Frederick Alongi and Sherry L. Alongi v. Alexa Michelle Scott Mosteller, Bronwyn Suzette Scott Walker and Erik Shawn Scott

IN THE
TENTH COURT OF APPEALS
No. 10-10-00269-CV
FREDERICK ALONGI AND SHERRY L. ALONGI,
Appellants
v.
ALEXA MICHELLE SCOTT MOSTELLER,
BRONWYN SUZETTE SCOTT WALKER AND
ERIK SHAWN SCOTT,
Appellees
From the 82nd District Court
Robertson County, Texas
Trial Court No. 07-05-17,809-CV
MEMORANDUM OPINION
Frederick and Sherry Alongi appeal from a judgment which granted a motion for
summary judgment against them, denied their motion for summary judgment, and
awarded attorney’s fees. The Alongis complain (1) that the trial court erred in its
determination that three deed assignments were ambiguous as a matter of law and
therefore were construed improperly, and (2) that the evidence was legally and
factually insufficient to support the award of attorney’s fees. Because we find no
reversible error, we affirm the judgment of the trial court.
Background
In 1997, Herbert B. Scott, Jr. executed three identical deed assignments of his
mineral interest in his real property to his three children, giving each a 1/3 undivided
interest. After Herbert Scott, Jr.’s death, the remaining interest in the property was
conveyed to one of the three children, Erik Shawn Scott. Erik Scott conveyed the
property to the Alongis in 2004 but retained a 1/2 interest in the mineral estate. In 2007,
the Alongis filed an action for declaratory judgment and to quiet title regarding the
ownership of the mineral interests in the property. The other two Scott children, Alexa
Michelle Scott Mosteller and Bronwyn Suzette Scott Walker were named as parties in
the Alongi’s suit, and they subsequently filed an action seeking a declaratory judgment
between the three Scott children construing the three deed assignments.
All parties filed competing motions for summary judgment. The trial court
granted the motion filed by the Scott children, found that the deed assignments were
ambiguous, and reformed the deeds to convey an undivided 1/3 mineral interest to
each. The trial court later awarded attorney’s fees to the Scott children to be paid by the
Alongis.
Construction of the Deeds
In their first issue, the Alongis complain that the trial court erred by granting the
Scott children’s motion for summary judgment and denying their motion for summary
judgment based on a finding that the deeds were ambiguous as a matter of law. The
Alongis complaint is limited to the trial court’s determination of ambiguity and they do
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not otherwise attack the trial court’s resolution of the ambiguity, which was to reform
the deeds.
Ambiguity
Whether a deed is ambiguous is a question of law for the court, which we review
de novo. Johnson v. Conner, 260 S.W.3d 575, 579 (Tex. App.—Tyler 2008, no pet.); Gore
Oil Co. v. Roosth, 158 S.W.3d 596, 599 (Tex. App.—Eastland 2005, no pet.). A deed will
be construed to confer upon the grantee the greatest estate that the terms of the
instrument will permit. See Lott v. Lott, 370 S.W.2d 463, 465 (Tex. 1963); McMillan v.
Dooley, 144 S.W.3d 159, 185 (Tex. App.—Eastland 2004, pet. denied); see also Jasper State
Bank v. Goodrich, 107 S.W.2d 600, 602 (Tex. Civ. App.—Beaumont 1937, writ dism.w.o.j.)
(“[T]he law can indulge the presumption that the grantor ‘intends to convey the tract to
which he has title’ . . . when that presumption does not do violence to the language of
the deed.”). A court’s primary goal when construing a deed is to ascertain the true
intention of the parties as expressed in the “four corners” of the instrument. Luckel v.
White, 819 S.W.2d 459, 461 (Tex. 1991).
If a written instrument, such as a deed, is worded in such a way that a court may
properly give it a certain or definite legal meaning or interpretation, it is not
ambiguous. R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex.
1980); Gore Oil Co., 158 S.W.3d at 599. However, if a written instrument remains
reasonably susceptible to more than one meaning after the rules of interpretation have
been applied, then the instrument is ambiguous. R & P Enters., 596 S.W.2d at 519; Gore
Oil Co., 158 S.W.3d at 599.
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The Relevant Language
Three separate assignments were made by Herbert B. Scott, Jr., each to one of his
three children. The pertinent language of each assignment states:
Grantor … does hereby grant, bargain, sell, convey, assign, transfer, set
over and deliver to Grantee and its successors and assigns one-third (1/3)
of GRANTOR’S RIGHT, TITLE AND INTEREST in and to the Conveyed
Assets described on the attached Exhibit A. As used herein, “Conveyed
Assets” shall mean one-third of all of Grantor’s interests in and to: (i) one-
third of all oil, gas, other hydrocarbons or other minerals, including but
not limited to one-third of all oil, gas and mineral leasehold estates, and
rights and interests in oil, gas and mineral leasehold estates, and rights
and interests in oil, gas and mineral leases, one-third of all royalty
interests, mineral fee interests, overriding royalty interests, production
payment interests, reversionary interests, carried and net profits interests
in oil, gas or other minerals, and one-third of all other interests payable
out of or on account of oil, gas, other hydrocarbons or other mineral
production; (ii) one-third of all presently existing unitization and pooling
agreements and the properties covered and the units created thereby; (iii)
one-third of all presently existing oil, casinghead gas and gas sales,
purchase, exchange and processing contracts and agreements, operating
agreements, farmouts, farmins or any other agreements related to the
Conveyed Assets; (iv) and one-third of all oil wells, gas wells, water wells
and injection wells, together with the rights incident thereto and the
equipment and personal property thereon, appurtenant thereto, or used or
obtained in connection with the Conveyed Assets. It is the intent of the
Grantor to convey to the Grantee one-third of any and all interests of
whatever kind or nature which Grantor owns in the Conveyed Assets.
Exhibit A contains a metes and bounds description of the property included in
the assignments without reservation. The Alongis contend that the only interpretation
that can be given to the assignments is that each assignment conveyed only a 1/27
interest in the mineral estate rather than a 1/3 interest, which the Scott children
contended that they owned.
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We agree with the trial court’s determination that the assignments were
reasonably susceptible to more than one interpretation and were therefore, ambiguous.
Therefore, the trial court did not err by granting the Scott children’s motion for
summary judgment relating to the ambiguity of the assignments and denying the
motion of the Alongis. The Alongis do not otherwise complain of the trial court’s
granting of the motion for summary judgment after the finding of ambiguity or of the
trial court’s reformation of the deeds. We overrule issue one.
Attorney’s Fees
The Alongis complain that the trial court erred by awarding attorney’s fees to the
Scott children because the evidence was legally and factually insufficient to sustain the
award. The Alongis also seek a reversal and remand of the award of attorney’s fees
based on the trial court’s improper granting of the motion for summary judgment;
however, because we have overruled that issue, we will overrule this portion of the
issue as well.
After the trial court granted the motions for summary judgment of the Scott
children, the Scott children filed motions seeking attorney’s fees under the Declaratory
Judgment Act with supporting affidavits attached signed by the attorneys. See TEX. CIV.
PRAC. & REMEDIES CODE ANN. § 37.009 (West 2008). The Alongis filed a response and
objections to the motions. The trial court conducted a hearing where the Scott
daughters’ and Erik Scott’s trial attorneys gave argument, as did counsel for the
Alongis. No exhibits were offered or admitted into evidence during that hearing. The
trial court took the issue under advisement and later issued an order that granted the
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motions in part. The Alongis filed an objection to the award and a request for findings
of fact and conclusions of law, which the trial court signed.
The Alongis complain that the trial court erred by considering the affidavits filed
by the Scott children that were attached to their motions because they were not formally
offered or admitted into evidence. Further, the Alongis assert that the statements by the
Scott children’s counsel did not constitute evidence because the statements were
unsworn and therefore, were non-testimonial. Because of these errors, the Alongis
contend that there was either no evidence or insufficient evidence to sustain the awards.
The Alongis do not otherwise challenge the amount of the award or whether it was
statutorily proper to award the attorney’s fees pursuant to the facts of the case.
Admission of Evidence
Many cases have held that evidence treated by the trial court and the parties as
if it had been admitted is, for all practical purposes, admitted. See, e.g., Sanchez v. Bexar
County Sheriff's Dep't, 134 S.W.3d 202, 203-04 (Tex. 2004) (per curiam) (commission
record relied on as evidence by parties and court should be considered by appellate
court even though not formally admitted into evidence); Texas Health Enters., Inc. v.
Texas Dep't of Human Servs., 949 S.W.2d 313, 314 (Tex. 1997) (per curiam) (appellate
court ordered to file administrative record that parties and court treated as admitted
evidence although not formally tendered as evidence); Heberling v. State, 834 S.W.2d
350, 355-56 (Tex. Crim. App. 1992) (exhibit placed before jury and referred to by
witnesses sufficient to sustain verdict although not formally offered or admitted);
Pickering v. First Greenville Nat'l Bank, 479 S.W.2d 76, 78 (Tex. Civ. App.—Dallas 1972, no
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writ) (exhibit that was marked, used, and referred to by attorneys and considered by
trial court in rendering its decision was in evidence); Texas Dep't of Pub. Safety v. Latimer,
939 S.W.2d 240, 242-43 (Tex. App.—Austin 1997, no writ) (trial court considered
administrative record in making decision, both parties treated it as evidence, both
referred to the record’s contents, and no objection was made that administrative record
had not been admitted).
Analysis
Both attorneys for the Scott children referred to the affidavits attached to their
motions in their statements to the trial court relating to the work performed on the case,
the number of hours, and hourly rates requested. The argument put forth by the trial
counsel for the Alongis called upon the trial court to deny the award based on the
language of the statute. No objection was made to the consideration of the affidavits
when they were referred to by the attorneys for the Scott children. The trial court
referred to the substance of the affidavits in its findings of fact and conclusions of law,
which were unchallenged by the Alongis in the trial court. We find that the trial court
did not err by considering the substance of the affidavits because the Alongis waived
any complaint to the affidavits by their failure to object to the trial court’s consideration
of the affidavits. See TEX. R. APP. P. 33.1(a).
Reasonableness of Attorney’s Fees
The factors that courts have used to determine the reasonableness of attorneys’
fees include
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(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the legal service properly;
(2) the likelihood . . . that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been rendered.
Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). The affidavits filed by the Scott
children meet these requirements and are legally and factually sufficient to support the
award. Because the affidavits are sufficient standing alone to support the award, it is
not necessary for us to consider whether the unsworn statements of counsel at the
hearing constituted evidence. We find that the trial court did not err in its award of
attorney’s fees from the Alongis to the Scott children. We overrule issue two.
Conclusion
We find that the trial court did not err by granting the Scott children’s motion for
summary judgment or in its award of attorney’s fees. We affirm the judgment of the
trial court.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 13, 2011
[CV06]
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