Ivarene and Victor Hosek v. Rosale Scott

ACCEPTED
04-14-00655-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/8/2015 8:28:17 PM
KEITH HOTTLE
CLERK
No. 04-14-00655-CV
FILED IN
On Appeal to the Fourth Court of Appeals 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
3/9/2015 11:00:00 AM
San Antonio, Texas KEITH E. HOTTLE
Clerk
Ivarene and Victor Hosek,
Appellants
v.
Rosale Scott,
Appellee
On Appeal from the 81st Judicial District Court of Atascosa County, Texas, Trial
Court No. 13-06-0559-CVA, the Honorable Fred Shannon, Presiding
Appellants’ Brief
Respectfully submitted,
THE CHIMENE LAW FIRM
Michele Barber Chimene
TBN 04207500
15203 Newfield Bridge Ln.
Sugar Land, TX. 77498
PH: (713) 474-5538; no fax available
michelec@airmail.net
COUNSEL FOR APPELLANTS,
THE HOSEKS
Oral Argument Requested
No. 04-14-00655
Hosek v. Scott
IDENTITY OF PARTIES
In the Trial Court:
Plaintiffs/Appellants:
Ivarene and Victor Hosek
Trial Counsel:
Robert J. Ogle
TBN 15231350
bob@ogleattorney.com
508 E. San Antonio St.
Boerne, TX. 78006
Defendant/ Appellee:
Rosale Scott
Trial Counsel:
G. Wade Caldwell
TBN 03621020
gcaldwell@beclaw.com
Raquel G. Perez
TBN 00784746
rperez@beclaw.com
Zachary Fanucchi
TBN 24028548
zfanucchi@beclaw.com
Barton, East & Caldwell, P.L.L.C.
One Riverwalk Place, Ste. 1825
700 N. St. Mary’s St.
San Antonio, TX. 78205
Additional Appellate Counsel for the Hoseks on Appeal:
Michele Barber Chimene
TBN 04207500
i
IDENTITY OF PARTIES, cont’d.
michelec@airmail.net
The Chimene Law Firm
15203 Newfield Bridge Ln.
Sugar Land, TX. 77498
ii
TABLE OF CONTENTS
Contents
IDENTITY OF PARTIES.............................................................................................................................. i
TABLE OF CONTENTS ............................................................................................................................. iii
INDEX OF AUTHORITIES......................................................................................................................... v
STATEMENT OF THE CASE .................................................................................................................... vi
STATEMENT ON ORAL ARGUMENT.................................................................................................... vi
ISSUES PRESENTED................................................................................................................................ vii
STATEMENT OF FACTS ........................................................................................................................... 1
SUMMARY OF ARGUMENT .................................................................................................................... 3
ARGUMENT & AUTHORITIES ................................................................................................................ 5
ARGUMENT ON FIRST & SECOND ISSUES ...................................................................................... 5
The trial court erred in granting summary judgment in favor of Ms. Scott
because the petition deed is ambiguous and the summary judgment evidence
establishes that a general issue of material fact exists whether the minerals reverted
to the surface owner after twnety-five years and cessation of produc-
tion. ....................................................................................................................................................... 5
This summary judgment was harmful error because the partition deed was
ambiguous and summary judgment evidence conclusively establishes that
the minerals reverted to the surface owner after the expiration of 25 years ......................................... 5
STANDARD OF REVIEW ON FIRST AND SECOND ISSUES ........................................................... 5
ARGUMENT & AUTHORITIES: ........................................................................................................... 6
ARGUMENT AND AUTHORITIES ON THIRD ISSUE: .................................................................... 13
The trial court abused its discretion in awarding attorneys' fees because
sides benefitted equally from an interpretation of the deed and an award to
Ms. Scott was not fair and equitable. .................................................................................................. 13
STANDARD OF REVIEW ON THIRD ISSUE: ................................................................................... 13
ARGUMENT & AUTHORITIES: ......................................................................................................... 13
ARGUMENT & AUTHORITIES ON FOURTH ISSUE:...................................................................... 15
The trial court abused its discretion in allowing the possibility of forcing the Hoseks to pay the costs
of necessary and irrelevant documents which were included in the record at the demand of Ms.
Scott’s counsel merely to raise
the cost of the appeal for the Hoseks. ................................................................................................. 15
iii
STANDARD OF REVIEW ON FOURTH ISSUE: ............................................................................... 15
ARGUMENT & AUTHORITIES: ......................................................................................................... 15
CONCLUSION & PRAYER ...................................................................................................................... 17
CERTIFICATE OF COMPLIANCE .......................................................................................................... 18
CERTIFICATE OF SERVICE ................................................................................................................... 18
APPENDIX:................................................................................................................................................ 20
iv
INDEX OF AUTHORITIES
Cases
Bagby v. Bredhauer, 627 S.W.2d 190 (Tex. App. – Austin 1981, no writ) ................................................ 10
Berrand, Inc. v. Whataburger, Inc., 214 S.W.3d 122 (Tex. App – Corpus Christi 2006, pet denied).......... 6
Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) ........................................................................................ 13
Brown v. Havard, 593 S.W.2d 939 (Tex. 1980) ........................................................................................... 7
City of Temple v. Taylor, 268 S.W.3d 852 (Tex. App. – Austin 2008, pet. denied) ................................... 13
DeWitt Cty. Elec. Co-Op, Inc. v. Parks, 18 S.W.3d 96 (Tex. 1999) ............................................................. 7
Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280 (Tex. 1996) ..................................................... 6
Frost Nat’l Bank v. L & F Distribs, Ltfd., 165 S.W.3d 310 (Tex. 2005) ...................................................... 8
Houchins v. Devon Energy Prod. Co., LP, No. 01-08-00273-CV, 2009 Tex. App. LEXIS 8064 (Tex. App.
–Houston [1st Dist.] Oct. 15, 2009, pet denied) ........................................................................................ 7
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) ..................................................................... 6
Luckel v. White, 819 S.W.2d 459 (Tex. 1991) .............................................................................................. 8
National Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517 (Tex. 1995) ................................................ 11
Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508 (Tex. 1995) ............................................................... 6
Plainsman Trading Co. v. Crews, 898 S.W.2d 786 (Tex. 1995) .................................................................. 8
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003).................................................. 5
Reilly v. Rangers Mgmt, Inc. 727 S.W.2d 527 (Tex. 1987) .......................................................................... 9
Rio Bravo Oil Co. v. Weed, 121 Tex. 427 (Tex. 1932) .......................................................................... 10-11
San Antonio St. Ry Co. v. Adams, 87 Tex. 125 (Tex. 1894). ...................................................................... 12
Securtec, Inc. v. County of Gregg, No. 06-01-00164-CV, 2002 Tex. App. LEXIS 8812 (Tex. App. –
Texarkana Dec. 11, 2002, no pet.) .......................................................................................................... 14
T C Dallas #1, LP v. Republic Underwriters Ins. Co., 316 S.W.3d 832 (Tex. App. – Dallas 2010, no pet.)
.................................................................................................................................................................. 6
Tanglewood Homes Ass’n v. Henke, 728 S.W.2d 39 (Tex. App. – Houston [1st Dist.] 1987, writ ref’d
n.r.e.) ....................................................................................................................................................... 14
Terrill v. Tuckness, 985 S.W.2d 97 (Tex. App. – San Antonio 1998, no pet.) ............................................. 6
Thomason v. Bradgett, No. 02-12-00303-CV, 2013 Tex. App. LEXIS 8576 (Tex. App. – Fort Worth July
11, 2013, pet. denied) ................................................................................................................................ 8
Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951) .................................................. 7, 11
Western Invs. v. Urena, 162 S.W.3d 547 (Tex. 2005) .................................................................................. 6
Statutes
TEX. CIV. PRAC & REM. CODE § 37.001 et seq .................................................................................................. v
Rules
TEX. R. CIV. P. 166(a)................................................................................................................................. 4
v
STATEMENT OF THE CASE
Trial Court: This case was a declaratory judgment action
under Texas Civil Practice and Remedies
Code § 37.001 et seq.. (CR 1-5). The Hoseks
requested construction of a deed of partition
to determine whether they owned all or half
of the minerals under their land in Atascosa
County. (CR 75-77). Partial summary
judgment was granted in favor of Ms. Scott
owning an undivided one-half interest in the
minerals under the Hoseks’ land. (Supp. CR
89-90). A hearing was held on the issue of
attorneys’ fees, (RR 1-60), after which Judge
Shannon awarded Ms. Scott attorneys’ fees
of $39,500, plus $2,500 if a Motion for New
Trial was filed, 12,500 for appeal to this
court, $3,500 if petition for review was filed,
and $12,500 if the petition was granted. (CR
208-213). Final Judgment was June 19,
2014. (CR 212).
Post-trial and appeal: Finding of Facts and Conclusions of Law
were requested. (CR 227). The Hoseks filed
a Motion for New Trial. (CR 248-250). The
Court made Findings of Fact only as to attor-
ney fees. (CR 345; 405-12). Notice of
Appeal was filed on June 19, 2014. (CR 415).
STATEMENT ON ORAL ARGUMENT
The Hoseks believe that the issues in this case are straightforward and that
oral argument will not help decide the case. However, if Ms. Scott is granted oral
argument, the Hoseks wish to be allowed to argue.
vi
ISSUES PRESENTED
The trial court erred in granting summary judgment in favor of Ms. Scott
because the partition deed is ambiguous and summary judgment evidence establishes
that a genuine issue of fact exists whether the minerals reverted to the surface owner
after the expiration of 25 years and cessation of production.1
This summary judgment was harmful error because the partition deed is
ambiguous and summary judgment evidence conclusively establishes that the
minerals reverted to the surface owner after the expiration of 25 years and cessation
of production.
The trial court abused its discretion in awarding attorneys’ fees because both
sides benefitted equally from an interpretation of the deed and an award to Ms. Scott
was not fair and equitable.
The trial court abused its discretion in allowing the possibility of forcing the
Hoseks to pay the costs of unnecessary and irrelevant documents which were
included in the record at the demand of Ms. Scott’s counsel merely to raise the cost
of the appeal for the Hoseks.
1
There was no actual production during the twenty-five year period to extend the
agreement not to partition.
vii
No. 04-14-00655-CV
On Appeal to the Fourth Court of Appeals
San Antonio, Texas
Ivarene and Victor Hosek,
Appellants
v.
Rosale Scott,
Appellee
On Appeal from the 81st Judicial District Court of Atascosa County, Texas, Trial
Court No. 13-06-0559-CVA, the Honorable Fred Shannon, Presiding
TO THE HONORABLE COURT OF APPEALS:
COME NOW, IVARENE and VICTOR HOSEK, and file this, their
Appellants’ Brief in the above-referenced case. The Hoseks will show as follows:
STATEMENT OF FACTS
On October 4, 1978, Fridolin Alex Voigt and his wife, Pearl Schnautz Voigt,
deeded the family farm to their children, Ivarene Voigt Hosek (and her husband
Victor) and Rosale Voigt Scott, in equal undivided shares. (Supp CR 16; 45). The
Hoseks and Ms. Scott then partitioned the tract, but made an agreement not to
partition the minerals for twenty-five years or so long as production continued.
1
(Supp. CR 19-24; 45). Because the twenty-five years started with the present, the
partition deed did not partition the minerals, and they were severed from the surface
estate. (Supp. CR 20-22). The partition read as follows:
“This partition does not include any of the oil, gas, or other minerals in, on
or under the above described tract of land, and same are to remain undivided
for a period of twenty-five years from the date hereof and as long thereafter
as oil, gas, or other minerals are produced in paying quantities from the above
described lands.”
(Supp. CR 20-22). The deed was unclear what happened to the minerals after the
twenty-five years was up. The intent of the deed was clearly a partition of interests,
(Supp. CR 19-24), yet did the statement that the partition did not include the minerals
just mean that the minerals were not partitioned during the time the parties had
agreed to not partition them, or did it leave them unpartitioned forever? And if they
were left unpartitioned forever, why was a twenty-five year period mentioned,
instead of just saying that the deed did not partition the minerals? This was an
ambiguity that would much later cause an oil company landman to send a quit claim
deed to Ms. Scott for signature, and begin this lawsuit, but up until the quit claim
deed, the parties treated the minerals in similar fashion.
After the twenty-five years had passed, (in 2004), both parties treated the land
as though the minerals had reverted to the respective surface owners. Ms. Scott sold
parts of her property to the Moraleses in 1986, (Supp. CR 28), and to the Kings in
1990. (Supp. CR 31). She told the buyers that they would own the 50% of the
2
minerals owned by the Hoseks under Ms. Scott’s tract after the twenty-five years
expired. (Supp. CR 49, 62, 64, and 78). The buyers paid Ms. Scott, not Ms. Hosek,
for the minerals. (Supp. CR 50). Ms. Scott even asked the Hoseks to ignore the
agreement to not partition and have the minerals revert to the surface owner before
the twenty-five years were up so that she could please her buyer and convey 100%
of the minerals immediately. (Supp. CR 73-76). There are even current wells pooled
with the land Ms. Scott sold, and the Hoseks are not getting paid any royalties on the
hydrocarbons produced, because all parties have treated the minerals as reverting to
the surface owner. Only when oil was found on the Hoseks’ land, and an oilman
asked Ms. Scott to sign a quit claim deed to cure the ambiguity in the poorly-drafted
Partition Deed did Ms. Scott make her claim. (Supp. CR 50).
SUMMARY OF ARGUMENT
The Partition Deed at the heart of this case, (Supp. CR 19-24), is ambiguous
because it does not say what happens to the minerals after a twenty-five year
agreement not to petition and two possibilities are valid: (1), the Partition is
completed and the minerals revert to the surface owner, or (2) the minerals stay
unpartitioned forever. The trial court erred in saying the deed was unambiguous.
This brief discusses the many rules of contract interpretation which cause the deed
to be ambiguous.
3
Subsequent treatment of the minerals by the parties before the conflict arose
provides airtight proof as to what the parties intended. Ms. Scott told two buyers for
her land that the minerals would revert to the surface owner, and after the twenty-
five years were up, they would own the minerals. Ms. Scott attempted to bring to a
close the agreement not to partition the minerals before the twenty-five years were
up, so as to give what was the temporarily the Hosek’s minerals to the buyer
immediately. If the minerals did not revert to the surface owners, Ms. Scott has sold
the Hosek’s minerals under Ms. Scott’s land without paying the Hoseks for them,
and there are now wells pooled on that land that the Hoseks also aren’t getting paid
for. The landmen for current wells believe that the Hoseks own all the minerals
under their tract and the buyers own all the minerals under Ms. Scott’s tract. They
only gave Ms. Scott a quit claim deed to sign because the deed was ambiguous. The
trial court’s summary judgment should be reversed and the Hoseks found to own the
minerals (100%) under their land.
Both parties needed this ambiguous deed interpreted, so attorneys’ fees should
not have been awarded to either side. Such was not equitable and just.
The costs of an unnecessarily-long Clerk’s Record requested by Ms. Scott’s
counsel should not be assessed against the Hoseks. This point is not moot because
the appellate court could still do this, and such would not be just and equitable.
Expanding the record beyond what was proper was just one of the many techniques
4
of gamesmanship Ms. Scott’s counsel used to make the appeal cost the Hoseks more
than it should.
ARGUMENT & AUTHORITIES
ARGUMENT ON FIRST & SECOND ISSUES
The trial court erred in granting summary judgment in favor of Ms. Scott
because the partition deed is ambiguous and summary judgment evidence
establishes that a genuine issue of fact exists whether the minerals reverted
to the surface owner after the expiration of 25 years and cessation of produc-
tion.2
and
This summary judgment was harmful error because the partition deed is
ambiguous and summary judgment evidence conclusively establishes that
the minerals reverted to the surface owner after the expiration of 25 years
and cessation of production.
STANDARD OF REVIEW ON FIRST AND SECOND ISSUES
To prevail on a summary judgment, the movant is required to prove that there
is no genuine issue as to any material fact and that movant is entitled to judgment as
a matter of law. TEX. R. CIV. P. 166(a). The appellate court reviews the trial court’s
grant of a summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, the Court
2
Again, noting that there was no production during the twenty-five years.
5
must accept as true evidence favoring the non-movant, indulging in every reasonable
inference and resolving all doubts in the non-movant’s favor. Park Place Hosp. v.
Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995); Western Invs. v. Urena, 162
S.W.3d 547, 550 (Tex. 2005).
When an instrument is unambiguous, and the dispositive facts are not in
dispute, a court may grant summary judgment and render a declaratory judgment
regarding the parties’ rights under the instrument. Berrand, Inc. v. Whataburger,
Inc., 214 S.W.3d 122, 131-32 (Tex. App – Corpus Christi 2006, pet denied); T C
Dallas #1, LP v. Republic Underwriters Ins. Co., 316 S.W.3d 832, 837 (Tex. App.
– Dallas 2010, no pet.). Extrinsic evidence of intent is admissible if the deed is
ambiguous on its face. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280,
283 (Tex. 1996).
ARGUMENT & AUTHORITIES:
In construing a written agreement, we must ascertain and give effect to the
parties’ intentions as expressed in the agreement. Terrill v. Tuckness, 985 S.W.2d
97, 101 (Tex. App. – San Antonio 1998, no pet.). The Hoseks believe that the
Partition Deed is ambiguous. (Supp. CR 21-22). Deciding whether a deed is
ambiguous is a question of law for the courts. J.M. Davidson, Inc. v. Webster, 128
S.W.3d 223, 229 (Tex. 2003). The court may look to principles of contract
interpretation to determine whether a deed term is ambiguous. Brown v. Havard,
6
593 S.W.2d 939, 942 (Tex. 1980). A deed term is not ambiguous because of a simple
lack of clarity. DeWitt Cty. Elec. Co-Op, Inc. v. Parks, 18 S.W.3d 96, 100 (Tex.
1999). A deed term is not ambiguous simply because the parties disagree on its
meaning. Houchins v. Devon Energy Prod. Co., LP, No. 01-08-00273-CV, 2009
Tex. App. LEXIS 8064 (Tex. App. – Houston [1st Dist.] Oct. 15, 2009, pet denied).
An ambiguity arises only after the application of established rules of construction
leave a deed susceptible to more than one meaning. Id.; Universal C.I.T. Credit
Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951). For an ambiguity to exist, both
potential meanings must be reasonable. Id.
The conflict over the interpretation of the Partition Deed arises out of the
failure of the document to state what will occur after the expiration of the twenty-
five year period and cessation of production. (Supp. CR 21-22, infra, pg. 2). Either
the mineral rights revert to the surface owner or they do not. The conflict also arises
as to whether the phrase, “This partition does not include any of the oil, gas, or other
minerals in, on or under the above described tract of land…” stands on its own, to
leave the minerals undivided until another act partitions them, or whether it is over-
riding that this phrase is joined with the conjunction “and” with “same are to remain
undivided for a period of twenty-five years…” to mean that the minerals are
undivided only for the twenty-five years set out in the same sentence.
Arguing for ambiguity are the following principles of deed interpretation:
7
(1) Texas courts apply the “four corners” rule, Luckel v. White, 819 S.W.2d
459 (Tex. 1991), and (a) look not at isolated terms but consider the
instrument as a whole, (b) to convey on the grantee the greatest estate that
the terms of the deed will permit. Plainsman Trading Co. v. Crews, 898
S.W.2d 786, 789 (Tex. 1995); Thomason v. Bradgett, No. 02-12-00303-
CV, 2013 Tex. App. LEXIS 8576 (Tex. App. – Fort Worth July 11, 2013,
pet. denied). The phrase “This partition does not include any of the oil,
gas, or other minerals in, on or under the above described tract of land…”
is an isolated phrase. (Supp. CR 21-22). It should not be interpreted alone
from the phrase to which it is joined: “same are to remain undivided for a
period of twenty-five years…” (Supp. CR 21-22). It also should not be
allowed to contradict the patent purpose of the document: to partition the
estate. While on first blush, the fact that the partition is said to not include
the minerals may be interpreted to mean the minerals are never partitioned,
if the whole document is read harmoniously, Frost Nat’l Bank v. L & F
Distribs, Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005), the isolated phrase
that the minerals are not partitioned should be read with the phrase which
immediately follows it and with the fact that this is a partition deed. This
gives the equally logical interpretation that the minerals are not partitioned
for twenty-five years to allow for sharing of current production, but that
8
they are partitioned after twenty-five years, to accomplish full partitioning
of the estates, the stated goal of the document. (Supp. CR 19-24).
(2) The consideration of the whole document, in harmony, comes from “a
utilitarian standpoint bearing in mind the particular business activity
sought to be served, and a court will avoid when possible and proper a
construction which is unreasonable, unequitable, and oppressive.” Reilly
v. Rangers Mgmt., Inc. 727 S.W.2d 527, 530 (Tex. 1987). While it is
inequitable to deprive one party of presently-occurring or soon-to occur
production that they may be counting on, (although this turned out to be
wishful thinking), it is oppressive to omit the minerals from eventual
partition, when two people who may have different businesses and
different goals are trying to partition their estates.
(3) There is the presumption that when lands are partitioned among co-
owners, the whole of the land is partitioned, unless some portion of the
land is expressly excepted from the partition. Pewitt v. Renwar Oil Corp.,
261 S.W.2d 904, 906 (Tex. Civ. App. – Houston 1962, writ ref’d n.r.e.).
In this case, reading entire sentences as a whole, the only thing that is
expressly excepted are the minerals for twenty-five years. (Supp. CR 19-
24).
9
(4) The presumption is that the grantor, (Ms. Scott in the case of the land the
Hoseks will receive), intends to convey to her grantee (the Hoseks) all of
the appurtenant rights incident to the beneficial enjoyment of property
which she had conveyed. Rio Bravo Oil Co. v. Weed, 121 Tex. 427 (Tex.
1932). In this case, conveyance of all of the appurtenant rights would
mean the minerals revert to the surface owners after the twenty-five years
or production are up.
(5) Where the instrument is capable of two constructions, one of which will
give effect to the whole of the instrument while the other would defeat it
in whole or in part, preference is given to the construction that will uphold
the instrument. Bagby v. Bredhauer, 627 S.W.2d 190 (Tex. App. – Austin
1981, no writ). This is a partition deed, and reverter of the minerals to the
respective surface owner after twenty-five years upholds the whole
instrument. (Supp. CR 19-24). Reverter does not ignore the phrase that
the minerals are not (presently) partitioned, because that phrase is
implemented for the twenty-five years of the agreement not to partition.
(Supp. CR 20-22).
Thus, there are two reasonable interpretations of the Partition Deed: one in
which the minerals remain unpartitioned after the twenty-five years (thwarting
the full effect of partition) and one in which the minerals revert to the
10
respective surface owner after the twenty-five years are up (giving full life to
the partition document). Therefore, the Partition Deed is ambiguous.
Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951). The
trial court erred in finding that it was unambiguous.
If a contract or deed is ambiguous, then parol evidence is admissible for the
purpose of ascertaining the true intentions of the parties. National Union Fire Ins.
Co. v. CBI Indus., 907 S.W.2d 517 (Tex. 1995). Such parol evidence was admitted
with the Hoseks’ Response to Motion for Partial Summary Judgment. (Supp. CR
42-82). The Affidavit of Alan Cummings, Board Certified Attorney in Oil and Gas
and noted Tittle Examiner uses statutory construction similar to just presented to
testify that the parties intended the minerals to revert to the surface owner after
twenty-five years. (Supp. CR 51). The Affidavit of Ivarene Hosek testifies as to her
present understanding, that expressed by her sister at the time, and the present
understanding of the oil companies who researched title. (Supp. CR 49-50). All
believe that the minerals were intended to revert to the respective surface owner.
(Supp. CR. 49-50).
If any doubt exists as to the intention of the grantors, and a deed is ambiguous,
a practical and reasonable construction given it by the parties thereto before any
controversy has arisen as to its meaning will generally be given controlling effect by
the courts. Rio Bravo Oil, 121 Tex. at 426-47; San Antonio St. Ry Co. v. Adams, 87
11
Tex. 125, 131 (Tex. 1894). There was testimony from several parties, and
correspondence written before the controversy arose that the parties treated the
minerals as reverted to the surface owners. Ms. Hosek testified via affidavit that her
sister told buyers of Ms. Scott’s land that they would own all the minerals under
Scott’s land after reversion. (Supp. CR. 49-50). The deposition testimony of Rosale
herself testified that the Hoseks would own the minerals for 14 more years, and then
the buyer would get the minerals under the Scott tract. (Supp. CR. 64). There was
testimony that Ms. Scott attempted to break the non-partition agreement before the
twenty-five years was up so as to be able to transfer all of the minerals under her
land to prospective buyers. (Supp. CR. 76). And in a letter to Mr. King, one eventual
buyer of Ms. Scott’s land and minerals, Ms. Scott told Mr. King he would get all the
minerals under the land in fourteen years. (Supp. CR 78-79). This is especially
credible because it all occurred before any controversy came up. (Supp. CR 68).
The only testimony that Ms. Scott thought the partition would be renegotiated after
the twenty-five years, (Supp. CR. 72) came up after the conflict arose and much oil
money hinged in the balance.
Thus, the great preponderance of the evidence establishes that the intent of the
parties was that the Hoseks’ minerals have reverted to them and that 100% of the
minerals under the Hoseks’ land belong to them. Therefore, the deed was originally
ambiguous, not unambiguous as the trial court decided, and the parol evidence
12
conclusively established that the minerals reverted to the surface owners after
twenty-five years. The summary judgment was harmful because there are currently
producing oil units into which the minerals under the Hoseks’ land are pooled, but
half the money due the Hoseks is not being paid to them, due to Ms. Scotts’ false
claim. (Supp. CR 50). Other royalty owners are also being denied payment and the
wells may even be abandoned. (Supp. CR 50). The trial court’s summary judgment
must be reversed.
ARGUMENT AND AUTHORITIES ON THIRD ISSUE:
The trial court abused its discretion in awarding attorneys’ fees because both
sides benefitted equally from an interpretation of the deed and an award to
Ms. Scott was not fair and equitable.
STANDARD OF REVIEW ON THIRD ISSUE:
The standard of review for an award of attorneys’ fees on a declaratory
judgment is abuse of discretion. City of Temple v. Taylor, 268 S.W.3d 852, 858
(Tex. App. – Austin 2008, pet. denied). Whether attorneys’ fees are equitable and
just is a matter of law. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). The
UDJA does not require an award of attorneys’ fees to the prevailing party. Id.
ARGUMENT & AUTHORITIES:
In this case, reversal of the attorneys’ fees award is necessary regardless of
whether the summary judgment is reversed.
13
If a court reverses a declaratory judgment, it is usually equitable and just to
reverse the award of attorneys’ fees to the former winner. Tanglewood Homes Ass’n
v. Henke, 728 S.W.2d 39 (Tex. App. – Houston [1st Dist.] 1987, writ ref’d n.r.e.);
Scottsdale Ins. Co. v. Travis, 68 S.W.3d 72 (Tex. App. -- Dallas 2001, pet. denied).
In this case, if the Court reverses, it is because all parties treated the minerals as
having reverted to the surface owner. Ms. Scott even sold mineral interests that she
could only sell if the rights had reverted.3 It was therefore dishonest of her to claim
that the minerals did not revert. She should just have signed the quitclaim deed and
there never would have been a lawsuit with attorneys’ fees. (Supp. CR 49-50). It is
not equitable and just to award attorneys’ fees to someone whose defense was
dishonest.
Even if this Court does not reverse the summary judgment, the attorneys’ fees
award is not just and equitable and should be reversed. “Just and equitable” should
in most cases be tied to the party who caused the necessity of the suit. Where one
party caused the suit by having an improper interpretation, they may often be liable
for attorneys’ fees. However, it is not necessary to award attorneys’ fees to the
prevailing party. Securtec, Inc. v. County of Gregg, No. 06-01-00164-CV, 2002
Tex. App. LEXIS 8812 (Tex. App. – Texarkana Dec. 11, 2002, no pet.). In this case,
3
Her testimony is that she thought she kept her half and only sold the Hoseks’
half! (Supp. CR 77).
14
both parties “caused” the suit in that they both needed the Partition Deed interpreted,
regardless of who had the right interpretation, as a 50% interest in minerals was at
stake, so there is no party who “caused” the lawsuit more than the other, and no party
should receive attorneys’ fees. This court should reverse and render on the question
of attorneys’ fees.
ARGUMENT & AUTHORITIES ON FOURTH ISSUE:
The trial court abused its discretion in allowing the possibility of forcing the
Hoseks to pay the costs of necessary and irrelevant documents which were
included in the record at the demand of Ms. Scott’s counsel merely to raise
the cost of the appeal for the Hoseks.
STANDARD OF REVIEW ON FOURTH ISSUE:
A trial judge has discretionary authority to assess court costs against either
of the parties or to apportion such costs between them in a fair and equitable
manner. San Antonio Hous. Auth. v. Underwood, 785 S.W.2d 25 (Tex. App. – San
Antonio 1989, no writ).
ARGUMENT & AUTHORITIES:
Many unnecessary steps were engaged in by opposing counsel in this case in
an apparent effort by opposing counsel to raise the cost of the case prohibitively for
the Hoseks. For example, Ms. Scott engaged in lengthy tactics to make the Hoseks
add parties they did not wish to add, when she could have just added them herself at
minimal expense. Ms. Scott’s legal bills, which she sought to make the Hoseks pay,
15
contained duplication and triplication of effort, and even when cut almost in half,
were more than those of the Hoseks counsel by more than ten thousand dollars.
The most outrageous effort, however, was a request for approximately sixteen
documents which Ms. Scott’s counsel asked to be added to the record on appeal.
(CR 417). The trial court overruled the Hoseks’ objection to these additions and left
it an open question whether the Hoseks would be forced to pay for this addition.
(CR 427). This was an abuse of discretion, because it was not a fair and equitable
addition. It slowed down the appeal and added to the cost for no reason. Ms. Scott
had not perfected any appeal. (CR 423). The issues on appeal were two: (1) the
interpretation of the Partition Deed and (2) the award of attorneys’ fees. (CR 423).
Pleadings which had been superseded, or documents, such as documents relevant to
abatement or supercedeas, which were not relevant to any issue on appeal, should
not have been included in the appellate record and the Hoseks ask that this Court
rule that they are not charged the cost of adding these documents to the record, as
such would not be fair and equitable and would be an abuse of discretion.
Gamesmanship should not be tolerated when it may affect a party’s ability (and
constitutional right) to present its case. See Pennzoil Co. v. Arnold Oil Co., 30
S.W.3d 494 (Tex. App. – San Antonio 2000, orig. proceeding).
16
CONCLUSION & PRAYER
Bad drafting of a partition deed created an ambiguous document, contrary to
the trial court’s conclusion that the deed was unambiguous. A great preponderance
of the evidence of how the Hoseks and Ms. Scott treated the deed, before the conflict
arose, conclusively established that the minerals reverted to the surface owner after
the twenty-five year agreement not to partition included in the deed ended. This
evidence proves that the Hoseks own 100% of the minerals under their land,
therefore, the trial court’s judgment was harmful because it caused an incorrect
judgment to result and a whole neighborhood of royalty owners to have their royalty
payments withheld – not a small matter when ranching income in the area is
currently limited by a pervasive drought.
Both parties needed the deed interpreted, so the award of attorneys’ fees
against just the Hoseks should be reversed. “Just and equitable” is a question of law,
so a judgment proving that neither side should recover attorneys’ fees should be
entered.
Again, the assessment of costs must be “just and equitable.” Therefore a
judgment should be entered that the Hoseks not pay for the extra Clerks’ Record the
counsel for Ms. Scott required.
WHEREFORE, PREMISES CONSIDERED, the Hoseks ask that the
summary judgment entered by the trial court be completely reversed, and judgment
17
entered that the deed is ambiguous and the Hoseks own 100% of the minerals under
their land. The Hoseks ask for such other and further relief as may be just.
Respectfully submitted,
______/s/ MB CHIMENE_______
THE CHIMENE LAW FIRM
Michele Barber Chimene
TBN 04207500
15203 Newfield Bridge Ln.
Sugar Land, TX. 77498
PH: 713 474-5538; no fax
michelec@airmail.net
COUNSEL FOR THE HOSEKS
CERTIFICATE OF COMPLIANCE
The undersigned certifies that this brief was produced in 14 pt Times New
Roman font with the required margins and number of words. There are 5373
words in this brief according to my computer’s word counter.
_______/s/ MB CHIMENE_______
CERTIFICATE OF SERVICE
On this, the 8th day of March, 2014, undersigned counsel has served via ECF
and email a true and correct copy of this brief according to the Rules of Civil
Procedure on this following, as witnessed by my hand.
G. Wade Caldwell rperez@beclaw.com
TBN 03621020 Zachary Fanucchi
gcaldwell@beclaw.com TBN 24028548
Raquel G. Perez zfanucchi@beclaw.com
TBN 00784746 Barton, East & Caldwell, P.L.L.C.
18
One Riverwalk Place, Ste. 1825
700 N. St. Mary’s St.
San Antonio, TX. 78205 _______/s/ MB CHIMENE_________
19
APPENDIX:
A Texas Civil Practice and Remedies Code §§ 37.001 et seq
B Final Judgment
C Findings of Fact
D The Partition Deed
E Response to Motion for Partial Summary Judgment
20
TAB A
A Texas Civil Practice and Remedies Code §§ 37.001 et seq
21
Texas Civil Practice & Remedies Code
CPRC 37.001
In this chapter, “person” means an individual, partnership, joint-stock company,
unincorporated association or society, or municipal or other corporation of any
character
CPRC 37.002
(a) This chapter may be cited as the Uniform Declaratory Judgments Act.
(b) This chapter is remedial; its purpose is to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and other legal
relations; and it is to be liberally construed and administered;
(c) This chapter shall be so interpreted and construed as to effectuate its general
purpose to make uniform the law of those states that it enact it and to
harmonize, as far as possible, with federal laws and regulations on the
subject of declaratory judgments and decrees;
CPRC 37.003
(a) A court of record within its jurisdiction has power to declare rights, status and
other legal relations whether or not further relief is or could be claimed. An
action or proceeding is not open to objection on the ground that a declaratory
judgment or decree is prayed for;
(b) The declaration may be either affirmative or negative in form and effect, and
the declaration has the force and effect of a final judgment or decree;
(c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the
exercise of the general powers conferred in this sectionin any proceeding in
which declaratory relief is sought and a judgment or decree will terminate the
controversy or remove an uncertainty;
CPRC 37.004
(a) A person interested under a deed, will, written contract, or other writings
constituting a contract or whose rights, status, or other legal relations are
affected by a statute, ordinance, contract or franchise may have determined
any question of construction or validity arising under the instrument, statute,
ordinance, contract or franchise and obtain a declaration of rights, status, or
other legal relations thereunder;
(b) A contract may be construed either before or after there has been a breach;
(c) Notwithstanding Section 22.001, Property Code, a person described by
subsection (a) may obtain a determination under this chapter when the sole
issue concerning title to real property is the proper boundary between
adjoining properties.
CPRC 37.005
A person interested as or through an executor or administrator, including an
independent executor or administrator, a trustee, guardian, other fiduciary, creditor,
or of the estate of a decedent, an infant, mentally handicapped person, or insolvent
may have a declaration of rights or legal relations in respect to the trust or estate:
(1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or
others;
(2) To direct the executors, administrators, or trustees to do or abstain from doing
any particular act in their fiduciary capacity;
(3) To determine any question arising in the administration of the trust or estate,
including questions of construction of wills and other writings; or
(4) To determine the rights or legal relations of an independent executor or
independent administrator regarding fiduciary fees and the settling of
accounts.
CPRC 37.0055
(a) In this section, “state” includes any political subdivision of that state.
(b) A district court has original jurisdiction of a proceeding seeking a declaratory
judgment that involves:
(1) a party seeking declaratory relief that is a business that is:
(A)organized under the laws of this state or is otherwise owned by a resident
of this state; or
(B) a retailer registered with the comptroller under Section 151.106, Tax
Code;
(2) a responding party that:
(A)is an official of another state and
(B) asserts a claim that the party seeking the declaratory relief is required to
collect sales or use taxes for that state based on the conduct of the business
that occurs in whole or in part within this state.
(c) A business described by Subsection (b)(1) is entitled to declaratory relief on
the issue of whether the requirement of another state that the business collect
and remit sales or use taxes to that state constitutes an undue burden on
interstate commerce under Section 8, Art I, United States Constitution.
(d) In determining whether to grant declaratory relief to a business under this
section, a court shall consider:
(1) The factual circumstances of the business’s operations that give rise to the
demand by the other state, and
(2) The decisions of other courts interpreting Section 8, Art. I, United States
Constitution.
CPRC 37.006
(a) When declaratory relief is sought, all persons who have or claim an interest
that would be affected must be made parties. A declaration does not prejudice
the rights of a person not a party to the proceeding.
(b) In any proceeding that involves the validity of a municipal ordinance or
franchise, the municipality must be made a party and entitled to be heard, and
if the statute, ordinance, or franchise is alleged to be unconstitutional, the
attorney general of the state must also be served with a copy of the proceeding
and is entitled to be heard.
CPRC 37.007
If a proceeding under this chapter involves the determination of an issue of fact, the
issue may be tried and determined in the same manner as issues of fact are tried and
determined in other civil actions in the court where the proceeding is pending.
CPRC 37.008
The court may refuse to render or enter a declaratory judgment or decree if the
judgment or decree would not terminate the uncertainty or controversy giving rise
to the proceeding.
CPRC 37.009
In any proceeding under this chapter, the court may award costs and reasonable and
necessary attorneys’ fees as are equitable and just.
CPRC 37.010
All orders, judgments and decrees under this chapter may be reviewed as other
orders, judgments and decrees.
CPRC 37.011
Further relief based on a declaratory judgment or decree may be granted whenever
necessary or proper. The application must be by petition to a court having
jurisdiction to grant the relief. If the application is deemed sufficient, the court shall,
on reasonable notice, require any adverse party whose rights have been adjudicated
by the declaratory judgment or decree to show cause why further relief should not
be granted forthwith.
TAB B
Final Judgment
CAUSE NO, 13-06~0559-CVA
IVARENE HOSEK AND VICTOR § . IN THE DISTRlCT .COURT
HOSEK, §
§
Plaintiffs, §
§
v. § 8lsT JUDICIAL DISTRICT
§
ROSALE SCOTT, §
§ .
Defendant. § ATASCOSA COUNTY, TEXAS
FINAL JUDGMENT
The Court; having ·considered the pleadings~ .the file,. the evidence presented~ and the
argument of counsel, finds that the followingfmal judgment should be entered.
' . ' .'
On March 3, 2014, the Court issued an Order Granting Defendant's Motion for Partial
Summary Judgment. That Order provided, and the Court hereby incorporates that Order, and
orders, adjudges and.decrees as follows:
The Court rules that the Deed ofPartition dated August 17,.1979 between
Plaintiffs IVARENE. HOSEK and VICTOR HOSEK (the · "Hoseks''} and .
Defendant ROSALE SC.OTT ('~Scott") recorded at VoL 510, Page 126, Real ·
roperty Records of. Atascosa County, Texas (the "Partition Deed") is
unambiguous as a matter of law and ~as the effect as urged by .Defendant.
·. IT IS THEREFORE·ORDERED that judgment. is gr:anted in favor of
Defendant ROSALE SCOTT and that: (1) the Partition Deed is u,rtambiguous as a
. matter of law; (2) the .Partition Deed partitioned the surface, but did not partition
. the minerals; (3) as to the mine,s, the Hoseks and Scott agr~d not On! y tha~ they
were not part1t1orted~ but also ;th~t they. would .not part1tron them until ·the
. .fLB) OJ ·. 37 0'0.()0<.-fl ,M . .
MARGARET E. urn.ETON. DISTRICT a.ERK
Page 1·1
210
i•
expiration of the stated titne limits, and whether the minerals would ever be
partitioned by the ownets remained an open· question and the Hoseks and .Scott
continued. to own an. undivided
.· . .
one-half of the minerals, each; and
' ' ..
(4) that since
there has been no subsequent 1)artitiort of the mirtera~s, Defendant ROSALE
SCOTT therefore currently owns fifty percent (50%) of.the minerals under the
. . . . .
169.27 ac.res ofiand, the surface of which was deededtothe:Hoseks on .pages 1-3
of the Partition Deed, whose legal description is. attached as .$xhibit "A" and
incorporated by reference. ·
On Jm1e 18, 2014, the Court issued an Order Granting Defendant's Notice of.Nori-Suit
·WithourPrejudice Of Defendant's Remaining Counterc~afms Agliinst Plaintiffs, which non-suited
. Defendant's counterclaimsfotbonuses and royalties against Plaititiff.
On June 18, 2014, the Court issued an Order Granting Attorneys' Fees, which granted
Defenda~t attorneys' fees as ~]lo:wn inthatOrder. Therefore, it is or4ered,:adjudged and decreed
-that Defendant ROSALE SCOTT have and r~cover judgroent against Plaintiffs IVARENE
. . . . . . . . . : . - '
HOSEK and VICTOR HOSEKin the following amounts: . . . . . .
1. $ ~ 1, 57J70. @_.··in attorney's fees tbroughenttyofjudgmentand·setting of
a supersedeas bond. .
. 2. A conditional award o[additi<:mal reasonable and necessary attorney's fees of$ _ __
I
!
.f 1--, $!) ~in
f . . . ·. .
the event a ne:w trial is sought in the trial court and Rosale Scott
'. . .·
prevails, plus if an appeal occurs and Rosale Scott prevails, in the following amounts:
.. <.e.-=- . . .. .. ~.. ..
1) $11-- )'T'D · for an appeal .to the Court of Appeals; 2) $ 7., )-rT'O · if any
. .
part of the judgment is appealed to the Texas Supreme Court by Writ.ofEn-or; and 3)
Page 12
.
c•~•: }~r~"~t::``:_::::-:'·~:``:, ...
VOL.
0
8?2 PAGE - ., t/tJi;"T .
211
...
,,,.. "l.;
l< ··cB-- . . .. · .·. ... . ·.
$ l J.-;, ~- should the petition for review be granted
. . . by the Texas Supreme Court
and Rosale Scott prevails.
THEREFORE, IT IS ORDE~D, ADJUDGED AND DECREED· that. judgment is
entered as set forth above ..·
. . . . . .
IT IS FURTHER, ORDE~D that all court costs in~urred by Rosale Scott in ·
conpection with this action are taxed against Plaintiffs; Ivaiene Hosek and Victor Hosek;
i IT·~IS FURTHER ORDERED, ADJUDGED, AND DECREED .thaUhis Judgment shall
draw post-judgment interest at the rate of five ,percent (5%) per anbtim from the date of this
Judgment until it is paid, pius costs o.fcourt. ·
. .
IT IS ·FURTHER ORDERED, ADJUDGED; ANI:> DECREED that Defendant. shall
immediately have all writs, orders and. other assistancefor collection ofthisjudgment, for which
let execution issue immedfately;
IT. IS FURTHER ORDERED, ADJUDGED. AND· DECREED that all relief not·
specifically granted is denied .
· This judgment finally disposes of all parties and claims, is appealable and is a final
judgment.·
SIGNED this dayof .· ~ ~2014.
.0``~
Pagej3
: ,;:CIVIL }3:¥``1(``·``;:``'972 S.W.2d 19,21 (Tex. 1998).
38. The Texas Supreme Court has adopted eight factors to be used by the fact finder
to determine the reasonableness of attorneys' fees. Arthur Andersen & Co. v. Perry Equipment
Corp., 945 S.W.2d 812 (Tex. 1997).
39. The Arthur Anderson factors are also considered in contingency fee cases. Id. at
818.
Page 16
410
.. I' •
40. The eight Arthur Anderson factors are:
a. The time and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the legal services properly;
b. The likelihood that the acceptance of the particular employment will
preclude other employment by the attorney;
c. The fee customarily charged in the locality for similar legal services;
d. The amount involved and .the results obtained;
e. The time limitations imposed by the client or by the circumstances;
f. The nature and length of the professional relationship with the client;
g. The experience, reputation, and ability of the attorney performing the
services; and
h. Whether the fee is fixed or contingent on results obtained - that is, the
uncertainty of collection before the legal services have been rendered.
Arthur Anderson, 945 S.W.2d at 818·819.
41. A party is not required to present evidence on all eight Arthur Anderson factors.
Academy Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex.App.-
Houston [141h Dist] 2000, no pet).
42. Defendant Rosale Scott submitted sufficient evidence of the relevant Arthur
Anderson factors.
43. - Itenuzea time records can establish the time and labor required in a case. Morrell
Masonry Sup. v. Lupe 's Shenandoah Reserve, LLC, 363 S.W.3d 901, 909 (Tex. App. -
Beaumont 2012, no. pet.).
44. An award of attorneys' fees to Defendant Rosale Scott is equitable and just.
45. Although $74,000.00 is a reasonable and necessary attorneys' fee for the work
performed by defense counsel in this case through the entry entry of a supersedeas bond, it is
equitable and just to reduce such fee to $39,500.00.
Page 17
411
46. If a motion for new trial is necessary, a reasonable and necessary attorneys' fee
would be $3,500.00, however, it would be equitable and just to reduce such fee to $2,500.00.
47. In the event any part of the judgment is appealed to the appropriate Court of
Appeals and Defendant prevails, a reasonable and necessary attorneys' fee would be $30,000.00,
however, it would be equitable and just to reduce such fee to $12,500.00.
48. In the event any part of the judgment is appealed to the Texas Supreme Court by
Writ or Error and Defendant prevails, a reasonable and necessary attorneys' fee would be
$15,000.00, however, it would be equitable and just to reduce such fee to $3,500.00.
49. Should the petition for review be granted by the Texas Supreme Court and
Defendant prevails, a reasonable and necessary attorneys' fee would be $25,000.00, however, it
would be equitable and just to reduce such fee to $12,500.00.
SIGNED this Y~ day of August, 2014.
~DJ.SHANNON
Presiding Judge
G. AD CALDWELL
State Bar No. 03621020
BARTON, EAST & CALDWELL, P.L.L.C.
One Riverwalk Place, Suite 1825
700 N. St. Mary's Street
San Antonio, Texas 78205
Telephone: (210) 225-1655
Facsimile: (210) 225-8999
ATTORNEYS FOR DEFENDANT
M:\200012200 OIL AND GAS CLIENTS\12 I Hosek v Scon\Pieadings\Order Adopting Defs FOF.docx
Page 18
412
TAB D
Partition Deed
J.
• DEED 510
•
V:l.c:l:or Hoaek, at a1 to ltoaala Voigt Scott, at a1
Th'lt '~<'·'· V1ct,r H-:~aelt ant\ l·til"e, !V'I\r"~:le '/o1,t Hn13ek, ot the
Chunty or \·!p "ln, St··~e of Te~as, and RoeB.le Voi;&t Scott of the County
of i3(>x,.r, State or 'l'exA.a, ll~tve nnd hold 1n oo::tlan the lPnda here1na:t'ter
m``~1oned, ~nd ~re dee1roua or maki~g partition of tb~ akm&, it is
hereby covunanteC!, grllnted, and agreed by and be"t;-r.-en Raid par1:1es, and
eaoh or~ ther.l covenl!'.n':a, 5rants, conoludea, a.nd. agrees :f'o:r b1``tael.f,
t!'le::!lselvep, hie and their heirs and assigns,. tllat a :partition o:t' said
lP.nda be :rafl >'~nd to thP.msel.vea nn(\ t<:~ tnem ar~'\ their heirs l.'.nd as31~-na
for th~1r 'i<~rt, ahR:"e, 1ntl;!:t" st.1tn..,"b:!l.l'l ~u;rVE<:f Ih. 2l.O, Ab"!l'tr"rct Uo. e49; l.0$.?7 s.croen out o'f' the
Gn"l, '''· Th(l!!l·"Ae SurvF-y ~lfl. 209, Abstr·•11t li':l. S:.05; l!lnrl 64 acres out
ot thr-: Jol':.'"l S'i'lith l!•Ir\'"!:f Ho. 21J, Ab'!t "let ~':!. SOL:.; >'\nd be1n'{ a :-.art
?.i' 5u'bC!.1•r1o1.ona !Iva. I, II, r,..nd III ot the Robert ICJ'9use l.l.OJ P.cre
tr"'r.-:;, e.1d r.~o~.i\1. 207.77 acr•}s-, in one body, b•!!ln~ daaor1bed by metes
r.n? • ··r. 793 .o :'.'l"<'t ..,1 ;;::,. tho North line ?f'
,..,_ trl 20 t'•Jnt ro·•d to ,:. e: t":te ::~et on lll\1!1':1 1'or tbe ~o-.;er GQ'J. th111Ut
r~l')rn"r <:~f' ;;i;1a tr•-:ct :md tllt1 J.o•:t~r eouth':~tsi: corn!.'!.' of a JZ2.6 £\are
tr,1c~;
?~U~ :-t. uo dec\. O"J 1 1:1. 1?:37 • .5 tfet to 2 s'&·,.ite oet tor the
\:l:wr south•test corner of' th111 tr1et e.nn ti\!;) 1n"lor a•JUthes.i!!t" corne-r
?~ ocld 32'2.6 tta-re tr;,~t;
:'HE':o:a: s. 50 deg. 00' iT. lS6o.o teet 'C•J :\ str~e s:et t'or the
u••:·;e?' ::t•outh·~P.rt f!l')rne-,. Oj' thtP trl'at 'l\nd a Cl·:>::ont·::" or &"in J22.6 aere
tt"t•... tJ ~;
12H
f.
;:.,.,
.......
~ .
-··· .
• •
.
·( JEED 51 0 .'l
...-.,... ........"!',"!•-.---....._ ...
TF':::i~CE t'l'. 40 deg. 00' \i. ?.91.5.0 teet t., :~ stl\kf. set in tl:P.
acmth f·;nce line c1' an 5.6 11ors 1::!:"1\0'C for thb llorth•·:-e-at no!"ner of
this traot B.n!\ tlla Northe,st corner of :Jflic.t 32'-· 6 !'ere tro~tet;
'?H!l:i~·JE N. 69 r\llg. 3?' E. :t.l?. • .5 feet wlt!'l t&ncP Hne to the
``uthe~st r.?!"ner fF-noe ~ost of sn1~ 8.6 ~ere tr~c~;
THS!H:~E N. 0 de:)• 33 W, :3?3 • .5 rr~e'C llllth ftt:tDe line to the
1
nol:'tht> .. ':'!t corner fence !'loet of snid 8,6 Acre troct;
T~NCE N• .59 deg. 32 1 E • .5?0.0 teet With fenoe line to
oornar tenoe ~oat;
TW.IiCE N. 39 deg. 'J7 1 "II. 363 • .5 teet ~"1th t'elloe 11ne to corner
fence Tl:Jf.lt foi' aoi'nt: I" 1 SRJ!le being the ''lea-:: cornei' or Bubdi v1aion
No. III;
'l'HEllCE ~If • .53 deg. 31 1 E. 14)2.0 feet ,.,1 ~h !'ence line to
!lorner r~nce :uo~>t t'?r the Northear.t oornt•r of this trqot, sa!l!fl being
the No7'th corner or 9ubdl-.riaion No. III;
'!'H!!:?tCE 5. 40 deg. 00 1 E • .508).0 feet "'ith the co:n£on
h?u.nc\a:-y f:•nce lin~ of SubcUv1s1'lnB llos. III i!..n:t IV to the :place of
b" !!1n!'l1n•; 1 ctJnt'l1ninz ,.,1 thin tht- ab,ve metes <~n•l b:rund:! 207. ?7 'ltlres
or l~n~, oom~I'i~e~ a~ aforanaid of 11 ~cres out o~ the J~hn Herron
eurv•·y l1n. 214; 2.7 'lCl'Pt;J n•1t o'f thP. .!f. B. 'l'l'u'o'l:mJ.d Survey I:n. 210;
10.5.7? rnt'li!f1 out or thP :leo. t-1. '!'h':!'V'I.'! Su;•v:!y N.-,. 209; a~ 6q. Rcreo
out o'!' th:· J"l!m S!r.i th &1:-VP.Y No. ?:t). Su"Vf!ycd on AJ'or1J. 19 1 1948,
by John,,;. ?P.•'l, C•n1nty Surveyor of Atr~ncoett C"'unty, TrY.fl9.
And b~1n3 the Sll!!lH 1P.nd neeor1be:.. th1R t!'r:ot:
r:-:t:::G.::. ll. 50 'te?;. 28 :nl.:-. E. 500.00 feet ttl the Pla..::e ot
~ ..·,:1n:'!1n-::, ,., .. :'1``<~1n!.n; )3 • .5 a.::r·l< of l11n.:, as su::-veyad on the ground
t·~' J:Jr., 'vl.'\T.?r Se;,;:.~.1n, Regiatcr; ..~ Public Slu•vf.yor No. 1'1'16, on 10!:Us,
t!1,.. l;th. ::•·:· f'J'i' Jum~, 1977.
~h1s ?art1t~nn d~ea not lnnlude ~ny of' the oil, ~as ~nd other
·.i.n'"r·•'o:: ln, ..,:-~,ol' un:\er the above del'lcri'bed t~at oi' l"~nd, and sP.me
arP. t<;'l l"P-o1n undivided for ;;. r·eri'l.f'ter a.a oil, g':'.t.l or other £1nera.J.e
P':'E' m•o•1uned 1n '!laying qunnt1tieo frorn the above desnr1bed l.and.
Sc~·>nd. Thr, '!"lid R>o?.le Voli.)t Snot::; sh;tll, f't>'ll!l hence!'orth
Flrert Tt• ·~t: :aatnii J..J•';.77 :~cr!!$ o::' l.an:l 1n <:he Gen ~r. 'ln'lmas,
J•1"'n Ct•"1"'., l'!n<~ o::l. Het'!'lant!..::r. SUJ".ru;ril, a!'d ht':in,x ':eccrlbed b:r metes
1•'1)•)~ r·,n.f\ P:\1 tt..v. :'l-Jr:1~a '-: :..1ne nr a ti!"at or 249~ a.cr+s oon-
v·~y-:~ t•• :.!. :: .. .:\1-!:;ut 'ly C. ;.. :~orif1' of ··r?-..1:::!!. th1, t:rP.ct iS e. J..Srt,
:>r't'' et··"'.'l "oe1n:! r:et for th'l! •;;;1;':: "~•:•n'!:l' :.~ a l,S::l-'J/k- acre tr11.c'C and
t?-:·· tl!'"r ``~'!"''!' "l:' t:;l.!' trfl'"lt "nf. th•: lo•·rer :l''JI'1l!:l. corner of ~' us;.Q4
,. ., I'!' t"1' ('! t;
TH::O:!!·J:: 1~. 40 de:{• '1. :J?.:lJ feet li'ith t..'l" s<>•lth-'e!lt line of
!"''1. ' 20 ro·~'l.. ror.·.l "n:1 thl!l nn !'1.t.t e.st llne of' ot'lginfi'l ?.49!- li'.()re tr~·C'!t
to~ FT.'k<:> qpt f'>'!' t'ho n.,r-::h 'l"lr>n<-T' of' t'i'i'!! t:-•·>;>t :on.'i the north oorner
r.~ ~Dt~ ~r1 ~\~"l ~4`` R``e tr``t;
'l'!!Ti':! s. 50 •le·;. 17' :1. 2.58~ fee:t ~1!i0h the n•.>uthea:•::r.··ttnt llnl! 'if sa.1·1. ~.lr9t ll"'re trac-t;;
'!'~:: ·::;:: 5. 40 ne·: . =:. 4'?()!) t'ec:t; w1 ~::. t~ .. J:li)U~':l 'E'et f'~:l~G line
o!" ".l·' '?!<.:?~ r•:-.rP. !:·.\;.,... 1.;;1,.. •..,"1 to a nt'.:,th
t'.r;~.rv r- "'j,. i;h\~ t-"'C't. :"In~;_ thl.! t·reet com-r or n lJ.9.04 e.nre 't'r'l\(\'C;
';'if·~::~=: !% • •?'J 1.erf. "E. 1154.,; fe9t t'J tt al'l--t!ilor: C:ll"ner of" 'tihil
i;t'·;~t un.-• 119.01.;. C'O ... ~ tr:"ot•
7?... ;1:::!: !t, JS •!e.;. 3~ 1 :1. 108?.5 feet ·dth f~w:e line to o.
'lt."i':P f"e't 'J:'I S!l<:!.'.' !''J!' " ::O"•l'Jn C">l':l' 1:' 'l!' thts tro;.ot Rnd lJ.9.04 ·~ore
t!"·~fltj
'l'~:;:oi:. '"· .50 'I.e:. E. ';!?.'·· fr:et t!'t a post: lle'C t'o!' o OO::l';!On
•"l!':lA!" nf t't:1'1 't!''Wt cnn. 119.04 an!"e tr••c't;
'l'a::::t::r~ !{. l.:.O '1.'!3, i:f. }0!.. feet to l'l ]"•l)!!t 'tf!li for a COtl!:IOn
nr:-r-:1.e.·r of ul-: ~A t!'·...``"; nn·l. 119 .a!:. nnre tr!!:::t;
:rrr!:.:'::lii: :1. ,50 Q.e:{• E:. :J8L• reo'.; to <~ 3t"l.k·· s,:t I'or P oo:.l'lO::l
:1''·''!1''!' o~ tl'.:s >;;r;: •t 11nd. 119.01~ n.ere trP.'Jt;
'J"'rl'·::;~'l: 3. !J.I) clei. E. J.70?., faet, pnra~l\.•l to t.:'nd :)0 f'eet
:~· th.· n p•t!:'l•·::-.-t ll.n'll or !'le.1n 21•9'f r;qrl'! subd1V1;:~l•m :rn•.l "'utnmu:t
tn" of c:-:1·1. 2~ fc;r;t rol'lcl to ::>. Atrlt" set for "'· c·J~Mon o~n:·ner ?f t'!11s
:or.-::t <~n•. ll;l.04 ~>nre trr-.ct;
_,_
85
·"
• (DEED 510
·-·;-'1--·---rwr--·-··· •
-··
·"-"-::tr·
Th"Zif'::!: H• .5? •le~. 'a: • .30 :'.,ctto the place -.;t' Be~inning.
An:l. bf;'1n1" tn:- URi'le lllnd nt>nv~·ye:'\ 'Co i"rl:t.:,ll.n A. Voii!jt ~t u.-::
by ··:. H. T}lA!:le, et U'::, by de~c,_ r';.t•~d Jon·.:.u.:.•y ~9, 194..5, a)l}Jft£1.. t•1:'1S C\!'
!'~'"'!"'re'. in ·!-.l.Lu·ne l?J, PlilgP.:'I oOl-oO:J 'Jt tlls DPe:! a-·~ords of At••orihccl,. ,..,, Fir3i: 'rraet, con\·~yed to Viator Ho!!ek und ;·rift:, I·ra.rt>ne
Yni~t Hn11a::, qnrl. !hs:;~le Voi'lt Baott, by ll~.rr!lnty Deed de ted C:~t.,b!'r 9,
19?8, of rP.aord in Volu~e 491, Pag~B 288-~1, De`` ReaordB of Atasccna
OountyL Tf'XR!! 1 oor.~m•1Aed of 23.10 RClt•rs Ollt ·7ll~ the H. B. TheoiJold
6urveyi'i2lO, Ab!'-rtoot #849, Rnd 15.1:. noree out or th!! Geoo, 1i'. 'rhomPe
Su~vey #209, AbRtr~ct #8~8, C91d J8.5 Rcres being ~ore p&rtioUlRrly
~er.cri~ed `` ~oll~w~:
'9~G-!l'!'!InG R.t
11 J./2 1:1ch galvAn7.1ed pi~ set ?n the llorth.·~st
br:nndHr:r J.1."le- ?f P."~id 207.7? ,ore trr1ct f'>r the Hort!'l. ncrner ot' this
tr,.nt. 1'r1Jm •·t'h1'1h ;1Pneo of 'b~t;inning, th"' ~h~th oorn·r of B9id 2:J7,77
·Ul 'lnr;, trP-::t '!Je!l.rA !·1. 40 ne.:~. 00 min. J.'i'Ci~ i'r.et; ··1.
-fooo6
'!'n~:?!CF 8. L:.n •1~.,;. E. 335~.20 feet t" n ';/ll. 1.!1oh i!inlvnni~an
ni!)'' fou':'l~. 'ln t!l:.- lhrt~"J!!'It right-o."-N'l.Y linr· or 11.n ex!.3tlnjS 50 ro·~t
"t')llnty rr..nf! 1'o:r t~! :::~.:tW o,rnf·r of' thi -=1 tC'' ~ti
r::-i:snc;;; '3. 50 de:;;. ~g :nin. it. 500.00 t'E·et l'lon:; the No:oth~.. ``-:.
r1<;bt-of-•,·<>y li!l!! o: !IPic'l e:~'!.s"~!.nr;;. 50 I"a-:t C:~l'lr.t~· road :for If .1/2 1:1nh
.~;~1.,•ani:<~r· ~-,:t~e !le~ tor the SrJuth cot':1(:·r r,i' -;:-::..o -::r,ot;
T:E!JC::: ~. 40 deg. oo :nln. \'/, 3:35u.20 r.~.:~'t to r: :/z inch
;;::t.l ..IJ=~.ni···o:i·\ pi,.;!
.:;:..:t, for tl~e ':/f:!•!t '1Jl.. ".f· ;- ct -:.'":.!.;: t:. . . ,~-:;;
tew!t to 'the J:a.ne 'l-r
'r~!E:!i*1-;: !. ~1 . 1E'~. 2e rn1n. E., 500.00
bf-~1nn1!~F;, ~·mt:;.inlng :38.5 a-~rea of J.;m·t, as eurv·ye'i on the grnund
'o~· Me, Vi(,tor SeijU~n, R``i!!ts~t•cl Pu.bllo Suroveyor i.1o. 1776, on th1.a,
thP J.:3t~!. :l~u -,u::o ~'1nds thin
U?H
~
.......
86
.'
..-.
••
B• :.-,-;oe ::t··, th~ U:1·\~r·l15n<'-! ···tthorl ty, on t!Us dey peraonal.ly
~"':"':•.' ...,rt:'r1 I•Jt:~·C"~t!:l~ V"J:\.gt H:">q,;t, ·::11':)'"'11 1:". m•:t t'J be the por:1on whose !lPme
1.1' ~U'!)"':Or!b``! 'ii'J t?lP r':;-.:.' :~!~Er i!l~t:-``cnt, e.n~ !i~?.Jl"J~tlet1.gr-d to ::!e
"~1'\ir;``. r•Y.ecute{L ';hf ~;ar.:'= ~·or th~ 1.'.11')•QAL'~ •1ml c'J:\31•1!-rl.'.tion tr..;.re-1n
.r..~:..l'-l·~.-1?'~··
;{·~:-.~·.;;::,::);;.;··`` •.n::te'' m:r !",,..:-~·~ n:1. t .! ·:~ -.:- or·~.:-,., :J:1 "::hi~;~ the
; 2-: ``l-.7 . . of.:.' AU l;~ J, .k. D. 1'./?~.
/!. .\-. :~ t-·> ...//:/
·-.:::..~;:·iro:l!l :Ro:;l9:tsEl.lAN -
·. .: :~·t.t.r.'TY 'Public in and :ror_
~-ila.on county. oxexaa
;:or; :.ii!':Y CIF \'IILSON
/7~
-----
;JO!!: R. WISDWi
Mt.Ol'V Public 1!-1 aud ~iii!.
W1l11on County, ~ex.aa
87
l.. I.I&..LU J .L U
- · - : - - - - _ _ _ P' _ _ _ ., _ _ _
········-- ·::-~·
·--··-·---,t·t---
:1
Filed for record A11gust: _ _ _ _2_2_,_ _..:A.D. • 1979
duly recorded August _ _ _ _ _2_3.;.'--....:A.D., 1979 at
>lt
Atascosa Couaty Deed Records, Volume _ _ _ _ _ _ _ _ _S;...;l:;,;O;__ __..jPagea
2:10
8r30
o'Clock
o'Clock
----
P. M. and
---·...:·
A M
126-131
:ln
.·.··
88
EXIDBITA
207.77 acres of land, situated about 20 miles S 85 deg. E. from Jourdanton, Texas, and
being made up of 11 acres out ofthe John Hefron Survey No. 214, Abstract No. 393; 27 acres
out of the H. B. Theobold Survey No. 210, Abstract No. 849; 105.77 acres out of the Geo. W.
Thomas Survey No. 209, Abstract No. 848; and 64 acres out of the John Smith Survey No. 213,
Abstract No. 804; and being a part of Subdivisions Nos. I, II and Ill of the Robert Krause 1103
acre tract, and said 207.77 acres, in one body, being described by metes and bounds as follows,
to-wit:
BEGINNING at a corner fence post on theN. W. side of a 20 foot public road traversing
the Robert Krause tract of land, the same·being~the east corner of Subdivision No. III, and the
east corner of this tract;
THENCE S. 50 deg. 00' W. 793.0 feet with the North line of said 20 foot road to a stake
set on same for the lower southwest corner of this tract and the lower southeast corner of a 322.6
acre tract;
THENCE N. 40 deg. 00' W. 1737.5 feet to a stake set for the inner southwest corner of
this tract and the inner southeast corner of said 322.6 acre tract;
THENCE S. 50 deg. 00' W. 1560.0 feet to a stake set for the upper southwest corner of
this tract and a corner of said 322.6 acre tract;
THENCE N. 40 deg. 00' W. 2915.0 feet to a stake set in the south fence line of an 8.6
acre tract for the Northwest corner of this tract and the Northeast corner of said 322.6 acre tract;
THENCE N. 69 deg. 37' E. 112.5 feet with fence line to the Southeast corner offence
post of said 8.6 acre tract;
THENCE N. 0 deg. 33' W. 373.5 feet with fence line to the Northeast corner fence post
of said 8.6 acre tract;
THENCE N. 59 deg. 32' E. 570.0 feet with fence line to corner fence·post;
THENCE N. 39 deg. 07' W. 363.5 feet with fence line to corner fence post for corner,
same being the West corner of Subdivision No. III;
THENCE N. 53 deg. 31' E. 1432.0 feet with fence line to corner fence post for the
Northeast corner of this tract, same being the North corner of Subdivision No. III;
THENCE S. 40 deg. 00' E. 5083.0 feet with the common boundary fence line of
Subdivisions Nos. Til and IV to the place of beginning, containing within the above metes and
bounds 207.77 acres of land, comprised as aforesaid of 11 acres out of the John Hefron Survey
No. 214; 27 acres out of the H. B. Theobald Survey No. 210; 105.77 acres out of the Geo. W.
92
Thomas Survey No. 209; and, 64 acres out of the John Smith Survey No. 213. Surveyed on
April 19, 1948, by John M. Peel, County Surveyor of Atascosa County, Texas.
And being the same land described in deed dated May 6, 1948, from L. W. Stieren to
FRIDOLIN VOIGT and recorded in Vol. 189, Pages 379-382, of the Deed Records of Atascosa
County, Texas.
LESS all that certain tract or parcel of land containing 38.5 acres of land, being a portion
of the 207.77 acres tract described as First Tract, conveyed to Victor Hosek and wife, Ivarene
Voigt Hosek, and Rosale Voigt Scott, by Warranty Deed dated October 9, 1978, of record in
Volume 491, Pages 288-291, Deed Records of Atascosa County, Texas, comprised of 23.10
acres out ofth~_ll. B. Theobold Survey #210, Abstract #849, and 15.4 acres out of the Geo. W.
Thomas Survey #209, Abstract #848, said 38.5 acres being more particularly described as
follows:
BEGINNING at a 112 inch galvanized pipe set on the Northeast boundary line of said
207.77 acre tract for the North comer of this tract, from which Place of Beginning, the North
comer of said 207.77 acre tract bears N. 40 de g. 00 min. W ., 1701.00 feet;
THENCE S. 40 deg. E. 3354.20 feet to a 3/4 inch galvanized pipe found on the
Northwest Right-of-Way line of an existing 50 feet county road for the East corner of this tract;
THENCE S. 50 deg. 28 min. W. 500.00 feet along the Northwest Right-of-Way line of
said existing 50 foot county road for a 1/2 inch galvanized pipe set for the south corner of this I
tract;
THENCE N. 40 deg. 00 min. W. 3354.20 feet to a 1/2 inch galvanized pipe set for the
West comer of this tract;
)
THENCE N. 50 deg. 28 min. E. 500.00 feet to the Place of Beginning, containing 38.5
acres ofland, as surveyed on the ground by Victor Seguin, Registered Public Surveyor No. 1776,
on the 13 1h day of June, 1979.
I
I
93
TAB E
Response to Motion for Partial Summary Judgment
• NO.lJ-06-0559-CVA
• t('
Fn.ED \ ' dl
3
CYO..~
MARGARET E. UlTlETON, DISTRICT Q.ERK
rJi\N. _:G--2~1; ..
IVARENE HOSEK AND VICTOR § IN THE DISTRICT couWf'``
HOSEK §
Plaintiffs, §
§
v. § 81ST JUDICIAL DISTRICT
§
ROSALE SCOTT §
Defendant § ATASCOSA COUNTY, TEXAS
PLAINTIFFS.' RESPONSE TO
DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Plaintiffs, Ivarene Hosek and Victor Hosek, Non-Movants herein, and
request this Honorable Court to DENY Movant's Motion for Partial Summary Judgment.
L
INTRODUCfiON
A. When a movant files a motion for summary judgment based on summary
judgment evidence, the court can grant the motion only when the movant's evidence proves, as a ·
matter of law, all the elements of the movant's cause of action or defense, or disproves the facts
of at least one element in the non-movant's cause or defense.
B. When evaluating a motion for summary judgment, the court must:
1. Assume all the non-movant's proof is true;
2. Indulge every reasonable inference in favor of the non-movant; and
3. Resolve all doubts about the existence of a genuine issue of material fact
against the movant.
II.
A. The Hoseks, the Non-Movants in this cause, filed a declaratory judgment action
1
37
I
""'
lr.
r • •
against Movant Scott, seeking an interpretation of a Partition Deed. The Partition Deed is
attached hereto as Exhibit "A". The Partition Deed reads as follows:
"This p~ition does not include any of the oil, gas and other minerals in, on, or under the
above described tract of land, and same are to remain undivided for a period of twenty-five(25)
years from date hereof and as long thereafter as oil, gas or other minerals are produced in paying
quantities from the above described land."
The conflict over the interpretation of this Deed arises out of the failure of the document
to state what will occur after the expiration of the 25 year period and cessation of production.
The Deed does not expressly state what happens upon that occurrence, and thus the conflict was
born.
The deed was drafted by an attorney who is deceased. The Hoseks are aware that the
language was intended that the undivided mineral interests revert to the surface owners after the
expiration of 25 years and cessation ~f production, which occurred in 2004. The Hoseks,
together with Ms. Scott, instructed the attorney to prepare an instrument which gave effect to
their intention.
Movant Scott sold her land with the minerals and received cash consideration for the sale.
She now seeks one half of the minerals beneath the Hoseks' land, citing the defective deed as the
source of her title. In the letter attached as Exhibit "5" to S~ott's deposition, Scott tells her
prospective buyer that he will receive the minerals under the land she will sell him after the
expiration of the 25 year period.
Movant filed a counterclaim against Non-Movants seeking affirmative relief for damages
and a declaration that she owns one-half of the minerals under the Hoseks' land. Movant is aware
that the Hoseks have leased their minerals to an oil company and that royalties are being
2
38
• •
withheld until this conflict is resolved. During the course of exploration and development of the
minerals on the Hoseks' property, no oil company or title examiner opined that Movant Scott
owned any interest.
The Hoseks' retained expert, title examiner Allen D. Cummings, opines that the most
natural interpretation of the Partition Deed language is that the minerals reverted to the surface
owner after the expiration of 25 years and cessation of production. The report of Mr. Cummings,
as well as his CV, are attached to his affidavit, being Exhibit "C" hereto.
B. Movant alleges there is no genuine issue of material fact as to any element of
interpretation of the Partition Deed. The very existence of this litigation disproves this claim. The
wording is susceptible to multiple meanings by virtue of the Movant's claim that the language
did not have its commonly accepted meaning.
C. Non-Movants claim a genuine issue of material fact exists as to Movant's
counterclaim and submit affidavits, discC?very, documentary evidence and Movants' pleadings, as
summary judgment evidence, referenced in an appendix attached hereto, filed with this response
· and incorporated by such reference for all purposes as if recited verbatim herein.
III.
A. Non-Movants filed a claim against Movant seeking affirmative relief for the
interpretation of a Partition Deed.
B. Movant alleges Movant is entitled to a partial summary judgment as a matter of
law, and alleges that Movant can prove her counterclaim.
1. - Non-Movants claim a genuine issue of material fact exists as to Movant's
claim and submit affidavits, discovery, documentary evidence and Movants' pleadings, as
summary judgment evidence, referenced in an appendix attached hereto, filed with this
f.' : i
• •
response and incorporated by such reference for all purposes as if recited verbatim herein.
IV.
A. The Court should deny Movant's Motion for Partial Summary Judgment and
pennit evidence to be presented and heard to establish the proper interpretation of the Partition
Deed made the basis of this lawsuit. The very existence of this dispute proves that there are
multiple interpretations of the document, and the evidence presented in this pleading establishes
that the Non-Movants' interpretation is the proper meaning of the document.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Non-Movants pray that this Court will
deny Defendant's Motion for Partial Summary Judgment, or order such other relief as may be
appropriate.
Respectfully submitted,
By: ----~------+---~----``------­
Robert J. Ogle
Texas BarNo. 1523135
508 E. San Antonio St.
Boerne, TX 78006
Tel. (830) 249-9358
Fax. (830) 249-8508
Attorney for Plaintiffs
Ivarene Hosek and Victor Hosek
4
40
.
r
• •
CERTIFICATE OF SERVICE
I certifY that on .J,.._ ~•cr3 ,2014 a true and correct copy of PlaintiffS' Response
to Motion for Summary Judgment was served by electronic mail on G. Wade Caldweli at
gcaldwell@beclaw.com.
5
41
• NO. 13-06-0559-CVA
•
IVARENE HOSEK AND VICTOR § IN THE DISTRICT COURT
HOSEK §
Plaintiffs, §
§
v. § 81ST JUDICIAL DISTRICT
§
ROSALE SCOTT §
Defendant. § ATASCOSA COUNTY, TEXAS
APPENDIX TO
PLAINTIFFS' RESPONSE TO
DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
TABLE OF CONTENTS
All summary judgment evidence in this appendix is incorporated by reference into
Plaintiffs' Response to Defendant's Motion for Partial Summary Judgment.
I. Pleadings
Exhibit A
II. Affidavits
Affidavit of Ivarene Hosek.
ExhibitB
Affidavit of Allen D. Cummings, expert witness
ExhibitC
III. Discovery
1. Deposition Excerpts
True and correct copies of excerpts from the transcript of the
deposition ofRosale Scott with a true copy of the certificate of the
deposition officer and the affidavit of Robert J. Ogle.
Exhibit D
6
42
• •
NO. \3· 0(,. 0591. cv A
IVARENE HOSEK AND VICTOR § IN THE DISTRICT COURT
HOSEK §
Plaintiffs, §
§
v. § ~JUDICIAL DISTRICT
§
ROSALE SCOTT §
Defendant. § OF ATASCOSA COUNTY, TEXAS
ORIGINAL PETITION
FORDECLARATORYJUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Ivarene Hosek and Victor Hosek, Plaintiffs herein, filing this Petition for
Declaratory Judgment, pursuant to the Texas Uniform Declaratory Judgments Act, Chapter-37 of
the Texas Civil Practice and Remedies Code, and would show the Court the following:
I. DISCOVERY CONTROL PLAN LEVEL
Plaintiffs intend that discovery be' conducted under Discovery Level 2.
ll. PARTIES AND SERVICE
A. Plaintiff, Ivarene Hosek brings this action individually. Plaintiff resides in
Wilson ·County, Texas.
B. The last three numbers of Ivarene Hosek's driver's license number are 673. The
last three numbers of Ivarene Hosek's social security number are 641.
C. Plaintiff, Victor Hosek brings this action individually. Plaintiff resides in Wilson
County, Texas.
D. The last three numbers of Victor Hosek's driver's license number are 194. The
. .
last three numbers of Victor Hosek's social security number are.212.
E. I
44
,.
• •
with process at her home at the following address: 1032 Hanover, New Braunfels, Texas 78132.
Service of said Defendant as described above can be effected by personal delivery.
ill. JURISDICTION AND VENUE
A. The subject matter in controversy is within the jurisdictional limits of this court.
B. Plaintiffs seek:
1. monetary relief of $100,000 or less and non-monetary relief.
C. This court has jurisdiction over the parties because Defendant is a Texas resident.
D.. Venue in Atascosa County is proper in this cause under Section 15.011 of the
Texas Civil Practice and Remedies Code because this action .involves real property as provided
by said Section, and this county is where all or part of the·real property is located.
IV. FACTS
On October 4, 1978, Fridolin ~ex Voigt and wife, Pearl Schnautz Voigt, deeded the
family farm to their children, Ivarene Hosek (and her husband Victor) and Resale Scott, in
undivided shares. Ivarene and Rosale then partitioned the property on August 17, 1979, but
reserved minerals for twenty five years, so that each would have a one half mineral interest in the
·entire tract. The partition gave Ivarene a tract of 207.77 acres, less a 38.5 acre tract, and gave
Rosale a 130.77 acre tract, plus the 38.5 acres reserved out of Ivarene's 207.77 acres. Ivarene
then purchased back from Rosale the 38.5 acres on October 16, 1979, so that she possessed the
original 207.77 acre tract. The 38.5 acre purchase also reserved minerals for 25 years. After 25
years, on August 17, 2004, the minerals reverted back to the owner of the respective tracts.
Resale sold approximately 60 acres of her acreage to Evaristo Morales and wife, Rene Morales
on March 4, 1986. Then Rosale sold approximately 70 acres to William W. King and wife, Rosie
King on January 29, 1990. Ivarene still owns her 207.77 acres together with her husband, Victor
2
.;
:
Hosek.
•• •
Ivarene has attempted to lease her acreage for oil and gas production, and Rosale claims
an interest in some of the minerals under Ivarene's land. Rosale's claims are unfounded in law
and in fact and are costing Ivarene substantial potential oil and gas income by making a claim for
· payment of funds to which she is not entitled.
V. RELIEF REQUESTED
There exists a genuine controversy between the parties herein that would be terminated
by the granting of declaratory judgment. Plaintiffs therefore request that declaratory judgment
be entered as follows; ·
A. A judgment of the court that Ivarene Hosek and Victor Hosek own one hundred
per cent of the minerals, including oil and gas, lying under their property, described in Exhibit A
attached hereto and made a part hereof, and a judgment of the court that Rosale Scott owns no
minerals lying under the said tract.
VI. ATTORNEY'S FEES
Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, request is
made for all costs and reasonable and necessary attorney's fees incurred by Plaintiffs herein,
including all fees necessary in the event of an appCftl of this cause to the Court of Appeals and
the Supreme Court of Texas, as the Court deems equitable and just.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendant be cited to
appear and answer herein, and that on final trial hereof declaratory judgment be granted as
.requested herein and Plaintiffs be awarded costs and reasonable and necessary attorney's fees,
and for such other and further relief that may be awarded at law or in equity.
3 46
:!"- ...
• •
Respectfully submitted,
By: ~ltJrf-
RobertJ.~1
Texas Bar No. 15231350
508 E. San Antonio St.
Boerne, TX 78006
Tel. (830) 249-9358
Fax. (830) 249-8508
Attorney for Plaintiffs
Ivarene Hosek and Victor Hosek
4
47
..
•• •
20?.77 ROrP.~ ot l~nd, eituatc~ Qbout 20 ~leo 9 85 deg. s.
t'r,,.., J"Ju\'1\ .. n'l:l'ln, ':'A;o:R.'F, R.:"ld 'be1n~ m:ute uo o'i' 1l acres ou't of' tbe John
n"'~·m Sur"Tey ~o. 211.:., Ablltreot iJo • .39:3;" 2? •cree out l)f the H. B.
'!'hl'.,bnl.o:\ 'Sul"ve:r 14-l. :?.l.O, .r\b11tn-ct Un. 849r l.0~.77 I!Ool'Ein out o'!' the
Gr.-.. tf. Th(li!V!\11 Survl'y Nl'l. 209, AbRtr·'r.:t 11?. s...s; ancl 64 ac;reg out
of t!lP. Jol':"' Srr.ith Sll':'"~Y He. 21:3, :\b'7t '!let !fo. BOt:.: "'•JlL'!. bein-=S" a ;:art
?f Subc'!.1"1!!l..ons !lws. I, II, :=.nd III ot tbe Robert !Crause ll03 P.cre
tr,.~-::, a:td r,P,i1\ 2.07.77 IHJ:'r.lr, 1n one body, 'beln:r d!lser1'bed by mettts
::nc1 bcundfl :II! f'nl-;.oH:~, t?-"~1t:
:9.::3-!ir.~::::~G at ll. o~Jr:lar frnce •..oost on thfl :1. '1. side ot a 20
fl)ot po.:~l1c rot1d tr'"'E-!"sin..I tttt Robert 2'.:::-a.~se tract err land., thft same
being ':he e'll.st I'IO.t"1'1or ot Subdivis!cn Ito. III, end. tile eRst corner of
thl.c tr:-t:~;
~::Z:IC.:: s. SO de,:r. ')')' ··t. 79:3.0 :'i""t "it!l the North l!ne 'Jf'
!.''l\d 20 to :< st,.:ce ::~et on 1)1\1!1" :ror tbe 1o·.,;er at.>u.thl·rest
t.''JI'J"; ro<~d.
~"rnP.r o! 'Cilia trr.;ot nnd the lo•:1n• SQu.th':A.st: cornl.'r of a ;22.6 acre
ttwr1C~:
'!'!-!Ei!J?: ``. La.O de& .. 0' 1 l·T. l?)?.S ffoet to !. ali".ke set tor the,
t~::tor Sl')uth•feet corner of "::!'1111 tr'lc":: e.nn the 1n"'or s,ut!le~e~ corner
?!.' s~ld 322.6 acre tr~·nt;
:'H:::•;oz: S. 50 de!J. 00 1 \I, lS60.0 :t'aet t;tJ :\ atrlte set !'or the
u•r:P.~· !!•mth·~Art nl'lrnf'T' of' th'\.~ tract Md a C!O:'tlt'!' or t:"1r:\ ;22.6 aczoe
tt't;.,iJ~:
``~*CE B. 40 4e~. oo• w. ?.~ts.o feet t~ ~ s~. set 1n tt~
Bonth f'~noe line or an !.6 acre 'Cl'I\CI1i foro th~r tlort"n"'E'I!ti no:rner of'
th1a tzos~t ann the Northe~st corner or 9~1d '2?..6 •ere tr&ct;
?:iSN~ N. 6~ ~eg. 3? 1 E. ll~.S teet ~lt~ t&n=P line tn t~e
~')Uthe``t C'lr.l!:"ner te:noe 'flOGt or snid 8.6 111.are trqa~;
TE::flCE: N. 0 de:). ,,, w. ;j?, • .; reoet With :t'i!Me Une to tbe
l~ortht' .. '.'!toorner fence !"O'Ift of ea.1d 8.6 ll'lore troct;
TH3NOE N. 59 de~ • .32 1 E. 570.0 feet with ftinoa line to
corner tenoe ~oet;
'l'HZ'.NCE N. 39 deg. TJ7 1 ~·t. :;6.3.5 teet ~"ith te"3e Une to corner
r~noe n~gt ro~ corner, same being the Wea~ corner ot Subdivision
No. J.::O:;
TBEilCE N. 53 deg. 3J.I E. J.4)2.0 teet td ~h :renee line to
corner rr.nee ~cat f~r the Northea$t eorn~r of this tr-ct, sama being
the North corne~ or Subd1v1e1on No. III;
TP.~NOE S. 40 deg. 001 E. 5083.0 fe&t ¥1th the co3E.on
~unl\e.ry f:•nce J.1nll of Subd.iv1s1nns I~os. III in.ll!l. IV to the pl&oe ot
b 4 ~1n~1ru;, CQn~inin~ within th~ ab?ve metes ~n~ b~ndH 207.77 ~ores
or J.~n~ com~r1ped. a~ Arora~a1d o~ J.J.-~ares out ot the J~hn Herron
Surv17 fm. 2lll.; 27 llC:t"U n•11l 01' thP: !:!. B. !?h.Pobo1 th:· J?hn S!r.i th Surv'AY No. ?J.;3. 5u"'Vt~yod. on A}'1rll J.9, 1948,
by Joh.'l ,.; • Pe•• 1, Oflllnty Surve~or of .1\t:~Beoee. 01unt,y, !P.,·JI s.
And bP.1n3 the SrnBH l~nd c\e<>cr1bed in dee!\ ·da.;td. Ml!,y 6, l9Lo5, from
L. \·1. SUeren to .f'RI'DOl.Ill VOIG1' '!l.n.;l. reoo'l:"di'IC\ 1n Vol. 159, Pag-eo
'79-:382, of thP. DA~ct R~o~rna of Atn=oos~ Oount~. To``r..
EXHIBIT A
48
-~,,,------------·-------------------------------------------
• N0.13-06-0559-CVA
IVARENE HOSEK AND VICTOR § IN THE DISTRICT COURT
HOSEK §
Plaintiffs, §
§
v. § 81ST JUDICIAL DISTRICT
§
ROSALE SCOTT §
Defendant. § ATASCOSA COUNTY, TEXAS
AFFIDAVIT
BEFORE ME, the undersigned authority, personally appeared Ivarene Hosek, who being
du1y sworn, deposed as follows:
"My name is Ivarene Hosek. I am at least 18 years of age and of sound mind. I have
personal knowledge of the facts alleged in Plaintiffs' Response to Defendant's Motion for
Summary Judgment. I hereby swear that the following statements in support of Plaintiffs'
Response to Defendant's Motion for Summary Judgment are true and correct.
"My sister and I made an agreement to partition the property we bought from our parents
on October 4, 1978. We agreed to let the minerals remain undivided for a period of twenty five
years and as long thereafter as oil and gas were being produced. After that time, the minerals
would be vested in the surface owner. This is the document that our attorney, Joe R. Wiseman,
was directed to draft, and it was signed by us on August 17, 1979. My sister and I shared the cost
of the attorney fees to Joe Wiseman to prepare this document. My sister knew of our agreement
regarding the minerals and told this to her buyers, who purchased her property after my sister
told them they would own the minerals after the expiration of the twenty five year period, being
August 17, 2004.
My sister only made this claim for one half of the minerals under my property after being
49
•
asked by the oil company to sign a title curative document to address the poorly drafted Partition
Deed. The oil companies who researched the title read this document and presumed that my
husband and I owned all the minerals under our property after the expiration of the twenty five
year period. My sister is fully aware of this. My sister has sold her land with the minerals and
been paid for them, now she wants half of my minerals. Her actions have prevented me and all
mineral owners of the pooled well unit from being paid any royalties. The oil company, EOG,
has made it known to me that it may need to either abandon the well unit that has been drilled or
exclude our acreage from the pooled unit if this issue is not resolved. I and many other mineral
owners may be adversely affected by my sister's claims." ·
g~ ~819 S.W.2d 459
(Tex. 1991). If. after the application of the rules of construction, there are two or more
reasonable interpretations, then a court may find the instrument is ambiguous. Universal C.l T.
Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951).
52
Robert J•. Ogle
November 29,2013
Page2of2
• •
It is well settled that a partition deed does not convey title, but rather dissolves the. tenancy of
lands owned' in comrtlon and segregates the possession and use of the·landS anicmg individual co-
owne~ .. Houston 0!/. Co. ofTexas v. Kirkindr;zll, 1.45 s~w.2d 1074 (Te~. l94l). In addition,
there is a presumption tlla,t wb,en lands. are partitioned among co-owners; the whole of the land is
partitioned, unless some portion of the lapd is expressly excepted from the partition. Pewitt v.
RenwarOi/ Corp., 261 S~W.2d 904, 906 (Tex. Civ-. App.- Houston, 1962,.-wrlt refused n.r.e.)
Readi~g the above clauseJn light of these twO principles, It would appeat tht1t the parties.to the
Deed. of Partition, expressly excluded from the partition the oil, gas al1Cl othet minerals in the
lands for a tet.ni detli1ed as "twenty-five years ~ . . and as long thereafter as ·oil, gas or other
minerals are produced i.n paying qiJ!intities from the above described land." It woulc;I also appear
the most reasonable construction of this clause, even though it Is not expressly stated~ is the
parties fntended, after the expressly excluded term, that ilie use and posseS.sion of the oil, gas and
other minerals would ·be segregated to the owners of the individual trE).cts described in· the first
and second section~ of the Deed of Partition. In other words, the exclusio~ from the wtended
partition of possession and use of all the lands as to. oil, gas and other minerals ends after 25
years or, if there is production in paying quantities from theJands, then when there is no longer
production in paying quantities. ItJs,important tO note again, the partition deed does hot affect
title to the {a(lds, but only the se~gation of possession and use.
You:haye as~ed me ~o provide you my opinion about whether such a construction of the Deed of
Partition violates the Rule AgainSt Perpetuities (the "Rule")~ The Rule i~ applicable to. a future
estate? which may not vest during lives in being plus twenty·one year~; it has no application to
present interests or •to provisions which m~y postpose possession beyond a period of lives in
being and twenty·one years. See generally, Kelly v. WQmack, 268 S. \V. 2g 903, 905 (Tex. 1954)
and Hamman v. Bright &Co., 924 S.W:2d 168, (Tex. App• ., Amarillo 1996). In as much as the
Deed of Partition does not affect title,_ but only the segregation of the use and possession of the
in
:oil, gas and other minerals by the co-owners whojoined the partition, it would appear that the
above construction would not be subject to the Rule. Because the parties. own title to the lands
subject. to the Deed of Partition in common, only the segre.gatio+t of use and possession of the oil,
gas and other minerals is postponed for the Stated term. Without this clause, ilie oil,_ gas and
other minerals woUld have been partitioned upon exec1.rtion and delivery of the. Deed o(Partition.
Based on the foregoing, it is my opinion that use .and posse~sion of t~e oil. gO$ a~d other
miner.:Us in the lands descdbed in the Deed of Partition; is vested in the party to vv~()m the
individul,ll tia9ts are partitioned therein, absent continuous production in paying· quantities from
and after 8/1712004. This opinion is based on solely on examination ofthe Deed ofPattition as a
single document and without ilie benefit ofother instrum~nts in the chain of ti:tle that could affect
my opini_on on the effect ofthe Deed of partition. .
~-``~-·
truly,.· ~ ·•.
t . . . .· .
; ' .'
f... .:. • ...... , .· ..
/ Allen D. Cumming
53
ALLEN D. CUMMINGS
• •
BIOGRAPIDCAL INFORMATION
ALLEN D. CUMMINGS
ATTORNEY AT LAW
4801 Woodway Drive, Suite 300 East, Houston, Texas 77056
1777 NE Loop 410, Ste. 600, San Antonio, Texas 78217
Telephone and Fax 888-832-1115
acummings@acummings-law.com
EDUCATION:
J.D. Southern Methodist University, Dallas, Texas- 1974
M.B.A. University of Phoenix- 2005
B.A. State University ofNew York at Buffalo, Buffalo, New York- 1964
PROFESSIONAL ACTIVITIES:
Admitted: Texas- 1975
Board Certified Oil, Gas and Mineral Law, Texas Board of Legal Specialization 1987
Haynes and Boone, LLP - February 1999 to February 2006
Cotton, Bledsoe, Tighe & Dawson, P.C.- 1980 to January 1999
Attorney, Texas Oil & Gas Corp.- 1978-1980
Attorney, Otis Engineering Corporation, a subsidiary ofHalliburton Company- 1975-1978
Member, State Bar of Texas Pattern Jury Charges Oil and Gas Committee, August 2013
Member, Texas Board of Legal Specialization Oil, Gas and Mineral Law Exam Commission, February
2013
Chair, The American Association of Professional Landmen, Annual Meeting Workshop, June 2007
Co-Chair, Rocky Mountain Mineral Law Foundation Special Institute, Development Issues and Conflicts
in Modem Oil and Gas Plays, November 2004
Oil, Gas and Energy Resources Law Section, State Bar of Texas: Chairman (2001-2002)
Officer (1997-2001), Council Member (1994-1997) Editor, Section Report (1996-1997)
Course Director, Advanced Oil, Gas and Energy Resources Law Course 2001, State Bar of Texas
Course Director, 22nd Annual Oil, Gas & Mineral Law Institute, University of Texas School of Law and
Oil, Gas and Mineral Law Section, State Bar of Texas
Oil, Gas and Mineral Law Section, Houston Bar Association, Editorial Board Section Newsletter ( 1991-
1993), Officer (1993-1996), Chairman (1996-1997)
HONORS: Order of the Coif
LAW RELATED PUBLICATIONS:
Co-author for the Oil, Gas and Mineral Law for Legal Assistants and Attorneys, State Bar of Texas PDP,
1984
Workshop Regarding Title Examination and Division Orders
Author/speaker for University of Texas 12th Annual Advanced Oil, Gas & Mineral Law Institute (1986),
Conveying and Reserving Mineral Interests
Co-author/speaker for the State Bar ofTex11s PDP 1986 Advanced Estate Planning and Probate Course,
Perfecting Title and Transferring Real Property Out of the Estate
Rev. 2013 II 9 Paget of7
54
ALLEN D. CUMMINGS
• •
BIOGRAPHICAL INFORMATION
Author/speaker for the State Bar of Texas PDP 1987 Advanced Oil, Gas & Mineral Law Course,
Land Litigation Applied to Oil and Gas Disputes
Author/speaker for South Texas College of Law 1989 Advanced Oil & Gas Law Institute,
Current Oil and Gas Title Issues
Author/speaker for University ofTexas 17th Annual Oil, Gas & Mineral Law Institute (1991),
Selected Title Problems in Title Examination
Co-author/speaker for South Texas College of Law 1991 Advanced Oil & Gas Law Institute,
A Comparison of Field Wide Unitization in Texas, Oklahoma and New Mexico
Author/speaker for South Texas College of Law 1992 Advanced Oil & Gas Law Institute,
Division Orders and Payment for Production Proceeds
Author/speaker for State Bar of Texas PDP 1992 Advanced Oil, Gas & Mineral Law Course,
Selected Title Issues: Partition and Probate
Author/speaker for State Bar of Texas PDP 1993 Advanced Oil, Gas & Mineral Law Course,
Planning to be a Reasonable and Prudent Operator
Author/speaker for 1994 Houston Association of Professional Landmen Spring Technical Workshop,
Recent Developments in Oil and Gas Law
Author/speaker for South Texas College of Law 1994 7th Annual Advanced Oil & Gas Law Institute,
Case Law and Legislative Update
Author/speaker for Permian Basin Landmen's Association 1994 Fall Seminar,
Case Law and Legislative Update
Author/speaker for Dallas Association of Petroleum Landmen's/Dallas Bar Association Energy Law
Section 1995 Educational Seminar,
Recent Developments in Oil & Gas Law
Co-author, State Bar Section Report Oil, Gas & Mineral Law, Mar. 1995, Vol. 19, No.3,
Litigating Gas Royalty Cases
Author/speaker for Dallas Bar Association Energy Law Section Review of Oil and Gas Law X, Aug.
1995,
Pooling A Non-executive Interest: Problems and Options for the Owner and the Lessee
Author/speaker for State Bar of Texas 1995 Advanced Oil, Gas & Mineral Law Course,
Pooling Issues--Avoiding Pitfalls
Speaker/modified, updated and republished with permission by Tevis Herd for 1996 University of
Houston Law Center Advanced Oil & Gas Short Course,
Assuring the Title: Concurrent Ownership, Pooling, Probate, Etc.
Speaker for The Southwestern Legal Foundation 47th Annual Institute on Oil and Gas Law and Taxation,
February 1996,
Gas Royalty Issues for the Third Millennium
Speaker for 1996 Houston Association of Professional Landmen Technical Workshop,
COPAS-Joint Accounting: Have They Built a Better Mousetrap?
Author/speaker for Denver Landmen Association, March 1996,
Pooling Issues--Avoiding Pitfalls
Speaker for The Southwestern Legal Foundation 37th Annual Institute for Professional Landmen Seminar
April1996
Horizontal Drilling--Title and Related Legal Issues
Author/speaker for Permian Basin Landman's Association May 1996 Seminar,
Pooling Issues--Avoiding Pitfalls
Author/speaker for Dallas Bar Association Energy Law Section Review of Oil and Gas Law XII Seminar,
August 1997,
Horizontal Drilling--Title and Other Issues
Author/speaker for State Bar of Texas 1997 Advanced Oil, Gas & Mineral Law Course,
Rev. 2013 II 9 Page 2 of7
55
ALLEN D. CUMMINGS
• •
BIOGRAPHICAL INFORMATION
Pooling and Community Leases: Problems and Options for The Executive Owner, the Non-
executive Owner and the Lessee
Author/speaker for AAPL Corpus Christi Landman's Institute, October 1997,
Horizontal Drilling--Title and Other Issues
Author/speaker for Permian Basin Landmen's Association, November 1997,
Horizontal Drilling--Title and Other Issues
Author/speaker for San Antonio Association of Professional Landmen Ninth Annual Mid-Winter
Seminar, March 1998,
Pooling and Community Leases: Problems and Options for The Executive Owner, the Non-
Executive Owner and the Lessee
Author/speaker for Petroleum Accountants Society of Houston, Ninth Annual Education Day, June 1998,
The AFE: Authority for Everything?
Author/speaker for 1998 Mineral Owners Conference, September 1998,
Conflicting Rights of Pipeline Companies and Surface Owners in Condemnation and Use of
Pipeline Easements
Author/speaker for Houston Bar Association, Oil, Gas and Mineral Law Section Luncheon Program,
September 1998,
Current Developments in Oil, Gas and Mineral Law
Author/speaker for State Bar of Texas 1998 Advanced Oil, Gas & Mineral Law Course,
Ethics: Problems Arising from Prior Representation
Co-Author/speaker for The Southwestern Legal Foundation 50th Annual Institute on Oil and Gas Law and
Taxation, February 1999,
The Use of Tort and Statutory Duties to Enlarge Contract Obligations Under the Lease and the
Operating Agreement - Oklahoma Law and Texas Law
Author/speaker for Texas Bankers Association Asset Management Seminar, March 1999,
Current Developments in Oil, Gas and Mineral Law
Author/speaker for American Association of Professional Landmen Convention, June 1999,
Protecting the Non-executive Owner
Co-author/speaker for The University of Texas School of Law 26th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, March 2000,
Trade Secrets and Proprietary Information
Author/Speaker for National Association of Lease and Title Analysts 15th Annual Conference, October
2000,
Horizontal Drainholes - Pooled and Not
Author/speaker for San Antonio Association of Professional Landmen 12th Annual Mid-Winter Seminar,
February 2001,
Pooling Issues - Avoiding Pitfalls and Recent Developments in Pooling
Author/speaker for The University of Texas School of Law 27th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, March 2001,
Recent Developments and Specific Pooling Issues
Author/speaker for State Bar of Texas 2001 Advanced Oil, Gas & Energy Resources Law Course,
The Clairvoyance of A.W. Walker, Jr.
Author/speaker for The-University of Houston Bar Foundation 2002 Advanced Oil & Gas Short Course,
Joint Operating Afreements- Current Issues
Author/speaker for the 48 Annual Rocky Mountain Mineral Law Institute, July 2002,
A Meeting of the Minds on Title Defects
Author/speaker for State Bar of Texas 2002 Advanced Oil, Gas & Energy Resources Law Course,
Dangers Associated With Use Of And Reliance Upon Prior Title Opinions
Speaker for National Association of Lease and Title Analysts 15m Annual Conference, October 2002,
Rights, Obligations and Problems Of Depth Severed Mineral And Leasehold Ownership
Rev. 2013 11 9 Page3 of7
56
ALLEN D. CUMMINGS
• •
BIOGRAPHICAL INFORMATION
Author/speaker for the 49th Annual Rocky Mountain Mineral Law Institute, July 2003,
Rights, Obligations and Problems Of Depth Severed Mineral And Leasehold Ownership
Author/speaker for The University of Houston Bar Foundation 2004 Advanced Oil & Gas Short Course,
Joint Operating Afreements - Current Issues
Author/speaker for the 55 Annual Program on Oil and Gas Law, The Institute for Energy Law of The
Center for American and International Law, February 2004,
The Fundamentals: State of the Art ofNegotiating Environmental Issues in Energy Industry
Purchase and Sale Agreements, Part 2: Flexible Approaches to Negotiating
Author/speaker for The University of Texas School of Law 30ih Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, March 2004,
Today's Marketing, Yesterday's Leases, Check Stub Statutes: The Perfect Storm
Author/speaker for Rocky Mountain Mineral Law Foundation Special Institute, Oil & Gas Agreements:
The Exploration Phase, June 2004,
Complex Exploration Agreements; Getting Down to Business
Author/speaker for State Bar of Texas 2004 Advanced Oil, Gas & Energy Resources Law Course,
Standard for Proof of Damages under the Joint Operating Agreement and Lagniappe
Author/speaker The University of Texas School of Law 32ild Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, March 2006
Old AMis- New Problems
Co-author/speaker for Rocky Mountain Mineral Law Foundation Special Institute, Oil & Gas
Agreements: Sales and Financing, May 2006,
Organizing and Executing Due Diligence -Quickly
Speaker, The Houston Association ofProfessional Landmen, Spring Workshop, May 2006,
The Accommodation Doctrine
Speaker, The Houston Association of Professional Landmen, Technical Conference, June 2006
Ethical Issues: Preferential Rights to Purchase and Package Sales
Author/speaker for the 52nd Annual Rocky Mountain Mineral Law Institute, July 2006,
Old Area of Mutual of Interest and Dedication Agreements- New Problems
Speaker, The Houston Association of Professional Landmen, Technical Conference, April 2007
Ethical Issues: Negotiating and Applying AMI Clauses
Speaker, The American Association of Professional Landmen, Annual Meeting Workshop, June 2007
Negotiating, Drafting and Applying AMI Clauses
Checklist for Assignments
Speaker, San Antonio Bar Association Natural Resources Section Monthly Luncheon, June 2007
Negotiating, Drafting and Applying AMI Clauses
Author/speaker for State Bar of Texas 26ili Annual Advanced Oil, Gas & Energy Resources Law Course,
September 2008
Measuring the Quality ofTitle
Speaker, San Antonio Bar Association Natural Resources Section Monthly Luncheon, January 2009
Oil and Gas Operations in Urban Areas
Author/speaker The University of Texas School of Law 35th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, Oil and Gas Fundamentals Boot Camp March 2009
The Joint Operating Agreement- The Basics
Speaker, The Houston Association of Professional Landmen, Technical Conference, April2009
Pooling and Unitization: Barnett and Haynesville Shales
Author/speaker for Rocky Mountain Mineral Law Foundation Special Institute, Oil & Gas Agreements:
The Exploration Phase, May 2009 and March 2010,
Area of Mutual Interest Agreements
Rev. 2013 11 9 Page 4 of7
57
ALLEN D. CUMMINGS
• •
BIOGRAPHICAL INFORMATION
Author/speaker for State Bar of Texas 28th Annual Advanced Oil, Gas & Energy Resources Law Course,
October 20 10
Thinking About Boilerplate
Author/speaker The University of Texas School of Law 37th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, Oil and Gas Fundamentals Boot Camp April 2011
Texas Title Examination Standards: Introduction and Practical Exercises
Author/speaker for State Bar of Texas 29th Annual Advanced Oil, Gas & Energy Resources Law Course,
October 2011
The Pitfalls of Using tfti! '.Vr11DgAny Form
Author/speaker for Rocky Mountain Mineral Law Foundation Special Institute: Mineral Title
Examination, February 2012,
Basis of Opinions, Types of Opinions, and Layout of Opinions
Author/speaker The University of Texas School of Law 38th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, March 2012
Consent Asked For- But Not Received; the Enforceability of Consent to Assignment or Transfer
Provisions
Speaker for American Association of Professional Landmen Annual Meeting, June 2012
Pooling in Resource Plays
Author/speaker for State Bar of Texas 301h Annual Advanced Oil, Gas & Energy Resources Law Course,
Oil, Gas and Energy Resources 101 October 2012,
Anatomy ofa Joint Operating Agreement
Author/speaker The University of Texas School of Law 39th Annual Ernest E. Smith Oil, Gas and
Mineral Law Institute, Fundamentals of Oil, Gas and Mineral Law March 2013
Texas Title Examination Standards: Introduction and Practical Exercises
Author/speaker The Center for American and International Law, Texas Mineral Title Course May 2013
Texas Title Examination Standards: Introduction and Practical Exercises
Author/speaker for State Bar of Texas 31st Annual Advanced Oil, Gas & Energy Resources Law Course, 1
October 20 13
NPRis: From Operator's Perspective in a Horizontal World
Author/speaker for Civil Justice Conference, October 2013
Area of Mutual Interest and Preferential Right to Purchase Agreements
MEMBERSHIPS:
State Bar of Texas
San Antonio Bar Association
Houston Producer's Forum
American Association of Professional Landmen
Houston Association of Professional Landmen
Prior Expert Testimony
1. For Defendant, Cause No. A-172, 979; M & M Resources, Inc. v. DSTJ, L.L.P. and DSTJ
Corporation; 58th District Court, Jefferson County, Texas. Deposition April2006.
2. For Respondent, Case No. 77 198 00189 06 MAVI, Enerplus Resources (USA) Corporation v.
Slawson Exploration Company, Inc., American Arbitration Association, Denver, Colorado. Testify
March2007.
3. For Respondent, Hunt Petroleum Corporation, eta/., v. LLOG Exploration Company, LLC, et al.,
Rev. 2013 II 9 Page 5 of7
58
• ••
ALLEN D. CUMMINGS BIOGRAPHICAL INFORMATION
Arbitration Proceeding, Houston, Texas. Testify March 2007.
4. For Intervenors in Cause No. C-1535-02-H; Stephens Production Company, a Division of
Stephens Production Group, Inc., as Plaintiffs v. Charlie Hudson, et al., as Intervenors, v. Paul Freeman,
et al., as Defendants; 3891h Judicial District Court, Hidalgo County, Texas. Testify September 2008.
5. For Plaintiff, Cause No. 0-06-161; Gastar Exploration Texas LP v. John E. Mcfarlane, et al.,
87th Judicial District Court, Leon County, Texas. Deposition November 2008.
6. For Movants for Establishing a Producers Committee, In Re: SEMCRUDE, L.P., et al. Chapter
11 Case No. 08-11525(BLS), Adversary No. 08-51444(BLS) (TEXAS), United States Bankruptcy Court
for the District of Delaware. Testify February 2009.
7. For Plaintiff, Cause No. 2008-05053, Carrizo Oil & Gas, Inc. v. 2001 Trinity Fund, LLC, 295th
Judicial District Court, Harris County, Texas. Testify October 2009.
8. For Plaintiff, Civil Action No. H-08-3341, Preston Exploration Company, L.P., et al. v. GSF,
L.L.C., et al.; United States District Court for the Southern District of Texas, Houston Division. Testify
March2010.
9. For Plaintiff, Cause No. 2009-66618, Davis Petroleum Corporation v. ERG Resources, LLC,
269th Judicial District Court, Harris County, Texas. Deposition February 2011.
10. For Defendants, Civil Action No. 2:08-CV-345 TJW, Charles H. Coli, et al., v. Abaca Operating,
U.C. et al., United States District Court for the Eastern District of Texas, Marshall Division. Deposition
February 2011.
11. For Claimant, Tauren Exploration, Inc., et a/. v. EXCO Operating Company, LP, et al.,
Arbitration Pursuant to November 2009 Purchase & Sale Agreement (Not Administered). Testify
January 2012.
12. For Plaintiff, Cause No. 08-04-07047-CV, OZ Gas Corporation v. Remuda Operating Company,
et al., 112th Judicial District Court, Crockett County, Texas. Testify February 2012.
13. For Plaintiff, Cause No. 201()...15225, Devon Energy Production Company, L.P. v. KCS
Resources, LLC, 129th Judicial District, Harris County, Texas. Deposition March 2012.
14. For Plaintiff, Cause No. CV11-04-320; Merit Management Partners I, LP, eta/. v. Lakota Energy
Limited Partnership; 271st Judicial District, Wise County, Texas. Deposition May 2012, testify October
2102.
15. For Claimant, Arbitration Proceeding (Not Administered) concerning Cause No. P-12,779-C,
Kathleen Wild v. FrankJ. Schuster, et ai.,_County Court N9. 3, Sitting in Probate, Hidalgo County, Texas.
Testify August 2012.
16. For Plaintiff, Cause No. 11-0849, Noel Diane Jones, eta/. v. Petrohawk Properties, L.P., et al.,
71st Judicial District, Harrison County, Texas. Deposition September 2012 and March 2013; testify
September 2013.
17. For Defendant, Cause No. 26527, John G. Middleton, et a/. v. Fairways Exploration &
Rev. 2013 11 9 Page 6 of7
59
ALLEN D. CUMMINGS
• •
BIOGRAPHICAL INFORMATION
Production, LLC, 344th District Court, Chambers County, Texas. Deposition March 2013.
18. For Defendant, Cause No. DC-12-05303; Orca Assets, G.P. LLC v. JP Morgan Chase Bank,
N.A., et al, B-44th District Court, Dallas County, Texas. Deposition October 2013.
Rev. 2013 11 9 Page 7 of7
60
• •
• !
NO.lJ-06-0559-CVA
IVARENE HOSEK AND VICTOR § IN THE DISTRICT COURT
HOSEK §
Plaintiffs, §
§
v. § 81ST JUDICIAL DISTRICT
§
ROSALE SCOTT §
Defendant. § ATASCOSA COUNTY, TEXAS
AFFIDAVIT OF Robert J. Ogle
BEFORE ME, the undersigned authority, on this day personally appeared Robert J.
Ogle, the undersigned affiant, who swore on oath
. that the following facts are true:
.
"My name is Robert J. Ogle. I am over 18 years of age, of sound mind and fully
competent to make this affidavit. I have personal knowledge of the facts herein stated and they
are all true and correct.
"I was present at the depositio~ of Rosale Scott taken on November 1, 2013. The
attached deposition transcript excerpts accurately reflect the deposition testimony given by
SIGNED ON j.,. <"'I J. 2014. a
Rosale Scott and is an exact true and correct copies of excerpts of the deposition transcript."
T Roe:ti:Jmt #=
SUBSCRIBED AND SWORN TO BEFORE ME on ~ " ~0/ t ,by
RP bu+ r o0 l t,.
PAlRICIA L OGLE
MY COMMISSION EXPIRES
December 19, 2014
12
61
Rosale S c o t t .
• November 1, 2013
Page 42
1 Q. So was this a point of negotiation between you
2 and Mr. King about reservation of the minerals?
3 A. Well, I didn't talk to Mr. King very much
4 really. I mean we talked a couple of times. We didn't
5 even talk about oil rights really, oil or mineral
6 rights.
7 Q. You just testified that you wanted 30 but you
8 could only get 20.
9 A. Yes.
10 Q. So you obviously negotiated with Mr. King for
11 the mineral rights.
12 A. Well, he did.
13 Q. Well, he negotiated successfully.
14 A. Yeah.
15 Q. But you negotiated with him over the mineral
16 rights?
17 A. Yes.
18 (Exhibit 5 marked)
19 Q. (By Mr. Ogle) I am going to hand you what has
20 been marked our Exhibit Number 5 and see if you can tell
21 me what that is. Do you know what that is?
22 A. Yes.
23 Q. And what is it? 1
24 A. I know what it is but I don't recall writing
J
25 that letter.
. f
._j
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 210-697-34Ci_a,
Electronically signed by Sarah Prugh (201-387-426·3457)
6bd34b3b-f084-4322-a027-d4fd4sJlfi'1 b
Rosale Scott.
• November 1, 2013
Page 43
1 Q. Would you look at page two and tell me if that
2 is your signature?
3 A. It looks like it.
4 Q. And what is the date of the letter?
5 A. August 22nd, 1989.
6 Q. So you are not going to tell the court that you
7 didn't write this letter; are you?
8 A. I don't recall writing it.
9 Q. You don't recall writing it. Are you saying
10 you didn't write it?
11 A. I just don't recall writing it.
12 Q. Okay. Is it entirely possible that you did
13 write it?
14 A. No.
i
15 MR. CALDWELL: Objection, form, t
16
17
speculation.
Q. (By Mr. Ogle) I am asking you if it is possible
I
18 that you wrote this letter.
19 MR. CALDWELL: Objection, form. You can
20 go ahead and answer. I have to object as to form.
21 THE WITNESS: Yes, it is possible but I
22 don't remember it.
23 Q. (By Mr. Ogle) Do you have a theory for who you
24 think wrote it?
25 A. No. All I can say is that I was I had been
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 210-697-34 q.g.,
Electronically signed by Sarah Prugh (201-387-426·3457) sbd34b3b-t084-4322-ao27 -d4td4eJlM1 b
Rosale Scott-
• November 1, 2013
Page 44
1 ill with glaucoma. That is in the letter here. And J
]
2 also, I was grieving for my mother who passed away the
4
3 year before.
Q. All right. I want to draw your attention to a I1
5 paragraph, one of the paragraphs in this letter. It is •j
6 the third paragraph. And at the last part of that
7 paragraph, I think it is the last three sentences, this
8 letter says Victor and Ivarene Hosek own half of the oil
9 and mineral rights for another 14 years. Then you will
I
10 get their half. I want to keep my half for another 30
11 years if possible. So is this a letter from you to
:12 Mr. Wesley King? Is that what this is?
:13 MR. CALDWELL: Object as asked and
14 answered.
'15 Q. (By Mr. Ogle) Is this a letter from you to
16 Wesley King?
17 A. I don't remember writing it or sending it.
18 Q. So you don't think that you said any of these
19 things in this letter?
20 A. I don't know.
I
I,
21 Q. So you couldn't tell me what you meant when you.
22 saiq that, if you don't remember it; is that right?
23 A. Yes.
24 Q. This letter would indicate it was written by
25 you that you knew that after 25 years, the mineral
''
'
Kim Tindall and Associates, LLC 645 Lockhill Selma, suite 200 san Antonio, Texas 78216
210-697-3400 210-697-34~e_
Electronically signed by Sarah Prugh (201-387-426·3457) 6bd34b3b·f084-4322-a027 od4fcl46?4m1 b
Rosale S c o t t .
• November 1, 2013
Page 45
1 ownership would go back to the surface owner. Could you
2 agree with me on that?
3 MR. CALDWELL: Objection, form.
4 THE WITNESS: This is not a legal
5 document.
6 Q. (By Mr. Ogle) I am just asking you to answer my
7 question. I am not asking you whether it is a legal
8 document. If you had written that, it would indicate
9 that you knew that the 25 year period was a period after
10 which the surface owner would own the minerals under
11 their land. Isn't that right? Isn't that what it says?
12 A. I don't know.
'13 Q. You don't know what it says?
14 A. I don't know.
"15 Q. When did you first see this letter?
16 A. Well, when it was sent to me by Mr. Caldwell.
17 Q. And do you know where it carne from?
18 A. I don ' t know.
19 Q. Do you know if it came from Mr. King?
20 A. I don't know.
21 Q. You don't know anything about it? Date of the
22 letter is August 22, 1989 so.that would have been 10
23 years, 11 years after the partition deed; is that right?
24 A. How long, I don't know.
25 Q. The date on the letter in front of you is
Kim Tindall and Associates, LLC 645 Lockhill Selma, suite 200 San Antonio, Texas 78216
210-697-3400 210-697-34Qik
Electronically signed by Sarah Prugh (201·387-426--3457) 6bd34b3b-f084-4322-a027-d4fd4&Jlilf1 b
Rosale Scott.
• November 1, 2013
Page 46
1 August 22, 1989; is that right?
2 A. That's right.
3 Q. So I am asking you to agree with me that that
4 is 10 and a half years after the 10 years after the
5 partition deed is dated?
6 A. Yes.
7 Q. So if you did say there is·another 14 years,
8 then you will get their half to Mr. King, you would have
9 indicated that after the 25 year period, that the
10
11
surface owners would own their minerals; isn't that
right?
I~
12 MR. CALDWELL: Objection, form,
13 speculation.
14 Q. (By Mr. Ogle) You can still answer the
15 question.
16 A. I don't remember the letter. I don't remember
17 writing it.
18 Q. Okay.
19 A. I had been ill and sometimes I forget things I
20
21
when I am sick.
Q. Well, isn't this when you were negotiating the
I•
22 sale with Mr. King? Isn't this a period of time that
23
24
you were negotiating the sale to Mr. King?
A. I'm sorry. I can't hear you.
I
25 Q. Isn't this the time that you were negotiating
I
\
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 210-697-340.~
Electronically signed by Sarah Prugh (201·387-426-3457} 6bd34b3b-f084-4322-a027 ·d4fd4Gi~1 b
Rosale Scott.
• November 1, 2013
Page 47
1 the sale to Mr. King?
2 A. Yes.
3 Q. And so you remembered before that you
4 negotiated about 30 years versus 20 years. You
5 remembered that.
6 A. Yes.
7 Q. And that happened around the same time as this
8 letter was· written; correct?
9 A. Well, yeah. I don't know. I don't know.
10 Q. So you remembered that part of the negotiation
11 but you don't remember this letter.
12 A. No, I don't. I don't remember writing it.
13 Q. Did you have an attorney representing you when
. 1·4 you were negotiating the sale to Mr. King?
·T5 A. Mr. Steinle.
16 Q. Okay. And so would Mr. Steinle have documents
17 perhaps about these negotiations?
18 A. I don't know.
19 Q. When did when were you approached about signing .I
20 a quit claim deed for the purposes of oil and gas
21 drilling on this property?·
22 A. My husband passed away in January, January 3rd,
23 and it was soon after that. I don't know, February,
24 March.
25 Q. Of what year?
i
\
Kim Tindall and Associates, LLC 645 Loc.khill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 210-6 97-34 QA.
Electronically signed by Sarah Prugh (201-387-426,3457) . 6bd34b3b-f084-4322-a027-d4fd4s~fo1 b
Rosale Scott.
• November 1, 2013
Page 48
1 A. This year.
2 Q. And who approached you about signing a quit
3 claim deed?
4 A. Ivarene called me and told me that the oil
5 company representative was going to send me a paper to
6 sign. She didn't say quit claim. She said a paper.
7 Q. And did the oil company send you a paper to
8 sign?
9 A. Yes.
10 Q. And what did they say?
11 A. And they called me too. Mr. -- I can't
12 remember his name but.
13 Q. So you had the opportunity to talk directly to
14 the oil company representative about this quit claim
rs deed; didn't you?
16 A. Yeah, I guess he said a quit claim on the
17 phone. I think he did.
18 Q. Did he explain to you what it was and why it
19 was needed? ;
20
21
A.
Q.
No.
.And so what did yo~ do with this quit claim
Ii
j
22 deed?
23 A. Well~ he sent it. And when I got it, I read
I
24
25
it. And my question was why, why would I have to sign
anything now after all of these years? Why would I have
I
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 210-697-34~
Electronically signed by Sarah Prugh (201-387-426·3457) 6bd34b3b-fOB4-4322-aD27 ·d4fd46d4f01 b
(
Rosale Scott.
• November 1, 2013
Page 49
1 to sign a quit claim? I called my daughter and she said
2 no, don't sign it. And I talked to several people. I
3 talked to my cousins. I even called Lutheran Thrivent
4 Financial. I talked to -- I believe it was an attorney
5 there who told me do not sign that. Do not sign the
6 quit claim.
7
8
MR. CALDWELL:
conversations with attorneys because those are
Don't talk about any
!
9 attorney/client privilege. 1
10 THE WITNESS: I am not sure if it was
11 ~ttorney. I talked to him on the phone. Maybe not~ I
12 don't know.
13 MR. CALDWELL: Okay.
14 ., Q. (By Mr. Ogle) Do you remember the name of the
1'5 . person you talked to?
16 A. No.
17
18
19
Q.
A.
What is your cousin's name that you talked to?
Cousin? I
Q. The cousin you talked to, what is that cousin's
20 name?
21 A. Her name is Willadene Kyrish, K-Y-R-I-S-H.
22 Q. And why did you call her or why did you think
23 she would have some special knowledge about this?
24 A. I called her well, we talk on the phone
25 sometimes. She calls me sometimes. Especially since my
I
\
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 210-697-34``
sbd34b3b-to84-4322-ao27 -d4fd4s~Yo1 b
Electronically signed by Sarah Prugh (201-387-426-3457)
Rosale Scott.
• November 1, 2013
Pa·ge 50
1 husband passed away. They have been -- always asked if
2 they can help me. Okay. My daughter and my son-in-law
3 said you need an attorney.
4 Q. Which daughter?
5 A. Diane.
6 Q. Okay.
7 A. And Gilbert, my son-in-law.
8 Q. Okay.
9 A. And so I called -- I called Willadene and asked
10 her if she knew of an attorney because I need one.
11 Q. Okay. And she did she refer you to a lawyer?
12 A. Yes, she did.
;13 Q. What lawyer did she refer·you to?
14 A. I can't remember his name, not right now I
15 can't.
16 Q. When you get this deposition, can you fill that
17 in for me so I will know who?
18 A. All right.
19 Q. Was it a San Antonio lawyer or a Floresville
20 lawyer or a New Braunfels lawyer?
21 A. San Antonio.
22 Q. And you talked to that lawyer and did you talk
23 to that lawyer in San Antonio?
24 A. Well, my son-in-law tried to get an
25 appointment. In fact, he did get an appointment with
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 210-697-34``
Electronically signed by Sarah Prugh (201-387-426-3457) 6bd34b3b-f084-4322-a027 ·d4fd46d4f01 b
Rosale Scott.
• November 1, 2013
Page 51
1 that attorney. And then that attorney called him back
2 and told him that he could not represent me because
3 there was a conflict of interest.
4 Q. Okay. That is all you need to say. You
5 shouldn't tell me anything that he actually told you
6 substantive. Okay. And so then what did you do?
7 A. My daughter looked on the internet to find an
8 attorney for me. Diane, she found Mr. Caldwell for me.
9 Q. Okay. And did you hire Mr. Caldwell?
10 A. Yes.
11' Q. Did you sign a contract with Mr. Caldwell?
12 A. Yes.
13 Q. Have you paid any fees to Mr. Caldwell?
14' A. Well, just I think it was 2500 for -- I don't
15 · know -- what do they call it? I can't remember.
16 MR. CALDWELL: Retainer?
17 THE WITNESS: Yeah, retainer.
18 Q. (By Mr. Ogle) Okay. And are you paying him
19 hourly or are you paying him under a contingency
20 contract?
21 A. Contingency, yeah, contingency now, yeah.
22 Q. And so do you pay now. So you were paying
23 hourly for a while and then you went to contingency; is
24 that right?
25 A. He took it like that, yeah.
i
\
Kim Tindall and Associates, LLC 645 Lockhill Selma, suite 200 San Antonio, Texas 78216
210-697-3400 210-697-34QA
Electronically signed by Sarah Prugh (201-387-426-3457) 6bd34b3b-f084-4322-a027-d4fd46J4tb1 b
-------------------------------------·----- -·--
. Rosale Scott •
• November 1, 2013
Page 52
I
1 Q.
A.
I don't think you got over on him.
What?
i
2
3 Q. I'm sorry. I was being flippant. So it
4 started out hourly and then it went to a contingency
5 contract; is that right?
6 A. The retainer was
7 Q. I see.
8 A. first. And then, yeah, it is a contingency
9 contract.
10 Q. Okay. If you were in a position where you were
11 standing in front of the judge telling the judge what
12 you think that partition deed said and what it means,
13 what would you tell him?
14
15
A. I think that what I think it says is that it
would be renegotiated after the 25 year period. I
~
16 Q. And so even if it doesn't say that, that is
17 what it should have said; is that right?
18 A. Well, that was my understanding.
19 Q. So if it didn't say that, it was wrong; is that
20 right?
21 A. Okay.
22 Q. You can't look at your
23 MR. CALDWELL: You can answer if you
24 understand his question.
25 THE WITNESS: If it didn't say that, it
I
\
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 21 0- 6 9 7- 3 4 Q.S. .
Electronically signed by Sarah Prugh (201-387-426·3457) 6bd34b3b·f084-4322-a027 ·d4fd46!~1 b
Resale Scott.
• November 1, 2013
Page 53
1 was wrong. I don't know. I don't know.
2 Q. (By Mr. Ogle) You don't really know what the
3 deed says?
4 MR. CALDWELL: That is not what she said.
5 Q. (By Mr. Ogle) Do you really know what the deed
6 says?
7 A. Yes.
8 Q. What does it say?
10
9 A. 25 years. But that was -- I thought it or I
understood that it would be renegotiated after 25 years.
It
j
I
11 (Exhibit 4 marked)
12 Q. (By Mr. Ogle) I am going to hand you -- my
13 exhibits are all out of order, I apologiz~ -- what is
14 Exhibit Number 4 and see if you can identify that,
1"5 please, ma'am. Can you tell me what that is?
16 A. That was a letter that Mr. Wetherbee decided
17 that was Mr. Wetherbee's idea. It was never my idea.
18 Q. Who is Mr. Wetherbe~?
19 A. The attorney.
20 Q. What attorney? Is he your attorney?
21 A. He was in the same office as Mr. Steinle.
22 Q. Who went.and talked to Mr. Wetherbee.
23 A~ Well, I was talking to him about selling the --
24 MR. CALDWELL: Mrs. Scott, if he is your
25 attorney, you can't testify about what you and your
I
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 san Antonio, Texas 78216
210-697-3400 210-697-34ff3
Electronically signed by Sarah Prugh (201-387-426·3457) 6bd34b3b-f084-4322-8027 -d4fd46d4f01 b
Resale Scott. November 1, 2013
Page 54
1 attorney talked about; okay?
2 THE WITNESS: Okay.
3 MR. CALDWELL: So you can't testify about
4 what you and Mr. Wetherbee discussed. You understand?
5 THE WITNESS: Okay.
6 Q. (By Mr. Ogle) We will dance around that. Did
7 you go to Mr. Wetherbee for help, legal help?
8 A. I'm sorry. I can't hear.
9 Q. Did you go to Mr. Wetherbee for legal help?
10 A. Yes.
11 Q. And what help were you asking for?
12 MR. CALDWELL: I'm sorry. That would
13 be -- you can't discuss what you asked Mr. Wetherbee to
14 do for you. You can give your understanding -- you can
15 1 explain wh~ you went to go see an attorney.
16 THE WITNESS: Why I went to see him?
17 MR. CALDWELL: Yes.
18 THE WITNESS: To sell the 60 acres.
19 Q. (By Mr. Ogle) Okay. And were you talking
20 were you negotiating selling the 60 acres at that time?
21 A. I don't understand the question.
22 Q. Were you negotiating? Okay. Look at the date
23 on this letter.
24 A. The date, okay.
25 Q. What is the date? What is the date?
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 210-697-34~
Electronically signed by Sarah Prugh (201-387-426-3457) 6bd34b:Urf084-4322-a027·d4fd4614fi1 b
..------------------~-----·.
Rosale Scott.
• November 1, 2013
Page 55
1 A. December 6, 1985.
2 Q. Okay. So at that time, December 6, 1985, you
3 you were looking into negotiating selling your property;
4 is that correct?
5 A. Yes.
6 Q. And was that the Morales sale that you were
7 negotiating?·
8 A. Yes.
9 Q. And did you go do Mr. Wetherbee as part of
10 these negotiations? Just yes or no. Don't tell me
11 anything you said to him or he saia to you.
12 A. Yes.
13 Q. So you went to Mr. Wetherbee to help you figure
14 out how to sell the land to the Moraleses?
15 A. Yes.
16 Q. Did the Moraleses want the minerals? Is that
17 what was happening?
18 A. Yes, they sure did.
19 Q. And you -- Mr. Wetherbee, when this letter was
20 written to Mr. and Mrs. Hosek, he was representing you;
21 is that right?
22 A. Yes.
23 Q. And so why did you have this letter written to
24 Mr. and Mrs. Hosek? What did you want to accomplish?
25 A. I didn't ask him to write it. He decided to
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 . 210-697-34~
Electronically signed by Sarah Prugh (201-387-426-3457) 6bd34b3b-f084-4322-a027-d4fd46J421 b
;.
Rosale S c o t t .
• November 1, 2013
Page 56
1 write this letter. I never agreed to it.
2 Q. On his own, did you tell him not to send this
3 letter?
4 A. He might have asked me if he could write the
5 letter but --
6 MR. CALDWELL: Mrs. Scott, you can't go Il
7 into the _substance of what you and Mr. Wetherbee talked I
\I
8 about. Okay?
9 THE WITNESS: All right.
10 MR. CALDWELL: You can explain did you
11 authorize him to send this letter or know it was going
12 out?
13 THE WITNESS: Well, yes, I did.
14 Q. (By Mr. Ogle) And what do you believe it is
15
16
asking for?
for?
What do you think this letter is asking
I
I
t
17 A~ That we would exchange the oil and mineral
I
18 rights there, that my sister would get all of her
19 interest in the minerals under the surface if I would do
20 the same, you know, exchange.
21 Q. Instead of waiting for the 25 year period?
22 A. Yeah. I don't know exactly what he was doing.
23 He was the attorney. I don't -- I didn't know anything
24 about that.
25 Q. Did the Moraleses want the minerals under their
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 210-697-34~
Electronically signed by Sarah Prugh (201-387426·3457) 6bd34b3b-f0844322-a027-d4fd46J421 b
Rosale Scott.
• November 1, 2013
Page 57
1 60 acres? Did the Morales want their minerals under the
2 60 acres did they want them?
3 A. Yes. Yes.
4 Q. And did you ultimately sell it to them without
5 the minerals?
6 A. I thought I had kept one-half. I wanted to
7 keep-my half. I thought I had kept one-half. When I
8 looked at the deed, it said seller reserves her
9 interests, you know. And there is no date, no date on
10 it, no time.
11 Q. Did -- after 2004, were you ever approached for
12 an oil and gas lease after 2004?
13 A. 2004, no, no, I don't know. I didn't think so.
14 Q. Did any ofl company -- did anybody ever
15 approach you for an oil and gas lease on your 130 acres?
16 A. After 2004?
17 Q. At any time, at any time?
18 A. I don't recall.
19
20
Q.
A.
So you don't think that happened?
No, I don't recall.
It.
21 MR. OGLE: All right. If we ·could take
22 about a five minute break, I am pretty close.
23 (Recess taken)
24 Q. (By Mr. Ogle) We are back on the record,
25 Mrs. Scott. Did you want to say something about Exhibit
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 210-697-34 a.a..
Electronically signed by Sarah Prugh {201-387-426·3457) 6bd34b3b-f084-4322-a027,.d4fd46cll~1 b
-------------- ---····--··
• •
,'
27835 Bonn Mount~in
San .Antonio· 'l':l\ 78260
- I August 22, 1989
Mr. Wesley King
4211 Weslow
Houston TX 17081
Dear Mr • ICing
Row are you getting along? l hope you and 70`` family are well. I.t ha·s· beett
a long,. hot and dry s.ummer• So-rry to b-e so slow in 'Wt'i ting to you.. I nave
had a few healtn pt:oblems. I developed Actite Glaue.oma and have haif le.se%: .
surgery in beth my ey.es. I inherited the condi ti.on. sill.Ce· my mother had' 1 t.
I~ wot.tld have been leas .severe if the doctors I vil:r.t·ed had made the proper·
· diagnoses.· Althoog& r had the symptoms for `` months and visited two
doc.toz:s, (one was an Opb.thalmo1ogis·t), they .both mada au tncorre~ diagnos.,.s,
and I had to so to the hos~ltal emargenc.y room on. Jnly lith·. 7'ha: emergeney
·room doct~ made att immediate diagnGses of glaucoma and I sp.ep.t. tWQ days in
tbe hospital. Then I bad .fl'n alls+giQ react~on to t~e medication. I r.,.s .givP.n
to. get tb.e pressure and pa.iJi dow.n in ~ eyes, so r am just liow getting ba.ck
. t.o normal aga.ili.. ·
r was kind of su1:prired wh:en you .called' im.d saic't. yoa are sti'll interested. iJJ
'buying the farin land I still ha.ve left.. The :rexas economy is so. bad r1.gbt now•
.Ju;t. t am l:'eady ~o sell lf you sti.ll •ant' to buf. i t d~otit dil. and riid..n.et.al
t'igb·ts·. In 1983, I was offered $120,.000.:00. for the. whole place (l3£) a.crt>,s)
bu·t oil Blld mineral rights were .incla.dea..:· ·
Hui_b· had planned' to tear down the tractor sh.ed, and US'e the materiais wh'i!n w.-e
build a. hOru.Zin LaVenia.. But, s:in:c-e we· have uo:t been able to sell. our·
p.r~s.~nt home here· iq Bui:verde,. be nys · ther~ £s no 1'eBSOl2 to te~ i't ·dow
since ou2: plan~r to· bu'ilcf hav.e. hen delayed. H.e· says :tbe: shed is worth $.3 .o.oo·;.
· th.e;-~fore, I .would like .$sa,ooo-.oo to>tal pti~e tor tfie ptope;-ty. ·(~out $:750 . ·
· .per acte). If possible, I would. lik-e $~,g,ooO . down paym~nt at:~d the balari.ce. ·
· ($3D"OOO) in paymentS at 10 percerit interest: .for: ten yean.•. Victor & 'lvarE>n·e
Hos~·k; OWD half the ~if and' minen:l. rigb~ for anothe.~ ll~ ·yea~s.. :t:'hen: yol:l' -w:Ul.
get· their half. I. want to keep my half far arioth.er. ~o··yea'l's:; H poss.ib·le.• · ·
~
tf it: iS' agreeable wii:b. you to lee ~. Kolodde COn.ti4"Ue. his. lf'aSe ·u1rt.il.mi d
.Febru.aty .1990, l will coiltac·t a law'yer. as ·SO()tl. .as· ,poss;Lb.l~. and g-et the_ le~if
documen~s prepared~ As stow· as .tho"Se lawyers a:r.e (f'llom· lilY. exp.etlenee)., .J.:t
brl~re-; they get. the: p.ap.ers re:ady an~ay, · W.e h:Scr $ whole place. ·
Jii&y.' be.. 19'90
$t11'Yey'ed in. 19.85 sa "noth~r surv..ey should not be l:'eq,\llre:q uille.GS YDil want
· anotlier survey:. i will p&J for the;·lawy.er 1 & fees.,.:.. .
Is: hard f~r me to explain how I feel about that pj.ac.e..: Therl! are s-o. many
me~orie; tf,1.~re, btJt mos~ q£ t:hell!-are:·Jit+llapp,y:, d``appots:it:tll8. ·memorle-s l.f.ke bsta,
,hack.- breaking wo;r::k (my. pa.r~l:,\-ts bel:1ev·ecl ·in· child labor), my ttareots ~- con'S tanJ:;
fighting.,. and bein~ denied s. higb. !'{ohool. education whfcft liim.ted r.rty· opportunitit"-s
for t:b..e_, ies.t of rAY 'life •.. My fatber wa$ an alc:oholi~ a.url :DIY. mother h:ad a ne.rvous
b:J:eikdown wl'!~n I wa~ a 'DilhY. and· s.he Jje:ve~ t-ealiy ..r,coveted:. · She h.Sd- ~.ueb a
l~ne tyJ ·unhappy life.,~ ·
. ' .-· . .
·,,
• ••
I guess the reason I'm telling you all this is that I have to convi.nce
myself that I am better off selling the place. Perhaps then I can say in
my min~ ''its over" and I'm better off letting it· go, Going there and t~inking
about the past only depresses me and makes me feel bad·, .an~ no one can chan$..,
·the past. It has been hard fo't· me to decide to sell, but I have finally madfo
the decision.
So, let. me know if.you still w.ant to buy the pla~P. If you obj~ct to any.of
the c·ondit:icms I mentioned. 'let Jlle know and we can tallc about it. Perhaps,
. we should meet somewhere to dis.ctiss all this in p-P.rson befo·re I get· the
.legal papers p·repared in final. If you will call me the next t!mP. you plan
to go down to your farm, we will ·tcy to· .meet you . the.re to talk about all this.
I hav.e not yet signed up for the McCoy water, Mr. Xolodzi£> sent me- two cop'f"'s
of his letter, but he for.got to enclose tb~ information sheet, so. if you want
the. ·watE!r• please send me a sign-:up sbeet and I will fil~ :! t out and send· it
to th.e water company .. ·I trie.d twice before,· ·but 11othing liappened anyway, s:o
1· guess I .don 1 t feel o.tery qp'tim:i,.stic about any pt"ogress. in that area.
· t-Tell, I must c.lose, and I hope to hear from you soon.. Talc.e care.
Sincerely.
~%,4e4
a.o``le ~,. $cott
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Rosale Scott.
• November 1, 2013
Page 66
1 CAUSE NO. 13-06-0559-CVA
2 IVARENE HOSEK AND VICTOR ) IN THE DISTRICT
HOSEK, )
3 )
Plaintiffs )
4 )
VS. ) 81ST JUDICIAL DISTRICT
5 )
ROSALE SCOTT, )
6 )
Defendant ) ATASCOSA COUNTY, TEXAS
7
8 REPORTER'S CERTIFICATE
9 ORAL DEPOSITION OF ROSALE SCOTT
10 NOVEMBER 1, 2013
11
12 r; Sarah A. Prugh, Certified Shorthand Reporter in
13 and for the State of Texas, hereby certify to the
14 following:
15 That the witness, ROSALE SCOTT, was duly sworn and
hat the transcript of the deposition is a true record
the testimony given by the witness;
18 That the deposition transcript was duly submitted on
19 --~·\\~-~\``~-~\``~----- to the witness or to the attorney for
\
20 the witness for examination, signature, and return to me
21
22 That pursuant to information given to the deposition
23 officer at the time said testimony was taken, the
24 following includes all parties of record and the amount
25 of time used by each party at the time of the
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 76216
210-697-3400 210-697-3408
Electronically signed by Sarah Prugh (201-387-426·3•57) 6bd34b3b-f084-4322-a027-d4fd46JlQ1 b
Rosale S c o t .
• November 1, 2013
Page 67
1 deposition:
2 Mr. Robert J. Ogle (lh27m)
Attorney for Plaintiffs
3 Mr. G. Wade Caldwell (OhOm)
Attorney for Defendant
4
5 That a copy of this certificate was served on all
6 parties shown herein on and filed
7 with the Clerk.
8 I further certify that I am neither counsel for,
9 related to, nor employed by any of the parties in the
10 action in which this proceeding was taken, and further
11 that I am not ~inancially or otherwise .interested in the
12 outcome of this action.
13 Further certification requirements pursuant to
14; Rule 203 of the Texas Code of Civil Procedure will be
15 ' complied with after they have occurred.
16 Certified to by me on this lOth day of November,
17 2013.
18
19
20 Sarah A. Prugh, CSR
Texas CSR 3972
21 Expiration: 12/31/15
Firm Registration Number 631
22 Kim Tindall & Associates, LLC
645 Lockhill Selma, Suite 200
23 San Antonio, Texas 78216
210-697-3400
24
25
I
\
Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 76216
210-697-3400 210-697-3408
Electronically signed by Sarah Prugh (201·387-426-3457) 6bd34b3b-f084-4322-a027 -d4fd4si3!1 b
------------------------
.. Rosale S c o t t .
• November 1, 2013
Page 68
1 FURTHER CERTIFICATION UNDER TRCP RULE 203
2
3 The original depositio~was not returned to the
4 deposition officer on
5 If returned, the attached Changes and Signature
6 page(s) contain(s) ·any changes and the reasons therefor.
7 If returned, the original deposition was delivered
8 to Mr. Robert J. Ogle, Custodial Attorney.
9 $Q\D-dDis the deposition officer's charges to the
10 Plaintiffs for preparing the original deposition and any
11 copies of exhibits;
12 The deposition was delivered in accordance with Rule
13. 203.3, and a copy of this certificate, served on all
14 ' i
parties shown herein; was filed with the Clerk.
15 Certified to by me on this `` day of
16
17
18
19
20 ~...,~X\-~"''~ ByBW
21 Sarah A. Prugh, CSR
Texas CSR 3972
22 Expiration: 12/31/15
Firm Registration Number 631
23 Kim Tindall & Associates, LLC
645 Lockhill Selma, Suite 200
24 San Antonio, Texas 78216
210-697-3400
25
{
\
\
Kim Tindal.! and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216
210-697-3400 210-697-3408
Electronically signed by Sarah Prugh (201-387-426-3457) 6bd34b3b-f084-4322-a027-d4fd46&a1 b .