ACCEPTED
12-15-00177-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/24/2015 9:40:01 AM
Pam Estes
CLERK
NO. 12-15-00177-CV
__________________________________________________
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE TWELFTH COURT OF APPEALS9/24/2015 9:40:01 AM
TYLER, TEXAS PAM ESTES
Clerk
__________________________________________________
WALTER BOUNDS and wife, CAROLYN BOUNDS,
Appellants and Cross-Appellees
v.
JOHN THOMAS PRUD'HOMME, JOSEPH GILBERT PRUD'HOMME,
JOSEPH LYNN PRUD'HOMME, PETER A. BREEN, Individually and as
Successor Trustee of the BREEN FAMILY TRUST, JANET M. SUTRO,
SUSAN E. BREEN, and TERRANCE E. BREEN, Individually and d/b/a
E.G. AND M.A. PRUD'HOMME BENEFICIARIES PARTNERSHIP,
Appellees and Cross-Appellants
__________________________________________________
BRIEF OF CROSS-APPELLANTS
__________________________________________________
Robert G. Hargrove
State Bar No. 24032391
rob@texasenergylaw.com
Osborn, Griffith & Hargrove
515 Congress Avenue, Suite 2450
Austin, Texas 78701
(512) 476-3529
(512) 476-8310 Facsimile
IDENTITY OF PARTIES AND COUNSEL
Defendants-Appellees/Cross Appellants:
John Thomas Prud'homme
Joseph Gilbert Prud'homme
Joseph Lynn Prud'homme
Peter A. Breen, Individually and as Successor Trustee of the Breen Family
Trust
Janet M. Sutro
Susan E. Breen
Terrence E. Breen
The E.G. and M.A. Prud'homme Beneficiaries Partnership
Trial and Appellate Counsel for Appellees/Cross Appellants:
Robert G. Hargrove
Osborn, Griffith & Hargrove
515 Congress Avenue, Suite 2450
Austin, Texas 78701
Additional Trial Counsel for Appellees/Cross Appellants:
J. Keith Stanley
Russell R. Smith
Fairchild, Price, Haley & Smith, LLC
P.O. Drawer 631668
Nacogdoches, Texas 75963
Plaintiffs-Appellants/Cross Appellees:
Walter Bounds and wife, Carolyn Bounds
Trial and Appellate Counsel for Appellants/Cross Appellees:
Thomas R. McLeroy, Jr.
P.O. Box 668
Center, Texas 75935
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL…………………………….….ii
INDEX OF AUTHORITIES……………………………………………......iv
STATEMENT OF THE CASE……………………………………………...v
STATEMENT REGARDING ORAL ARGUMENT……………………... vi
RECORD AND APPENDIX……………………………………………… vi
ISSUES ON APPEAL……………………………………………………..vii
BACKGROUND…………………………………………………………….1
STATEMENT OF FACTS…………………………………………………..2
ARGUMENT………………………………………………………………. 5
I. The Five Subsequent Deeds are not ambiguous, and they
reserve the mineral estate to their grantors…............................6
A. Standard of Review………..............................................6
B. The unambiguous terms of the five later executed deeds
make the grantors' intent to reserve the minerals clear….......... 7
CONCLUSION AND PRAYER………………………………………….. 10
CERTIFICATE OF COMPLIANCE………………………………………11
APPENDIX………………………………………………………………...12
iii
INDEX OF AUTHORITIES
Cases
Concord Oil Co. v. Pennzoil Exploration & Prod. Co., 966 S.W.2d
451, 455 (Tex. 1998) ................................................................................. 7,8
Dynegy Midstream Services Ltd. P'ship v. Apache Corp., 294 S.W.3d
164 (Tex. 2009). ........................................................................................... 6
Fisher v. Wynn, No. 12-11-00008-CV, 2011 WL 3338771 (Tex. App.
-- Tyler 2011, no pet.) (mem. op.). ............................................................... 6
Harris v. Windsor, 294 S.W.2d 798 (Tex. 1956) ............................................. 7
Johnson v. Connor, 260 S.W.3d 575 (Tex. App. -- Tyler 2008, no
pet.) ............................................................................................................... 6
Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991) ...................................... 7,8
National Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517 (Tex.
1995), citing Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) ......................... 6
Nevil v. TFW Management, Inc., No. 12-11-00023-CV, 2012 WL
220252 (Tex.App.—Tyler 2012, no pet.) (mem. op.) .................................. 8
R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517
(Tex. 1980) ................................................................................................... 7
iv
STATEMENT OF THE CASE
Nature of the Case: This is a deed construction case. Defendants-
Appellees/Cross-Appellants (the "Prud'homme
Group") sold roughly 126 acres of property in San
Augustine County to Plaintiffs-Appellants/Cross
Appellees ("Bounds") in 2001. Supp.CR209-222.
The property was conveyed from the Prud'homme
Group to Bounds by way of six Warranty Deeds.
Id. On October 8, 2013, Bounds filed his Original
Petition in the trial court, asserting that the
Warranty Deeds conveyed the mineral estate to
Bounds, and asking, in the alternative, that they be
reformed if the Court finds that the Warranty
Deeds reserved the mineral estate to their grantors.
Supp.CR5-65. The Prud'homme Defendants
answered, generally denying the Bounds claims,
and asserting that the statute of limitations barred
the potential reformation claim. Supp.CR66-69.
Trial Court: 1st District Court of San Augustine County, Texas;
The Honorable Craig M. Mixson presiding.
Course of Proceedings: The case was tried to the Court on February 25,
2015, and a Judgment was entered on March 9,
2015. Supp.CR202-208. By its Judgment, the
Court found that one of the six deeds was
unambiguous, that it reserved the mineral estate to
its grantors, and that Bounds could not prevail on
his attempt to reform the deed. Id. The
Prud'homme Group does not appeal those rulings.
The Judgment also found that the other five deeds
were ambiguous and did not reserve the mineral
estate to their grantors. Id. The Prud'homme
Group appeals those findings. Supp.CR225-226.
Findings of Fact and Conclusions of Law were
signed by the Court on May 6, 2015.
Supp.CR209-222
v
STATEMENT REGARDING ORAL ARGUMENT
This is a fairly straightforward case involving the construction of
deeds and the application of the statute of limitations. The Prud'homme
Group does not believe oral argument would significantly aid the decisional
process, and so they do not request oral argument. However, if the Court
decides that oral argument is appropriate, the Prud'homme Group would
request that it be permitted to participate.
RECORD AND APPENDIX
The record in this appeal includes a Clerk's Record and a
Supplemental Clerk's Record. Citations to each will be to page number:
CR___ or Supp.CR___. The record in this appeal includes a two-volume
Reporter's Record. Citations to it will be to volume and page number:
___RR___. The trial exhibits are found in Volume 2 of the Clerk's Record,
and they will be cited as P.Ex.__ or D.Ex.__.
The Appendix to this brief includes the following items:
Apx. A: Final Judgment
Apx. B: Findings of Fact and Conclusions of Law
Apx. C: Deed Form A (the initial deed – P.Ex.5)
Apx. D: Deed Form B (one of the subsequent deeds –
P.Ex.6)
vi
ISSUES ON APPEAL
1. Did the trial court err in ruling that a group of deeds from the
Prud'homme Group to Bounds was ambiguous?
2. Did the trial court err in construing those deeds to not reserve
the mineral estate to their grantors?
vii
TO THE HONORABLE COURT OF APPEALS:
BACKGROUND
This case, tried to the court, is a dispute over the construction of a
series of warranty deeds executed in 2001 to consummate a real estate
transaction in which the Prud'homme Group sold approximately 126 acres of
land in San Augustine County to Bounds.
The parties prepared and executed the deeds in two phases. A single
initial deed was prepared and executed which conveyed the majority of the
interest in the property. Later, five additional deeds were prepared and
executed, which conveyed the remainder of the interest in the property.
More than a decade after the transaction closed, Bounds asserted that
the mineral estate should have been conveyed to him in the transactions and
filed this lawsuit.
The trial court ruled in the Prud'homme Group's favor as to the initial
deed, both that it unambiguously did reserve the minerals to the Prud'homme
Group, and that Bounds could not reform it. The Prud'homme Group does
not appeal those rulings.
The trial court also ruled that the five subsequent deeds were
ambiguous, and the trial court construed them to convey the mineral estate to
Bounds. The Prud'homme Group does appeal those rulings.
1
STATEMENT OF FACTS
Immediately prior to May 22, 1971, E.G. Prud'homme, Sr. and his
wife, Mary Anderson Prud'homme, owned 100% of the surface estate, and an
undivided 50% of the mineral estate, with respect to 126.632 acres of land in
San Augustine County, Texas (hereafter the "126 acres"). CR83-96, FF No.
1.1
By way of a Deed dated May 22, 1971, Mr. and Mrs. Prud'homme
conveyed 100% of their surface interest and 50% of their mineral interest in
the 126 acres to Eck G. Prud'homme, Jr., Eleanor Prud'homme Breen, John
Thomas Prud'homme, Joseph Gilbert Prud'homme, and Joseph Lynn
Prud'homme DBA the E.G. and M.A. Prud'homme Beneficiaries Partnership.
CR83-96, FF No. 1; P.Ex.3. The five named individuals, who were the
partners in this Partnership, were their five children. 1RR109:3-110:1.
On or about July 4, 2001, The E.G. and M.A. Prud'homme
Beneficiaries Partnership entered into a contract to sell its interest in the 126
acres to Walter and Carolyn Bounds. CR83-96, FF No. 12.
Walter and Carolyn Bounds were represented by counsel, Mr. John
Griffin, with respect to their purchase of the 126 acres from the E.G. and
1
The Court's Findings of Fact and Conclusions of Law are in the Clerk's Record at Pages
83-96. The Prud'homme Group will cite to them by numbered Finding.
2
M.A. Prud'homme Beneficiaries Partnership. CR83-96, FF No. 13; P.Ex.27,
31:2-4.2
The Bounds' attorney, John Griffin, prepared the Warranty Deed, dated
September 7, 2001, by and between Eck. G. Prud'homme, Jr., Al Joseph
Breen, John Thomas Prud'homme, Joseph Gilbert Prud'homme, and Joseph
Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme Beneficiaries
Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as
Grantees. CR83-96, FF No. 14; P.Ex.5. That Deed was executed by its
Grantors on September 8, 2001 and on September 12, 2001. CR83-96, FF
No. 16; P.Ex.5.
The trial court ruled that this deed unambiguously reserved the
minerals to its grantors.
John Griffin also prepared a series of additional warranty deeds, all
executed about a month later by the descendants of Eleanor Prud’homme
Breen, one of the five children of Mr. and Mrs. Prud’homme. They are
described more specifically below.
John Griffin prepared the warranty deed dated September 7, 2001, by
and between Hal Joseph Breen, a single person, Individually and as Trustee of
the Breen Family Trust and Personal Representative under the Last Will of
2
Plaintiff's Exhibit 27 is a transcript of Mr. Griffin's deposition, the highlighted portions
of which were admitted into evidence at trial.
3
Eleanor P. Breen, as Grantor, and Walter Bounds and wife, Carolyn B.
Bounds, as Grantees. CR83-96, FF No. 20; P.Ex.6. That Deed was executed
on October 9, 2001. CR83-96, FF No. 21; P.Ex.6.
John Griffin prepared the Warranty Deed dated September 7, 2001, by
and between Peter A. Breen, Individually and as Successor Trustee of the
Breen Family Trust, as Grantor, and Walter Bounds and wife, Carolyn B.
Bounds, as Grantees. CR83-96, FF No. 23; P.Ex.7. That deed was executed
on October 9, 2001. CR83-96, FF No. 24; P.Ex.7.
John Griffin prepared the Warranty Deed dated September 7, 2001, by
and between Susan E. Breen, as Grantor, and Walter Bounds and wife,
Carolyn B. Bounds, as Grantees. CR83-96, FF No. 26; P.Ex.8. That Deed
was executed on October 5, 2001. CR83-96, FF No. 27; P.Ex.8.
John Griffin prepared the Warranty Deed dated September 7, 2001, by
and between Terence J. Breen, as Grantor, and Walter Bounds and wife,
Carolyn B. Bounds, as Grantees. CR83-96, FF No. 29; P.Ex.8A. That Deed
was executed on October 17, 2001. CR83-96, FF No. 30; P.Ex.8A.
John Griffin prepared the Warranty Deed dated September 7, 2001, by
and between Janet M. Breen Sutro, as Grantor, and Walter Bounds and wife,
Carolyn B. Bounds, as Grantees. CR83-96, FF No. 32; P.Ex.9. That Deed
was executed on October 9, 2001. CR83-96, FF No. 33; P.Ex.9.
4
The trial court ruled that this second group of deeds, executed in
October, 2001, were ambiguous and did not reserve the mineral estate to their
grantors.
Plaintiffs filed this lawsuit on October 8, 2013. CR83-96, FF No. 49;
Supp.CR5-65.
ARGUMENT
This transaction occurred in two phases. The first, which closed in
early September, 2001, conveyed the bulk of the interest in the 126 acres, by
way of a single Warranty Deed, which is Plaintiff's Exhibit 5.3 The Court
ruled, properly, that that Deed was not ambiguous. The Court construed that
Deed, properly, to reserve the mineral estate to the Prud'homme grantors.
The second phase of the transaction took place roughly one month
later. In it, descendants of one branch of the Prud'homme family (the Breens)
were asked to execute five subsequent deeds. Those Warranty Deeds are
Plaintiff's Exhibits 6, 7, 8, 8A, and 9. These deeds are identical to the original
deed with one exception. At the end of the property description section of the
deed, they contain the following sentence: "This deed is intended to convey
3
Also included in the Appendix at Apx.3.
5
all of Grantor's interest in and to the above-described real property." P.Ex.6,
for example.4
Since, as a matter of law, this added sentence neither renders the deeds
ambiguous nor un-does the clear mineral reservation that follows, the trial
court's rulings with respect to these deeds were incorrect.
I. The Five Subsequent Deeds are not ambiguous, and they reserve
the mineral estate to their grantors.
A. Standard of Review
Whether a deed is ambiguous is a question of law for the court, which
the Court of Appeals reviews de novo. Johnson v. Connor, 260 S.W.3d 575,
579 (Tex. App. -- Tyler 2008, no pet.). "If a written contract is so worded
that it can be given a definite or certain legal meaning then it is not
ambiguous." National Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517,
520 (Tex. 1995), citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
See also Fisher v. Wynn, No. 12-11-00008-CV, 2011 WL 3338771, *5 (Tex.
App. -- Tyler 2011, no pet.) (mem. op.). "A contract is not ambiguous
simply because the parties disagree over its meaning." Dynegy Midstream
Services Ltd. P'ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009).
4
Exhibits 6, 7, 8, 8A, and 9 are identical, other than their grantors.
6
Similarly, “The construction of an unambiguous deed is a question of
law for the court.” Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). A
court’s primary goal when construing a deed is to ascertain the intention of
the parties as expressed within the “four corners” of the instrument. Id. The
four corners rule requires the court to ascertain the intent of the parties solely
from the language of the instrument. See Concord Oil Co. v. Pennzoil
Exploration & Prod. Co., 966 S.W.2d 451, 455 (Tex. 1998) (“[T]he intent of
the parties must be determined from what they expressed in the instrument,
read as a whole, and . . . the actual, subjective intent of the parties will not
always be given effect even if we were able to discern that subjective
intent.”). If a written instrument, such as a deed, is worded in such a way
that “a court may properly give it a certain or definite legal meaning or
interpretation, it is not ambiguous.” R & P Enterprises v. LaGuarta, Gavrel
& Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980).
B. The unambiguous terms of the five later-executed deeds
make the grantors' intent to reserve the minerals clear.
To create a mineral reservation, no magic words are needed, and
absence of specific language is not determinative. Harris v. Windsor, 294
S.W.2d 798, 800 (Tex. 1956); Concord Oil Co. v. Pennzoil Exploration and
Prod. Co., 966 S.W.2d 451, 454 (Tex. 1998) (citing Luckel, 819 S.W.2d at
7
461-62); Nevil v. TFW Management, Inc., No. 12-11-00023-CV, 2012 WL
220252, *4 (Tex.App.—Tyler 2012, no pet.) (mem. opinion) (“absence of
any specific language” not indicative of the framer’s intent).
Here, all of the warranty deeds expressly and unambiguously reserved
all oil, gas, and other mineral rights to their grantors as follows:
Reservations from and Exceptions to Conveyance and
Warranty: TITLE to any of the oil, gas and other minerals, in,
under and that may be produced from the above-described real
property, together with all rights, privileges and immunities
relating thereto . . .
P.Exs. 5, 6, 7, 8, 8A, and 9. The trial court construed this language, and
found that it unambiguously reserved the minerals, as to the original deed
(Plaintiff's Exhibit 5).
The five subsequent Warranty Deeds differ from the initial deed only
in that they include a sentence that states: “This Deed is intended to convey
all of Grantor’s interest in and to the above-described real property.” P.Exs.
6, 7, 8, 8A, and 9. Under Texas law, this language must be harmonized with
the other parts of the deeds. Luckel v. White, 819 S.W.2d at 462. When
harmonized with the reservation-and-exception paragraph, the additional
language is a confirmation of the grantors’ general intent to convey the
property to the grantees, but as tempered by the mineral reservation.
8
This added sentence must be read in the context of the deed's
organizational structure. The sentence is located in the "Property" section of
the deed, immediately at the end of the metes and bounds description. The
next section of the deed is the "Reservations from and Exceptions to the
Conveyance and Warranty" section of the deed, which is set out above.
Following both of these sections, and activating them, is the granting clause.
In order to construe these deeds, and harmonize the added sentence
with the rest of the deeds, one must begin and end with the granting clause.
The granting clause reads:
Grantor, for the consideration and subject to the reservations
from and exceptions to the conveyance and warranty, grants,
sells, and conveys to Grantee, the property . . .
P.Exs.6, 7, 8, 8A, and 9. "Property" is a defined term, and its definition
includes the sentence which the trial court found created the ambiguity. The
granting clause makes it clear that the Grantor conveys to the Grantee the
Property, subject to the reservations. P.Exs. 6, 7, 8, 8A, and 9. By the
express terms of the granting clause, the added sentence cannot trump the
reservations. The property is conveyed subject to the reservations.
The language of the deeds themselves, then, resolves the issue that the
trial court found created the ambiguity. The language of the deeds
themselves also requires that the five subsequent deeds be construed just as
9
the initial deed must be: to reserve "TITLE to any of the oil, gas and other
minerals" to the deeds' grantors.
CONCLUSION AND PRAYER
The trial court's ambiguity ruling as to the five subsequently-executed
deeds cannot survive a careful reading of the deeds themselves, which make
it clear that any language in the property description must be construed
expressly subject to the mineral reservation. Accordingly, the Prud'homme
Group respectfully requests that the Court of Appeals reverse that portion of
the trial court's judgment that deals with these five subsequent deeds
(Plaintiff's Exhibits 6, 7, 8, 8A, and 9), and render judgment that those deeds
were unambiguous, and that they reserved any and all minerals to their
grantors.
Respectfully submitted,
OSBORN, GRIFFITH & HARGROVE
Robert G. Hargrove, SBN 24032391
515 Congress Avenue, Suite 2450
Austin, Texas 78701
(512) 476-3529
(512) 476-8310 Facsimile
rob@texasenergylaw.com
By: /s/ Robert G. Hargrove
Robert G. Hargrove
ATTORNEYS FOR
PRUD’HOMME DEFENDANTS
10
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document
is being served on the following persons through the electronic filing and
service system on this the 24th day of September, 2015.
Thomas R. McLeroy Jr.
SBN 13766800
P.O. Box 668
Center, Texas 75935
ATTORNEY FOR CROSS-APPELLEES
By: /s/ Robert G. Hargrove
Robert G. Hargrove
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing instrument was prepared using
Microsoft Word for Mac 2011, and that, according to its word-count
function, the sections of the foregoing pleading covered by TRAP 9.4(i)(1)
contain 2,054 words.
By: /s/ Robert G. Hargrove
Robert G. Hargrove
11
APPENDIX
Apx. A: Final Judgment (CR70-76)
Apx. B: Findings of Fact and Conclusions of Law (CR83-96)
Apx. C: Deed Form A (the initial deed – P.Ex.5)
Apx. D: Deed Form B (one of the subsequent deeds –P.Ex.6)
12
Apx. A
Cause No. CV-13-9488
WALTER BOUNDS and wife, § IN THE DISTRICT COURT
CAROLYN B. BOUNDS, §
Plaintiffs, §
§
v. §
§
JOHN THOMAS PRUD'HOMME, §
JOSEPH GILBERT PRUD'HOMME, § SAN AUGUSTINE COUNTY,
JOSEPH LYNN PRUD'HOMME, § TEXAS
PETER A. BREEN, Individually and as § FILED
Successor Trustee of the BREEN FAMILY
§§ f(f'J,'ooo'CLOCK~M
TRUST, JANET M. SUTRO, SUSAN E.
BREEN, and TERRANCE E. BREEN,
2:TIO 20-1:£.
§ JEAN STEitTOE Dislict Clerk
Individually and d/b/a E.G. AND M.A. ~ ~NAUGUST~S
PRUD'HOMME BENEFICIARIES
PARTNERSHIP, §
Defendants. § 1st JUDICIAL DISTRICT
JUDGMENT
On February 25, 2015, this cause came on to be heard. Walter Bounds and wife,
Carolyn Bounds, Plaintiffs, appeared in person and by attorney of record and announced
ready for trial, and John Thomas Prud'homme, Joseph Gilbert Prud'homme, Joseph Lynn
Prud'homme, Peter A. Breen, Individually and as Successor Trustee of the Breen Family
Trust, Janet M. Sutro, Susan E. Breen, and Terrance E. Breen, Individually and d/b/a/ E.G.
and M.A. Prud'homme Beneficiaries Partnership, Defendants, appeared in person and by
attorney of record and announced ready for trial. No jury having been demanded, all
questions of fact were submitted to the Court, and the case proceeded to trial.
The Court, after hearing the evidence and arguments of counsel, is of the opinion
and finds that:
JUDGMENT PAGE 1
70
(a) the Warranty Deed dated September 7, 2001, by and between Eck. G.
Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert
Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme
Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as
Grantees, recorded in the Records of San Augustine County, Texas in Volume 24, Page 20,
and admitted in evidence as Plaintiffs' Exhibit 5, is not ambiguous, and is hereby construed
to reserve to its Grantors any and all oil, gas, and other minerals owned by its Grantors with
respect to the property conveyed by the deed;
(b) the Plaintiffs should take nothing with respect to their cause of action to
reform the deed described above and admitted as Plaintiffs' Exhibit 5;
(c) the Warranty Deed dated September 7, 2001, by and between Hal Joseph
Breen, a single person, Individually and as Trustee of the Breen Family Trust and Personal
Representative under the Last Will of Eleanor P. Breen, as Grantor, and Walter Bounds and
wife, Carolyn B. Bounds, as Grantees, recorded in the Records of San Augustine County,
Texas in Volume 24, Page 25, and admitted in evidence as Plaintiffs' Exhibit 6, is
ambiguous, and is hereby construed to convey to its Grantees any and all oil, gas, and other
minerals owned by its Grantor with respect to the property conveyed by the deed;
(d) the Warranty Deed dated September 7, 2001, by and between Peter A.
Breen, Individually and as Successor Trustee of the Breen Family Trust, as Grantor, and
Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded in the Records of San
Augustine County, Texas in Volume 24, Page 28, and admitted in evidence as Plaintiffs'
Exhibit 7, is ambiguous, and is hereby construed to convey to its Grantees any and all oil,
JUDGMENT PAGE2
71
gas, and other minerals owned by its Grantor with respect to the property conveyed by the
deed;
(e) the Warranty Deed dated September 7, 2001, by and between Susan E.
Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded
in the Records of San Augustine County, Texas in Volume 24, Page 31, and admitted in
evidence as Plaintiffs' Exhibit 8, is ambiguous, and is hereby construed to convey to its
Grantees any and all oil, gas, and other minerals owned by its Grantor with respect to the
property conveyed by the deed;
(f) the Warranty Deed dated September 7, 2001, by and between Terence J.
Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded
in the Records of San Augustine County, Texas in Volume 24, Page 34, and admitted in
evidence as Plaintiffs' Exhibit 8A, is ambiguous, and is hereby construed to convey to its
Grantees any and all oil, gas, and other minerals owned by its Grantor with respect to the
property conveyed by the deed;
(g) the Warranty Deed dated September 7, 2001, by and between Janet M.
Breen Sutro, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees,
recorded in the Records of San Augustine County, Texas in Volume 24, Page 37, and
admitted in evidence as Plaintiffs' Exhibit 9, is ambiguous, and is hereby construed to
convey to its Grantees any and all oil, gas, and other minerals owned by its Grantor with
respect to the property conveyed by the deed;
(h) for purposes of this cause, the Deed dated May 22, 1971, by and between
E.G. Prud'homme, Sr. and wife, Mary Anderson Young Prud'homme, as Grantors, and Eck.
G. Prud'homme, Jr., Eleanor Prud'homme Breen, John Thomas Prud'homme, Joseph
JUDGMENT PAGE3
72
Gilbert Prud'homme, and Joseph Lynn Prud'homme OBA the E.G. and M.A. Prud'homme
Beneficiaries Partnership, as Grantees, recorded in the Records of San Augustine County,
Texas in Volume 166, Page 239, and admitted in evidence as Plaintiffs' Exhibit 3, is the
common source of title for the property described in Exhibit A to this Judgment. At the
time of this Deed, E.G. Prud'homme, Sr. and wife, Mary Anderson Young Prud'homme
owned an undivided fifty percent (50%) interest in the oil, gas, and other minerals in and to
the property described in Exhibit A to this Judgment;
(i) as a result of the findings and conclusions set out above, the deeds
referenced above and admitted in evidence as Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9
conveyed to Plaintiffs ten percent ( 10%) of the oil, gas, and other minerals in and to the
Property described in Exhibit A to this Judgment that the Defendants owned as of
September 7, 2001.
IT IS THEREFORE ORDERED that the Plaintiffs recover from the Defendants
title to and possession of an undivided five percent (5%) interest in and to the oil, gas, and
other minerals in and under the property described in Exhibit A to this Judgment, and have
a writ of possession.
IT IS FURTHER ORDERED that the Defendants recover from the Plaintiffs title to
and possession of an undivided forty-five percent (45%) interest in and to the oil, gas, and
other minerals in and under the property described in Exhibit A to this Judgment, and have
a writ of possession.
All costs of court spent or incurred in this cause are adjudged against the party
incurring same.
JUDGMENT PAGE4
73
All writs and processes for the enforcement and collection of this Judgment may
issue as necessary.
All relief requested in this cause and not expressly granted is denied. This
judgment finally disposes of all parties and claims and is appealable.
SIGNED ON 3 I 9..
~~~~~~~~~~~-
'2015.
JUDGMENT PAGES
74
EXHIBIT A: PROPERTY DESCRIPTION
BEING a survey of 126.632 acres of land and being all of a called
115-1/2 acre tract recorded in Vol. 105, Page No. 20, Deed Records
of San Augustine County, Texas, and being a part of the J. s.
COLLINS PRE-EMPTION SURVEY, A-445, and being located approximately
15 miles SW of the courthouse in San Augustine, Texas, and being
more particularly described by metes and bounds, to-wit:
BEGINNING: At the NW corner of said 115-1/2 acre tract being the NE
corner of a 72.00 acre tract now awned by w. L. Brown recorded in
Vol. 133, Page No. 468, a 3/8." Rein.L Rod for corner in the NWBL of
said J. S. Collins Surv'ey from which a 13" Sweetgum"found marked
mx 11 brs. N. 11 1/4 1 W, 10.6 feet and a 9a Pine found marked axu
brs. N 38-1/4 1 E, 18. 7 feet and a l()l!l Sweetgum. found marked "X"
brs. S 43 E, 24.00 feet;
THENCE; N 59" 0.9' 25" E, along the N'.BL of said 115-l/2 acre tract
and the SBL of a tract now owned by Kirby Lumber Co. and a well
marked line, 1364.63 feet a 3/8° Reinf. Rod for corner from which
a 14" Post Oak found marked ux~1 hrs. N 48 E, S. 9 feet;
THENCE: N 73° 43' OSN E, along a well marked line to a Pine knot
foUD.d set for corner, a distance of 59.57 feet from which a 12"
Sweetgum found :marked "X 11 bra. s 81 w, ll.3 feet;
THENCE: N 68° 31' 17ti B, along said well marked line to a Pine knot
found set for corner, a distance of 161.ll feet from which a 24A
Post. oak found marked "X" brs. N. 69-1/4 • E, 22. S .feet;
THENCE: N 72" 18' .18" E, along said well marked line to a Pine
knot found set for corner, a distance of 110.1 feet from which a
14~ Post Oak found marked 0 xa hrs. S 81-1/4 W, 15.5 feet;
1
THENCE: N 65~ 59 1 25° E, along said well marked line, 177.64 feet
a 3/8" Reinf. Rod. tor corner from which a is• Pine found marked rax•
brs. N 32-3/4' E, 5.7 feet and a 16M Pine found marked "X• brs. N
62-1/4' W, 16. oo feet;
THENCE: s sa~ 05 1 47 11 E, along said well marked line to a Pine knot.
found set for corner, a distance of 273.35 feet from which a 14~
Blackgum found marked •xN brs. N 58-1/2' W, 15.2 feet;
THENCE: S 49~ 38 1 48~ E, along said well marked line to a Pine knot
found set for corner, a distance of 194.30 feet a 14" Sweet Bay
found marked mxa brs. S 25 E, 25.7 feet;
THB!NC'E: S 8° 06' 20 6 E, along said well marked line to a Pine knot
found set for corner, a distance of 363.00 feet from which a 36"
Pen Q.ak found marked 11 X" brs. N 33-1/2' W, 1. 5 feet and a 1B" Pen
JUDGMENT PAGE6
75
Oak found marked "X 0 hrs. S 46 E, lS.3 feet;
THENCE: S 19 9 29 1 42" E, along said well marked line to a Pine knot
found set for corner, a distance of l 90. 97 feet a 14" Pen Oak
marked 11 ::< 11 brs. s. 79-l/2' w, 10.2 feet and a 5n Blackgurn marked
"X 111
hrs. s 67 E, 8.7';
THENCE~ S is<> 30' 35 11 W, along .lilaid well m.a.I"ked line, 114.09 feet
a 3/8 Reinf. Rod for comer from which a 12 11 Black.gum found marked
11
"Xm hrs. N 74-l/2' E, 4.5 feet;
THENCE: S 30° 55' ssm E, along said well marked line, 226.66 feet
a 3/8" Reinf. Rod for
corner from which a 3ou Pine marked 111 x 11 brs.
N 22-1/4' W, 6. 8 feet and a 12" Pine marked 11 x 11 brs. s 36 w, 26. 00
feet;
THENCE; s 30" 11' 35" ff, along sa.id well marked line, 367 .44 feet
a J/8 11 Reinf. Rod tor corner from which a lS" Sweetgum found marked
"X" hrs. S 58 w, 10.GO feet;
THRNCE: B 2 9 09' 56" E, along said well marked line to a Pine knot
found set for corner, a distance of 194.51 feet from which a au
Sweetgum found marked 11 x
11 bra. s 82 E, 12.1 feet;
THENCE1 s 9° 14' ia• E1 along said well marked line to a Pine knot
found set for corner, a distance of 230.23 feet from which a 14,0
Post oak found marked 11 x 11 brs. s 46-1/2' E, 5. 5 feet and a 121'1 Pen
oak found marked •x• brs. 45-1/2 1 w, 5.9 feet;
THENCE~ S 55° 52' 00" E, along said well marked line, 122.59 feet;
THl!!IifCEr s 39~ 57' 49" .E, along said well marked line, 298.43 feet
a 3/8q Reinf. Rod for corner from which a 24° Pine found marked qxn
hrs. N 56 E, 18.2 feet;
TlU3NCE: s 3"' 51 1 54 11 W, along said well marked line to a Pine knot
found set for corner, a distance of 382. 75 feet from which a 10''
Pine marked 11 x 11 brs. s 33 w, 11.S feet;
THENCE: S 31" 52' 54 11 E, along said well marked line to the SE
corner of said 115-1/2 a.ere tract, a distance of 21 7. 09 feet a
Mulberry atake: found set for corner from which a 24" Blackgum found
marked axo brs. S 58-1/2' W, 12.5 faet and a 12m Beech founa marked
"Xu brs. N 41 E, 9.5 feeti
THENCE: S 59° 12' 38 11 W, along the BBL of said 115-1/2 acre tract
and the SBL of aaid J'. S. Collins Survey and the NBL of M. B.
Griffith Survey, A-19 to the SW corner of said 115-1/2 acre tract
being the SE corner of said w. L. Brown 72 acre tract, a distance
of 1472.82 feet a flanged top axle found set for corner from which
a 10° Black Jack found marked •tx 11 brs. s 20 tl, 33. l feet and a 9•
Pine stump bra. N 70 w, 36.5 feet~
THENCE~ N 47~ 58 1 oon W, along a WBL of said 115-1/2 acre tract and
a EBL of said W. L. Brown 72 acre tract, 1212.50 feet a iron pipe
found set for corner from which a s• Hackhe.rry found marked "X"
brs. S Sl-1/2' E, 84.6 feet 0
THENCE: N 11" 37' w, along a WBL of said 115-1/2 acre tract and a
EBL of said w. L. Brown 72 acre tract, 1675.60 feet to the PLACB OF
BEGINNING, coutaining 126.632 acres of land.
JUDGMENT PAGE7
76
Apx. B
Cause No. CV-13-9488
WALTER BOUNDS and wife, § IN THE DISTRICT COURT
CAROLYN B. BOUNDS, §
Plaintiffs, §
§
v. §
§
JOHN THOMAS PRUD'HOMME, §
JOSEPH GILBERT PRUD'HOMME, § SAN AUGUSTINE COUNTY,
JOSEPH LYNN PRUD'HOMME, § TEXAS
PETER A. BREEN, Individually and as § FILED
Successor Trustee of the BREEN FAMILY § ATill.5_ O'CLOCK _l?M
TRUST, JANET M. SUTRO, SUSAN E. § .3.ZL-20~
JEAN STEPTOE Disiict Clerk
BREEN, and TERRANCE E. BREEN, § ~NAUGUSTlm
Individually and d/b/a E.G. AND M.A. §
PRUD'HOMME BENEFICIARIES §
PARTNERSHIP, §
Defendants. § 1st JUDICIAL DISTRICT
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On February 25, 2015, this cause came on for trial before the Court without a jury.
Walter Bounds and wife, Carolyn Bounds, Plaintiffs, appeared in person and by attorney of
record and announced n~ady for trial, and John Thomas Prud'homme, Joseph Gilbert
Prud'homme, Joseph Lynn Prud'homme, Peter A. Breen, Individually and as Successor
Trustee of the Breen Family Trust, Janet M. Sutro, Susan E. Breen, and Terrance E. Breen,
Individually and d/b/a/ E.G. and M.A. Prud'homme Beneficiaries Partnership, Defendants,
appeared in person and .by attorney of record and announced ready for trial. After
considering the pleadings, the evidence, the argument and briefs from counsel, the Court, in
response to a request from Plaintiffs, makes its findings of fact and conclusions of law as
follows:
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGEi
83
FINDINGS OF FACT
1. Immediately prior to May 22, 1971, E.G. Prud'homme, Sr. and wife, Mary
Anderson Prud'homme, owned 100% of the surface estate, and an undivided 50% of the
mineral estate, with respect to the 126.632 acres of land in San Augustine County, Texas,
described in more detail in Exhibit A to the Judgment in this case and to these Findings of
Fact and Conclusions of Law.
2. The property described in the attached Exhibit A will hereafter be referred
to as the "126 acres."
3. By way of a Deed dated May 22, 1971, E.G. Prud'homme, Sr. and wife,
Mary Anderson Prud'homme, conveyed 100% of their surface interest and 50% of their
mineral interest in the 126 acres to Eck G. Prud'homme, Jr., Eleanor Prud'homme Breen,
John Thomas Prud'homme, Joseph Gilbert Prud'homme, and Joseph Lynn Prud'homme
DBA the E.G. and M.A. Prud'homme Beneficiaries Partnership.
4. By way of the 1971 Deed described in FF 3, E.G. Prud'homme, Sr. and
Mary Anderson Prud'homme reserved to themselves one half of the minerals they owned in
and under the 126 acres.
5. The 1971 deed described in FF 3 was admitted in evidence at trial as
Plaintiffs' Exhibit 3.
6. E.G. Prud'homme, Sr. died in 1981.
7. When E.G. Prud'homme, Sr. died, his interest in the minerals reserved from
the 1971 conveyance of the 126 acres to the E.G. and M.A. Prud'homme Beneficiaries
Partnership passed one-half to Mary Anderson Prud'homme, and one-half to the Trustees of
the E.G. and M.A. Prud'homme Trust Fund.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE2
84
8. Mary Anderson Prud'homme died on May 5, 1988.
9. When Mary Anderson Prud'homme died, her interest m the minerals
reserved from the 1971 conveyance of the 126 acres to the E.G. and M.A. Prud'homme
Beneficiaries Partnership passed to the Trustees of the E.G. and M.A. Prud'homme Trust
Fund.
10. The E.G. and M.A. Prud'homme Trust Fund was established by a Trust
Agreement dated October 14, 1966.
11. The E.G. and M.A. Prud'homme Beneficiaries Partnership 1s a Texas
General Mercantile Partnership created as of the last day of January, 1971.
12. On or about July 4, 2001, The E.G. and M.A. Prud'homme Beneficiaries
Partnership entered into a contract to sell its interest in the 126 acres to Walter and Carolyn
Bounds.
13. Walter and Carolyn Bounds were represented by counsel, Mr. John Griffin,
with respect to their purchase of the 126 acres from the E.G. and M.A. Prud'homme
Beneficiaries Partnership.
14. John Griffin prepared a Warranty Deed, dated September 7, 2001, by and
between Eck. G. Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph
Gilbert Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme
Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as
Grantees.
15. The Warranty Deed dated September 7, 2001, by and between Eck. G.
Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert
Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE3
85
Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as
Grantees was admitted in evidence as Plaintiffs Exhibit 5.
16. The Warranty Deed dated September 7, 2001, by and between Eck. G.
Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert
Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme
Beneficiaries Partnership, _as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as
Grantees, was executed by its Grantors on September 8, 2001 and on September 12, 2001.
17. The Warranty Deed dated September 7, 2001, by and between Eck. G.
Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert
Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme
Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as
Grantees was recorded in the Records of San Augustine County, Texas in Volume 24, Page
20.
18. Gilbert Prud'homme has at all times served as the Managing Partner of the
E.G. and M.A. Prud'homme Beneficiaries Partnership.
19. At the time Gilbert Prud'homme executed the Warranty Deed dated
September 7, 2001, by and between Eck. G. Prud'homme, Jr., Al Joseph Breen, John
Thomas Prud'homme, Joseph Gilbert Prud'homme, and Joseph Lynn Prud'homme, d/b/a
E.G. and M.A. Prud'homme Beneficiaries Partnership, as Grantors, and Walter Bounds and
wife, Carolyn B. Bounds, as Grantees, he understood that it reserved the minerals in and
under the 126 acres to its grantors.
20. John Griffin prepared a warranty deed dated September 7, 2001, by and
between Hal Joseph Breen, a single person, Individually and as Trustee of the Breen
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE4
86
Family Trust and Personal Representative under the Last Will of Eleanor P. Breen, as
Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees.
21. Hal Joseph Breen executed the Warranty Deed dated September 7, 2001, by
and between Hal Joseph Breen, a single person, Individually and as Trustee of the Breen
Family Trust and Personal Representative under the Last Will of Eleanor P. Breen, as
Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees on October 9, 2001.
22. The Warranty Deed dated September 7, 2001, by and between Hal Joseph
Breen, a single person, Individually and as Trustee of the Breen Family Trust and Personal
Representative under the Last Will of Eleanor P. Breen, as Grantor, and Walter Bounds and
wife, Carolyn B. Bounds, as Grantees, was recorded in the Records of San Augustine
County, Texas in Volume 24, Page 25, and admitted in evidence as Plaintiffs' Exhibit 6.
23. John Griffin prepared the Warranty Deed dated September 7, 2001, by and
between Peter A. Breen, Individually and as Successor Trustee of the Breen Family Trust,
as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees.
24. Peter A. Breen executed the Warranty Deed dated September 7, 2001, by
and between Peter A. Breen, Individually and as Successor Trustee of the Breen Family
Trust, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees on
October 9, 2001.
25. The Warranty Deed dated September 7, 2001, by and between Peter A.
Breen, Individually and as Successor Trustee of the Breen Family Trust, as Grantor, and
Walter Bounds and wife, Carolyn B. Bounds, as Grantees, was recorded in the Records of
San Augustine County, Texas in Volume 24, Page 28, and admitted in evidence as
Plaintiffs' Exhibit 7.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGES
87
26. John Griffin prepared the Warranty Deed dated September 7, 2001, by and
between Susan E. Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as
Grantees.
27. Susan E. Breen executed the Warranty Deed dated September 7, 2001, by
and between Susan E. Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds,
as Grantees on October 5, 2001.
28. The Warranty Deed dated September 7, 2001, by and between Susan E.
Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, was
recorded in the Records of San Augustine County, Texas in Volume 24, Page 31, and
admitted in evidence as Plaintiffs' Exhibit 8.
29. John Griffin prepared the Warranty Deed dated September 7, 2001, by and
between Terence J. Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as
Grantees.
30. Terence J. Breen executed the Warranty Deed dated September 7, 2001, by
and between Terence J. ·Breen, as Grantor, and Walter Bounds and wife, Carolyn B.
Bounds, as Grantees on October 17, 2001.
31. The Warranty Deed dated September 7, 2001, by and between Terence J.
Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, was
recorded in the Records of San Augustine County, Texas in Volume 24, Page 34, and
admitted in evidence as Plaintiffs' Exhibit 8A.
32. John Griffin prepared the Warranty Deed dated September 7, 2001, by and
between Janet M. Breen Sutro, as Grantor, and Walter Bounds and wife, Carolyn B.
Bounds, as Grantees.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE6
88
33. Janet M. Breen Sutro executed the Warranty Deed dated September 7, 2001,
by and between Janet M. Breen Sutro, as Grantor, and Walter Bounds and wife, Carolyn B.
Bounds, as Grantees on October 9, 2001.
34. The Warranty Deed dated September 7, 2001, by and between Janet M.
Breen Sutro, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees,
recorded in the Records of San Augustine County, Texas in Volume 24, Page 37, and
admitted in evidence as Plaintiffs' Exhibit 9.
35. On November 5, 2001, a title insurance policy was issued, in favor of
Walter and Carolyn Bounds, with respect to the 126 acres.
36. The title insurance policy, described in FF 35, above, references "Mineral
Reservation as set forth in multiple Warranty Deeds from Eck G. Prud'homme, et al, to
Walter Bounds and wife, Carolyn Bounds, all dated September 7~ 2001, and recorded in the
Real Property Records of San Augustine County, Texas, as follows: Vol. 24, Page 20; Vol.
24, Page 25; Vol. 24, Page 28; Vol. 24, Page 31; Vol. 24, Page 34; and Vol. 24, Page 37."
37. The title insurance policy, described in FF 35, above, was provided to
Plaintiffs and their lawyer at or near the time of its issuance in November, 2001.
38. Plaintiff Walter Bounds, who owns and operates an insurance agency,
reviewed the title insurance policy, described in FF 35, above, at the time it was issued.
39. Effective April 29, 2008, Elite Landworks Association entered into a series
of oil and gas leases for the 126 acres with the various Prud'homme/Breen parties who had
been the grantors of the 2001 deeds described above and admitted in evidence as Plaintiffs'
Exhibits 5, 6, 7, 8, 8A, and 9.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE7
89
40. By various assignments, XTO Energy acquired Elite Landworks
Association's leasehold interest in the 126 acres.
41. The 2001 deeds executed in October, 2001 (i.e. Plaintiffs' Exhibits 6, 7, 8,
8A, and 9) contain a sentence in the property description not found in the first deed
(Plaintiffs' Exhibit 5), executed in September 2001: "This deed is intended to convey all of
Grantor's interest in and to the above-described real property."
42. The parties intended that these October-executed deeds (Plaintiffs' Exhibits
6, 7, 8, 8A, and 9) should not reserve the minerals to their grantors.
43. Plaintiffs Walter and Carolyn Bounds believed that, when they acquired the
126 acres from the Defendants in 2001, they were acquiring whatever mineral interest the
Defendants owned with re.spect to the 126 acres.
44. Defendants believed that, when they conveyed the 126 acres to the Plaintiffs
in 2001, they were reserving whatever mineral interest the Defendants owned with respect
to the 126 acres.
45. Plaintiffs and Defendants did not have identical intent and understanding of
the terms to be embodied in the 2001 deeds (Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9) at the
time those deeds were executed.
46. Plaintiffs Walter and Carolyn Bounds did not exercise reasonable diligence
with respect to their review of the 2001 deeds (Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9) by
which they acquired their interest in the 126 acres.
47. To the extent Plaintiffs believed that the 2001 deeds (Plaintiffs' Exhibits 5,
6, 7, 8, 8A, and 9) should have conveyed the minerals to the Plaintiffs, they were on notice
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGES
90
that the 2001 deeds (Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9) did not do so, or were
ambiguous, at the time the deeds were executed.
48. To the extent Plaintiffs believed that the 2001 deeds (Plaintiffs' Exhibits 5,
6, 7, 8, 8A, and 9) should have conveyed the minerals to the Plaintiffs, they were on notice
that the 2001 deeds (Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9) did not do so, or were
ambiguous, no later than early November, 2001, when they received the title insurance
policy.
49. Plaintiffs filed this lawsuit on October 8, 2013.
CONCLUSIONS OF LAW
1. The Warranty Deed dated September 7, 2001, by and between Eck. G.
Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert
Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme
Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as
Grantees, recorded in the Records of San Augustine County, Texas in Volume 24, Page 20,
and admitted in evidence as Plaintiffs' Exhibit 5, is not ambiguous.
2. The Warranty Deed dated September 7, 2001, by and between Eck. G.
Prud'homme, Jr., Al Joseph Breen, John Thomas Prud'homme, Joseph Gilbert
Prud'homme, and Joseph Lynn Prud'homme, d/b/a E.G. and M.A. Prud'homme
Beneficiaries Partnership, as Grantors, and Walter Bounds and wife, Carolyn B. Bounds, as
Grantees, recorded in the Records of San Augustine County, Texas in Volume 24, Page 20,
and admitted in evidence as Plaintiffs' Exhibit 5, is construed to reserve to its Grantors any
and all oil, gas, and other minerals owned by its Grantors with respect to the property
conveyed by the deed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE9
91
3. Plaintiffs' cause of action for reformation is barred by the statute of
limitations, as it was not brought within four years of the date it accrued.
4. As a matter of law, Plaintiffs' cause of action for reformation accrued at the
time the 2001 deeds (Plaintiffs' Exhibits 5, 6, 7, 8, 8A, and 9) were executed, as the deeds
were duly recorded and in Plaintiffs chain of title.
5. Plaintiffs' c;ause of action for reformation could have accrued no later than
early November, 2001, as at that time Plaintiffs knew, or in the exercise of reasonable
diligence should have known, that the deeds did not convey the minerals to them, or were
ambiguous.
6. Even if Plaintiffs' cause of action for reformation was not barred by
limitations, Plaintiffs would still not be entitled to reformation, as they did not prove by
clear, exact, and satisfactory evidence that that deeds' inclusion of language of mineral
reservation was the result of a mutual mistake.
7. The Warranty Deed dated September 7, 2001, by and between Hal Joseph
Breen, a single person, Individually and as Trustee of the Breen Family Trust and Personal
Representative under the Last Will of Eleanor P. Breen, as Grantor, and Walter Bounds and
wife, Carolyn B. Bounds, as Grantees, recorded in the Records of San Augustine County,
Texas in Volume 24, Page 25, and admitted in evidence as Plaintiffs' Exhibit 6, is
ambiguous, and is construed to convey to its Grantees any and all oil, gas, and other
minerals owned by its Grantor with respect to the property conveyed by the deed.
8. The Warranty Deed dated September 7, 2001, by and between Peter A.
Breen, Individually and as Successor Trustee of the Breen Family Trust, as Grantor, and
Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded in the Records of San
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 10
92
Augustine County, Texas in Volume 24, Page 28, and admitted in evidence as Plaintiffs'
Exhibit 7, is ambiguous, and is hereby construed to convey to its Grantees any and all oil,
gas, and other minerals owned by its Grantor with respect to the property conveyed by the
deed.
9. The Warranty Deed dated September 7, 2001, by and between Susan E.
Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded
in the Records of San Augustine County, Texas in Volume 24, Page 31, and admitted in
evidence as Plaintiffs' Exhibit 8, is ambiguous, and is construed to convey to its Grantees
any and all oil, gas, and other minerals owned by its Grantor with respect to the property
conveyed by the deed.
10. The Warranty Deed dated September 7, 2001, by and between Terence J.
Breen, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees, recorded
in the Records of San Augustine County, Texas in Volume 24, Page 34, and admitted in
evidence as Plaintiffs' Exhibit 8A, is ambiguous, and is construed to convey to its Grantees
any and all oil, gas, and other minerals owned by its Grantor with respect to the property
conveyed by the deed.
11. the Warranty Deed dated September 7, 2001, by and between Janet M.
Breen Sutro, as Grantor, and Walter Bounds and wife, Carolyn B. Bounds, as Grantees,
recorded in the Records of San Augustine County, Texas in Volume 24, Page 37, and
admitted in evidence as Plaintiffs' Exhibit 9, is ambiguous, and is construed to convey to its
Grantees any and all oil, gas, and other minerals owned by its Grantor with respect to the
property conveyed by the deed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 11
93
12. For purposes of this cause, the Deed dated May 22, 1971, by and between
E.G. Prud'homme, Sr. and. wife, Mary Anderson Young Prud'homme, as Grantors, and Eck.
G. Prud'homme, Jr., Eleanor Prud'homme Breen, John Thomas Prud'homme, Joseph
Gilbert Prud'homme, and Joseph Lynn Prud'homme DBA the E.G. and M.A. Prud'homme
Beneficiaries Partnership, as Grantees, recorded in the Records of San Augustine County,
Texas in Volume 166, Page 239, and admitted in evidence as Plaintiffs' Exhibit 3, is the
common source of title for the 126 acres. At the time of this Deed, E.G. Prud'homme, Sr.
and wife, Mary Anderson Young Prud'homme owned an undivided fifty percent (50%)
interest in the oil, gas, and other minerals in and to the 126 acres.
13. As a result of the findings and conclusions set out above, the deeds
referenced above and admitted in evidence as Plaintiffs' Exhibits 5, 6, 7, S, SA, and 9
conveyed to Plaintiffs ten percent (10%) of the oil, gas, and other minerals in and to the
126 acres that the Defendants owned as of September 7, 2001.
14. Since the Defendants owned '50% of the oil, gas, and other minerals in and
to the 126 acres as of September 7, 2001, as a result of the deeds referenced above and
admitted in evidence as Plaintiffs' Exhibits 5, 6, 7, S, SA, and 9, Plaintiffs acquired an
undivided five percent (5%) interest in the oil, gas, and other minerals in and to the 126
acres, and Defendants reserved an undivided forty-five percent (45%) interest in the oil,
gas, and other minerals in and to the 126 acres.
SIGNED ON _ _ 5i~'~·~-----·' 2015.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 12
94
EXHIBIT A: PROPERTY DESCRIPTION
BEING a survey of 126.632 acres of la.nd and being all of a called
115-1/2 acre tract recorded in Vol. 105, Page ~o. 20, Deed Records
of San Augustine COWlt:y, Texas, and being a pa.rt. ·Of the J. s.
COLLINS PRE~l!!MPTION SururEY, A-445, and being located approximately
15 miles sw of the courthouse in San Augu!!i!tine, Tex;ae, and being
more particularly described by metes and bounds, to=wit:
BE 30' 35 11 W,
along said well marked line, 114,09 feet
a 3 / e Reinf. Rod for corner from which a l.2 11 Black.gum found marked
11
"X" brs. N 74-1/2' E, 4.S feet;
THEMCE; S 30" .55 1 58 11 E, along said well marked. line, 2.26.66 feet
a 3/S" Reinf. Rod for corner from which a 3orr Pine marked 11 x 11 brs.
N 22-l/4' W, 6. 8 feet and a 12" Pine marked 1rxu brs1. s 36 w, 26. 00
feet;
s 3Q" 11 1 35 11 ii, along said! "t>Tell marked line, 357.4.4 feet
THE:NC:ii::
a 3/8" Reinf. :Rod for corner from which a 15" Sweet.gum fow::ld marked
nxn hrs. s 58 w., 10 + 00 :feet;
THENCE: s 2" 09r 56 11 E, along said well marked line to a Pine knot.
found set for cm:ner. a distance of 1.94. 5.1 feet from which a 8 11
Sweetgum fo11.Wd marked 11'X 1! brs. s 82 E, 12 .1 :feet;
THENCB: S 9° i4r ISM~, along said well marked line to a Pine knot
found set for corner, a. distance of 230.23 feet from which a 14 11
Post. oak found marked nxt1 brs. S 46-1/4' B.1 5.5 :feet and a 12lf Pen
Oak found marked 0 x 11 brs. 45-1/2 1 w, 5.9 feet;
THKNC!h S 55° 52 1 00 11 B, along said. well marked line, 122.59 feet;
'l'Hm.iJC.Et s. 39" 57 1 49" .E, along said well marked line, 298.43 feet
a 3/8 11 Re.inf. Rod for <:lo?:Uer f;rom i'zhich a 24° Pine found :marked 11 X11
brs. N.515 E, .:u.2 feet;
THENCE~ S 3 ° 51 1 54 11 W, along said well marked line to a .Pine knot
found set for corner, a distance of 382.75 feet from whiah a ion
J?ine marked 11 x 11 .brs. s 33 W1 11.s feet;
THENC:JS: S 31" 52 1 54m E, ·along said well :marked line to the BE
corner of said 115-l/.:!l acre tract 1 a distance of 217. 09 feet a
Mu1be:rry stake t:ound set for corner from which a 24n Bla.ckgum. found
marked "Xlf brs ..S 58-1/2' ff, 12 .5 fa.et and a 12° Beach found marked
lrj(U hrs. N 41. E, ~LS feet;
THENCE: S 59° 1.2' JBli w. along the BBL of said 115-1/2 acre tract
and the SBL of said J. S. Collins Survey and the NBL of M. B.
Griffith Survey, A-19 to the sw corner of $iJlid 115-l/2 acre tract
being the SE cor.ner of said ff. L. Brolffl 72 acre tract, a distance
of 1472.82 feet a flanged. top axle found set for corner from which
a 10 11 Bl.a.ck Ja.ck found marked 1tX 11 br.s. s 20 ff, 33.l feet and a 9 8
Pine stump brs. N 70 w, 36.5 feet;
TH~CE: N 47° sa• 00 11 W, along a mlt of said llS-1/2 acre tract and
a EBL of said W. L. Brown 72 acre tract, 1212.50 feet a iron pipe
found set for corner from which a a~ Hackberry found marked ~x·
brs. S S;l-1/:2:' E, 84.G feet;
THENCE: N 11° 37 1 w, along a m3L of said 115~1/2 acre; tract and a
EBL of said w. L. Brown '72 acre tra.ct, i675 . 60 feet to t.ll.e PLACE OF
BEGINNING, containing 126.632 acres of land.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 14
96
Apx. C
Apx. D