Trent Lindig v. Pleasant Hill Rocky Community Club ( 2015 )


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  •                                                                                    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 Stew. 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
    

Document Info

Docket Number: 03-15-00051-CV

Filed Date: 5/26/2015

Precedential Status: Precedential

Modified Date: 9/29/2016