ACCEPTED
13-15-00012-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
5/22/2015 4:38:45 PM
DORIAN RAMIREZ
CLERK
CAUSE NO. 13-15-00012-CV
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
5/22/2015 4:38:45 PM
DORIAN E. RAMIREZ
Clerk
BENEDICT G. WENSKE AND ELIZABETH WENSKE
v.
STEVE EALY AND DEBORAH EALY
FROM THE 25m JUDICIAL DISTRICT COURT
OF LAVACA COUNfY, TExAs,
THE HONORABLE Wll..LIAM D. OLD, ill PRESIDING
APPELLANrS' REPLY BRIEF
ADAM T. USZY"NSKI
MEIER, BRADICICH & MOORE, ll.P
P.O. Box550
VICTORIA, TExAs 77902
(361) 573-4344
(361) 573-1040 (FAX)
ATTORNEY FOR APPELLANTS
CAUSE N0.13-15-00012-CV
BENEDICT G. WENSKE AND ELIZABETH WENSKE
v.
STEVE EALY AND DEBORAH EALY
FROM THE 2sm
JUDICIAL DISTRICf COURT
OF LAVACA COUNIT, TExAs,
THE HONORABLE Wll.LIAM D. OLD, ill PRESIDING
APPELLANT'S REPLY BRIEF
TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:
Appellants, Benedict G. Wenske and Elizabeth Wenske, respectfully submit
this Reply Brief in response to Appellee's Brief. Except when necessary for context,
Appellants do not repeat their arguments from their opening brief and confine their
reply to issues raised in Appellee's brief.
TABLE OF CONTENTS
Index of Authorities ............................................................................................................ ii
Introduction .......................................................................................................................... 1
Argument. ............................................................................................................................. 2
1. Appellee's argument ignores the granting clause of the deed
at issue and circumvents a correct construction of the deed
from its four corners as required under Texas law .........................2
2. There is no authority for the position taken by Appellees that
Appellants were required to add additional language in
order to transmit the burden of the previously reserved
non-participating royalty interest to the interests conveyed
to Appellees .......................................................................................... 4
Prayer ......................................................................................................................... 7
Certificate of Service .................................................................................................. 9
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INDEX OF AUTHORITIES
Cases
Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986) ......................................... 7
Bass v. Harper, 441 S. W.2d 825 (Tex. 1969)................................................... 4
Graham v. Prochaska, 429 S.W.3d 650, (Tex. App. - San Antonio, 2013) ..... 5
Pich v. Langford, 302 S.W.2d 645, 650 (Tex. 1957) ........................................ 5
Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 788 (Tex. 1995) .............. 5
Selman v. Bristow, 402 S.W.2d 520, 523 (Tex. 1966)...................................... 6
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INTRODUCTION
AppeHees go to great lengths to add additional steps to the straightforward analysis
of a straightforward problem. In doing so Appellees attempt to render the granting
clause of the deed at issue without effect rather than reading it in harmony within the
four corners of the deed. Appellees further try supplant controlling case law with
portions of distinguishable cases in an effort to circumvent the clear effect of the
language in the deed. The outcome Appellees seek is unsupported by any
controlling case law.
ARGUMENT
1. Appellee's argument ignores the granting clause of the deed at issue and
circumvents a correct construction of the deed from its four corners as
required under Texas law.
Appellees frame their argument based on the assertion that only two portions
of Appellants' deed to Appellees' control the interpretation of the deed. See
Appellees ' Brief, pg. 1. Appellees state that the only portions of the deed which are
relevant to the analysis and disposition of the case at bar are the paragraphs in the
deed entitled "Reservations from Conveyance" and "Exceptions to Conveyance and
Warranty." See Petitioner's Motion for Summary Judgment for Declaration of
Royalty Interests, Exhibit B.
Appellees' argument from this starting point overlooks the granting clause of
the deed entirely and precludes a correct review of the deed from its four comers
(see Appellants' Brief, pgs 9-11). In construing the deed these two clauses are vital;
however, the language set forth in the granting clause of the deed clearly
incorporates these two clauses and makes the grant in the deed subject to both of
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them.
1 The granting clause of the deed from Appell~n15 to Appellees sillies: "Grantor, for the Consideration and subject to the Reservations from Conveyance and the
Exceptions to Conveyance and Warranty,gran15, sells, and conveys to Grantee the Property, together with all and sin~:ular the rights and appurtenances thc~to in anyway
belonging, to lulve an to hold it to Grantee and Grantee's heirs. successors, and assigns fo~ver. Grantor binds Grantor and Grantor's heirs and successors to warrant and
fo~vcr defend all and singular the Property to Grantee and Grantee's heirs, successors. and assigns against every person whomsoever lilwfully claiming or to claim the
same or any part thc~or. except as to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty.'' Petitioner's Motion for Summary Judgment
for Declaration of Royalty lntc~s15, Ex. B. pg. 2
2
When Appellants, as Grantors, conveyed the property, they did so expressly
subject to the reservation and exceptions from warranty. Appellees are correct in
their assertion that an exception limits the estate granted; by virtue of the grant made
expressly subject to outstanding reservations and exceptions, the grant is made
subject to the burden of those reservations and exceptions.
Appellees go to great lengths in an attempt to avoid this four corners
construction of the deed; however, at the end of the analysis, a fair reading of the
deed requires that the deed be construed as presented by Appellants. An illustration
of this is clear from an examination of Appellees' argument. Appellees state that the
construction sought by Appellants is entirely possible but continue to argue
nonetheless that Appellants did not use "additional and unequivocal language which
would serve to negate longstanding rules of deed construction." See Appellees'
Brief, pgs. 10-12. Appellees however, cite no authority for this position whatsoever.
Appellees are left in the position of demanding further clarification without a legal
reason for requiring any further clarification.
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2. There is no authority for the position taken by Appellees that Appellants
were required to add additional language in order to transmit the
burden of the previously reserved non-participating royalty interest to
the interests conveyed to Appellees.
Appellees' attempts to distinguish Bass v. Harper as controlling the outcome
of the case at bar rely on trivial differences and are insufficient to do so. Among the
distinctions pointed out are that the Bass deed does not contain a reservation and that
the Bass deed conveys "all that ... one-half interest in and to ... " the subject property.
See Appellees' Brief, pgs. 23-24. These distinctions are immaterial to the outcome of
the case. It is perfectly acceptable to convey a half an interest in property to another
party under Texas law. If a party owning all of the mineral and all of the surface
interest in a tract of real property conveys half of that interest, has that party not, for
all intents and purposes, reserved a portion of that tract? The conveying party has
achieved the same result as would be achieved if the conveying party had drafted a
deed that conveyed all of the property subject to a reservation of one-half of their
interest in the property.
No case at bar can be expected to match the facts of the controlling case law
exactly; however, the analysis and result reached in Bass v. Harper fits the facts of
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the case at bar far closer than the cases cited by Appellee in support of Appellee's
position.
In Pich v. Langford, the Supreme Court submitted in dicta at the end of the
opinion that the royalty interest adjudged to one of the parties would be carved
proportionately from the two mineral ownerships. Pich v. Langford, 302 S.W.2d
645, 650 (Tex. 1957). The decision in Pich was based on whether or not the
exception language in successive conveyances correctly referenced prior
reservations as either interests in minerals in place or interests in royalty. Id at
339-342. Pich was based on a far more complex factual background stemming from
an entirely different cause of action at the trial court level. ld at 337.
Notwithstanding that, the language relied on by Appellees is clearly dicta as the
Court offered no analysis as to why that outcome would be correct, which leaves any
conclusion based on that language in the opinion on very unstable legal footing.
Similarly, the other cases cited by Appellees are also distinguishable. For
example, Plainsman Trading Co. v. Crews addressed a question of ownership of
uranium deposits. Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 788 (Tex.
1995). In Graham v. Prochaska, the San Antonio Court of Appeals addressed a
question of whether a reservation of a specified amount of royalty was either fixed or
floating. Graham v. Prochaska, 429 S.W.3d 650, (Tex. App. - San Antonio, 2013).
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Likewise, in Selman v. Bristow, the plaintiff-grantors did not disclose the
existence of an outstanding royalty interest when they made their conveyance to
grantee-defendants - a key factual distinction the Tyler Court of Appeals relied upon
in reaching its conclusion. Selman v. Bristow, 402 S. W.2d 520, 523 {Tex. 1966) The
conclusion in Selman is dependent on a Duhig analysis and the petitioner-grantor
was charged with the entire burden of the unexcepted royalty reservation while the
defendant-grantee was given the benefit of the remaining 3/4ths interest in minerals
(which presumably included the mineral estate)./d at 524.
If Selman provides an example of the penalty for failing to disclose a prior
reservation, then what is the reward? Appellees have already stated (in the trial court
and now on appeal) that Appellants can tax them entirely with the burden ofthe prior
royalty reservation but have failed to do so because Appellants didn't do so
expressly according to a standard which their authority does not support. See
Defendants Motion for Traditional Summary Judgment, Paragraph 17. The answer
to the above question, under the law of this state, is that the grantor is rewarded with
the receipt of the benefit of his full reservation, which in the case at bar is an
"undivided 3/8ths of all oil, gas, and other minerals in and under and that may be
produced from the Property." These benefits include the right to develop, the right to
lease, the right to receive bonus payments, the right to receive delay rentals, and the
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right to receive royalty payments on 3/8ths of the oil, gas and other minerals
Appellants reserved for themselves. See Altman v. Blake, 712 S.W.2d 117, 118 (Tex.
1986).
PRAYER
Appellants, Benedict G. Wenske and Elizabeth Wenske, respectfully request
that the trial court's judgment be reversed and rendered.
Respectfully submitted,
MEIER, BRADICICH & MOORE, LLP
111. S. Main
P.O. Box 550
Victoria, Texas 77902
Telephone: (361 )573-4344
Telecopier: (361)573-1040
E-mail: adamu@victoriatxlawyers.com
by: «------ /=--... .:
Adam T. lts;ynski
State Bar No. 24069182
ATTORNEY FOR APPELLANTS
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CERTIFICATE OF COMPLIANCE
WITH TEXAS RULE OF APPELLATE PROCEDURE 9.49(i)(3)
The undersigned certifies that the foregoing document contains 1,690 words,
exclusive of the contents excluded under Tex. R. App. P. 9.4(i)(l ).
£~L
ADAM T. USZYNSKI
-_
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CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of Appellant's Brief
was forwarded to all parties as indicated below in accordance with the Texas Rules
of Appellate Procedure on the Cit)~ day of Jl1a.. 14 , 2015 as
follows: t
ADAM T. USZYNSKI
Robert C. McKay
State Bar No. 13690800
Bobby M. Maiden
State Bar No. 24088893
McKay & Coffey, LLP
One O'Connor Plaza, Ste. 305
P.O. Box 2469
Victoria, Texas 77902-2469
Telephone: 361-894-8975
Telecopier: 361-894-8973
Email: rmckay@mckaycoffey.com
Email: bmaiden@mckaycoffey.com
Thomas F. Lillard
State Bar No. 12352900
Lillard Wise Szygenda, PLLC
5949 Sherry Lane, Suite 1255
Dallas, Texas 75225
Telephone: 214-739-2007
Telecopier: 214-739-2010
Email: tlillard@lwsattomeys.com
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