                                                                                   ACCEPTED
                                                                               03-15-00051-CV
                                                                                       5414383
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                         5/26/2015 11:48:51 AM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                    NO. 03-15-00051-CV

                                                         FILED IN
               IN THE COURT OF APPEALS    3rd COURT OF APPEALS
           THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS
                    AUSTIN, TEXAS         5/26/2015 11:48:51 AM
                                                    JEFFREY D. KYLE
                                                         Clerk

                       TRENT LINDIG,
                                             Appellant,
                             V.

           PLEASANT HILL ROCKY COMMUNITY CLUB,
                                             Appellee.

ON APPEAL FROM THE 33RD DISTRICT COURT, BLANCO COUNTY, TEXAS
           HONORABLE J. ALLAN GARRETT PRESIDING
                    CAUSE NO. CV07580


              APPELLANT’S REPLY BRIEF


                                  HOUSTON DUNN, PLLC
                                  Samuel V. Houston, III
                                  State Bar No. 24041135
                                  4040 Broadway, Suite 440
                                  San Antonio, Texas 78209
                                  (210) 775-0882 – Telephone
                                  (210) 826-0075 – Fax
                                  sam@hdappeals.com
                                  ZACHARY P. HUDLER, P.C.
                                  Zachary P. Hudler
                                  State Bar No. 24032318
                                  100 E. Pecan Street, Suite One
                                  Johnson City, Texas 78636
                                  (830) 868-7651 – Telephone
                                  (830) 868-7636 – Fax
                                  zachary@hudlerlaw.com




             ATTORNEYS FOR APPELLANT
                                   TABLE OF CONTENTS
                                                                                             Page
TABLE OF CONTENTS .................................................................................. i
TABLE OF AUTHORITIES ........................................................................... ii
SUMMARY OF THE ARGUMENT................................................................ 1
ARGUMENT.................................................................................................. 1
        I.      The Club Incorrectly Argues That the Reverter Clause
                Must Be Read in Isolation. ......................................................... 1
        II.     The Club’s Construction of the 1927 Deed Violates Rules of
                Construction. .............................................................................. 3
        III.    Stewart v. Blain Was Correctly Decided and Should Be
                Followed in This Appeal. ............................................................ 4
        IV.     Conclusion and Prayer................................................................ 6
CERTIFICATE OF COMPLIANCE ................................................................ 7
CERTIFICATE OF SERVICE......................................................................... 8




                                                      i
                              TABLE OF AUTHORITIES
                                                                                             Page


CASES
Cherokee Water Co. v. Freeman,
  33 S.W.3d 349 (Tex. App.—Texarkana 2000, no pet.) .............................. 3
City of Houston v. Van De Mark,
  83 S.W.3d 864 (Tex. App.—Texarkana 2002, pet. denied) ....................... 2
Day v. Needham,
 2 Tex. Civ. App. 680, 22 S.W. 103 (Fort Worth 1893, no writ) .................. 5
Harkey v. Harkey,
 60 S.W.2d 834 (Tex. Civ. App.—Austin 1933, writ ref’d)........................... 2
Luckel v. White,
  819 S.W.2d 459 (Tex. 1991) ....................................................................1, 2
Settegast v. Floyd,
  214 S.W. 686 (Tex. Civ. App.—Beaumont 1919, no writ) ........................... 5
Stewart v. Blain,
  159 S.W. 928 (Tex. Civ. App.—Galveston 1913, no writ).................... 4, 5, 6




                                                 ii
TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellant Trent Lindig respectfully presents this reply brief in support of

his principal brief wherein he requests that the Court reverse the trial court’s

order finding that the reverter clause contained in the 1927 Deed had not been

triggered.
                   SUMMARY OF THE ARGUMENT
      The possibility of reverter created in the 1927 Deed unequivocally vests

Trent with title to the disputed property. Following well-established precedent

establishing rules of construction, the Court must read the entire deed in

determining whether the reverter clause contained in the 1927 deed has been

triggered. In that connection, it is undisputed that the property has not been

used for school purposes since 1952. Given the language in the deed, the Court

can reach only one conclusion: once a school was no longer operating on the

property, the property reverted to Albert Lindig’s heirs. Thus, Trent is the

rightful owner of the property.

                                  ARGUMENT

I.    The Club Incorrectly Argues That the Reverter Clause Must Be
      Read in Isolation.
      In construing a deed, the Court must discern the grantor’s intent from

“from all of the language in the deed by a fundamental rule of construction

known as the ‘four corners’ rule.” Luckel v. White, 819 S.W.2d 459, 461 (Tex.

1991). The Court’s duty is not altered where the dispute centers upon a

reverter clause. As part of its work “interpreting the terms and discerning the

                                       1
meaning of the” reverter clause, the Court reviews “all the words used in the

deed.” City of Houston v. Van De Mark, 83 S.W.3d 864, 867 (Tex. App.—

Texarkana 2002, pet. denied); see also Harkey v. Harkey, 60 S.W.2d 834,

835-36 (Tex. Civ. App.—Austin 1933, writ ref’d). Thus, the Court must review

all parts of the 1927 Deed in determining who has title to the property.

       The only conclusion to draw from the 1927 Deed is that the limitation in

the reverter clause is triggered once a school no longer operates on the

property. In that instance, the property could no longer be used for school

purposes. The deed recites “that the land herein conveyed shall be used for

school purposes only.” CR 96. The granting clause specifically provides that

the land “shall be used for School purposes for the Pleasant Hill School

District No. 21.” CR 96. The habendum clause indicates that the property was

being conveyed so that it would be used for “School Purposes.” CR 97.

       Not only must the Court read the entire deed in construing the reverter

clause, but the rules of construction require that the Court attempt to

harmonize all parts of the deed. Luckel, 819 S.W.2d at 462. 1 The specific

language found in the reverter clause can be harmonized with Albert Lindig’s

multiple statements that the property was to be used for school purposes. If


1
 The argument section of the Club’s brief concludes with a paragraph suggesting that the
various provisions in the deed discussing “school purposes” cannot be read in in
conjunction with the reverter clause. The Club does not cite any direct authority in support
of its argument. See Appellee Br. at 9. Irrespective of the absence of citations to authority,
the Club’s assertion should be rejected because it is contrary to the rule that courts “must
strive to harmonize all of the parts, construing the instrument to give effect to all of its
provisions.” Luckel, 819 S.W.2d at 462.


                                              2
the property was no longer being used for school purposes because there was

no longer an operational school, then no “school house” could exist.

II.   The Club’s Construction of the 1927 Deed Violates Rules of
      Construction.
      Even if the reverter clause is read in isolation, the Club’s construction of

it must be rejected. Despite the multiple references to “school purposes”

throughout the deed, the Club argues that the limitation would only be

breached if the building that once housed the school is removed from the

property. The Club argues that the reverter clause has not been triggered

because the building is still on the property. The Club makes this argument

even though it is undisputed that a school no longer operates on the property,

and the property has not been used for school purposes since 1952.

      The Club’s narrow construction is faulty because it does not give effect to

all terms found in the reverter clause. The Court is “required to give effect to

all words used in the instrument, and [it is] not permitted to assume that the

drafter of the instrument intended for some of the words to have no effect.”

Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 354 (Tex. App.—Texarkana

2000, no pet.). The Club’s analysis does not address the fact that the term

“house” is modified by the term “school.” Applying proper rules of

construction, the only conclusion to reach is that the reverter clause is tied to

the building’s use rather than its mere presence on the property. If no school




                                        3
was being operated on the property, then the building could not be a “school”

house.

      Trent’s construction is further strengthened when the Court considers

the entire reverter clause. The clause references both “said School House” as

well as “any other house which may be built and used for a School house.” If

Albert Lindig had intended the reverter clause to be triggered only when the

original building left the property, then he would not have stated that the

property should revert to his heirs if “said School House or any other house

which may be built and used for a School house is removed from said land

herein described.” CR 96.

      It is immaterial whether the original building remains standing or

whether it had been replaced by a new building. Based upon a reading of the

entire reverter clause, Albert Lindig intended the reverter to be tied to the

property’s use for a school. Once the property is no longer being used for

school purposes, the reversionary interest created in the 1927 Deed springs to

life. See CR 96.

III. Stewart v. Blain Was Correctly Decided and Should Be
     Followed in This Appeal.
      Stewart v. Blain, 159 S.W. 928, 929 (Tex. Civ. App.—Galveston 1913, no

writ), should guide the Court in its resolution of this appeal because it involves

substantially similar deed language. In Stewart, the granting clause provided

that property was being conveyed “for the purpose of erecting a schoolhouse,



                                        4
for the benefit of the colored school community No. 4.” Id. at 929. The reverter

clause provided that “in the event of the removal of the schoolhouse therefrom

. . . the said acre of land shall revert back to me or my heirs or assigns.” Id. at

930.

       Reviewing the entire deed, the court concluded that “[t]he sense and

evident intention of it was that the grantees were to own and possess the

property as long as it was used for school purposes.” Id. As he stated in his

principal brief, Trent asserts that the same conclusion should be reached in

this appeal.

       The Club’s criticisms of the analysis in Stewart are unfounded. The Club

asserts that the court deviated from the deed’s plain language “and attempted

to divine what the parties meant from what it thought the parties[’] intent to

be.” Appellee Br. at 8. The language cited by the Club,2 however, indicates that

the court was not deviating from the deed. Rather, the court was merely

discussing its conclusion that it did not need to engage in a lengthy discussion

of the distinction between a condition subsequent and a conditional limitation

because the deed’s “language expresses the intention of the parties in terms so


2
 In asserting that the court in Stewart substituted its own belief for the plain language in
the deed, the Club cites a part of the opinion that begins with the following phrase: “It
seems to us that . . . .” Appellee Br. at 8. There, however, does not appear to be any merit to
that assertion. A review of decisions from the late 1800s and early 1900s reveals that
appellate courts commonly used the phrase “It seems to us” in opinions. E.g., Settegast v.
Floyd, 214 S.W. 686, 689 (Tex. Civ. App.—Beaumont 1919, no writ) (“[I]t seems to us
appellants were clearly holding under a deed duly registered . . . .”); Day v. Needham, 2
Tex. Civ. App. 680, 682, 22 S.W. 103, 104 (Fort Worth 1893, no writ) (“It seems to us, from
the description contained in this deed . . . .”).


                                              5
plain.” Stewart, 159 S.W. at 930. Based upon its review of the deed, the court

explained that the provisions quoted above “mean, and were intended to

mean, that the grantees should own and use and enjoy the property so long as

it was so used for the purpose for which it was conveyed, and that when this

condition ceased the title and right of possession should at once revert to the

grantor, ‘or his heirs or assigns.’” Id. at 931.

      The court rejected the very same argument advanced by the Club. Just

like in this case, it was undisputed that (1) the property had ceased to be used

for school purposes by the time that the plaintiff sought to assert the rights

guaranteed by the reverter clause, and (2) the building that once housed the

school was still on the property. See id. at 930, 931. Although the building that

once housed the school was still on the property, the court reasoned that it

could not be a “schoolhouse” if there was no school. Id. at 931; see also id.

(“The building may be there yet, but it is not a schoolhouse.”). The same is true

in this appeal.

IV.   Conclusion and Prayer.

      Trent is the rightful owner of the property. Under the deed’s

unambiguous terms, the reversionary interest became a present possessory

interest once a school ceased to operate on the property. Therefore, the trial

court’s order must be reversed.

      WHEREFORE, PREMISES CONSIDERED, Appellant Trent Lindig

respectfully prays that the Court reverse the trial court’s order on Appellant’s


                                         6
Rule 248 Motion, declare that Appellant holds title to the disputed property,

and grant other and further relief to which he may be justly and equitably

entitled.
                                       Respectfully submitted,

                                       /s/ Samuel V. Houston, III
                                       SAMUEL V. HOUSTON, III
                                       State Bar No. 24041135
                                       HOUSTON DUNN, PLLC
                                       4040 Broadway, Suite 440
                                       San Antonio, Texas 78209
                                       (210) 775-0882 – Telephone
                                       (210) 826-0075 – Fax
                                       sam@hdappeals.com

                                       Zachary P. Hudler
                                       State Bar No. 24032318
                                       ZACHARY P. HUDLER, P.C.
                                       100 E. Pecan Street, Suite One
                                       Johnson City, Texas 78636
                                       (830) 868-7651 – Telephone
                                       (830) 868-7636 – Fax
                                       zachary@hudlerlaw.com

                                       ATTORNEYS FOR APPELLANT




                   CERTIFICATE OF COMPLIANCE

     In accordance with Texas Rule of Appellate Procedure 9.4, the
undersigned certifies that the foregoing computer-generated brief contains 1,704
words.

                                           /s/ Samuel V. Houston, III
                                           SAMUEL V. HOUSTON, III




                                       7
                      CERTIFICATE OF SERVICE
      This is to certify that a true and correct copy of the foregoing document
has been served in accordance with the Texas Rules of Appellate Procedure on
the 26th day of May, 2015, to the following:

Jeff D. Small                                    Via email/e-service
LAW OFFICE OF JEFF SMALL
12451 Starcrest Dr. #100
San Antonio, Texas 78216
jdslaw1951@gmail.com

Norman L. Nevins                                 Via email/e-service
THE NEVINS LAW FIRM
206 West Main Street
Fredericksburg, Texas 78624
nnevinslaw@yahoo.com




                                          /s/ Samuel V. Houston, III
                                          SAMUEL V. HOUSTON, III




                                      8
