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(~~·~~;:~~'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~ ~,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 ..r I I ., I .I I l I I I l •J I j· ... ·2 ,{ ·' :I :; l -Lj ... 79 · :IJ ·; ·i  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 .