                                                                        ACCEPTED
                                                                    13-15-00012-CV
                                                    THIRTEENTH COURT OF APPEALS
                                                           CORPUS CHRISTI, TEXAS
                                                               5/22/2015 4:38:45 PM
                                                                  DORIAN RAMIREZ
                                                                             CLERK


        CAUSE NO. 13-15-00012-CV

                                             FILED IN
                                     13th COURT OF APPEALS
                                  CORPUS CHRISTI/EDINBURG, TEXAS
                                      5/22/2015 4:38:45 PM
                                       DORIAN E. RAMIREZ
                                              Clerk
BENEDICT G. WENSKE AND ELIZABETH WENSKE

                      v.
      STEVE EALY AND DEBORAH EALY




    FROM THE 25m JUDICIAL DISTRICT COURT
         OF LAVACA COUNfY, TExAs,
 THE HONORABLE Wll..LIAM D. OLD, ill PRESIDING




           APPELLANrS' REPLY BRIEF




                                            ADAM T. USZY"NSKI
                               MEIER, BRADICICH & MOORE, ll.P
                                                 P.O. Box550
                                        VICTORIA, TExAs 77902
                                                (361) 573-4344
                                          (361) 573-1040 (FAX)

                             ATTORNEY FOR APPELLANTS
                           CAUSE    N0.13-15-00012-CV




                 BENEDICT G. WENSKE AND ELIZABETH WENSKE

                                          v.
                         STEVE EALY AND DEBORAH EALY




                      FROM THE   2sm
                                  JUDICIAL DISTRICf COURT
                           OF LAVACA COUNIT, TExAs,
                   THE HONORABLE Wll.LIAM D. OLD, ill PRESIDING




                            APPELLANT'S REPLY BRIEF




TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:

      Appellants, Benedict G. Wenske and Elizabeth Wenske, respectfully submit

this Reply Brief in response to Appellee's Brief. Except when necessary for context,

Appellants do not repeat their arguments from their opening brief and confine their

reply to issues raised in Appellee's brief.
TABLE OF CONTENTS

Index of Authorities ............................................................................................................ ii

Introduction .......................................................................................................................... 1

Argument. ............................................................................................................................. 2

          1.         Appellee's argument ignores the granting clause of the deed
                     at issue and circumvents a correct construction of the deed
                     from its four corners as required under Texas law .........................2

          2.         There is no authority for the position taken by Appellees that
                     Appellants were required to add additional language in
                     order to transmit the burden of the previously reserved
                     non-participating royalty interest to the interests conveyed
                     to Appellees .......................................................................................... 4

Prayer ......................................................................................................................... 7

Certificate of Service .................................................................................................. 9




                                                                   i
                                INDEX OF AUTHORITIES

Cases

Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986) ......................................... 7

Bass v. Harper, 441 S. W.2d 825 (Tex. 1969)................................................... 4

Graham v. Prochaska, 429 S.W.3d 650, (Tex. App. - San Antonio, 2013) ..... 5

Pich v. Langford, 302 S.W.2d 645, 650 (Tex. 1957) ........................................ 5

Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 788 (Tex. 1995) .............. 5

Selman v. Bristow, 402 S.W.2d 520, 523 (Tex. 1966)...................................... 6




                                                  ii
                                 INTRODUCTION

AppeHees go to great lengths to add additional steps to the straightforward analysis

of a straightforward problem. In doing so Appellees attempt to render the granting

clause of the deed at issue without effect rather than reading it in harmony within the

four corners of the deed. Appellees further try supplant controlling case law with

portions of distinguishable cases in an effort to circumvent the clear effect of the

language in the deed.      The outcome Appellees seek is unsupported by any

controlling case law.
                                                                     ARGUMENT

      1. Appellee's argument ignores the granting clause of the deed at issue and

            circumvents a correct construction of the deed from its four corners as

            required under Texas law.

            Appellees frame their argument based on the assertion that only two portions

of Appellants' deed to Appellees' control the interpretation of the deed. See

Appellees ' Brief, pg. 1. Appellees state that the only portions of the deed which are

relevant to the analysis and disposition of the case at bar are the paragraphs in the

deed entitled "Reservations from Conveyance" and "Exceptions to Conveyance and

Warranty." See Petitioner's Motion for Summary Judgment for Declaration of

Royalty Interests, Exhibit B.

            Appellees' argument from this starting point overlooks the granting clause of

the deed entirely and precludes a correct review of the deed from its four comers

(see Appellants' Brief, pgs 9-11). In construing the deed these two clauses are vital;

however, the language set forth in the granting clause of the deed clearly

incorporates these two clauses and makes the grant in the deed subject to both of
             1
them.


1 The granting clause of the deed from Appell~n15 to Appellees sillies: "Grantor, for the Consideration and subject to the Reservations from Conveyance and the
Exceptions to Conveyance and Warranty,gran15, sells, and conveys to Grantee the Property, together with all and sin~:ular the rights and appurtenances thc~to in anyway
belonging, to lulve an to hold it to Grantee and Grantee's heirs. successors, and assigns fo~ver. Grantor binds Grantor and Grantor's heirs and successors to warrant and
fo~vcr defend all and singular the Property to Grantee and Grantee's heirs, successors. and assigns against every person whomsoever lilwfully claiming or to claim the
same or any part thc~or. except as to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty.'' Petitioner's Motion for Summary Judgment
for Declaration of Royalty lntc~s15, Ex. B. pg. 2


                                                                                   2
      When Appellants, as Grantors, conveyed the property, they did so expressly

subject to the reservation and exceptions from warranty. Appellees are correct in

their assertion that an exception limits the estate granted; by virtue of the grant made

expressly subject to outstanding reservations and exceptions, the grant is made

subject to the burden of those reservations and exceptions.

      Appellees go to great lengths in an attempt to avoid this four corners

construction of the deed; however, at the end of the analysis, a fair reading of the

deed requires that the deed be construed as presented by Appellants. An illustration

of this is clear from an examination of Appellees' argument. Appellees state that the

construction sought by Appellants is entirely possible but continue to argue

nonetheless that Appellants did not use "additional and unequivocal language which

would serve to negate longstanding rules of deed construction." See Appellees'

Brief, pgs. 10-12. Appellees however, cite no authority for this position whatsoever.

Appellees are left in the position of demanding further clarification without a legal

reason for requiring any further clarification.




                                           3
2.    There is no authority for the position taken by Appellees that Appellants

      were required to add additional language in order to transmit the

       burden of the previously reserved non-participating royalty interest to

      the interests conveyed to Appellees.

      Appellees' attempts to distinguish Bass v. Harper as controlling the outcome

of the case at bar rely on trivial differences and are insufficient to do so. Among the

distinctions pointed out are that the Bass deed does not contain a reservation and that

the Bass deed conveys "all that ... one-half interest in and to ... " the subject property.

See Appellees' Brief, pgs. 23-24. These distinctions are immaterial to the outcome of

the case. It is perfectly acceptable to convey a half an interest in property to another

party under Texas law. If a party owning all of the mineral and all of the surface

interest in a tract of real property conveys half of that interest, has that party not, for

all intents and purposes, reserved a portion of that tract? The conveying party has

achieved the same result as would be achieved if the conveying party had drafted a

deed that conveyed all of the property subject to a reservation of one-half of their

interest in the property.

       No case at bar can be expected to match the facts of the controlling case law

exactly; however, the analysis and result reached in Bass v. Harper fits the facts of




                                             4
the case at bar far closer than the cases cited by Appellee in support of Appellee's

position.

      In Pich v. Langford, the Supreme Court submitted in dicta at the end of the

opinion that the royalty interest adjudged to one of the parties would be carved

proportionately from the two mineral ownerships. Pich v. Langford, 302 S.W.2d

645, 650 (Tex. 1957). The decision in Pich was based on whether or not the

exception language in successive conveyances correctly referenced prior

reservations as either interests in minerals in place or interests in royalty. Id at

339-342. Pich was based on a far more complex factual background stemming from

an entirely different cause of action at the trial court level. ld at 337.

Notwithstanding that, the language relied on by Appellees is clearly dicta as the

Court offered no analysis as to why that outcome would be correct, which leaves any

conclusion based on that language in the opinion on very unstable legal footing.

       Similarly, the other cases cited by Appellees are also distinguishable. For

example, Plainsman Trading Co. v. Crews addressed a question of ownership of

uranium deposits. Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 788 (Tex.

1995). In Graham v. Prochaska, the San Antonio Court of Appeals addressed a

question of whether a reservation of a specified amount of royalty was either fixed or

floating. Graham v. Prochaska, 429 S.W.3d 650, (Tex. App. - San Antonio, 2013).


                                          5
      Likewise, in Selman v. Bristow, the plaintiff-grantors did not disclose the

existence of an outstanding royalty interest when they made their conveyance to

grantee-defendants - a key factual distinction the Tyler Court of Appeals relied upon

in reaching its conclusion. Selman v. Bristow, 402 S. W.2d 520, 523 {Tex. 1966) The

conclusion in Selman is dependent on a Duhig analysis and the petitioner-grantor

was charged with the entire burden of the unexcepted royalty reservation while the

defendant-grantee was given the benefit of the remaining 3/4ths interest in minerals

(which presumably included the mineral estate)./d at 524.

      If Selman provides an example of the penalty for failing to disclose a prior

reservation, then what is the reward? Appellees have already stated (in the trial court

and now on appeal) that Appellants can tax them entirely with the burden ofthe prior

royalty reservation but have failed to do so because Appellants didn't do so

expressly according to a standard which their authority does not support. See

Defendants Motion for Traditional Summary Judgment, Paragraph 17. The answer

to the above question, under the law of this state, is that the grantor is rewarded with

the receipt of the benefit of his full reservation, which in the case at bar is an

"undivided 3/8ths of all oil, gas, and other minerals in and under and that may be

produced from the Property." These benefits include the right to develop, the right to

lease, the right to receive bonus payments, the right to receive delay rentals, and the


                                           6
right to receive royalty payments on 3/8ths of the oil, gas and other minerals

Appellants reserved for themselves. See Altman v. Blake, 712 S.W.2d 117, 118 (Tex.

1986).


                                     PRAYER

         Appellants, Benedict G. Wenske and Elizabeth Wenske, respectfully request

that the trial court's judgment be reversed and rendered.

                                       Respectfully submitted,

                                       MEIER, BRADICICH & MOORE, LLP
                                       111. S. Main
                                       P.O. Box 550
                                       Victoria, Texas 77902
                                       Telephone: (361 )573-4344
                                       Telecopier: (361)573-1040
                                       E-mail:      adamu@victoriatxlawyers.com

                                       by:    «------ /=--... .:
                                               Adam T. lts;ynski
                                               State Bar No. 24069182

                                       ATTORNEY FOR APPELLANTS




                                          7
                CERTIFICATE OF COMPLIANCE
      WITH TEXAS RULE OF APPELLATE PROCEDURE 9.49(i)(3)

The undersigned certifies that the foregoing document contains 1,690 words,
exclusive of the contents excluded under Tex. R. App. P. 9.4(i)(l ).

                                            £~L
                                            ADAM T. USZYNSKI
                                                                   -_




                                        8
                         CERTIFICATE OF SERVICE

      The undersigned certifies that a true and correct copy of Appellant's Brief
was forwarded to all parties as indicated below in accordance with the Texas Rules
of Appellate Procedure on the Cit)~ day of Jl1a.. 14                     , 2015 as
follows:                                                 t




                                            ADAM T. USZYNSKI


Robert C. McKay
State Bar No. 13690800
Bobby M. Maiden
State Bar No. 24088893
McKay & Coffey, LLP
One O'Connor Plaza, Ste. 305
P.O. Box 2469
Victoria, Texas 77902-2469
Telephone: 361-894-8975
Telecopier: 361-894-8973
Email: rmckay@mckaycoffey.com
Email: bmaiden@mckaycoffey.com

Thomas F. Lillard
State Bar No. 12352900
Lillard Wise Szygenda, PLLC
5949 Sherry Lane, Suite 1255
Dallas, Texas 75225
Telephone: 214-739-2007
Telecopier: 214-739-2010
Email: tlillard@lwsattomeys.com




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