                                                                              ACCEPTED
                                                                          12-15-00177-CV
                                                             TWELFTH COURT OF APPEALS
                                                                           TYLER, TEXAS
                                                                     9/24/2015 9:40:01 AM
                                                                                Pam Estes
                                                                                   CLERK

                     NO. 12-15-00177-CV

     __________________________________________________
                                                    FILED IN
                                                 12th COURT OF APPEALS
                                                      TYLER, TEXAS
            IN THE TWELFTH COURT OF       APPEALS9/24/2015 9:40:01 AM
                      TYLER, TEXAS                      PAM ESTES
                                                          Clerk
     __________________________________________________

        WALTER BOUNDS and wife, CAROLYN BOUNDS,
               Appellants and Cross-Appellees

                              v.

JOHN THOMAS PRUD'HOMME, JOSEPH GILBERT PRUD'HOMME,
JOSEPH LYNN PRUD'HOMME, PETER A. BREEN, Individually and as
 Successor Trustee of the BREEN FAMILY TRUST, JANET M. SUTRO,
 SUSAN E. BREEN, and TERRANCE E. BREEN, Individually and d/b/a
  E.G. AND M.A. PRUD'HOMME BENEFICIARIES PARTNERSHIP,

                 Appellees and Cross-Appellants
     __________________________________________________

                BRIEF OF CROSS-APPELLANTS

     __________________________________________________



                               Robert G. Hargrove
                               State Bar No. 24032391
                               rob@texasenergylaw.com
                               Osborn, Griffith & Hargrove
                               515 Congress Avenue, Suite 2450
                               Austin, Texas 78701
                               (512) 476-3529
                               (512) 476-8310 Facsimile
               IDENTITY OF PARTIES AND COUNSEL

Defendants-Appellees/Cross Appellants:

John Thomas Prud'homme
Joseph Gilbert Prud'homme
Joseph Lynn Prud'homme
Peter A. Breen, Individually and as Successor Trustee of the Breen Family
Trust
Janet M. Sutro
Susan E. Breen
Terrence E. Breen
The E.G. and M.A. Prud'homme Beneficiaries Partnership

Trial and Appellate Counsel for Appellees/Cross Appellants:

Robert G. Hargrove
Osborn, Griffith & Hargrove
515 Congress Avenue, Suite 2450
Austin, Texas 78701

Additional Trial Counsel for Appellees/Cross Appellants:

J. Keith Stanley
Russell R. Smith
Fairchild, Price, Haley & Smith, LLC
P.O. Drawer 631668
Nacogdoches, Texas 75963

Plaintiffs-Appellants/Cross Appellees:

Walter Bounds and wife, Carolyn Bounds

Trial and Appellate Counsel for Appellants/Cross Appellees:

Thomas R. McLeroy, Jr.
P.O. Box 668
Center, Texas 75935




                                       ii
                       TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL…………………………….….ii
INDEX OF AUTHORITIES……………………………………………......iv
STATEMENT OF THE CASE……………………………………………...v
STATEMENT REGARDING ORAL ARGUMENT……………………... vi
RECORD AND APPENDIX……………………………………………… vi
ISSUES ON APPEAL……………………………………………………..vii
BACKGROUND…………………………………………………………….1
STATEMENT OF FACTS…………………………………………………..2
ARGUMENT………………………………………………………………. 5
    I.   The Five Subsequent Deeds are not ambiguous, and they
         reserve the mineral estate to their grantors…............................6
         A.     Standard of Review………..............................................6
         B.     The unambiguous terms of the five later executed deeds
         make the grantors' intent to reserve the minerals clear….......... 7
CONCLUSION AND PRAYER………………………………………….. 10
CERTIFICATE OF COMPLIANCE………………………………………11
APPENDIX………………………………………………………………...12




                                      iii
                                    INDEX OF AUTHORITIES

Cases

Concord Oil Co. v. Pennzoil Exploration & Prod. Co., 966 S.W.2d
  451, 455 (Tex. 1998) ................................................................................. 7,8
Dynegy Midstream Services Ltd. P'ship v. Apache Corp., 294 S.W.3d
  164 (Tex. 2009). ........................................................................................... 6
Fisher v. Wynn, No. 12-11-00008-CV, 2011 WL 3338771 (Tex. App.
  -- Tyler 2011, no pet.) (mem. op.). ............................................................... 6
Harris v. Windsor, 294 S.W.2d 798 (Tex. 1956) ............................................. 7
Johnson v. Connor, 260 S.W.3d 575 (Tex. App. -- Tyler 2008, no
  pet.) ............................................................................................................... 6
Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991) ...................................... 7,8
National Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517 (Tex.
  1995), citing Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) ......................... 6
Nevil v. TFW Management, Inc., No. 12-11-00023-CV, 2012 WL
  220252 (Tex.App.—Tyler 2012, no pet.) (mem. op.) .................................. 8
R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517
  (Tex. 1980) ................................................................................................... 7




                                                          iv
                      STATEMENT OF THE CASE

Nature of the Case:    This is a deed construction case. Defendants-
                       Appellees/Cross-Appellants (the "Prud'homme
                       Group") sold roughly 126 acres of property in San
                       Augustine County to Plaintiffs-Appellants/Cross
                       Appellees ("Bounds") in 2001. Supp.CR209-222.
                       The property was conveyed from the Prud'homme
                       Group to Bounds by way of six Warranty Deeds.
                       Id. On October 8, 2013, Bounds filed his Original
                       Petition in the trial court, asserting that the
                       Warranty Deeds conveyed the mineral estate to
                       Bounds, and asking, in the alternative, that they be
                       reformed if the Court finds that the Warranty
                       Deeds reserved the mineral estate to their grantors.
                       Supp.CR5-65.        The Prud'homme Defendants
                       answered, generally denying the Bounds claims,
                       and asserting that the statute of limitations barred
                       the potential reformation claim. Supp.CR66-69.
Trial Court:           1st District Court of San Augustine County, Texas;
                       The Honorable Craig M. Mixson presiding.
Course of Proceedings: The case was tried to the Court on February 25,
                       2015, and a Judgment was entered on March 9,
                       2015. Supp.CR202-208. By its Judgment, the
                       Court found that one of the six deeds was
                       unambiguous, that it reserved the mineral estate to
                       its grantors, and that Bounds could not prevail on
                       his attempt to reform the deed.           Id.   The
                       Prud'homme Group does not appeal those rulings.

                         The Judgment also found that the other five deeds
                         were ambiguous and did not reserve the mineral
                         estate to their grantors. Id. The Prud'homme
                         Group appeals those findings. Supp.CR225-226.
                         Findings of Fact and Conclusions of Law were
                         signed by the Court on May 6, 2015.
                         Supp.CR209-222




                                    v
           STATEMENT REGARDING ORAL ARGUMENT

      This is a fairly straightforward case involving the construction of

deeds and the application of the statute of limitations. The Prud'homme

Group does not believe oral argument would significantly aid the decisional

process, and so they do not request oral argument. However, if the Court

decides that oral argument is appropriate, the Prud'homme Group would

request that it be permitted to participate.


                        RECORD AND APPENDIX

      The record in this appeal includes a Clerk's Record and a

Supplemental Clerk's Record. Citations to each will be to page number:

CR___ or Supp.CR___. The record in this appeal includes a two-volume

Reporter's Record. Citations to it will be to volume and page number:

___RR___. The trial exhibits are found in Volume 2 of the Clerk's Record,

and they will be cited as P.Ex.__ or D.Ex.__.

      The Appendix to this brief includes the following items:

             Apx. A:       Final Judgment
             Apx. B:       Findings of Fact and Conclusions of Law
             Apx. C:       Deed Form A (the initial deed – P.Ex.5)
             Apx. D:       Deed Form B (one of the subsequent deeds –
                           P.Ex.6)




                                        vi
                            ISSUES ON APPEAL

      1.     Did the trial court err in ruling that a group of deeds from the

Prud'homme Group to Bounds was ambiguous?

      2.     Did the trial court err in construing those deeds to not reserve

the mineral estate to their grantors?




                                        vii
TO THE HONORABLE COURT OF APPEALS:

                              BACKGROUND

       This case, tried to the court, is a dispute over the construction of a

series of warranty deeds executed in 2001 to consummate a real estate

transaction in which the Prud'homme Group sold approximately 126 acres of

land in San Augustine County to Bounds.

       The parties prepared and executed the deeds in two phases. A single

initial deed was prepared and executed which conveyed the majority of the

interest in the property. Later, five additional deeds were prepared and

executed, which conveyed the remainder of the interest in the property.

       More than a decade after the transaction closed, Bounds asserted that

the mineral estate should have been conveyed to him in the transactions and

filed this lawsuit.

       The trial court ruled in the Prud'homme Group's favor as to the initial

deed, both that it unambiguously did reserve the minerals to the Prud'homme

Group, and that Bounds could not reform it. The Prud'homme Group does

not appeal those rulings.

       The trial court also ruled that the five subsequent deeds were

ambiguous, and the trial court construed them to convey the mineral estate to

Bounds. The Prud'homme Group does appeal those rulings.




                                      1
                           STATEMENT OF FACTS

       Immediately prior to May 22, 1971, E.G. Prud'homme, Sr. and his

wife, Mary Anderson Prud'homme, owned 100% of the surface estate, and an

undivided 50% of the mineral estate, with respect to 126.632 acres of land in

San Augustine County, Texas (hereafter the "126 acres"). CR83-96, FF No.

1.1

       By way of a Deed dated May 22, 1971, Mr. and Mrs. Prud'homme

conveyed 100% of their surface interest and 50% of their mineral interest in

the 126 acres to Eck G. Prud'homme, Jr., Eleanor Prud'homme Breen, John

Thomas Prud'homme, Joseph Gilbert Prud'homme, and Joseph Lynn

Prud'homme DBA the E.G. and M.A. Prud'homme Beneficiaries Partnership.

CR83-96, FF No. 1; P.Ex.3. The five named individuals, who were the

partners in this Partnership, were their five children. 1RR109:3-110:1.

       On or about July 4, 2001, The E.G. and M.A. Prud'homme

Beneficiaries Partnership entered into a contract to sell its interest in the 126

acres to Walter and Carolyn Bounds. CR83-96, FF No. 12.

       Walter and Carolyn Bounds were represented by counsel, Mr. John

Griffin, with respect to their purchase of the 126 acres from the E.G. and



1
 The Court's Findings of Fact and Conclusions of Law are in the Clerk's Record at Pages
83-96. The Prud'homme Group will cite to them by numbered Finding.



                                           2
M.A. Prud'homme Beneficiaries Partnership. CR83-96, FF No. 13; P.Ex.27,

31:2-4.2

       The Bounds' attorney, John Griffin, prepared the Warranty Deed, dated

September 7, 2001, by and between Eck. G. Prud'homme, Jr., Al Joseph

Breen, John Thomas Prud'homme, Joseph Gilbert Prud'homme, and Joseph

Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme Beneficiaries

Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as

Grantees. CR83-96, FF No. 14; P.Ex.5. That Deed was executed by its

Grantors on September 8, 2001 and on September 12, 2001. CR83-96, FF

No. 16; P.Ex.5.

       The trial court ruled that this deed unambiguously reserved the

minerals to its grantors.

       John Griffin also prepared a series of additional warranty deeds, all

executed about a month later by the descendants of Eleanor Prud’homme

Breen, one of the five children of Mr. and Mrs. Prud’homme. They are

described more specifically below.

        John Griffin prepared the warranty deed dated September 7, 2001, by

and between Hal Joseph Breen, a single person, Individually and as Trustee of

the Breen Family Trust and Personal Representative under the Last Will of

2
 Plaintiff's Exhibit 27 is a transcript of Mr. Griffin's deposition, the highlighted portions
of which were admitted into evidence at trial.



                                              3
Eleanor P. Breen, as Grantor, and Walter Bounds and wife, Carolyn B.

Bounds, as Grantees. CR83-96, FF No. 20; P.Ex.6. That Deed was executed

on October 9, 2001. CR83-96, FF No. 21; P.Ex.6.

      John Griffin prepared the Warranty Deed dated September 7, 2001, by

and between Peter A. Breen, Individually and as Successor Trustee of the

Breen Family Trust, as Grantor, and Walter Bounds and wife, Carolyn B.

Bounds, as Grantees. CR83-96, FF No. 23; P.Ex.7. That deed was executed

on October 9, 2001. CR83-96, FF No. 24; P.Ex.7.

      John Griffin prepared the Warranty Deed dated September 7, 2001, by

and between Susan E. Breen, as Grantor, and Walter Bounds and wife,

Carolyn B. Bounds, as Grantees. CR83-96, FF No. 26; P.Ex.8. That Deed

was executed on October 5, 2001. CR83-96, FF No. 27; P.Ex.8.

      John Griffin prepared the Warranty Deed dated September 7, 2001, by

and between Terence J. Breen, as Grantor, and Walter Bounds and wife,

Carolyn B. Bounds, as Grantees. CR83-96, FF No. 29; P.Ex.8A. That Deed

was executed on October 17, 2001. CR83-96, FF No. 30; P.Ex.8A.

      John Griffin prepared the Warranty Deed dated September 7, 2001, by

and between Janet M. Breen Sutro, as Grantor, and Walter Bounds and wife,

Carolyn B. Bounds, as Grantees. CR83-96, FF No. 32; P.Ex.9. That Deed

was executed on October 9, 2001. CR83-96, FF No. 33; P.Ex.9.




                                    4
         The trial court ruled that this second group of deeds, executed in

October, 2001, were ambiguous and did not reserve the mineral estate to their

grantors.

         Plaintiffs filed this lawsuit on October 8, 2013. CR83-96, FF No. 49;

Supp.CR5-65.


                                     ARGUMENT

         This transaction occurred in two phases. The first, which closed in

early September, 2001, conveyed the bulk of the interest in the 126 acres, by

way of a single Warranty Deed, which is Plaintiff's Exhibit 5.3 The Court

ruled, properly, that that Deed was not ambiguous. The Court construed that

Deed, properly, to reserve the mineral estate to the Prud'homme grantors.

         The second phase of the transaction took place roughly one month

later. In it, descendants of one branch of the Prud'homme family (the Breens)

were asked to execute five subsequent deeds. Those Warranty Deeds are

Plaintiff's Exhibits 6, 7, 8, 8A, and 9. These deeds are identical to the original

deed with one exception. At the end of the property description section of the

deed, they contain the following sentence: "This deed is intended to convey




3
    Also included in the Appendix at Apx.3.



                                              5
all of Grantor's interest in and to the above-described real property." P.Ex.6,

for example.4

          Since, as a matter of law, this added sentence neither renders the deeds

ambiguous nor un-does the clear mineral reservation that follows, the trial

court's rulings with respect to these deeds were incorrect.


I.        The Five Subsequent Deeds are not ambiguous, and they reserve
          the mineral estate to their grantors.

          A.      Standard of Review

          Whether a deed is ambiguous is a question of law for the court, which

the Court of Appeals reviews de novo. Johnson v. Connor, 260 S.W.3d 575,

579 (Tex. App. -- Tyler 2008, no pet.). "If a written contract is so worded

that it can be given a definite or certain legal meaning then it is not

ambiguous." National Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517,

520 (Tex. 1995), citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).

See also Fisher v. Wynn, No. 12-11-00008-CV, 2011 WL 3338771, *5 (Tex.

App. -- Tyler 2011, no pet.) (mem. op.). "A contract is not ambiguous

simply because the parties disagree over its meaning." Dynegy Midstream

Services Ltd. P'ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009).




4
    Exhibits 6, 7, 8, 8A, and 9 are identical, other than their grantors.



                                                 6
      Similarly, “The construction of an unambiguous deed is a question of

law for the court.” Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). A

court’s primary goal when construing a deed is to ascertain the intention of

the parties as expressed within the “four corners” of the instrument. Id. The

four corners rule requires the court to ascertain the intent of the parties solely

from the language of the instrument.        See Concord Oil Co. v. Pennzoil

Exploration & Prod. Co., 966 S.W.2d 451, 455 (Tex. 1998) (“[T]he intent of

the parties must be determined from what they expressed in the instrument,

read as a whole, and . . . the actual, subjective intent of the parties will not

always be given effect even if we were able to discern that subjective

intent.”). If a written instrument, such as a deed, is worded in such a way

that “a court may properly give it a certain or definite legal meaning or

interpretation, it is not ambiguous.” R & P Enterprises v. LaGuarta, Gavrel

& Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980).


      B.     The unambiguous terms of the five later-executed deeds
             make the grantors' intent to reserve the minerals clear.

      To create a mineral reservation, no magic words are needed, and

absence of specific language is not determinative. Harris v. Windsor, 294

S.W.2d 798, 800 (Tex. 1956); Concord Oil Co. v. Pennzoil Exploration and

Prod. Co., 966 S.W.2d 451, 454 (Tex. 1998) (citing Luckel, 819 S.W.2d at




                                        7
461-62); Nevil v. TFW Management, Inc., No. 12-11-00023-CV, 2012 WL

220252, *4 (Tex.App.—Tyler 2012, no pet.) (mem. opinion) (“absence of

any specific language” not indicative of the framer’s intent).

       Here, all of the warranty deeds expressly and unambiguously reserved

all oil, gas, and other mineral rights to their grantors as follows:


       Reservations from and Exceptions to Conveyance and
       Warranty: TITLE to any of the oil, gas and other minerals, in,
       under and that may be produced from the above-described real
       property, together with all rights, privileges and immunities
       relating thereto . . .

P.Exs. 5, 6, 7, 8, 8A, and 9. The trial court construed this language, and

found that it unambiguously reserved the minerals, as to the original deed

(Plaintiff's Exhibit 5).

       The five subsequent Warranty Deeds differ from the initial deed only

in that they include a sentence that states: “This Deed is intended to convey

all of Grantor’s interest in and to the above-described real property.” P.Exs.

6, 7, 8, 8A, and 9. Under Texas law, this language must be harmonized with

the other parts of the deeds. Luckel v. White, 819 S.W.2d at 462. When

harmonized with the reservation-and-exception paragraph, the additional

language is a confirmation of the grantors’ general intent to convey the

property to the grantees, but as tempered by the mineral reservation.




                                        8
      This added sentence must be read in the context of the deed's

organizational structure. The sentence is located in the "Property" section of

the deed, immediately at the end of the metes and bounds description. The

next section of the deed is the "Reservations from and Exceptions to the

Conveyance and Warranty" section of the deed, which is set out above.

Following both of these sections, and activating them, is the granting clause.

      In order to construe these deeds, and harmonize the added sentence

with the rest of the deeds, one must begin and end with the granting clause.

The granting clause reads:


      Grantor, for the consideration and subject to the reservations
      from and exceptions to the conveyance and warranty, grants,
      sells, and conveys to Grantee, the property . . .

P.Exs.6, 7, 8, 8A, and 9. "Property" is a defined term, and its definition

includes the sentence which the trial court found created the ambiguity. The

granting clause makes it clear that the Grantor conveys to the Grantee the

Property, subject to the reservations. P.Exs. 6, 7, 8, 8A, and 9. By the

express terms of the granting clause, the added sentence cannot trump the

reservations. The property is conveyed subject to the reservations.

      The language of the deeds themselves, then, resolves the issue that the

trial court found created the ambiguity.       The language of the deeds

themselves also requires that the five subsequent deeds be construed just as


                                      9
the initial deed must be: to reserve "TITLE to any of the oil, gas and other

minerals" to the deeds' grantors.


                      CONCLUSION AND PRAYER

      The trial court's ambiguity ruling as to the five subsequently-executed

deeds cannot survive a careful reading of the deeds themselves, which make

it clear that any language in the property description must be construed

expressly subject to the mineral reservation. Accordingly, the Prud'homme

Group respectfully requests that the Court of Appeals reverse that portion of

the trial court's judgment that deals with these five subsequent deeds

(Plaintiff's Exhibits 6, 7, 8, 8A, and 9), and render judgment that those deeds

were unambiguous, and that they reserved any and all minerals to their

grantors.

                                    Respectfully submitted,

                                    OSBORN, GRIFFITH & HARGROVE
                                    Robert G. Hargrove, SBN 24032391
                                    515 Congress Avenue, Suite 2450
                                    Austin, Texas 78701
                                    (512) 476-3529
                                    (512) 476-8310 Facsimile
                                    rob@texasenergylaw.com


                                          By: /s/ Robert G. Hargrove
                                              Robert G. Hargrove
                                          ATTORNEYS FOR
                                          PRUD’HOMME DEFENDANTS


                                         10
                      CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing document
is being served on the following persons through the electronic filing and
service system on this the 24th day of September, 2015.


Thomas R. McLeroy Jr.
SBN 13766800
P.O. Box 668
Center, Texas 75935
ATTORNEY FOR CROSS-APPELLEES


                                      By:    /s/ Robert G. Hargrove
                                             Robert G. Hargrove




                   CERTIFICATE OF COMPLIANCE

      I hereby certify that the foregoing instrument was prepared using
Microsoft Word for Mac 2011, and that, according to its word-count
function, the sections of the foregoing pleading covered by TRAP 9.4(i)(1)
contain 2,054 words.


                                      By:    /s/ Robert G. Hargrove
                                             Robert G. Hargrove




                                     11
                      APPENDIX


Apx. A:   Final Judgment (CR70-76)

Apx. B:   Findings of Fact and Conclusions of Law (CR83-96)

Apx. C:   Deed Form A (the initial deed – P.Ex.5)

Apx. D:   Deed Form B (one of the subsequent deeds –P.Ex.6)




                           12
Apx. A
                                      Cause No. CV-13-9488

WALTER BOUNDS and wife,                              §     IN THE DISTRICT COURT
CAROLYN B. BOUNDS,                                   §
  Plaintiffs,                                        §
                                                     §
v.                                                   §
                                                     §
JOHN THOMAS PRUD'HOMME,                              §
JOSEPH GILBERT PRUD'HOMME,                           §    SAN AUGUSTINE COUNTY,
JOSEPH LYNN PRUD'HOMME,                              §    TEXAS
PETER A. BREEN, Individually and as                  §                               FILED
Successor Trustee of the BREEN FAMILY
                                                     §§                     f(f'J,'ooo'CLOCK~M
TRUST, JANET M. SUTRO, SUSAN E.
BREEN, and TERRANCE E. BREEN,
                                                                              2:TIO 20-1:£.
                                                     §                      JEAN STEitTOE Dislict Clerk
Individually and d/b/a E.G. AND M.A.                 ~                      ~NAUGUST~S
PRUD'HOMME BENEFICIARIES
PARTNERSHIP,                                         §
    Defendants.                                      §     1st JUDICIAL DISTRICT


                                       JUDGMENT

        On February 25, 2015, this cause came on to be heard. Walter Bounds and wife,

Carolyn Bounds, Plaintiffs, appeared in person and by attorney of record and announced

ready for trial, and John Thomas Prud'homme, Joseph Gilbert Prud'homme, Joseph Lynn

Prud'homme, Peter A. Breen, Individually and as Successor Trustee of the Breen Family

Trust, Janet M. Sutro, Susan E. Breen, and Terrance E. Breen, Individually and d/b/a/ E.G.

and M.A. Prud'homme Beneficiaries Partnership, Defendants, appeared in person and by

attorney of record and announced ready for trial. No jury having been demanded, all

questions of fact were submitted to the Court, and the case proceeded to trial.

        The Court, after hearing the evidence and arguments of counsel, is of the opinion

and finds that:




JUDGMENT                                                                      PAGE 1




                                              70
       (a)      the Warranty Deed dated September 7, 2001, by and between Eck. G.

Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert

Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme

Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as

Grantees, recorded in the Records of San Augustine County, Texas in Volume 24, Page 20,

and admitted in evidence as Plaintiffs' Exhibit 5, is not ambiguous, and is hereby construed

to reserve to its Grantors any and all oil, gas, and other minerals owned by its Grantors with

respect to the property conveyed by the deed;

       (b)     the Plaintiffs should take nothing with respect to their cause of action to

reform the deed described above and admitted as Plaintiffs' Exhibit 5;

       (c)     the Warranty Deed dated September 7, 2001, by and between Hal Joseph

Breen, a single person, Individually and as Trustee of the Breen Family Trust and Personal

Representative under the Last Will of Eleanor P. Breen, as Grantor, and Walter Bounds and

wife, Carolyn B. Bounds, as Grantees, recorded in the Records of San Augustine County,

Texas in Volume 24, Page 25, and admitted in evidence as Plaintiffs' Exhibit 6, is

ambiguous, and is hereby construed to convey to its Grantees any and all oil, gas, and other

minerals owned by its Grantor with respect to the property conveyed by the deed;

       (d)     the Warranty Deed dated September 7, 2001, by and between Peter A.

Breen, Individually and as Successor Trustee of the Breen Family Trust, as Grantor, and

Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded in the Records of San

Augustine County, Texas in Volume 24, Page 28, and admitted in evidence as Plaintiffs'

Exhibit 7, is ambiguous, and is hereby construed to convey to its Grantees any and all oil,




JUDGMENT                                                                      PAGE2




                                                71
gas, and other minerals owned by its Grantor with respect to the property conveyed by the

deed;

        (e)    the Warranty Deed dated September 7, 2001, by and between Susan E.

Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded

in the Records of San Augustine County, Texas in Volume 24, Page 31, and admitted in

evidence as Plaintiffs' Exhibit 8, is ambiguous, and is hereby construed to convey to its

Grantees any and all oil, gas, and other minerals owned by its Grantor with respect to the

property conveyed by the deed;

        (f)    the Warranty Deed dated September 7, 2001, by and between Terence J.

Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded

in the Records of San Augustine County, Texas in Volume 24, Page 34, and admitted in

evidence as Plaintiffs' Exhibit 8A, is ambiguous, and is hereby construed to convey to its

Grantees any and all oil, gas, and other minerals owned by its Grantor with respect to the

property conveyed by the deed;

        (g)    the Warranty Deed dated September 7, 2001, by and between Janet M.

Breen Sutro, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees,

recorded in the Records of San Augustine County, Texas in Volume 24, Page 37, and

admitted in evidence as Plaintiffs' Exhibit 9, is ambiguous, and is hereby construed to

convey to its Grantees any and all oil, gas, and other minerals owned by its Grantor with

respect to the property conveyed by the deed;

        (h)    for purposes of this cause, the Deed dated May 22, 1971, by and between

E.G. Prud'homme, Sr. and wife, Mary Anderson Young Prud'homme, as Grantors, and Eck.

G. Prud'homme, Jr., Eleanor Prud'homme Breen, John Thomas Prud'homme, Joseph




JUDGMENT                                                                   PAGE3




                                                72
Gilbert Prud'homme, and Joseph Lynn Prud'homme OBA the E.G. and M.A. Prud'homme

Beneficiaries Partnership, as Grantees, recorded in the Records of San Augustine County,

Texas in Volume 166, Page 239, and admitted in evidence as Plaintiffs' Exhibit 3, is the

common source of title for the property described in Exhibit A to this Judgment. At the

time of this Deed, E.G. Prud'homme, Sr. and wife, Mary Anderson Young Prud'homme

owned an undivided fifty percent (50%) interest in the oil, gas, and other minerals in and to

the property described in Exhibit A to this Judgment;

        (i)     as a result of the findings and conclusions set out above, the deeds

referenced above and admitted in evidence as Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9

conveyed to Plaintiffs ten percent ( 10%) of the oil, gas, and other minerals in and to the

Property described in Exhibit A to this Judgment that the Defendants owned as of

September 7, 2001.

       IT IS THEREFORE ORDERED that the Plaintiffs recover from the Defendants

title to and possession of an undivided five percent (5%) interest in and to the oil, gas, and

other minerals in and under the property described in Exhibit A to this Judgment, and have

a writ of possession.

       IT IS FURTHER ORDERED that the Defendants recover from the Plaintiffs title to

and possession of an undivided forty-five percent (45%) interest in and to the oil, gas, and

other minerals in and under the property described in Exhibit A to this Judgment, and have

a writ of possession.

       All costs of court spent or incurred in this cause are adjudged against the party

incurring same.




JUDGMENT                                                                      PAGE4




                                               73
       All writs and processes for the enforcement and collection of this Judgment may

issue as necessary.

       All relief requested in this cause and not expressly granted is denied.   This

judgment finally disposes of all parties and claims and is appealable.



        SIGNED ON              3 I 9..
                      ~~~~~~~~~~~-
                                                       '2015.




JUDGMENT                                                                 PAGES




                                               74
EXHIBIT A: PROPERTY DESCRIPTION

 BEING a survey of 126.632 acres of land and being all of a called
 115-1/2 acre tract recorded in Vol. 105, Page No. 20, Deed Records
 of San Augustine County, Texas, and being a part of the J. s.
 COLLINS PRE-EMPTION SURVEY, A-445, and being located approximately
 15 miles SW of the courthouse in San Augustine, Texas, and being
 more particularly described by metes and bounds, to-wit:
 BEGINNING: At the NW corner of said 115-1/2 acre tract being the NE
 corner of a 72.00 acre tract now awned by w. L. Brown recorded in
 Vol. 133, Page No. 468, a 3/8." Rein.L Rod for corner in the NWBL of
 said J. S. Collins Surv'ey from which a 13" Sweetgum"found marked
 mx 11 brs. N. 11 1/4 1 W, 10.6 feet and a 9a Pine found marked axu
 brs. N 38-1/4 1 E, 18. 7 feet and a l()l!l Sweetgum. found marked "X"
 brs. S 43 E, 24.00 feet;
 THENCE; N 59" 0.9' 25" E, along the N'.BL of said 115-l/2 acre tract
 and the SBL of a tract now owned by Kirby Lumber Co. and a well
 marked line, 1364.63 feet a 3/8° Reinf. Rod for corner from which
 a 14" Post Oak found marked ux~1 hrs. N 48 E, S. 9 feet;
 THENCE: N 73° 43' OSN E, along a well marked line to a Pine knot
 foUD.d set for corner, a distance of 59.57 feet from which a 12"
 Sweetgum found :marked "X 11 bra. s 81 w, ll.3 feet;

 THENCE: N 68° 31' 17ti B, along said well marked line to a Pine knot
 found set for corner, a distance of 161.ll feet from which a 24A
 Post. oak found marked "X" brs. N. 69-1/4 • E, 22. S .feet;

 THENCE: N 72" 18' .18" E, along said well marked line to a Pine
 knot found set for corner, a distance of 110.1 feet from which a
 14~   Post Oak found marked      0   xa hrs. S 81-1/4 W, 15.5 feet;
                                                     1



 THENCE: N 65~ 59 1 25° E, along said well marked line, 177.64 feet
 a 3/8" Reinf. Rod. tor corner from which a is• Pine found marked rax•
 brs. N 32-3/4' E, 5.7 feet and a 16M Pine found marked "X• brs. N
 62-1/4' W, 16. oo feet;
 THENCE: s   sa~   05 1 47 11 E, along said well marked line to a Pine knot.
 found set for corner, a distance of 273.35 feet from which a             14~
 Blackgum found marked      •xN   brs. N 58-1/2' W, 15.2 feet;
 THENCE: S 49~ 38 1 48~ E, along said well marked line to a Pine knot
 found set for corner, a distance of 194.30 feet a 14" Sweet Bay
 found marked mxa brs. S 25 E, 25.7 feet;
 THB!NC'E: S 8° 06' 20 6 E, along said well marked line to a Pine knot
 found set for corner, a distance of 363.00 feet from which a 36"
 Pen Q.ak found marked 11 X" brs. N 33-1/2' W, 1. 5 feet and a 1B" Pen




JUDGMENT                                                          PAGE6




                                           75
Oak found marked "X 0 hrs. S 46 E, lS.3 feet;
THENCE: S 19 9 29 1 42" E, along said well marked line to a Pine knot
found set for corner, a distance of l 90. 97 feet a 14" Pen Oak
marked 11 ::< 11 brs. s. 79-l/2' w, 10.2 feet and a 5n Blackgurn marked
"X   111
           hrs. s 67 E, 8.7';
THENCE~ S is<> 30' 35 11 W, along .lilaid well m.a.I"ked line, 114.09 feet
a 3/8 Reinf. Rod for comer from which a 12 11 Black.gum found marked
            11

"Xm hrs. N 74-l/2' E, 4.5 feet;

THENCE: S 30° 55' ssm E, along said well marked line, 226.66 feet
a 3/8" Reinf. Rod              for
                       corner from which a 3ou Pine marked 111 x 11 brs.
N 22-1/4' W, 6. 8 feet and a 12" Pine marked 11 x 11 brs. s 36 w, 26. 00
feet;

THENCE;          s   30" 11' 35" ff, along sa.id well marked line, 367 .44 feet
a J/8 11 Reinf. Rod tor corner from which a lS" Sweetgum found marked
"X" hrs. S 58 w, 10.GO feet;
THRNCE: B 2 9 09' 56" E, along said well marked line to a Pine knot
found set for corner, a distance of 194.51 feet from which a au
Sweetgum found marked                11   x
                                          11   bra.   s   82 E, 12.1 feet;
THENCE1          s   9°   14' ia• E1 along said well marked line to a Pine knot
found set for corner, a distance of 230.23 feet from which a 14,0
Post oak found marked 11 x 11 brs. s 46-1/2' E, 5. 5 feet and a 121'1 Pen
oak found marked •x• brs. 45-1/2 1 w, 5.9 feet;

THENCE~          S 55° 52' 00" E, along said well marked line, 122.59 feet;
THl!!IifCEr s 39~ 57' 49" .E, along said well marked line, 298.43 feet
a 3/8q Reinf. Rod for corner from which a 24° Pine found marked qxn
hrs. N 56 E, 18.2 feet;

TlU3NCE: s 3"' 51 1 54 11 W, along said well marked line to a Pine knot
found set for corner, a distance of 382. 75 feet from which a 10''
Pine marked 11 x 11 brs. s 33 w, 11.S feet;
THENCE: S 31" 52'               54 11 E,       along said well marked line to the SE
corner of said 115-1/2 a.ere tract, a distance of 21 7. 09 feet a
Mulberry atake: found set for corner from which a 24" Blackgum found
marked axo brs. S 58-1/2' W, 12.5 faet and a 12m Beech founa marked
"Xu brs. N 41 E, 9.5 feeti

THENCE: S 59° 12' 38 11 W, along the BBL of said 115-1/2 acre tract
and the SBL of aaid J'. S. Collins Survey and the NBL of M. B.
Griffith Survey, A-19 to the SW corner of said 115-1/2 acre tract
being the SE corner of said w. L. Brown 72 acre tract, a distance
of 1472.82 feet a flanged top axle found set for corner from which
a 10° Black Jack found marked •tx 11 brs. s 20 tl, 33. l feet and a 9•
Pine stump bra. N 70 w, 36.5 feet~
THENCE~ N 47~ 58 1 oon W, along a WBL of said 115-1/2 acre tract and
a EBL of said W. L. Brown 72 acre tract, 1212.50 feet a iron pipe
found set for corner from which a                              s•   Hackhe.rry found   marked "X"
brs. S Sl-1/2' E, 84.6 feet 0

THENCE: N 11" 37' w, along a WBL of said 115-1/2 acre tract and a
EBL of said w. L. Brown 72 acre tract, 1675.60 feet to the PLACB OF
BEGINNING, coutaining 126.632 acres of land.


JUDGMENT                                                                               PAGE7




                                                          76
Apx. B
                                     Cause No. CV-13-9488

WALTER BOUNDS and wife,                             §    IN THE DISTRICT COURT
CAROLYN B. BOUNDS,                                 §
  Plaintiffs,                                      §
                                                   §
v.                                                 §
                                                   §
JOHN THOMAS PRUD'HOMME,                            §
JOSEPH GILBERT PRUD'HOMME,                         §     SAN AUGUSTINE COUNTY,
JOSEPH LYNN PRUD'HOMME,                            §     TEXAS
PETER A. BREEN, Individually and as                §                                     FILED
Successor Trustee of the BREEN FAMILY              §                            ATill.5_ O'CLOCK _l?M
TRUST, JANET M. SUTRO, SUSAN E.                    §                            .3.ZL-20~
                                                                                JEAN STEPTOE Disiict Clerk
BREEN, and TERRANCE E. BREEN,                      §                            ~NAUGUSTlm
Individually and d/b/a E.G. AND M.A.               §
PRUD'HOMME BENEFICIARIES                           §
PARTNERSHIP,                                       §
    Defendants.                                    §     1st JUDICIAL DISTRICT


               FINDINGS OF FACT AND CONCLUSIONS OF LAW

       On February 25, 2015, this cause came on for trial before the Court without a jury.

Walter Bounds and wife, Carolyn Bounds, Plaintiffs, appeared in person and by attorney of

record and announced    n~ady   for trial, and John Thomas Prud'homme, Joseph Gilbert

Prud'homme, Joseph Lynn Prud'homme, Peter A. Breen, Individually and as Successor

Trustee of the Breen Family Trust, Janet M. Sutro, Susan E. Breen, and Terrance E. Breen,

Individually and d/b/a/ E.G. and M.A. Prud'homme Beneficiaries Partnership, Defendants,

appeared in person and .by attorney of record and announced ready for trial.           After

considering the pleadings, the evidence, the argument and briefs from counsel, the Court, in

response to a request from Plaintiffs, makes its findings of fact and conclusions of law as

follows:




FINDINGS OF FACT AND CONCLUSIONS OF LAW                                     PAGEi
                                             83
                                  FINDINGS OF FACT

        1.       Immediately prior to May 22, 1971, E.G. Prud'homme, Sr. and wife, Mary

Anderson Prud'homme, owned 100% of the surface estate, and an undivided 50% of the

mineral estate, with respect to the 126.632 acres of land in San Augustine County, Texas,

described in more detail in Exhibit A to the Judgment in this case and to these Findings of

Fact and Conclusions of Law.

        2.      The property described in the attached Exhibit A will hereafter be referred

to as the "126 acres."

        3.      By way of a Deed dated May 22, 1971, E.G. Prud'homme, Sr. and wife,

Mary Anderson Prud'homme, conveyed 100% of their surface interest and 50% of their

mineral interest in the 126 acres to Eck G. Prud'homme, Jr., Eleanor Prud'homme Breen,

John Thomas Prud'homme, Joseph Gilbert Prud'homme, and Joseph Lynn Prud'homme

DBA the E.G. and M.A. Prud'homme Beneficiaries Partnership.

        4.      By way of the 1971 Deed described in FF 3, E.G. Prud'homme, Sr. and

Mary Anderson Prud'homme reserved to themselves one half of the minerals they owned in

and under the 126 acres.

        5.      The 1971 deed described in FF 3 was admitted in evidence at trial as

Plaintiffs' Exhibit 3.

        6.      E.G. Prud'homme, Sr. died in 1981.

        7.      When E.G. Prud'homme, Sr. died, his interest in the minerals reserved from

the 1971 conveyance of the 126 acres to the E.G. and M.A. Prud'homme Beneficiaries

Partnership passed one-half to Mary Anderson Prud'homme, and one-half to the Trustees of

the E.G. and M.A. Prud'homme Trust Fund.



FINDINGS OF FACT AND CONCLUSIONS OF LAW                                     PAGE2
                                             84
        8.     Mary Anderson Prud'homme died on May 5, 1988.

        9.     When Mary Anderson Prud'homme died, her interest m the minerals

reserved from the 1971 conveyance of the 126 acres to the E.G. and M.A. Prud'homme

Beneficiaries Partnership passed to the Trustees of the E.G. and M.A. Prud'homme Trust

Fund.

        10.    The E.G. and M.A. Prud'homme Trust Fund was established by a Trust

Agreement dated October 14, 1966.

        11.    The E.G. and M.A. Prud'homme Beneficiaries Partnership 1s a Texas

General Mercantile Partnership created as of the last day of January, 1971.

        12.    On or about July 4, 2001, The E.G. and M.A. Prud'homme Beneficiaries

Partnership entered into a contract to sell its interest in the 126 acres to Walter and Carolyn

Bounds.

        13.    Walter and Carolyn Bounds were represented by counsel, Mr. John Griffin,

with respect to their purchase of the 126 acres from the E.G. and M.A. Prud'homme

Beneficiaries Partnership.

        14.    John Griffin prepared a Warranty Deed, dated September 7, 2001, by and

between Eck. G. Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph

Gilbert Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme

Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as

Grantees.

        15.    The Warranty Deed dated September 7, 2001, by and between Eck. G.

Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert

Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme




FINDINGS OF FACT AND CONCLUSIONS OF LAW                                        PAGE3
                                               85
Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as

Grantees was admitted in evidence as Plaintiffs Exhibit 5.

        16.     The Warranty Deed dated September 7, 2001, by and between Eck. G.

Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert

Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme

Beneficiaries Partnership, _as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as

Grantees, was executed by its Grantors on September 8, 2001 and on September 12, 2001.

        17.     The Warranty Deed dated September 7, 2001, by and between Eck. G.

Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert

Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme

Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as

Grantees was recorded in the Records of San Augustine County, Texas in Volume 24, Page

20.

        18.     Gilbert Prud'homme has at all times served as the Managing Partner of the

E.G. and M.A. Prud'homme Beneficiaries Partnership.

        19.     At the time Gilbert Prud'homme executed the Warranty Deed dated

September 7, 2001, by and between Eck. G. Prud'homme, Jr., Al Joseph Breen, John

Thomas Prud'homme, Joseph Gilbert Prud'homme, and Joseph Lynn Prud'homme, d/b/a

E.G. and M.A. Prud'homme Beneficiaries Partnership, as Grantors, and Walter Bounds and

wife, Carolyn B. Bounds, as Grantees, he understood that it reserved the minerals in and

under the 126 acres to its grantors.

        20.     John Griffin prepared a warranty deed dated September 7, 2001, by and

between Hal Joseph Breen, a single person, Individually and as Trustee of the Breen




FINDINGS OF FACT AND CONCLUSIONS OF LAW                                    PAGE4
                                             86
Family Trust and Personal Representative under the Last Will of Eleanor P. Breen, as

Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees.

        21.     Hal Joseph Breen executed the Warranty Deed dated September 7, 2001, by

and between Hal Joseph Breen, a single person, Individually and as Trustee of the Breen

Family Trust and Personal Representative under the Last Will of Eleanor P. Breen, as

Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees on October 9, 2001.

        22.     The Warranty Deed dated September 7, 2001, by and between Hal Joseph

Breen, a single person, Individually and as Trustee of the Breen Family Trust and Personal

Representative under the Last Will of Eleanor P. Breen, as Grantor, and Walter Bounds and

wife, Carolyn B. Bounds, as Grantees, was recorded in the Records of San Augustine

County, Texas in Volume 24, Page 25, and admitted in evidence as Plaintiffs' Exhibit 6.

        23.     John Griffin prepared the Warranty Deed dated September 7, 2001, by and

between Peter A. Breen, Individually and as Successor Trustee of the Breen Family Trust,

as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees.

        24.     Peter A. Breen executed the Warranty Deed dated September 7, 2001, by

and between Peter A. Breen, Individually and as Successor Trustee of the Breen Family

Trust, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees on

October 9, 2001.

        25.     The Warranty Deed dated September 7, 2001, by and between Peter A.

Breen, Individually and as Successor Trustee of the Breen Family Trust, as Grantor, and

Walter Bounds and wife, Carolyn B. Bounds, as Grantees, was recorded in the Records of

San Augustine County, Texas in Volume 24, Page 28, and admitted in evidence as

Plaintiffs' Exhibit 7.




FINDINGS OF FACT AND CONCLUSIONS OF LAW                                     PAGES
                                             87
        26.     John Griffin prepared the Warranty Deed dated September 7, 2001, by and

between Susan E. Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as

Grantees.

        27.     Susan E. Breen executed the Warranty Deed dated September 7, 2001, by

and between Susan E. Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds,

as Grantees on October 5, 2001.

       28.     The Warranty Deed dated September 7, 2001, by and between Susan E.

Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, was

recorded in the Records of San Augustine County, Texas in Volume 24, Page 31, and

admitted in evidence as Plaintiffs' Exhibit 8.

       29.     John Griffin prepared the Warranty Deed dated September 7, 2001, by and

between Terence J. Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as

Grantees.

        30.    Terence J. Breen executed the Warranty Deed dated September 7, 2001, by

and between Terence J. ·Breen, as Grantor, and Walter Bounds and wife, Carolyn B.

Bounds, as Grantees on October 17, 2001.

       31.     The Warranty Deed dated September 7, 2001, by and between Terence J.

Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, was

recorded in the Records of San Augustine County, Texas in Volume 24, Page 34, and

admitted in evidence as Plaintiffs' Exhibit 8A.

        32.    John Griffin prepared the Warranty Deed dated September 7, 2001, by and

between Janet M. Breen Sutro, as Grantor, and Walter Bounds and wife, Carolyn B.

Bounds, as Grantees.




FINDINGS OF FACT AND CONCLUSIONS OF LAW                                 PAGE6
                                                 88
        33.     Janet M. Breen Sutro executed the Warranty Deed dated September 7, 2001,

by and between Janet M. Breen Sutro, as Grantor, and Walter Bounds and wife, Carolyn B.

Bounds, as Grantees on October 9, 2001.

        34.     The Warranty Deed dated September 7, 2001, by and between Janet M.

Breen Sutro, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees,

recorded in the Records of San Augustine County, Texas in Volume 24, Page 37, and

admitted in evidence as Plaintiffs' Exhibit 9.

        35.     On November 5, 2001, a title insurance policy was issued, in favor of

Walter and Carolyn Bounds, with respect to the 126 acres.

        36.     The title insurance policy, described in FF 35, above, references "Mineral

Reservation as set forth in multiple Warranty Deeds from Eck G. Prud'homme, et al, to

Walter Bounds and wife, Carolyn Bounds, all dated September 7~ 2001, and recorded in the

Real Property Records of San Augustine County, Texas, as follows: Vol. 24, Page 20; Vol.

24, Page 25; Vol. 24, Page 28; Vol. 24, Page 31; Vol. 24, Page 34; and Vol. 24, Page 37."

        37.     The title insurance policy, described in FF 35, above, was provided to

Plaintiffs and their lawyer at or near the time of its issuance in November, 2001.

        38.     Plaintiff Walter Bounds, who owns and operates an insurance agency,

reviewed the title insurance policy, described in FF 35, above, at the time it was issued.

        39.     Effective April 29, 2008, Elite Landworks Association entered into a series

of oil and gas leases for the 126 acres with the various Prud'homme/Breen parties who had

been the grantors of the 2001 deeds described above and admitted in evidence as Plaintiffs'

Exhibits 5, 6, 7, 8, 8A, and 9.




FINDINGS OF FACT AND CONCLUSIONS OF LAW                                        PAGE7
                                                 89
        40.     By various     assignments, XTO Energy acquired Elite Landworks

Association's leasehold interest in the 126 acres.

       41.      The 2001 deeds executed in October, 2001 (i.e. Plaintiffs' Exhibits 6, 7, 8,

8A, and 9) contain a sentence in the property description not found in the first deed

(Plaintiffs' Exhibit 5), executed in September 2001: "This deed is intended to convey all of

Grantor's interest in and to the above-described real property."

       42.      The parties intended that these October-executed deeds (Plaintiffs' Exhibits

6, 7, 8, 8A, and 9) should not reserve the minerals to their grantors.

       43.      Plaintiffs Walter and Carolyn Bounds believed that, when they acquired the

126 acres from the Defendants in 2001, they were acquiring whatever mineral interest the

Defendants owned with re.spect to the 126 acres.

        44.     Defendants believed that, when they conveyed the 126 acres to the Plaintiffs

in 2001, they were reserving whatever mineral interest the Defendants owned with respect

to the 126 acres.

       45.      Plaintiffs and Defendants did not have identical intent and understanding of

the terms to be embodied in the 2001 deeds (Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9) at the

time those deeds were executed.

       46.      Plaintiffs Walter and Carolyn Bounds did not exercise reasonable diligence

with respect to their review of the 2001 deeds (Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9) by

which they acquired their interest in the 126 acres.

        47.     To the extent Plaintiffs believed that the 2001 deeds (Plaintiffs' Exhibits 5,

6, 7, 8, 8A, and 9) should have conveyed the minerals to the Plaintiffs, they were on notice




FINDINGS OF FACT AND CONCLUSIONS OF LAW                                       PAGES
                                               90
that the 2001 deeds (Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9) did not do so, or were

ambiguous, at the time the deeds were executed.

          48.   To the extent Plaintiffs believed that the 2001 deeds (Plaintiffs' Exhibits 5,

6, 7, 8, 8A, and 9) should have conveyed the minerals to the Plaintiffs, they were on notice

that the 2001 deeds (Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9) did not do so, or were

ambiguous, no later than early November, 2001, when they received the title insurance

policy.

          49.   Plaintiffs filed this lawsuit on October 8, 2013.


                                CONCLUSIONS OF LAW

          1.    The Warranty Deed dated September 7, 2001, by and between Eck. G.

Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert

Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme

Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as

Grantees, recorded in the Records of San Augustine County, Texas in Volume 24, Page 20,

and admitted in evidence as Plaintiffs' Exhibit 5, is not ambiguous.

          2.    The Warranty Deed dated September 7, 2001, by and between Eck. G.

Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert

Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme

Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as

Grantees, recorded in the Records of San Augustine County, Texas in Volume 24, Page 20,

and admitted in evidence as Plaintiffs' Exhibit 5, is construed to reserve to its Grantors any

and all oil, gas, and other minerals owned by its Grantors with respect to the property

conveyed by the deed.



FINDINGS OF FACT AND CONCLUSIONS OF LAW                                       PAGE9
                                               91
        3.      Plaintiffs' cause of action for reformation is barred by the statute of

limitations, as it was not brought within four years of the date it accrued.

       4.      As a matter of law, Plaintiffs' cause of action for reformation accrued at the

time the 2001 deeds (Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9) were executed, as the deeds

were duly recorded and in Plaintiffs chain of title.

        5.      Plaintiffs' c;ause of action for reformation could have accrued no later than

early November, 2001, as at that time Plaintiffs knew, or in the exercise of reasonable

diligence should have known, that the deeds did not convey the minerals to them, or were

ambiguous.

       6.      Even if Plaintiffs' cause of action for reformation was not barred by

limitations, Plaintiffs would still not be entitled to reformation, as they did not prove by

clear, exact, and satisfactory evidence that that deeds' inclusion of language of mineral

reservation was the result of a mutual mistake.

       7.      The Warranty Deed dated September 7, 2001, by and between Hal Joseph

Breen, a single person, Individually and as Trustee of the Breen Family Trust and Personal

Representative under the Last Will of Eleanor P. Breen, as Grantor, and Walter Bounds and

wife, Carolyn B. Bounds, as Grantees, recorded in the Records of San Augustine County,

Texas in Volume 24, Page 25, and admitted in evidence as Plaintiffs' Exhibit 6, is

ambiguous, and is construed to convey to its Grantees any and all oil, gas, and other

minerals owned by its Grantor with respect to the property conveyed by the deed.

        8.     The Warranty Deed dated September 7, 2001, by and between Peter A.

Breen, Individually and as Successor Trustee of the Breen Family Trust, as Grantor, and

Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded in the Records of San




FINDINGS OF FACT AND CONCLUSIONS OF LAW                                        PAGE 10
                                               92
Augustine County, Texas in Volume 24, Page 28, and admitted in evidence as Plaintiffs'

Exhibit 7, is ambiguous, and is hereby construed to convey to its Grantees any and all oil,

gas, and other minerals owned by its Grantor with respect to the property conveyed by the

deed.

        9.     The Warranty Deed dated September 7, 2001, by and between Susan E.

Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded

in the Records of San Augustine County, Texas in Volume 24, Page 31, and admitted in

evidence as Plaintiffs' Exhibit 8, is ambiguous, and is construed to convey to its Grantees

any and all oil, gas, and other minerals owned by its Grantor with respect to the property

conveyed by the deed.

        10.    The Warranty Deed dated September 7, 2001, by and between Terence J.

Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded

in the Records of San Augustine County, Texas in Volume 24, Page 34, and admitted in

evidence as Plaintiffs' Exhibit 8A, is ambiguous, and is construed to convey to its Grantees

any and all oil, gas, and other minerals owned by its Grantor with respect to the property

conveyed by the deed.

        11.    the Warranty Deed dated September 7, 2001, by and between Janet M.

Breen Sutro, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees,

recorded in the Records of San Augustine County, Texas in Volume 24, Page 37, and

admitted in evidence as Plaintiffs' Exhibit 9, is ambiguous, and is construed to convey to its

Grantees any and all oil, gas, and other minerals owned by its Grantor with respect to the

property conveyed by the deed.




FINDINGS OF FACT AND CONCLUSIONS OF LAW                                       PAGE 11
                                              93
        12.     For purposes of this cause, the Deed dated May 22, 1971, by and between

E.G. Prud'homme, Sr. and. wife, Mary Anderson Young Prud'homme, as Grantors, and Eck.

G. Prud'homme, Jr., Eleanor Prud'homme Breen, John Thomas Prud'homme, Joseph

Gilbert Prud'homme, and Joseph Lynn Prud'homme DBA the E.G. and M.A. Prud'homme

Beneficiaries Partnership, as Grantees, recorded in the Records of San Augustine County,

Texas in Volume 166, Page 239, and admitted in evidence as Plaintiffs' Exhibit 3, is the

common source of title for the 126 acres. At the time of this Deed, E.G. Prud'homme, Sr.

and wife, Mary Anderson Young Prud'homme owned an undivided fifty percent (50%)

interest in the oil, gas, and other minerals in and to the 126 acres.

        13.     As a result of the findings and conclusions set out above, the deeds

referenced above and admitted in evidence as Plaintiffs' Exhibits 5, 6, 7, S, SA, and 9

conveyed to Plaintiffs ten percent (10%) of the oil, gas, and other minerals in and to the

126 acres that the Defendants owned as of September 7, 2001.

        14.     Since the Defendants owned '50% of the oil, gas, and other minerals in and

to the 126 acres as of September 7, 2001, as a result of the deeds referenced above and

admitted in evidence as Plaintiffs' Exhibits 5, 6, 7, S, SA, and 9, Plaintiffs acquired an

undivided five percent (5%) interest in the oil, gas, and other minerals in and to the 126

acres, and Defendants reserved an undivided forty-five percent (45%) interest in the oil,

gas, and other minerals in and to the 126 acres.

        SIGNED ON _ _          5i~'~·~-----·' 2015.




FINDINGS OF FACT AND CONCLUSIONS OF LAW                                    PAGE 12
                                                94
EXHIBIT A: PROPERTY DESCRIPTION

 BEING a survey of 126.632 acres of la.nd and being all of a called
 115-1/2 acre tract recorded in Vol. 105, Page ~o. 20, Deed Records
 of San Augustine COWlt:y, Texas, and being a pa.rt. ·Of the J. s.
 COLLINS PRE~l!!MPTION SururEY, A-445, and being located approximately
 15 miles sw of the courthouse in San Augu!!i!tine, Tex;ae, and being
 more particularly described by metes and bounds, to=wit:
 BE<lINNI:NG: At the NW corner of saidl 115-1/2 acre tract being the NE
 corner of a 72 . 00 acre tract now awned by iw. L. BrOWll recorded in
 Vol. 133, Page No. 468, a 3/8" Reinf + Rod for corner in the NWBL of
 sai.d J. S. Collins Survey from which a 13 IT Sweetgum ·found marked
 11
    X
   1111
          •N. 11 l/4. 1 W, 10.6 feet. and a 9 81 Pine found marked 11 x 0
 brs. N 38-1/4 1 E, 18. 7 feet and a 10° sweetgum found marked "X"
 brs. S 43 E,      ~4.00   feet,
 TlIBNC!g~ N 59'" 09' 25 11 E 1 al.ong the DL of said 115-1/.2 a.ere tr,act
 and the SBL of a t;ract II.OW' owned. by Kirby Lumber Co. and a Weill
 marked line., lJG4.63 feet a 3/8'' Reinf. Rod for corner from which
 a 14 111 Post Oak found marked 11X" brs. N 48 E., a.9 feet;
 THENCE: N 73"' 43 1 081i Ell, along a well marked line to a Pine knot
 found set for co:rDer, a distance of .59. 57 feet fro.m which a i2 rr
 Sweetgum fou:nd :marlked "X 11 brs. s 81 W, 11.3 feet;
 THENCB: N 68 11   :n 1 17 11
                      E:, along said well marked line to a. Pine knot
 found set for cornerJ a: distance of 161.11 feet from which a 24 11
 Post Oak found marked          11   x   0
                                             brs. N, G9-l/4 • E, 22. 5 feet;;

 THENCB ~ N 72 ¢ 18'       UP' El, along Baid well marked lin.e, to a Pine
 knot. found set for cornier, a distance of lJ.. O .1 feet from which a
 14" Post Oak, found marked 11 x 11 hrs. s 1n~1/4 1 w, 15 .:5, feet;

 THENCE! N 651) 59 1 :t5'1 '.!!:., a.long said well marked line 1 177.64 feet
 a 3/8 11 Reinf. Rod f.or corner from. which a 119 111 ·pine found marked 11 X"'
 brs. N 32-3/4 1 B, 5. 7 feet and a '.16 11 Pine found marked 11x 11 br:S. N
 62-1/4 1 w, 16. oa feet; ,

 THENCE!l: s sae 05• 4:7" E, a.long said well maikad line to a Pine knot
 found set for corner,. a distance of 273. 35 f e,et from which a 1.4 11
 Blaokgurn found marked         11   xfj brs. N ss-1/2 1 W, 15.2 feet;
 THENCE: S 49"' 38 1 48 11 E, a.long said well marked line to a Pine knot
 found set for corner, a distance of 1:94. 30 feet a 14 •1 Sweet Bay
 found, mlilrked "X 1' brs. S 25 E, 25. 7 feet;
 THENCB: S S"' 06' 20 11 El, a.long said well marked. line to a Pina knot
 found set for co:rr1e:r, a distance of 363 • oo feet from which a .3 6 1r
 Pen Oak found marked 11 x 11 b:r;!L N 33-1/2 1 w, J. .!5 feet and a 18 1 Pen




FINDINGS OF FACT AND CONCLUSIONS OF LAW                                         PAGE 13
                                                    95
Oak found marked                    nxu    hrs . .S 46 E, 18, J. feet;

"rFmNCE: S 19.;i; 29 1 42 11 E 1 along said well marked line to a Pine knot
found set for corner, a distance. of 190. 97 feet a 14 n Pen Oak
marked 11 X11 hrs. S.· 7.9-1/2 r W, 10.2 feet. and a. 6" Blackgum marked
 "X• brs. s 57 E, S.7 1 ;

THENCE~       s 1a<> 30' 35 11 W,
                           along said well marked line, 114,09 feet
a 3 / e Reinf. Rod for corner from which a l.2 11 Black.gum found marked
        11

"X" brs. N 74-1/2' E, 4.S feet;

THEMCE; S 30" .55 1 58 11 E, along said well marked. line, 2.26.66 feet
a 3/S" Reinf. Rod for corner from which a 3orr Pine marked                  11   x 11 brs.
N 22-l/4' W, 6. 8 feet and a 12" Pine marked 1rxu brs1. s 36               w,      26. 00
feet;

        s 3Q" 11 1 35 11 ii, along said! "t>Tell marked line, 357.4.4 feet
THE:NC:ii::
a 3/8" Reinf. :Rod for corner from which a 15" Sweet.gum fow::ld marked
nxn hrs.       s    58    w.,       10 + 00 :feet;

THENCE:       s 2" 09r 56 11 E, along said well marked line to a Pine knot.
found set for cm:ner. a distance of 1.94. 5.1 feet from which a 8 11
Sweetgum fo11.Wd marked 11'X 1! brs. s 82 E, 12 .1 :feet;
THENCB: S 9° i4r ISM~, along said well marked line to a Pine knot
found set for corner, a. distance of 230.23 feet from which a 14 11
Post. oak found marked nxt1 brs. S 46-1/4' B.1 5.5 :feet and a 12lf Pen
Oak found marked 0 x 11 brs. 45-1/2 1 w, 5.9 feet;
THKNC!h S 55° 52 1 00 11 B, along said. well marked line, 122.59 feet;

'l'Hm.iJC.Et s. 39" 57 1 49" .E, along said well marked line, 298.43 feet
a 3/8 11 Re.inf. Rod for <:lo?:Uer f;rom i'zhich a 24° Pine found :marked 11 X11
brs. N.515 E, .:u.2 feet;

THENCE~ S          3 ° 51 1 54 11 W, along said well marked line to a .Pine knot
found set for corner, a distance of 382.75 feet from whiah a ion
J?ine marked         11   x   11   .brs.   s   33 W1   11.s   feet;
THENC:JS:     S 31" 52 1              54m E, ·along said well :marked line to the BE
corner of said 115-l/.:!l acre tract 1 a distance of 217. 09 feet a
Mu1be:rry stake t:ound set for corner from which a 24n Bla.ckgum. found
marked "Xlf brs ..S 58-1/2' ff, 12 .5 fa.et and a 12° Beach found marked
lrj(U   hrs. N 41. E,               ~LS    feet;
THENCE: S 59° 1.2' JBli w. along the BBL of said 115-1/2 acre tract
and the SBL of said J. S. Collins Survey and the NBL of M. B.
Griffith Survey, A-19 to the sw corner of $iJlid 115-l/2 acre tract
being the SE cor.ner of said ff. L. Brolffl 72 acre tract, a distance
of 1472.82 feet a flanged. top axle found set for corner from which
a 10 11 Bl.a.ck Ja.ck found marked 1tX 11 br.s. s 20 ff, 33.l feet and a 9 8
Pine stump brs. N 70 w, 36.5 feet;
TH~CE:  N 47° sa• 00 11 W, along a mlt of said llS-1/2 acre tract and
a EBL of said W. L. Brown 72 acre tract, 1212.50 feet a iron pipe
found set for corner from which a a~ Hackberry found marked ~x·
brs. S S;l-1/:2:' E, 84.G feet;
THENCE: N 11° 37 1 w, along a m3L of said 115~1/2 acre; tract and a
EBL of said w. L. Brown '72 acre tra.ct, i675 . 60 feet to t.ll.e PLACE OF
BEGINNING, containing 126.632 acres of land.

FINDINGS OF FACT AND CONCLUSIONS OF LAW                                   PAGE 14
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