                                                                                  ACCEPTED
                                                                              03-15-00051-CV
                                                                                      7521886
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                        10/23/2015 3:32:28 PM
                                                                            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         10/23/2015 3:32:28 PM
                                                   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 MOTION FOR REHEARING


                                  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
ARGUMENT.................................................................................................. 1
        I.      The Panel Did Not Follow the Well-Established Rules for
                Construing a Deed. ..................................................................... 1
                A.      In construing the 1927 Deed’s reverter clause, the
                        panel failed to give effect to all of the words contained
                        in it. ................................................................................... 2
                B.      A House cannot be a School House if there is no
                        school. ............................................................................... 3
                C.      The cases discussed in the panel’s opinion do not
                        support its conclusion. ...................................................... 4
        II.     The Panel Should Issue a Substitute Opinion That Makes
                Clear It Is Not Holding That Appellee Has Clear Title to the
                Property That Is the Subject of the Parties’ Dispute. ................. 6
        III.    Conclusion and Prayer................................................................ 9
CERTIFICATE OF COMPLIANCE .............................................................. 10
CERTIFICATE OF SERVICE........................................................................ 11
                            TABLE OF AUTHORITIES

                                                                                       Page
CASES
Glen Rose Collegiate Instit. v. Glen Rose Indep. Sch. Dist. No. 1,
  125 S.W.379 (Tex. Civ. App.—Fort Worth 1910, writ ref’d) ................... 5, 6
Gore Oil Co. v. Roosth,
 158 S.W.3d 596 (Tex. App.—Eastland 2005, no pet.) ................................ 3
Graham v. Prochaska,
 429 S.W.3d 650 (Tex. App.—San Antonio 2013, pet. denied) ................... 3
Hausser v. Cuellar,
 345 S.W.3d 462 (Tex. App.—San Antonio 2011, pet. denied) (en banc) .... 1
In re K.M.B.,
  148 S.W.3d 618 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ............. 8
Lindig v. Pleasant Hill Rocky Community Club,
  No. 03-15-00051-CV, 2015 WL 5096847
  (Tex. App.—Austin Aug. 28, 2015, no pet. h.) (mem. op.) ................. 3, 4, 7
Luckel v. White, 819 S.W.2d 459 (Tex. 1991) ................................................ 1
Pitts v. Camp County, 39 S.W.2d 608 (Tex. 1931) .................................... 4, 5
Stewart v. Blain, 159 S.W. 928 (Tex. Civ. App.—Galveston 1913, no writ)... 3
Winegar v. Martin,
 304 S.W.3d 661 (Tex. App.—Fort Worth 2010, no pet.) ............................ 2

OTHER AUTHORITY
BLACK’S LAW DICTIONARY 1346 (7th ed. 1999) ................................................ 2




                                              ii
TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellant Trent Lindig respectfully presents this motion for rehearing

requesting that the panel issue a new opinion and judgment reversing the trial

court’s order on his Rule 248 motion.

                                ARGUMENT

I.   The Panel Did Not Follow the Well-Established Rules for
     Construing a Deed.
      In construing a deed, the Court’s primary duty “is to ascertain the intent

of the parties 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 “must assume the parties to the instrument

intended every clause to have some effect; therefore, the language of the deed

should be interpreted so that no provision is rendered meaningless.” Hausser

v. Cuellar, 345 S.W.3d 462, 466 (Tex. App.—San Antonio 2011, pet. denied)

(en banc). “Each word and phrase should be given its plain, grammatical

meaning unless doing so would clearly defeat the parties’ intent.” Id.

(emphasis added); see also Winegar v. Martin, 304 S.W.3d 661, 665 (Tex.

App.—Fort Worth 2010, no pet.) (explaining that “every word, clause, and

part that is pertinent” must be considered in construing a deed) (emphasis

added).




                                       1
      A.     In construing the 1927 Deed’s reverter clause, the panel
             failed to give effect to all of the words contained in it.
      The panel failed to give any consideration to the fact that the term

“House,” as set forth in the reverter clause, is modified by the term “School.”

In that connection, the reverter clause provides the following:

      [I]n case the said School House or any other house which may be
      built and used for a School house is removed from said land
      herein described then the said above described land shall revert
      back to me, my heirs, assigns or legal representatives.
CR 96 (emphasis added). The uncontroverted evidence showed that there had

been no school 1 operating on the property since the early 1950s. CR 102, 110,

116, 132, 253, 458. Further, a subsequent deed from 1952 confirms that by its

effective date the property “formerly used for school purposes but now no

longer [is] so used.” CR 381.

      In the face of the deed’s language and undisputed facts, appellee argued

that the reverter clause could not have been triggered unless a structure that

had been on the property in 1927 had been removed. In other words, so long

as some “House” remained on the land, there could be no reversion. The panel

agreed. Lindig v. Pleasant Hill Rocky Community Club, No. 03-15-00051-CV,

2015 WL 5096847, at *3 (Tex. App.—Austin Aug. 28, 2015, no pet. h.) (mem.

op.) (agreeing that the “school house has not been removed”).

      Courts are barred from ignoring or disregarding language in a deed. E.g.,

Graham v. Prochaska, 429 S.W.3d 650, 661 (Tex. App.—San Antonio 2013,

1A school is defined as “[a]n institution of learning and education, esp. for children.”
BLACK’S LAW DICTIONARY 1346 (7th ed. 1999).


                                           2
pet. denied); Gore Oil Co. v. Roosth, 158 S.W.3d 596, 600 n.4 (Tex. App.—

Eastland 2005, no pet.). But in order to reach the result advocated by appellee,

the word “School” must be disregarded. This results in an impermissible

judicial revision of the deed:

      [I]n case the said House or any other house which may be built
      and used for a house is removed from said land herein described
      then the said above described land shall revert back to me, my
      heirs, assigns or legal representatives.
See CR 96.

      B.     A House cannot be a School House if there is no school.
      Given the language in the deed and applying the rules of construction,

the relevant question is whether a “School House” exists if there is, in fact, no

school? The answer must be “no.” Indeed, the panel summarily rejects the only

opinion addressing similar language in a reverter clause. The Court in Stewart

v. Blain, 159 S.W. 928, 931 (Tex. Civ. App.—Galveston 1913, no writ),

concluded that there could not be a school house without a school. Id. (“The

building may be there yet, but it is not a schoolhouse.”).

      The panel was required to consider the property’s use in determining

whether the reverter clause had been triggered. But, once again, the panel

failed to give effect to the entire reverter clause. Had the panel given effect to

the latter half of the reverter clause, it should have concluded that the grantor

was tying the reverter to the property’s use as a school. Otherwise, if use was

not to be considered, then the deed would not provide for a reverter if “any



                                        3
other house which may be built and used for a School house is removed from

said land.” See CR 96 (emphasis added). The panel erred by not considering

the entirety of the reverter clause.

      C.    The cases discussed in the panel’s opinion do not support
            its conclusion.
      In the face of the plain language in the 1927 Deed and Stewart, the panel

singles out Pitts v. Camp County, 39 S.W.2d 608 (Tex. 1931), as a “similar

case” that may be cited in support of the trial court’s order. Lindig, 2015 WL

5096847, at *4. But Pitts does not address a reverter clause with similar

language to that presented in this appeal, and, therefore, it cannot inform or

otherwise support the panel’s construction of the 1927 Deed.

      While Pitts does involve a reverter clause, the language at issue

discussed a reverter in the event that the county seat for Camp County moved

out of the town of Pittsburg, Texas. See 39 S.W.2d at 610 (“‘[T]he condition of

this conveyance is such that if the county seat should be hereafter removed to

any place in the said county, then . . . the property herein conveyed shall

revert.”). Analyzing the phrase “county seat” within the context of the deed at

issue, the Court concluded that this phrase referred to “the territory which

comprised at the time the town of Pittsburg.” Id. at 616. The court concluded

that the reverter clause had not been triggered because, at the time that the

case went to trial, it was undisputed that the county seat still remained within

Pittsburg’s town limits. Id. at 616-17.



                                          4
      If anything, Pitts can be read to support this motion for rehearing. The

court, in construing the deed and its reverter clause, analyzed the phrase

“county seat” to determine its meaning. 39 S.W.2d at 615-16. In this

connection, the panel should have construed “School House” when analyzing

whether the reverter had been triggered. As is set forth above, a House cannot

be a School House without a school.

      The panel also discusses at length an earlier opinion that is cited and

discussed in Pitts. See Glen Rose Collegiate Instit. v. Glen Rose Indep. Sch.

Dist. No. 1, 125 S.W.379 (Tex. Civ. App.—Fort Worth 1910, writ ref’d). But this

opinion, too, has no application to the reverter clause presented in this appeal.

      A reverter clause was addressed in Glen Rose, but it is not at all similar

to the clause at issue in this appeal and it was not the subject of the parties’

principal dispute. The clause at issue had two conditions that would have

triggered a reverter: (1) the grantee’s failure to incorporate a college to be

known as the Glen Rose Collegiate Institute, and (2) the grantee’s failure to

provide a free principal in the college for five years following the acceptance of

a building for the institute. Id. at 382. The parties agreed that the conditions

had been met. Id. Sometime after those conditions had been satisfied, the

institute ceased operations. Id.

      Although the express conditions had been met, the plaintiffs claimed

that the deed contained an implied reverter that could be triggered if the

defendants failed to “‘perpetually maintain said Glen Rose Collegiate Institute


                                        5
on said grounds.’” Id. The court rejected that construction, reasoning that

there could be no reversion because this quoted provision was not contained

within the deed’s reverter clause. Instead, the Court concluded that this phrase

was only “a covenant which, by compliance therewith, secures the grantor’s

warranty of the title.” Id.

      Neither of these foregoing opinions resolves the principal issue

addressed in this case: whether there can be a “School House” if there is no

school. Indeed, casting further doubt upon the application of these cases is the

fact that neither was cited nor discussed by the appellee in its brief.

Accordingly, this motion for rehearing should be granted.

II.   The Panel Should Issue a Substitute Opinion That Makes Clear
      It Is Not Holding That Appellee Has Clear Title to the Property
      That Is the Subject of the Parties’ Dispute.
      Trent’s Rule 248 Motion addressed the reverter clause found in the 1927

Deed and whether it had been triggered. CR 460. As part of the trial court’s

consideration of the Rule 248 Motion, the parties were permitted to re-urge

their respective motions for summary judgment “on the legal issue of reverter

and the interpretation of the 1927 deed.” 4 RR 5.

      The resulting order denying Trent the relief requested in the Rule 248

Motion makes clear that the trial court was only construing the 1927 Deed to

determine whether the reverter clause had been triggered. CR 475. In

particular, the order provides the following:




                                       6
       It is, therefore, ORDERED and DECLARED that the above-
       referenced 1927 Deed is unambiguous and no reversion has
       occurred under the terms of that deed.
CR 475.

       On appeal, the parties likewise agreed that the issue was whether the

reverter clause had been triggered. The parties’ respective Statement of the

Issues presented are not identical, but they both are focused upon whether the

reverter clause in the 1927 Deed had been triggered. See Br. of Appellant vii;

Br. of Appellee 1. The briefing confirms the same.

       Despite the narrow focus of this interlocutory appeal, the panel’s opinion

includes a statement that could suggest that the appellee’s claim to the

disputed property has also been resolved. In that connection, the opinion

recites the following: “After a hearing, the court found that the Club has

current title to the subject property because the circumstances that would

trigger the reverter clause have not occurred.” Lindig, 2015 WL 5096847, at

*1. As is made clear by the discussion above, however, the resulting order

confirms that the trial court was only determining whether the reverter clause

had been triggered in Trent’s favor. 2

       Irrespective of the panel’s conclusion that the reverter clause had not

been triggered, the appellee’s ability to claim ownership of the property


2Trent is aware of authority holding that “[a] written judgment or order controls over a trial
court’s oral pronouncement.” See In re K.M.B., 148 S.W.3d 618, 622 (Tex. App.—Houston
[14th Dist.] 2004, no pet.). Nonetheless, Trent raises this issue out of an abundance of
caution and does not want to prejudice any of his alternate claims when, and if, this matter
returns to the trial court.


                                              7
remains hotly contested in the trial court. As was addressed in Trent’s

appellant’s brief, after the 1927 Deed, the next deed that occurs in the

property’s chain of title is from 1952. Br. of Appellant 2. In that deed, the

Blanco County Board of School Trustees purports to convey the property to the

Pleasant Hill Improvement Association. Br. of Appellant 2 & n.2, 3 (discussing

CR 381-82). The appellee in the appeal, however, is the Pleasant Hill Rocky

Community Club.

      Trent has questioned whether the Pleasant Hill Rocky Community Club

is a successor in interest to the Pleasant Hill Improvement Association and

able to claim an ownership interest by virtue of the 1952 Deed under a number

of different theories. See Brief of Appellant 4 (citing CR 351 and CR 118). In

that connection, Trent has challenged appellee’s standing by a separate plea to

the jurisdiction. See CR 349, 351; see also CR 445.

      Finally, even if appellee can establish an ownership interest through the

1952 Deed, Trent has also asserted an alternative claim for adverse possession.

CR 441.

      Given the foregoing, Trent asks the panel to clarify its opinion to explain

that it is not determining whether appellee has title to the property. A

clarification will prevent the possibility of future confusion—either in the trial

court or in any future appeal—as to the legal issues resolved by the opinion.




                                        8
III. Conclusion and Prayer.

      The panel should reconsider its opinion and judgment affirming the trial

court’s order. Properly applying the rules for deed construction, the panel

should give effect to all words in the reverter clause. The panel must address

the fact that the word “School” modifies the word “House.” By doing so, it

should conclude that the reverter clause was triggered because a House cannot

be a School House if there is no school. Finally, at the very least, the panel

should issue a corrected opinion to clarify that the only issue resolved in the

opinion concerns the reverter clause in the 1927 Deed.

      WHEREFORE, PREMISES CONSIDERED, Appellant Trent Lindig

respectfully prays that the panel grant this motion for rehearing, withdraw the

opinion and judgment of August 28, 2015, and issue a new opinion and

judgment reversing the trial court’s order denying Appellant’s Rule 248

Motion. Appellant also prays for a new or substituted opinion that clearly

states that the only issue being addressed is the reverter clause in the 1927

deed. Finally, Appellant prays for other and further relief to which he may be

justly and equitably entitled.




                                      9
                                  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
                                  Telephone: (210) 775-0882
                                  Fax: (210) 826-0075
                                  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
                                  Telephone: (830) 868-7651
                                  Fax: (830) 868-7636
                                  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 motion for
rehearing contains 2,246 words.

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




                                 10
                      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 23rd day of October, 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




                                      11
