

HONORS: Order of the Coif

LAW RELATED PUBLICATIONS:

Co-author for the Oil, Gas and Mineral Law for Legal Assistants and Attorneys, State Bar of Texas PDP,
1984
       Workshop Regarding Title Examination and Division Orders
Author/speaker for University of Texas 12th Annual Advanced Oil, Gas & Mineral Law Institute (1986),
       Conveying and Reserving Mineral Interests
Co-author/speaker for the State Bar ofTex11s PDP 1986 Advanced Estate Planning and Probate Course,
       Perfecting Title and Transferring Real Property Out of the Estate

Rev. 2013 II 9                                   Paget of7



                                                                                                         54
ALLEN D. CUMMINGS
                        •                                            •
                                                                  BIOGRAPHICAL INFORMATION


Author/speaker for the State Bar of Texas PDP 1987 Advanced Oil, Gas & Mineral Law Course,
        Land Litigation Applied to Oil and Gas Disputes
Author/speaker for South Texas College of Law 1989 Advanced Oil & Gas Law Institute,
        Current Oil and Gas Title Issues
Author/speaker for University ofTexas 17th Annual Oil, Gas & Mineral Law Institute (1991),
        Selected Title Problems in Title Examination
Co-author/speaker for South Texas College of Law 1991 Advanced Oil & Gas Law Institute,
        A Comparison of Field Wide Unitization in Texas, Oklahoma and New Mexico
Author/speaker for South Texas College of Law 1992 Advanced Oil & Gas Law Institute,
        Division Orders and Payment for Production Proceeds
Author/speaker for State Bar of Texas PDP 1992 Advanced Oil, Gas & Mineral Law Course,
        Selected Title Issues: Partition and Probate
Author/speaker for State Bar of Texas PDP 1993 Advanced Oil, Gas & Mineral Law Course,
        Planning to be a Reasonable and Prudent Operator
Author/speaker for 1994 Houston Association of Professional Landmen Spring Technical Workshop,
        Recent Developments in Oil and Gas Law
Author/speaker for South Texas College of Law 1994 7th Annual Advanced Oil & Gas Law Institute,
        Case Law and Legislative Update
Author/speaker for Permian Basin Landmen's Association 1994 Fall Seminar,
        Case Law and Legislative Update
Author/speaker for Dallas Association of Petroleum Landmen's/Dallas Bar Association Energy Law
Section 1995 Educational Seminar,
        Recent Developments in Oil & Gas Law
Co-author, State Bar Section Report Oil, Gas & Mineral Law, Mar. 1995, Vol. 19, No.3,
        Litigating Gas Royalty Cases
Author/speaker for Dallas Bar Association Energy Law Section Review of Oil and Gas Law X, Aug.
1995,
        Pooling A Non-executive Interest: Problems and Options for the Owner and the Lessee
Author/speaker for State Bar of Texas 1995 Advanced Oil, Gas & Mineral Law Course,
        Pooling Issues--Avoiding Pitfalls
Speaker/modified, updated and republished with permission by Tevis Herd for 1996 University of
Houston Law Center Advanced Oil & Gas Short Course,
        Assuring the Title: Concurrent Ownership, Pooling, Probate, Etc.
Speaker for The Southwestern Legal Foundation 47th Annual Institute on Oil and Gas Law and Taxation,
February 1996,
        Gas Royalty Issues for the Third Millennium
Speaker for 1996 Houston Association of Professional Landmen Technical Workshop,
        COPAS-Joint Accounting: Have They Built a Better Mousetrap?
Author/speaker for Denver Landmen Association, March 1996,
        Pooling Issues--Avoiding Pitfalls
Speaker for The Southwestern Legal Foundation 37th Annual Institute for Professional Landmen Seminar
April1996
        Horizontal Drilling--Title and Related Legal Issues
Author/speaker for Permian Basin Landman's Association May 1996 Seminar,
        Pooling Issues--Avoiding Pitfalls
Author/speaker for Dallas Bar Association Energy Law Section Review of Oil and Gas Law XII Seminar,
August 1997,
        Horizontal Drilling--Title and Other Issues
Author/speaker for State Bar of Texas 1997 Advanced Oil, Gas & Mineral Law Course,

Rev. 2013 II 9                                  Page 2 of7




                                                                                                       55
ALLEN D. CUMMINGS
                        •                                             •
                                                                  BIOGRAPHICAL INFORMATION


       Pooling and Community Leases: Problems and Options for The Executive Owner, the Non-
       executive Owner and the Lessee
Author/speaker for AAPL Corpus Christi Landman's Institute, October 1997,
        Horizontal Drilling--Title and Other Issues
Author/speaker for Permian Basin Landmen's Association, November 1997,
       Horizontal Drilling--Title and Other Issues
Author/speaker for San Antonio Association of Professional Landmen Ninth Annual Mid-Winter
Seminar, March 1998,
       Pooling and Community Leases: Problems and Options for The Executive Owner, the Non-
        Executive Owner and the Lessee
Author/speaker for Petroleum Accountants Society of Houston, Ninth Annual Education Day, June 1998,
       The AFE: Authority for Everything?
Author/speaker for 1998 Mineral Owners Conference, September 1998,
        Conflicting Rights of Pipeline Companies and Surface Owners in Condemnation and Use of
       Pipeline Easements
Author/speaker for Houston Bar Association, Oil, Gas and Mineral Law Section Luncheon Program,
September 1998,
        Current Developments in Oil, Gas and Mineral Law
Author/speaker for State Bar of Texas 1998 Advanced Oil, Gas & Mineral Law Course,
        Ethics: Problems Arising from Prior Representation
Co-Author/speaker for The Southwestern Legal Foundation 50th Annual Institute on Oil and Gas Law and
Taxation, February 1999,
       The Use of Tort and Statutory Duties to Enlarge Contract Obligations Under the Lease and the
       Operating Agreement - Oklahoma Law and Texas Law
Author/speaker for Texas Bankers Association Asset Management Seminar, March 1999,
       Current Developments in Oil, Gas and Mineral Law
Author/speaker for American Association of Professional Landmen Convention, June 1999,
       Protecting the Non-executive Owner
Co-author/speaker for The University of Texas School of Law 26th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, March 2000,
       Trade Secrets and Proprietary Information
Author/Speaker for National Association of Lease and Title Analysts 15th Annual Conference, October
2000,
       Horizontal Drainholes - Pooled and Not
Author/speaker for San Antonio Association of Professional Landmen 12th Annual Mid-Winter Seminar,
February 2001,
       Pooling Issues - Avoiding Pitfalls and Recent Developments in Pooling
Author/speaker for The University of Texas School of Law 27th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, March 2001,
       Recent Developments and Specific Pooling Issues
Author/speaker for State Bar of Texas 2001 Advanced Oil, Gas & Energy Resources Law Course,
       The Clairvoyance of A.W. Walker, Jr.
Author/speaker for The-University of Houston Bar Foundation 2002 Advanced Oil & Gas Short Course,
       Joint Operating Afreements- Current Issues
Author/speaker for the 48 Annual Rocky Mountain Mineral Law Institute, July 2002,
       A Meeting of the Minds on Title Defects
Author/speaker for State Bar of Texas 2002 Advanced Oil, Gas & Energy Resources Law Course,
       Dangers Associated With Use Of And Reliance Upon Prior Title Opinions
Speaker for National Association of Lease and Title Analysts 15m Annual Conference, October 2002,
       Rights, Obligations and Problems Of Depth Severed Mineral And Leasehold Ownership
Rev. 2013 11 9                                Page3 of7



                                                                                                       56
ALLEN D. CUMMINGS
                        •                                            •
                                                                 BIOGRAPHICAL INFORMATION


Author/speaker for the 49th Annual Rocky Mountain Mineral Law Institute, July 2003,
        Rights, Obligations and Problems Of Depth Severed Mineral And Leasehold Ownership
Author/speaker for The University of Houston Bar Foundation 2004 Advanced Oil & Gas Short Course,
        Joint Operating Afreements - Current Issues
Author/speaker for the 55 Annual Program on Oil and Gas Law, The Institute for Energy Law of The
Center for American and International Law, February 2004,
        The Fundamentals: State of the Art ofNegotiating Environmental Issues in Energy Industry
        Purchase and Sale Agreements, Part 2: Flexible Approaches to Negotiating
Author/speaker for The University of Texas School of Law 30ih Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, March 2004,
        Today's Marketing, Yesterday's Leases, Check Stub Statutes: The Perfect Storm
Author/speaker for Rocky Mountain Mineral Law Foundation Special Institute, Oil & Gas Agreements:
The Exploration Phase, June 2004,
        Complex Exploration Agreements; Getting Down to Business
Author/speaker for State Bar of Texas 2004 Advanced Oil, Gas & Energy Resources Law Course,
        Standard for Proof of Damages under the Joint Operating Agreement and Lagniappe
Author/speaker The University of Texas School of Law 32ild Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, March 2006
        Old AMis- New Problems
Co-author/speaker for Rocky Mountain Mineral Law Foundation Special Institute, Oil & Gas
Agreements: Sales and Financing, May 2006,
        Organizing and Executing Due Diligence -Quickly
Speaker, The Houston Association ofProfessional Landmen, Spring Workshop, May 2006,
        The Accommodation Doctrine
Speaker, The Houston Association of Professional Landmen, Technical Conference, June 2006
        Ethical Issues: Preferential Rights to Purchase and Package Sales
Author/speaker for the 52nd Annual Rocky Mountain Mineral Law Institute, July 2006,
        Old Area of Mutual of Interest and Dedication Agreements- New Problems
Speaker, The Houston Association of Professional Landmen, Technical Conference, April 2007
        Ethical Issues: Negotiating and Applying AMI Clauses
Speaker, The American Association of Professional Landmen, Annual Meeting Workshop, June 2007
        Negotiating, Drafting and Applying AMI Clauses
        Checklist for Assignments
Speaker, San Antonio Bar Association Natural Resources Section Monthly Luncheon, June 2007
        Negotiating, Drafting and Applying AMI Clauses
Author/speaker for State Bar of Texas 26ili Annual Advanced Oil, Gas & Energy Resources Law Course,
        September 2008
        Measuring the Quality ofTitle
Speaker, San Antonio Bar Association Natural Resources Section Monthly Luncheon, January 2009
        Oil and Gas Operations in Urban Areas
Author/speaker The University of Texas School of Law 35th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, Oil and Gas Fundamentals Boot Camp March 2009
        The Joint Operating Agreement- The Basics
Speaker, The Houston Association of Professional Landmen, Technical Conference, April2009
        Pooling and Unitization: Barnett and Haynesville Shales
Author/speaker for Rocky Mountain Mineral Law Foundation Special Institute, Oil & Gas Agreements:
The Exploration Phase, May 2009 and March 2010,
        Area of Mutual Interest Agreements


Rev. 2013 11 9                               Page 4 of7



                                                                                                      57
ALLEN D. CUMMINGS
                           •                                            •
                                                                    BIOGRAPHICAL INFORMATION


Author/speaker for State Bar of Texas 28th Annual Advanced Oil, Gas & Energy Resources Law Course,
        October 20 10
        Thinking About Boilerplate
Author/speaker The University of Texas School of Law 37th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, Oil and Gas Fundamentals Boot Camp April 2011
        Texas Title Examination Standards: Introduction and Practical Exercises
Author/speaker for State Bar of Texas 29th Annual Advanced Oil, Gas & Energy Resources Law Course,
        October 2011
        The Pitfalls of Using tfti! '.Vr11DgAny Form
Author/speaker for Rocky Mountain Mineral Law Foundation Special Institute: Mineral Title
Examination, February 2012,
        Basis of Opinions, Types of Opinions, and Layout of Opinions
Author/speaker The University of Texas School of Law 38th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, March 2012
        Consent Asked For- But Not Received; the Enforceability of Consent to Assignment or Transfer
        Provisions
Speaker for American Association of Professional Landmen Annual Meeting, June 2012
        Pooling in Resource Plays
Author/speaker for State Bar of Texas 301h Annual Advanced Oil, Gas & Energy Resources Law Course,
Oil, Gas and Energy Resources 101 October 2012,
        Anatomy ofa Joint Operating Agreement
Author/speaker The University of Texas School of Law 39th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, Fundamentals of Oil, Gas and Mineral Law March 2013
        Texas Title Examination Standards: Introduction and Practical Exercises
Author/speaker The Center for American and International Law, Texas Mineral Title Course May 2013
        Texas Title Examination Standards: Introduction and Practical Exercises
Author/speaker for State Bar of Texas 31st Annual Advanced Oil, Gas & Energy Resources Law Course, 1
October 20 13
        NPRis: From Operator's Perspective in a Horizontal World
Author/speaker for Civil Justice Conference, October 2013
        Area of Mutual Interest and Preferential Right to Purchase Agreements

MEMBERSHIPS:

State Bar of Texas
San Antonio Bar Association
Houston Producer's Forum
American Association of Professional Landmen
Houston Association of Professional Landmen

                                        Prior Expert Testimony

1.     For Defendant, Cause No. A-172, 979; M & M Resources, Inc. v. DSTJ, L.L.P. and DSTJ
Corporation; 58th District Court, Jefferson County, Texas. Deposition April2006.

2.     For Respondent, Case No. 77 198 00189 06 MAVI, Enerplus Resources (USA) Corporation v.
Slawson Exploration Company, Inc., American Arbitration Association, Denver, Colorado. Testify
March2007.

3.        For Respondent, Hunt Petroleum Corporation, eta/., v. LLOG Exploration Company, LLC, et al.,
Rev. 2013 II 9                                  Page 5 of7



                                                                                                         58
                           •                                                ••
ALLEN D. CUMMINGS                                                       BIOGRAPHICAL INFORMATION


Arbitration Proceeding, Houston, Texas. Testify March 2007.

4.        For Intervenors in Cause No. C-1535-02-H; Stephens Production Company, a Division of
Stephens Production Group, Inc., as Plaintiffs v. Charlie Hudson, et al., as Intervenors, v. Paul Freeman,
et al., as Defendants; 3891h Judicial District Court, Hidalgo County, Texas. Testify September 2008.

5.      For Plaintiff, Cause No. 0-06-161; Gastar Exploration Texas LP v. John E. Mcfarlane, et al.,
87th Judicial District Court, Leon County, Texas. Deposition November 2008.

6.       For Movants for Establishing a Producers Committee, In Re: SEMCRUDE, L.P., et al. Chapter
11 Case No. 08-11525(BLS), Adversary No. 08-51444(BLS) (TEXAS), United States Bankruptcy Court
for the District of Delaware. Testify February 2009.

7.       For Plaintiff, Cause No. 2008-05053, Carrizo Oil & Gas, Inc. v. 2001 Trinity Fund, LLC, 295th
Judicial District Court, Harris County, Texas. Testify October 2009.

8.      For Plaintiff, Civil Action No. H-08-3341, Preston Exploration Company, L.P., et al. v. GSF,
L.L.C., et al.; United States District Court for the Southern District of Texas, Houston Division. Testify
March2010.

9.      For Plaintiff, Cause No. 2009-66618, Davis Petroleum Corporation v. ERG Resources, LLC,
269th Judicial District Court, Harris County, Texas. Deposition February 2011.

10.       For Defendants, Civil Action No. 2:08-CV-345 TJW, Charles H. Coli, et al., v. Abaca Operating,
U.C. et al., United States District Court for the Eastern District of Texas, Marshall Division. Deposition
February 2011.

11.     For Claimant, Tauren Exploration, Inc., et a/. v. EXCO Operating Company, LP, et al.,
Arbitration Pursuant to November 2009 Purchase & Sale Agreement (Not Administered). Testify
January 2012.

12.      For Plaintiff, Cause No. 08-04-07047-CV, OZ Gas Corporation v. Remuda Operating Company,
et al., 112th Judicial District Court, Crockett County, Texas. Testify February 2012.

13.    For Plaintiff, Cause No. 201()...15225, Devon Energy Production Company, L.P. v. KCS
Resources, LLC, 129th Judicial District, Harris County, Texas. Deposition March 2012.

14.     For Plaintiff, Cause No. CV11-04-320; Merit Management Partners I, LP, eta/. v. Lakota Energy
Limited Partnership; 271st Judicial District, Wise County, Texas. Deposition May 2012, testify October
2102.

15.     For Claimant, Arbitration Proceeding (Not Administered) concerning Cause No. P-12,779-C,
Kathleen Wild v. FrankJ. Schuster, et ai.,_County Court N9. 3, Sitting in Probate, Hidalgo County, Texas.
Testify August 2012.

16.     For Plaintiff, Cause No. 11-0849, Noel Diane Jones, eta/. v. Petrohawk Properties, L.P., et al.,
71st Judicial District, Harrison County, Texas. Deposition September 2012 and March 2013; testify
September 2013.

17.       For Defendant, Cause No. 26527, John G. Middleton, et a/. v. Fairways Exploration &
Rev. 2013 11 9                                   Page 6 of7



                                                                                                             59
ALLEN D. CUMMINGS
                          •                                               •
                                                                      BIOGRAPHICAL INFORMATION


Production, LLC, 344th District Court, Chambers County, Texas. Deposition March 2013.

18.      For Defendant, Cause No. DC-12-05303; Orca Assets, G.P. LLC v. JP Morgan Chase Bank,
N.A., et al, B-44th District Court, Dallas County, Texas. Deposition October 2013.




Rev. 2013 11 9                                  Page 7 of7



                                                                                                 60
                                    •                                        •
• !




                                                   NO.lJ-06-0559-CVA

      IVARENE HOSEK AND VICTOR                             §     IN THE DISTRICT COURT
      HOSEK                                                §
      Plaintiffs,                                          §
                                                           §
      v.                                                   §     81ST JUDICIAL DISTRICT
                                                           §
      ROSALE SCOTT                                         §
      Defendant.                                           §     ATASCOSA COUNTY, TEXAS

                                               AFFIDAVIT OF Robert J. Ogle

             BEFORE ME, the undersigned authority, on this day personally appeared Robert J.

      Ogle, the undersigned affiant, who swore on oath
                                                    .  that the following facts are true:
                                                                                     .


              "My name is Robert J. Ogle. I am over 18 years of age, of sound mind and fully

      competent to make this affidavit. I have personal knowledge of the facts herein stated and they

      are all true and correct.

              "I was present at the depositio~ of Rosale Scott taken on November 1, 2013. The

      attached deposition transcript excerpts accurately reflect the deposition testimony given by



              SIGNED ON        j.,. <""'I J. 2014.                a
      Rosale Scott and is an exact true and correct copies of excerpts of the deposition transcript."




                                               T         Roe:ti:Jmt #=
              SUBSCRIBED AND SWORN TO BEFORE ME on                           ~       "      ~0/   t ,by
           RP bu+ r        o0 l    t,.



                           PAlRICIA L OGLE
                        MY COMMISSION EXPIRES
                           December 19, 2014




                                                            12

                                                                                                          61
                       Rosale S c o t t .
                                                                                             •          November 1, 2013
                                                                                                                          Page 42

                   1                     Q.     So was this a point of negotiation between you

                   2           and Mr. King about reservation of the minerals?
                   3                  A.        Well, I didn't talk to Mr. King very much
                   4           really.          I mean we talked a couple of times.                        We didn't
                   5           even talk about oil rights really, oil or mineral
                   6           rights.

                   7                  Q.        You just testified that you wanted 30 but you
                  8           could only get 20.

                  9                  A.        Yes.

               10                     Q.       So you obviously negotiated with Mr. King for
               11             the mineral rights.
               12                    A.        Well, he did.
              13                     Q.        Well, he negotiated successfully.
              14                     A.        Yeah.
              15                     Q.       But you negotiated with him over the mineral
              16             rights?

              17                    A.        Yes.

              18                                          (Exhibit 5 marked)
              19                    Q.         (By Mr. Ogle) I am going to hand you what has

              20             been marked our Exhibit Number 5 and see if you can tell

             21              me what that is.                Do you know what that is?
             22                     A.        Yes.
             23                     Q.        And what is it?                                                                      1
             24                     A.        I know what it is but I don't recall writing
                                                                                                                                   J
             25             that letter.

                                                                                                                             .     f
                                                                                                                             ._j
                    Kim Tindall and Associates, LLC          645 Lockhill Selma, Suite 200             San Antonio, Texas 78216
                    210-697-3400                                                                            210-697-34Ci_a,
Electronically signed by Sarah Prugh (201-387-426·3457)
                                                                                                 6bd34b3b-f084-4322-a027-d4fd4sJlfi'1 b
                    Rosale Scott.
                                                                                         •           November 1, 2013
                                                                                                                      Page 43

               1                    Q.        Would you look at page two and tell me if that
               2             is your signature?
               3                    A.        It looks like it.
               4                    Q.        And what is the date of the letter?
               5                    A.        August 22nd, 1989.
               6                    Q.        So you are not going to tell the court that you
               7            didn't write this letter; are you?
               8                    A.        I don't recall writing it.
               9                    Q.       You don't recall writing it.                     Are you saying
             10             you didn't write it?
             11                    A.         I just don't recall writing it.
             12                     Q.       Okay.          Is it entirely possible that you did
             13             write it?
             14                    A.        No.
                                                                                                                                 i
             15                                           MR. CALDWELL:       Objection, form,                                    t
             16
            17
                            speculation.
                                   Q.         (By Mr. Ogle) I am asking you if it is possible
                                                                                                                                 I
            18              that you wrote this letter.
            19                                        MR. CALDWELL:          Objection, form.           You can
            20              go ahead and answer.                   I have to object as to form.
            21                                        THE WITNESS:          Yes, it is possible but I
            22             don't remember it.
            23                     Q.        (By Mr. Ogle) Do you have a theory for who you
            24             think wrote it?
            25                     A.       No.       All I can say is that I was                    I had been



                   Kim Tindall and Associates, LLC            645 Lockhill Selma, Suite 200          San Antonio, Texas 78216
                   210-697-3400                                                                            210-697-34 q.g.,
Electronically signed by Sarah Prugh (201-387-426·3457)                                         sbd34b3b-t084-4322-ao27 -d4td4eJlM1 b
                           Rosale Scott-
                                                                                              •          November 1, 2013
                                                                                                                           Page 44

                      1            ill with glaucoma.                  That is in the letter here.               And                   J
                                                                                                                                       ]
                     2             also, I was grieving for my mother who passed away the


                     4
                      3            year before.
                                          Q.        All right.          I want to draw your attention to a                             I1
                     5             paragraph, one of the paragraphs in this letter.                                It is               •j


                     6             the third paragraph.                  And at the last part of that
                     7             paragraph, I think it is the last three sentences, this
                     8             letter says Victor and Ivarene Hosek own half of the oil
                     9             and mineral rights for another 14 years.                         Then you will


                                                                                                                                       I
                   10             get their half.                  I want to keep my half for another 30
                   11             years if possible.                  So is this a letter from you to
                  :12             Mr. Wesley King?                  Is that what this is?
                  :13                                           MR. CALDWELL:       Object as asked and
                  14              answered.
                  '15                     Q.        (By Mr. Ogle) Is this a letter from you to
                   16             Wesley King?
                   17                     A.       I   don't remember writing it or sending it.
                  18                      Q.       So you don't think that you said any of these
                  19              things in this letter?
                  20                     A.        I don't know.
                                                                                                                                      I
                                                                                                                                      I,
                  21                     Q.        So you couldn't tell me what you meant when you.
                  22              saiq that, if you don't remember it; is that right?
                  23                     A.        Yes.
                  24                     Q.        This letter would indicate it was written by
                  25              you that you knew that after 25 years, the mineral

''
  '

                          Kim Tindall and Associates, LLC           645 Lockhill Selma, suite 200         san Antonio, Texas 78216
                          210-697-3400                                                                        210-697-34~e_
      Electronically signed by Sarah Prugh (201-387-426·3457)                                       6bd34b3b·f084-4322-a027 od4fcl46?4m1 b
                     Rosale S c o t t .
                                                                                         •         November 1, 2013
                                                                                                                     Page 45


                1            ownership would go back to the surface owner.                               Could you

                2            agree with me on that?

                3                                          MR. CALDWELL:       Objection, form.

                4                                          THE WITNESS:       This is not a legal

               5             document.

                6                   Q.         (By Mr. Ogle) I am just asking you to answer my

               7             question.            I am not asking you whether it is a legal

               8             document.            If you had written that, it would indicate

               9             that you knew that the 25 year period was a period after

             10              which the surface owner would own the minerals under

             11              their land.              Isn't that right?            Isn't that what it says?

             12                     A.        I don't know.

             '13                    Q.        You don't know what it says?

             14                     A.        I don't know.

             "15                    Q.        When did you first see this letter?

             16                     A.        Well, when it was sent to me by Mr. Caldwell.

             17                     Q.        And do you know where it carne from?

             18                     A.        I don ' t      know.

             19                     Q.        Do you know if it came from Mr. King?

             20                     A.        I don't know.

             21                     Q.        You don't know anything about it?                   Date of the

             22             letter is August 22, 1989 so.that would have been 10

             23             years, 11 years after the partition deed; is that right?

             24                     A.        How long, I don't know.

             25                     Q.       The date on the letter in front of you is



                    Kim Tindall and Associates, LLC            645 Lockhill Selma, suite 200         San Antonio, Texas 78216
                    210-697-3400                                                                          210-697-34Qik
Electronically signed by Sarah Prugh (201·387-426--3457)                                       6bd34b3b-f084-4322-a027-d4fd4&Jlilf1 b
                       Rosale Scott.
                                                                                            •            November 1, 2013
                                                                                                                          Page 46


                   1            August 22, 1989; is that right?
                   2                    A.       That's right.
                   3                    Q.        So I am asking you to agree with me that that
                   4            is 10 and a half years after the 10 years after the
                   5            partition deed is dated?
                   6                    A.       Yes.
                   7                    Q.       So if you did say there is·another 14 years,
                   8            then you will get their half to Mr. King, you would have
                   9            indicated that after the 25 year period, that the
                 10
                 11
                                surface owners would own their minerals; isn't that
                                right?
                                                                                                                                     I~
                 12                                           MR. CALDWELL:       Objection, form,
                13              speculation.
                 14                    Q.         (By Mr. Ogle) You can still answer the
                 15             question.
                 16                    A.        I don't remember the letter.                     I don't remember
                 17             writing it.
                 18                    Q.        Okay.
                 19                    A.        I had been ill and sometimes I forget things                                        I
                20
                21
                               when I am sick.
                                       Q.        Well, isn't this when you were negotiating the
                                                                                                                                     I•
                22              sale with Mr. King?                  Isn't this a period of time that
                23
                24
                               you were negotiating the sale to Mr. King?
                                       A.        I'm sorry.          I can't hear you.
                                                                                                                                            I
                25                     Q.        Isn't this the time that you were negotiating
I
\

                       Kim Tindall and Associates, LLC            645 Lockhill Selma, Suite 200           San Antonio, Texas 78216
                       210-697-3400                                                                           210-697-340.~
    Electronically signed by Sarah Prugh (201·387-426-3457}                                          6bd34b3b-f084-4322-a027 ·d4fd4Gi~1 b
                           Rosale Scott.
                                                                                           •          November 1, 2013
                                                                                                                        Page 47


                      1           the sale to Mr. King?

                    2                    A.       Yes.

                    3                    Q.       And so you remembered before that you

                    4             negotiated about 30 years versus 20 years.                          You

                    5             remembered that.

                    6                   A.        Yes.

                   7                     Q.       And that happened around the same time as this

                    8             letter was· written; correct?

                    9                   A.        Well, yeah.         I don't know.          I don't know.

                 10                     Q.        So you remembered that part of the negotiation

                 11               but you don't remember this letter.

                 12                     A.        No, I don't.         I don't remember writing it.

                 13                     Q.        Did you have an attorney representing you when
                . 1·4             you were negotiating the sale to Mr. King?

                ·T5                     A.       Mr. Steinle.

                 16                     Q.       Okay.        And so would Mr. Steinle have documents

                 17               perhaps about these negotiations?

                 18                     A.        I don't know.

                 19                     Q.       When did when were you approached about signing                                  .I
                 20               a quit claim deed for the purposes of oil and gas

                 21               drilling on this property?·

                 22                    A.        My husband passed away in January, January 3rd,

                 23              and it was soon after that.                    I don't know, February,

                 24              March.

                 25                    Q.        Of what year?

i
\

                          Kim Tindall and Associates, LLC       645 Loc.khill Selma, Suite 200         San Antonio, Texas 78216
                          210-697-3400                                                                       210-6 97-34 QA.
    Electronically signed by Sarah Prugh (201-387-426,3457)                                      . 6bd34b3b-f084-4322-a027-d4fd4s~fo1 b
                    Rosale Scott.
                                                                                       •           November 1, 2013
                                                                                                                     Page 48

                1                   A.        This year.

                2                   Q.       And who approached you about signing a quit

                3            claim deed?

               4                    A.        Ivarene called me and told me that the oil

               5             company representative was going to send me a paper to

               6             sign.        She didn't say quit claim.                  She said a paper.

               7                    Q.       And did the oil company send you a paper to

               8             sign?

               9                    A.       Yes.

             10                     Q.       And what did they say?

             11                     A.       And they called me too.                Mr. -- I can't

             12             remember his name but.

             13                     Q.       So you had the opportunity to talk directly to

             14             the oil company representative about this quit claim

             rs             deed; didn't you?

             16                    A.        Yeah, I guess he said a quit claim on the

             17             phone.         I think he did.

             18                    Q.        Did he explain to you what it was and why it

             19             was needed?                                                                                          ;
             20
             21
                                   A.

                                   Q.
                                             No.

                                           .And so what did           yo~   do with this quit claim
                                                                                                                                 Ii
                                                                                                                                 j

             22             deed?

             23                    A.        Well~        he sent it.      And when I got it, I read
                                                                                                                                 I
             24
             25
                            it.      And my question was why, why would I have to sign

                            anything now after all of these years?                           Why would I have
                                                                                                                                 I
                    Kim Tindall and Associates, LLC          645 Lockhill Selma, Suite 200           San Antonio, Texas 78216
                    210-697-3400                                                                          210-697-34~
Electronically signed by Sarah Prugh (201-387-426·3457)                                        6bd34b3b-fOB4-4322-aD27 ·d4fd46d4f01 b
    (
                            Rosale Scott.
                                                                                             •            November 1, 2013
                                                                                                                              Page 49

                      1            to sign a quit claim?                 I called my daughter and she said
                      2            no, don't sign it.                And I talked to several people.                     I
                      3            talked to my cousins.                 I even called Lutheran Thrivent
                      4            Financial.             I talked to -- I believe it was an attorney
                      5            there who told me do not sign that.                           Do not sign the
                      6            quit claim.

                      7
                      8
                                                              MR. CALDWELL:

                                   conversations with attorneys because those are
                                                                                  Don't talk about any
                                                                                                                                      !
                      9            attorney/client privilege.                                                                          1
                  10                                          THE WITNESS:      I am not sure if it was
                  11              ~ttorney.           I   talked to him on the phone.                Maybe      not~      I
                  12              don't know.

                  13                                          MR. CALDWELL:      Okay.
                  14 .,                 Q.         (By Mr. Ogle) Do you remember the name of the
                 1'5 .            person you talked to?

                 16                     A.        No.

                 17
                 18
                 19
                                        Q.

                                        A.
                                                  What is your cousin's name that you talked to?
                                                  Cousin?                                                                             I
                                        Q.        The cousin you talked to, what is that cousin's
                 20               name?

                 21                    A.        Her name is Willadene Kyrish, K-Y-R-I-S-H.
                 22                     Q.       And why did you call her or why did you think
                 23              she would have some special knowledge about this?
                 24                    A.        I called her             well, we talk on the phone
                 25              sometimes.            She calls me sometimes.               Especially since my

I
\




                          Kim Tindall and Associates, LLC        645 Lockhill Selma, Suite 200           San Antonio, Texas 78216
                          210-697-3400                                                                       210-697-34~~
                                                                                                    sbd34b3b-to84-4322-ao27 -d4fd4s~Yo1 b
    Electronically signed by Sarah Prugh (201-387-426-3457)
                     Rosale Scott.
                                                                                      •          November 1, 2013
                                                                                                                   Pa·ge 50


                1            husband passed away.                 They have been -- always asked if
               2             they can help me.               Okay.      My daughter and my son-in-law
               3             said you need an attorney.
               4                    Q.        Which daughter?
               5                    A.        Diane.
               6                    Q.        Okay.
               7                    A.        And Gilbert, my son-in-law.
               8                    Q.        Okay.
               9                    A.       And so I called -- I called Willadene and asked
             10              her if she knew of an attorney because I need one.
             11                     Q.       Okay.        And she did she refer you to a lawyer?
             12                     A.       Yes, she did.
             ;13                    Q.       What lawyer did she refer·you to?
             14                     A.       I can't remember his name, not right now I
             15             can't.
             16                     Q.       When you get this deposition, can you fill that
             17             in for me so I will know who?
             18                     A.       All right.
             19                     Q.       Was it a San Antonio lawyer or a Floresville
             20             lawyer or a New Braunfels lawyer?
             21                    A.        San Antonio.
             22                     Q.       And you talked to that lawyer and did you talk
             23             to that lawyer in San Antonio?
            24                     A.        Well, my son-in-law tried to get an
            25              appointment.              In fact, he did get an appointment with



                    Kim Tindall and Associates, LLC         645 Lockhill Selma, Suite 200        San Antonio, Texas 78216
                    210-697-3400                                                                       210-697-34~~
Electronically signed by Sarah Prugh (201-387-426-3457)                                     6bd34b3b-f084-4322-a027 ·d4fd46d4f01 b
                        Rosale Scott.
                                                                                            •         November 1, 2013
                                                                                                                        Page 51


                    1            that attorney.                 And then that attorney called him back
                    2            and told him that he could not represent me because

                   3             there was a conflict of interest.

                   4                    Q.        Okay.         That is all you need to say.             You
                   5             shouldn't tell me anything that he actually told you
                   6             substantive.                 Okay.   And so then what did you do?

                   7                    A.       My daughter looked on the internet to find an
                   8            attorney for me.                  Diane, she found Mr. Caldwell for me.

                   9                    Q.       Okay.          And did you hire Mr. Caldwell?

                 10                     A.       Yes.

                 11'                    Q.       Did you sign a contract with Mr. Caldwell?

                 12                     A.       Yes.

                 13                     Q.       Have you paid any fees to Mr. Caldwell?

                 14'                    A.       Well, just I think it was 2500 for -- I don't
                 15 ·           know -- what do they call it?                        I can't remember.
                 16                                           MR. CALDWELL:       Retainer?

                 17                                           THE WITNESS:      Yeah, retainer.

                 18                    Q.         (By Mr. Ogle) Okay.              And are you paying him
                 19             hourly or are you paying him under a contingency
                 20             contract?

                 21                    A.        Contingency, yeah, contingency now, yeah.

                 22                    Q.        And so do you pay now.                 So you were paying
                 23             hourly for a while and then you went to contingency; is
                 24             that right?

                 25                    A.        He took it like that, yeah.

i
\



                        Kim Tindall and Associates, LLC           645 Lockhill Selma, suite 200        San Antonio, Texas 78216
                        210-697-3400                                                                         210-697-34QA
    Electronically signed by Sarah Prugh (201-387-426-3457)                                       6bd34b3b-f084-4322-a027-d4fd46J4tb1 b
-------------------------------------·-----                                                                       -·--




               .          Rosale Scott •
                                                                                            •         November 1, 2013
                                                                                                                         Page 52
                                                                                                                                   I
                     1                    Q.

                                          A.
                                                    I don't think you got over on him.

                                                   What?
                                                                                                                                   i
                     2
                     3                    Q.        I'm sorry.        I was being flippant.           So it

                     4            started out hourly and then it went to a contingency

                     5            contract; is that right?

                     6                    A.       The retainer was

                     7                    Q.        I see.

                     8                   A.              first.     And then, yeah, it is a contingency

                     9            contract.

                   10                     Q.       Okay.        If you were in a position where you were

                   11             standing in front of the judge telling the judge what

                   12             you think that partition deed said and what it means,

                   13             what would you tell him?

                   14
                   15
                                         A.        I think that            what I think it says is that it

                                  would be renegotiated after the 25 year period.                                                 I
                                                                                                                                  ~




                   16                    Q.        And so even if it doesn't say that, that is

                   17             what it should have said; is that right?

                   18                    A.        Well, that was my understanding.

                   19                    Q.        So if it didn't say that, it was wrong; is that

                   20             right?

                   21                    A.        Okay.

                   22                    Q.        You can't look at your

                   23                                       MR. CALDWELL:        You can answer if you

                   24             understand his question.

                   25                                       THE WITNESS:        If it didn't say that, it

  I
  \

                         Kim Tindall and Associates, LLC          645 Lockhill Selma, Suite 200        San Antonio, Texas 78216
                         210-697-3400                                                                       21 0- 6 9 7- 3 4 Q.S. .
      Electronically signed by Sarah Prugh (201-387-426·3457)                                     6bd34b3b·f084-4322-a027 ·d4fd46!~1 b
                     Resale Scott.
                                                                                        •          November 1, 2013
                                                                                                                     Page 53

                1            was wrong.             I don't know.          I don't know.
               2                    Q.         (By Mr. Ogle) You don't really know what the
               3             deed says?
               4                                          MR. CALDWELL:       That is not what she said.
               5                    Q.        (By Mr. Ogle) Do you really know what the deed
               6             says?
               7                    A.        Yes.
               8                    Q.        What does it say?


             10
               9                    A.        25 years.         But that was -- I thought it or I
                            understood that it would be renegotiated after 25 years.
                                                                                                                                It
                                                                                                                                j
                                                                                                                                I
             11                                           (Exhibit 4 marked)
             12                     Q.        (By Mr. Ogle) I am going to hand you -- my
             13             exhibits are all out of order, I                        apologiz~   -- what is
             14             Exhibit Number 4 and see if you can identify that,
             1"5            please, ma'am.                 Can you tell me what that is?
             16                     A.       That was a letter that Mr. Wetherbee decided
             17             that was Mr. Wetherbee's idea.                        It was never my idea.
             18                     Q.       Who is Mr.         Wetherbe~?

             19                    A.        The attorney.
             20                    Q.        What attorney?             Is he your attorney?
             21                    A.        He was in the same office as Mr. Steinle.
             22                    Q.        Who went.and talked to Mr. Wetherbee.
             23                    A~        Well, I was talking to him about selling the --
             24                                       MR. CALDWELL:          Mrs. Scott, if he is your
             25             attorney, you can't testify about what you and your
                                                                                                                                       I
                    Kim Tindall and Associates, LLC           645 Lockhill Selma, Suite 200        san Antonio, Texas 78216
                    210-697-3400                                                                         210-697-34ff3
Electronically signed by Sarah Prugh (201-387-426·3457)                                       6bd34b3b-f084-4322-8027 -d4fd46d4f01 b
                    Resale Scott.                                                                     November 1, 2013
                                                                                                                        Page 54


               1             attorney talked about; okay?

               2                                          THE WITNESS:       Okay.

               3                                          MR. CALDWELL:       So you can't testify about

               4             what you and Mr. Wetherbee discussed.                            You understand?

               5                                          THE WITNESS:       Okay.

               6                    Q.        (By Mr. Ogle) We will dance around that.                            Did

               7            you go to Mr. Wetherbee for help, legal help?

               8                    A.        I'm sorry.          I can't hear.

               9                    Q.        Did you go to Mr. Wetherbee for legal help?

             10                     A.       Yes.

             11                     Q.       And what help were you asking for?

             12                                           MR. CALDWELL:       I'm sorry.        That would

             13             be -- you can't discuss what you asked Mr. Wetherbee to

             14             do for you.              You can give your understanding -- you can

             15 1           explain wh~ you went to go see an attorney.

            16                                            THE WITNESS:      Why I went to see him?

            17                                            MR. CALDWELL:       Yes.

            18                                            THE WITNESS:      To sell the 60 acres.

             19                    Q.         (By Mr. Ogle) Okay.              And were you talking

             20             were you negotiating selling the 60 acres at that time?

            21                     A.        I don't understand the question.

            22                     Q.        Were you negotiating?                Okay.       Look at the date

            23              on this letter.

            24                     A.        The date, okay.

            25                     Q.        What is the date?              What is the date?



                   Kim Tindall and Associates, LLC            645 Lockhill Selma, Suite 200           San Antonio, Texas 78216
                   210-697-3400                                                                             210-697-34~
Electronically signed by Sarah Prugh (201-387-426-3457)                                          6bd34b:Urf084-4322-a027·d4fd4614fi1 b
..------------------~-----·.




                     Rosale Scott.
                                                                                        •             November 1, 2013
                                                                                                                      Page 55


                 1                    A.        December 6, 1985.
                 2                    Q.        Okay.       So at that time, December 6, 1985, you
                 3            you were looking into negotiating selling your property;
                 4            is that correct?
                 5                    A.       Yes.
                 6                    Q.       And was that the Morales sale that you were
                 7            negotiating?·
                 8                    A.       Yes.
                 9                    Q.       And did you go do Mr. Wetherbee as part of
               10             these negotiations?                 Just yes or no.             Don't tell me
               11             anything you said to him or he saia to you.
               12                    A.        Yes.
               13                    Q.        So you went to Mr. Wetherbee to help you figure
               14             out how to sell the land to the Moraleses?
               15                    A.        Yes.
               16                    Q.        Did the Moraleses want the minerals?                      Is that
               17             what was happening?
               18                    A.        Yes, they sure did.

               19                    Q.        And you -- Mr. Wetherbee, when this letter was
               20             written to Mr. and Mrs. Hosek, he was representing you;
               21             is that right?
               22                    A.        Yes.
               23                    Q.        And so why did you have this letter written to
               24            Mr. and Mrs. Hosek?                 What did you want to accomplish?
              25                     A.        I didn't ask him to write it.                   He decided to



                     Kim Tindall and Associates, LLC          645 Lockhill Selma, Suite 200           San Antonio, Texas 78216
                     210-697-3400                                                                 .       210-697-34~
  Electronically signed by Sarah Prugh (201-387-426-3457)                                        6bd34b3b-f084-4322-a027-d4fd46J421 b
;.
                   Rosale S c o t t .
                                                                                       •         November 1, 2013
                                                                                                                 Page 56


               1            write this letter.                 I never agreed to it.

               2                   Q.        On his own, did you tell him not to send this

               3            letter?

               4                   A.        He might have asked me if he could write the

               5            letter but --

               6                                         MR. CALDWELL:       Mrs. Scott, you can't go                       Il
               7            into the _substance of what you and Mr. Wetherbee talked                                         I
                                                                                                                             \I


               8           about.          Okay?

               9                                         THE WITNESS:      All right.

             10                                          MR. CALDWELL:       You can explain           did you

            11             authorize him to send this letter or know it was going

            12             out?

            13                                           THE WITNESS:      Well, yes, I did.

             14                    Q.        (By Mr. Ogle) And what do you believe it is

            15

            16
                           asking for?

                           for?
                                                    What do you think this letter is asking
                                                                                                                            I
                                                                                                                            I
                                                                                                                             t
            17                     A~       That we would exchange the oil and mineral
                                                                                                                             I
            18             rights there, that my sister would get all of her

            19             interest in the minerals under the surface if I would do

            20             the same, you know, exchange.

            21                     Q.       Instead of waiting for the 25 year period?

            22                    A.        Yeah.          I don't know exactly what he was doing.

            23             He was the attorney.                   I don't -- I didn't know anything

            24             about that.

            25                     Q.       Did the Moraleses want the minerals under their



                   Kim Tindall and Associates, LLC           645 Lockhill Selma, Suite 200        San Antonio, Texas 78216
                   210-697-3400                                                                       210-697-34~
Electronically signed by Sarah Prugh (201-387426·3457)                                       6bd34b3b-f0844322-a027-d4fd46J421 b
                     Rosale Scott.
                                                                                         •                November 1, 2013
                                                                                                                            Page 57

                1            60 acres?            Did the Morales want their minerals under the

                2            60 acres did they want them?

                3                   A.        Yes.         Yes.

                4                   Q.        And did you ultimately sell it to them without

                5            the minerals?

                6                   A.        I thought I had kept one-half.                     I     wanted to

               7             keep-my half.                 I thought I had kept one-half.                     When I

               8             looked at the deed, it said seller reserves her

               9             interests, you know.                  And there is no date, no date on

             10              it, no time.

             11                     Q.       Did -- after 2004, were you ever approached for

             12              an oil and gas lease after 2004?

             13                     A.       2004, no, no, I don't know.                      I didn't think so.

             14                     Q.       Did any ofl company -- did anybody ever

             15             approach you for an oil and gas lease on your 130 acres?

             16                     A.       After 2004?

             17                     Q.       At any time, at any time?

             18                     A.       I don't recall.

             19
             20
                                    Q.

                                   A.
                                             So you don't think that happened?

                                             No, I don't recall.
                                                                                                                                       It.




             21                                       MR. OGLE:        All right.         If we ·could take

             22             about a five minute break, I am pretty close.

             23                                           (Recess taken)

            24                     Q.         (By Mr. Ogle) We are back on the record,

             25             Mrs. Scott.              Did you want to say something about Exhibit



                    Kim Tindall and Associates, LLC           645 Lockhill Selma, Suite 200               San Antonio, Texas 78216
                    210-697-3400                                                                                210-697-34          a.a..
Electronically signed by Sarah Prugh {201-387-426·3457)                                              6bd34b3b-f084-4322-a027,.d4fd46cll~1 b
--------------                           ---····--··




                                         •                                             •
        ,'


                                                                                       27835 Bonn    Mount~in
                                                                                       San .Antonio· 'l':l\ 78260
                                                         -                      I      August 22, 1989
                    Mr. Wesley King
                    4211 Weslow
                    Houston TX 17081

                    Dear Mr • ICing

                   Row are you getting along? l hope you and 70~~ family are well. I.t ha·s· beett
                   a long,. hot and dry s.ummer• So-rry to b-e so slow in 'Wt'i ting to you.. I nave
                  had a few healtn pt:oblems. I developed Actite Glaue.oma and have haif le.se%: .
                  surgery in beth my ey.es. I inherited the condi ti.on. sill.Ce· my mother had' 1 t.
               I~ wot.tld have been leas .severe if the doctors I vil:r.t·ed had made the proper·
              · diagnoses.· Althoog& r had the symptoms for ~~ months and visited two
                  doc.toz:s, (one was an Opb.thalmo1ogis·t), they .both mada au tncorre~ diagnos.,.s,
                  and I had to so to the hos~ltal emargenc.y room on. Jnly lith·. 7'ha: emergeney
                ·room doct~ made att immediate diagnGses of glaucoma and I sp.ep.t. tWQ days in
                  tbe hospital. Then I bad .fl'n alls+giQ react~on to t~e medication. I r.,.s .givP.n
                 to. get tb.e pressure and pa.iJi dow.n in ~ eyes, so r am just liow getting ba.ck
               . t.o normal aga.ili..                          ·

                r   was kind of su1:prired wh:en you .called' im.d saic't. yoa are sti'll interested. iJJ
               'buying the farin land I still ha.ve left.. The :rexas economy is so. bad r1.gbt now•
               .Ju;t. t am l:'eady ~o sell lf you sti.ll •ant' to buf. i t d~otit dil. and riid..n.et.al
                t'igb·ts·. In 1983, I was offered $120,.000.:00. for the. whole place (l3£) a.crt>,s)
                bu·t oil Blld mineral rights were .incla.dea..:·                   ·

                 Hui_b· had planned' to tear down the tractor sh.ed, and US'e the materiais wh'i!n w.-e
                 build a. hOru.Zin LaVenia.. But, s:in:c-e we· have uo:t been able to sell. our·
                p.r~s.~nt home here· iq Bui:verde,. be nys · ther~ £s no 1'eBSOl2 to te~ i't ·dow
                since ou2: plan~r to· bu'ilcf hav.e. hen delayed. H.e· says :tbe: shed is worth $.3 .o.oo·;.
              · th.e;-~fore, I .would like .$sa,ooo-.oo to>tal pti~e tor tfie ptope;-ty. ·(~out $:750 . ·
             · .per acte). If possible, I would. lik-e $~,g,ooO . down paym~nt at:~d the balari.ce. ·
              · ($3D"OOO) in paymentS at 10 percerit interest: .for: ten yean.•. Victor & 'lvarE>n·e
                Hos~·k; OWD half the ~if and' minen:l. rigb~ for anothe.~ ll~ ·yea~s.. :t:'hen: yol:l' -w:Ul.
                get· their half. I. want to keep my half far arioth.er. ~o··yea'l's:; H poss.ib·le.• ·        ·
        ~


               tf it: iS' agreeable wii:b. you to lee ~. Kolodde COn.ti4"Ue. his. lf'aSe ·u1rt.il.mi d
              .Febru.aty .1990, l will coiltac·t a law'yer. as ·SO()tl. .as· ,poss;Lb.l~. and g-et the_ le~if
              documen~s prepared~        As stow· as .tho"Se lawyers a:r.e (f'llom· lilY. exp.etlenee)., .J.:t
                              brl~re-; they get. the: p.ap.ers re:ady an~ay, · W.e h:Scr $ whole place. ·
              Jii&y.' be.. 19'90
              $t11'Yey'ed in. 19.85 sa "noth~r surv..ey should not be l:'eq,\llre:q uille.GS YDil want
             · anotlier survey:.      i will   p&J for the;·lawy.er 1 & fees.,.:.. .

              Is: hard f~r me to explain how I feel about that pj.ac.e..: Therl! are s-o. many
              me~orie; tf,1.~re, btJt mos~ q£ t:hell!-are:·Jit+llapp,y:, d~~appots:it:tll8. ·memorle-s l.f.ke bsta,
             ,hack.- breaking wo;r::k (my. pa.r~l:,\-ts bel:1ev·ecl ·in· child labor), my ttareots ~- con'S tanJ:;
              fighting.,. and bein~ denied s. higb. !'{ohool. education whfcft liim.ted r.rty· opportunitit"-s
              for t:b..e_, ies.t of rAY 'life •.. My fatber wa$ an alc:oholi~ a.url :DIY. mother h:ad a ne.rvous
             b:J:eikdown wl'!~n I wa~ a 'DilhY. and· s.he Jje:ve~ t-ealiy ..r,coveted:. · She h.Sd- ~.ueb a
             l~ne tyJ ·unhappy life.,~ ·
 . '          .-·              .            .
  ·,,
                               •                                       ••
            I guess the reason I'm telling you all this is that I have to convi.nce
            myself that I am better off selling the place. Perhaps then I can say in
            my min~ ''its over" and I'm better off letting it· go, Going there and t~inking
            about the past only depresses me and makes me feel bad·, .an~ no one can chan$..,
           ·the past. It has been hard fo't· me to decide to sell, but I have finally madfo
            the decision.

             So, let. me know if.you still w.ant to buy the pla~P. If you obj~ct to any.of
              the c·ondit:icms I mentioned. 'let Jlle know and we can tallc about it. Perhaps,
           . we should meet somewhere to dis.ctiss all this in p-P.rson befo·re I get· the
             .legal papers p·repared in final. If you will call me the next t!mP. you plan
             to go down to your farm, we will ·tcy to· .meet you . the.re to talk about all this.

           I hav.e not yet signed up for the McCoy water, Mr. Xolodzi£> sent me- two cop'f"'s
           of his letter, but he for.got to enclose tb~ information sheet, so. if you want
           the. ·watE!r• please send me a sign-:up sbeet and I will fil~ :! t out and send· it
           to th.e water company .. ·I trie.d twice before,· ·but 11othing liappened anyway, s:o
           1· guess I .don 1 t feel o.tery qp'tim:i,.stic about any pt"ogress. in that area.

       · t-Tell, I must c.lose, and I hope to hear from you soon..     Talc.e care.

           Sincerely.


           ~%,4e4
           a.o~~le ~,. $cott




                                                                                                            ..r
                                                                                                                 I
                                                                                                               I
                                                                                                             .,
                                                                                                               I
                                                                                                            .I
                                                                                                                 I

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                                                                                                               I
                                                                                                               I
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                                    ...                                                             79 ·   :IJ
                                                                                                           ·; ·i
                   Rosale Scott.
                                                                                      •         November 1, 2013
                                                                                                                 Page 66


               1                                          CAUSE NO. 13-06-0559-CVA

               2            IVARENE HOSEK AND VICTOR                       ) IN THE DISTRICT
                            HOSEK,                                         )
               3                                                           )
                                      Plaintiffs                           )
               4                                                           )
                            VS.                                            ) 81ST JUDICIAL DISTRICT
               5                                                           )
                            ROSALE SCOTT,                                  )
               6                                                           )
                                      Defendant                            ) ATASCOSA COUNTY, TEXAS
               7

               8                                           REPORTER'S CERTIFICATE

               9                                   ORAL DEPOSITION OF ROSALE SCOTT

             10                                               NOVEMBER 1, 2013

             11
             12                     r;   Sarah A. Prugh, Certified Shorthand Reporter in
             13             and for the State of Texas, hereby certify to the
             14             following:
            15                     That the witness, ROSALE SCOTT, was duly sworn and
                              hat the transcript of the deposition is a true record
                                  the testimony given by the witness;

            18                     That the deposition transcript was duly submitted on

            19                --~·\\~-~\~~~-~\~~~-----       to the witness or to the attorney for
                     \
            20              the witness for examination, signature, and return to me

            21
            22                     That pursuant to information given to the deposition
            23             officer at the time said testimony was taken, the
            24             following includes all parties of record and the amount
            25             of time used by each party at the time of the



                   Kim Tindall and Associates, LLC          645 Lockhill Selma, Suite 200        San Antonio, Texas 76216
                   210-697-3400                                                                       210-697-3408
Electronically signed by Sarah Prugh (201-387-426·3•57)                                     6bd34b3b-f084-4322-a027-d4fd46JlQ1 b
                           Rosale S c o t .
                                                                                            •          November 1, 2013
                                                                                                                        Page 67

                      1           deposition:
                      2                  Mr. Robert J. Ogle (lh27m)
                                              Attorney for Plaintiffs
                      3                  Mr. G. Wade Caldwell (OhOm)
                                              Attorney for Defendant
                      4
                    5                    That a copy of this certificate was served on all
                    6             parties shown herein on                                                  and filed
                    7             with the Clerk.
                    8                    I   further certify that I am neither counsel for,
                    9             related to, nor employed by any of the parties in the
                  10              action in which this proceeding was taken, and further
                 11               that I am not               ~inancially     or otherwise .interested in the
                 12               outcome of this action.
                 13                     Further certification requirements pursuant to
                 14;              Rule 203 of the Texas Code of Civil Procedure will be
                 15 '             complied with after they have occurred.
                 16                     Certified to by me on this lOth day of November,
                 17               2013.
                 18
                 19
                 20                                                          Sarah A. Prugh, CSR
                                                                             Texas CSR 3972
                 21                                                          Expiration: 12/31/15
                                                                             Firm Registration Number 631
                 22                                                          Kim Tindall & Associates, LLC
                                                                             645 Lockhill Selma, Suite 200
                 23                                                          San Antonio, Texas 78216
                                                                             210-697-3400
                 24
                25
I
\



                          Kim Tindall and Associates, LLC         645 Lockhill Selma, Suite 200        San Antonio, Texas 76216
                          210-697-3400                                                                       210-697-3408
    Electronically signed by Sarah Prugh (201·387-426-3457)                                       6bd34b3b-f084-4322-a027 -d4fd4si3!1 b
------------------------



         ..                       Rosale S c o t t .
                                                                                              •              November 1, 2013
                                                                                                                             Page 68


                         1                          FURTHER CERTIFICATION UNDER TRCP RULE 203

                         2

                         3                      The original depositio~was not returned to the

                         4               deposition officer on

                        5                       If returned, the attached Changes and Signature

                        6                page(s) contain(s) ·any changes and the reasons therefor.

                        7                      If returned, the original deposition was delivered

                        8                to Mr. Robert J. Ogle, Custodial Attorney.

                        9                      $Q\D-dDis the deposition officer's charges to the

                      10                 Plaintiffs for preparing the original deposition and any

                      11                 copies of exhibits;

                      12                       The deposition was delivered in accordance with Rule

                      13.                203.3, and a copy of this certificate, served on all

                      14 '   i
                                         parties shown herein; was filed with the Clerk.

                      15                       Certified to by me on this               ~~          day of

                      16
                      17
                      18
                      19
                      20                                                      ~...,~X\-~"''~                        ByBW
                      21                                                       Sarah A. Prugh, CSR
                                                                               Texas CSR 3972
                      22                                                       Expiration:  12/31/15
                                                                               Firm Registration Number 631
                      23                                                       Kim Tindall & Associates, LLC
                                                                               645 Lockhill Selma, Suite 200
                      24                                                       San Antonio, Texas 78216
                                                                               210-697-3400
                     25
 {
 \
     \




                                 Kim Tindal.! and Associates, LLC   645 Lockhill Selma, Suite 200            San Antonio, Texas 78216
                                 210-697-3400                                                                      210-697-3408
         Electronically signed by Sarah Prugh (201-387-426-3457)                                        6bd34b3b-f084-4322-a027-d4fd46&a1 b .
