ACCEPTED
03-15-00051-CV
5156207
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/5/2015 1:17:11 PM
JEFFREY D. KYLE
CLERK
03-15-0051-CV FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE COURT OF APPEALS FOR THE5/5/2015 1:17:11 PM
THIRD APPEALS DISTRICT OF TEXAS JEFFREY D. KYLE
Clerk
SITTING AT AUSTIN, TEXAS
TRENT LINDIG,
Appellant,
v.
PLEASANT HILL ROCKY COMMUNITY CLUB,
Appellee.
On Appeal from the 33rd District Court, Blanco County, Texas
Hon. J. Alan Garrett, presiding; Cause No. CV 07580
APPELLEE’S BRIEF
Norman L. Nevins Jeff Small
State Bar No. 14936000 State Bar No. 00793027
THE NEVINS LAW FIRM LAW OFFICE OF JEFF SMALL
206 West Main St. 12451 Starcrest Dr, Suite 100
Fredericksburg, TX 78624 San Antonio, TX 78216.2988
830.990.0557/F: 830.990.0559 210.496.0611/f: 210.579.1399
nnevinslaw@yahoo.com jdslaw@satx.rr.com
COUNSEL FOR APPELLEE
TABLE OF CONTENTS
INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Have the circumstances occurred to trigger the reverter clause in the
1927 Albert Lindig Deed?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The trial court properly found that the possibility of reverter set out in
the 1927 Deed never occurred and, thus, Trent Lindig cannot
demonstrate superior title as he must to prevail on his trespass to try
title claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. The construction of a deed is based on what it actually says
not what the grantor meant, but failed to say.. . . . . . . . . . . . . . 5
B. The limitation in the deed here — the possibility of reverter
— must be strictly construed against Trent to give PHRCC the
largest estate possible and avoid a forfeiture if another reasonable
construction is possible.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. The contested clause in Albert Lindig’s 1927 Deed specifies
only one limitation resulting in a reverter — the property reverts
only if the “School house is removed from said land.”.. . . . . . . . 7
D. Stewart v. Blain was wrongly decided, but even if it were
not, the language here has a significant difference.. . . . . . . . . . 8
CONCLUSION and PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ii
INDEX OF AUTHORITIES
Cases
Alford v. Krum,
671 S.W.2d 870 (Tex. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Criswell v. European Crossroads Shopping Center, Ltd.,
792 S.W.2d 945 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Curdy v. Stafford,
88 Tex. 120, 30 S.W. 551 (1895).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Dahlberg v. Holden,
238 S.W.2d 699 (Tex. 1951). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Davis v. Skipper,
83 S.W.2d 318 (Tex. 1935). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Fair v. Arp Club Lake, Inc.,
437 S.W.3d 619 (Tex. App.— Tyler 2014, no pet.). . . . . . . . . . . . . . . . 5
Hedick v. Lone Star Steel Co.,
277 S.W.2d 925 (Tex. Civ. App.–
Texarkana 1955, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Humble Oil & Ref. Co. v. Harrison,
146 Tex. 216, 205 S.W.2d 355 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Hunt v. Heaton,
643 S.W.2d 677 (Tex. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Jones v. N.Y. Guar. & Indem. Co.,
101 U.S. 622 (1879). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Land v. Turner,
377 S.W.2d 181 (Tex. 1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Luckel v. White,
819 S.W.2d 459 (Tex. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
iii
Martin v. Amerman,
133 S.W.3d 262 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rogers v. Ricane Enters.,
884 S.W.2d 763 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Stewart v. Blain,
159 S.W. 928 (Tex. Civ. App. – Galveston 1913, no writ).. . . . . . . . . . 8
Terrell v. Graham,
576 S.W.2d 610 (Tex. 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Terrill v. Tuckness,
985 S.W.2d 97 (Tex. App.--San Antonio 1998, no pet.).. . . . . . . . . . . 5
Statutes
TEX. PROP. CODE § 22.001(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Other Authorities
14 TEX.JUR., sec. 138, p. 138. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
http://dictionary.reference.com/browse/but.. . . . . . . . . . . . . . . . . . . . . . . . 9
http://legal-dictionary.thefreedictionary.com/precatory. . . . . . . . . . . . . . . 9
http://tinyurl.com/p84zxnw. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
http://www.thesaurus.com/browse/but.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iv
ISSUE PRESENTED
Have the circumstances occurred to trigger the reverter clause in the
1927 Albert Lindig Deed?
STATEMENT OF FACTS
Appellee Pleasant Hill-Rocky Community Club (“PHRCC”) takes issue
with Appellant Trent Lindig’s1 statement of facts. Trent presents as fact self-
serving statements on disputed issues including, among other things,
statements regarding the payment of taxes and the grant of permission.
PHRCC will set forth only the very few facts necessary to establish the context
of the current controversy – has the possibility of reverter as drafted by Albert
Lindig in his 1927 Deed been triggered.
Albert Lindig, Trent’s great-grandfather, executed a deed on September
10, 1927 conveying a parcel of land to J.C. Goar, T.E Patton, Scott Klett, J.J.
Fuchs and Gus Artzt, the Blanco County Board of Trustees and their
successors in office. CR 96. That deed is recorded at Volume 44, Page 467-
468, in the Official Public Records of Real Property of Blanco County, Texas
(the “Property”). CR 96. From 1927 until 1951 or 1952, the Trustees used the
Property as a school. CR 32, 56-57.
On August 4, 1952, the Blanco County Board of Trustees at the time,
1
Because there are other Lindig men referred to here, this brief will refer to Appellant Trent
Lindig by his first name for the Court’s ease of reference.
1
Aaron Posey, Edgar Heins, Joyce Goar, C.W. Freer and Oscar Jones, Jr.,
executed a deed and conveyed the Property to Louis Lindig, Alfred Brodbeck,
August Ludwig, Earnest Petri, Levi Deike, Emil Hartmann and Walter Ludwig
and their successors in office, as Trustees of the Pleasant Hill Improvement
Association, to be maintained and cared for “as a Community Center for the
benefit of Pleasant Hill Community in Blanco County, Texas.” CR 41-42.
Neither the 1952 Blanco County Board of Trustees nor the 1952 Trustees of the
Pleasant Hill Improvement Association, including Louis Lindig, Albert’s
brother, thought they were violating the 1927 Deed in that the 1952
conveyance made explicit reference to the 1927 Deed and Albert’s reversionary
interest contained in it. See CR 56-57.
Referring to the 1927 Deed, the 1952 Deed states that the conveyance is
“for as long as the above described premises are used for Public and
Community purposes.” CR41, 44-45. E.D. Harrison, County Judge, Blanco
County, Texas, witnessed and acknowledged the signatures of the Pleasant
Hill Improvement Association Trustees on the 1952 Deed, and it was recorded
in the Blanco County deed records on August 8, 1952. CR42.
The Pleasant Hill Improvement Association took possession of the
Property in 1952 and, later changed its name from Pleasant Hill Improvement
Association to Pleasant Hill-Rocky Community Club. CR 60-61. The Property
2
has been used for public and community purposes continuously since 1952.
CR 62-63. Since 1958, the Pleasant Hill-Rocky Community Club (“PHRCC”)
has continuously presented an annual benefit dinner, called the Smorgasbord
with all of the proceeds being given to Pleasant Hill-Rocky community
charitable organizations and causes the entire time. CR 61.
Whether the Property was used for school purposes was never
questioned from 1952 to 2013, even by the Lindigs who are, or were, members
of the PHRCC, until a commercial enterprise offered to rent the school
property from Trent. CR 61, 63.
3
SUMMARY OF THE ARGUMENT
A limitation such as the possibility of reverter contained in the 1927
Deed at issue here is strictly construed against the grantor to give the grantee
the largest estate possible and to avoid a forfeiture whenever another
reasonable interpretation is possible. In construing a grantor’s intent, this
Court is bound to interpret the language actually used as opposed to inferring
what the grantor may have meant, but failed to say.
That said, any uncertainty in the construction of Albert Lindig’s 1927
Deed must be resolved against him and his heirs. While Albert referred to
“school purposes,” there is a clear separation between those expressions and
the reverter clause, which states only one limitation/reverter – the removal of
the school building.
Accordingly, this Court should strictly interpret the 1927 Deed in favor
of Pleasant Hill-Rocky Community Club and affirm the trial court’s judgment
that the possibility of reverter has not occurred.
4
ARGUMENT
The trial court properly found that the possibility of reverter set
out in the 1927 Deed never occurred and, thus, Trent Lindig cannot
demonstrate superior title as he must to prevail on his trespass to
try title claim.
“The [Trespass to Try Title] statute expressly provides that it is "the
method for determining title to . . . real property.” Martin v. Amerman, 133
S.W.3d 262, 267 (Tex. 2004) (quoting TEX. PROP. CODE § 22.001(a) (emphasis
added)); see Fair v. Arp Club Lake, Inc., 437 S.W.3d 619, 623-24 (Tex. App.—
Tyler 2014, no pet.).
To recover in a trespass to try title action, the plaintiff must recover
upon the strength of his own title. Hunt v. Heaton, 643 S.W.2d 677, 679
(Tex. 1982); Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964). The
plaintiff may recover (1) by proving a regular chain of conveyances from
the sovereign, (2) by proving a superior title out of a common source, (3)
by proving title by limitations, or (4) by proving prior possession, and
that the possession has not been abandoned. Turner, 377 S.W.2d at 183.
Rogers v. Ricane Enters., 884 S.W.2d 763, 768 (Tex. 1994).
A. The construction of a deed is based on what it actually
says not what the grantor meant, but failed to say.
Construction of an unambiguous deed is a question of law. Terrill v.
Tuckness, 985 S.W.2d 97, 101 (Tex. App.--San Antonio 1998, no pet.) (noting
that rules of contract construction ordinarily apply to construction of a deed).
“The primary duty of the courts in interpreting a deed is to ascertain the intent
of the parties.” Alford v. Krum, 671 S.W.2d 870, 872 (Tex. 1984) (citing
5
Terrell v. Graham, 576 S.W.2d 610, 612 (Tex. 1979)). A deed is subject to the
same rules of interpretation and construction as a contract. See Luckel v.
White, 819 S.W.2d 459, 461-62 (Tex. 1991).
“[T]he question is not what the parties meant to say, but the meaning of
what they did say.” Alford, 671 S.W.2d at 872. This Court “must construe
th[e] language as it is written and [cannot] alter it by interpolation or
substitution.” See Dahlberg v. Holden, 238 S.W.2d 699, 701 (Tex. 1951).
B. The limitation in the deed here — the possibility of
reverter — must be strictly construed against Trent to give
PHRCC the largest estate possible and avoid a forfeiture if
another reasonable construction is possible.
“A court of equity abhors forfeitures, and will not lend its aid to enforce
them.” Jones v. N.Y. Guar. & Indem. Co., 101 U.S. 622, 628 (1879).
“Covenants or restrictive clauses in instruments concerning real estate must
be construed strictly, favoring the grantee and against the grantor, and all
doubts should be resolved in favor of the free and unrestricted use of the
premises.” Davis v. Skipper, 83 S.W.2d 318, 321 (Tex. 1935). Any doubt in
construction must be interpreted in favor of the grantee to avoid forfeiture if
another reasonable interpretation is available. Criswell v. European
Crossroads Shopping Center, Ltd., 792 S.W.2d 945, 948 (Tex. 1990).
The only possibility of reverter in the 1927 Deed focuses on the school
“building” and its presence on the site conveyed to the Trustees, NOT the
6
property’s school “use” or “purpose.” CR 96. If Albert Lindig intended for the
property to revert if the property was no longer used for school purposes, he
could have included that stipulation in the reverter clause just as easily as he
mentioned it in other places in the document. He did not! See CR 96.
C. The contested clause in Albert Lindig’s 1927 Deed
specifies only one limitation resulting in a reverter — the
property reverts only if the “School house is removed from
said land.”
Trent’s four-corners argument urging the Court to “harmonize” the
language of the deed ignores the only sentence that is relevant to the
limitation analysis — the reverter clause — and that clause never mentions
“school purposes.” See CR 96. The only possibility of reverter in the 1927 Deed
and the only language at issue here is the following:
But it is understood that in case the said School House or any other
house which may be built and used for a School house is removed from
said land herein described then the said above described land shall
revert back to me, my heirs, assigns or legal representatives.
CR 96.
“The language of a deed is the language of the grantor, and if there be a
doubt as to its construction, it should be resolved against him.” Curdy v.
Stafford, 88 Tex. 120, 123, 30 S.W. 551, 552 (1895); see Hedick v. Lone Star
Steel Co., 277 S.W.2d 925, 928 (Tex. Civ. App.– Texarkana 1955, writ ref’d
n.r.e.) (citing 14 TEX.JUR., sec. 138, p. 138; Humble Oil & Ref. Co. v. Harrison,
7
146 Tex. 216, 224, 205 S.W.2d 355 (1947)).
Had Albert Lindig intended for the property to revert if it failed to be
used as a school, it was incumbent upon him to say so. He did not!
D. Stewart v. Blain was wrongly decided, but even if it were
not, the language here has a significant difference.
In order to arrive at the decision it did, the Stewart v. Blain court had
to go beyond the express language of the deed. See, e.g., Stewart v. Blain, 159
S.W. 928, 930-31 (Tex. Civ. App. – Galveston 1913, no writ) “Neither of the
parties to the deed had in mind any such distinction. . . . It seems to us that
these provisions mean . . .”). Rather than relying on the words actually used,
the Stewart court attempted to divine what the parties meant from what it
thought the parties intent to be. See id. To rule as it did, the Stewart court
had to go one step beyond the language used and infer that the drafter of the
deed intended the failure to use the schoolhouse as a school was the same as
“the removal of the school house” from the property thereby triggering the
reversion of the property. See id. at 931.
A strict construction of the deed at issue there would not permit such an
inference because there, as here, the language of the deed must be resolved
against the drafter. Stewart v. Blain is wrong because the court made its
decision based on what the court concluded the drafter meant to say, rather
than upon the words actually used.
8
Even so, Albert’s references here to the use of the property for “school
purposes” are not part of the reverter clause. See CR 96. And there is a clear
separation between the references to “school purposes” and the sole clause of
limitation, which would result in a reversion to Albert or his heirs. The
possibility of reverter clause here, unlike the expressions of purpose in
Stewart v. Blain, is distinctly separate from Albert’s “school purpose”
expressions. Here the reversion limitation is a separate sentence introduced
by the word “but.” See CR 96.
In Albert’s 1927 Deed “but” is “used to introduce something contrasting
2
with what has already been mentioned.” Among many others, “but” is
synonymous with “yet, nevertheless, nonetheless, even so, however, still,
notwithstanding” all of which connote a contrast with what has preceded it.3
What has gone before in the 1927 Deed are precatory statements,4 which have
no bearing on the possibility of reverter because they are separate and distinct
2
http://tinyurl.com/p84zxnw
3
http://tinyurl.com/p84zxnw ; http://dictionary.reference.com/browse/but (“But, however,
nevertheless, still, yet are words implying opposition (with a possible concession). But marks an
opposition or contrast, though in a casual way: We are going, but we shall return.”) ( emphasis in
original); http://www.thesaurus.com/browse/but.
4
“precatory” adj. referring to a wish or advisory suggestion which does not have the force
of a demand or a request which under the law must be obeyed.
http://legal-dictionary.thefreedictionary.com/precatory
9
clauses and are nothing more than advisory.
CONCLUSION and PRAYER
Ascertaining Albert Lindig’s intent from the context and words actually
used, the Court must assume that his failure to include the “use of the
property for school purposes” as a limiting condition in the reverter clause
means that only one thing can trigger the reversion and that is what the Deed
actually states — the removal of the School house from the property.
Accordingly, Appellee Pleasant Hill-Rocky Community Club respectfully
asks that this Court find as a matter of law that the possibility of reverter has
not occurred and that the Court affirm the judgment of the trial court.
Respectfully submitted,
/S/ Jeff Small
Norman L. Nevins Jeff Small
State Bar No. 14936000 State Bar No. 00793027
THE NEVINS LAW FIRM LAW OFFICE OF JEFF SMALL
206 West Main St. 12451 Starcrest Dr, Suite 100
Fredericksburg, TX 78624 San Antonio, TX 78216.2988
830.990.0557/F: 830.990.0559 210.496.0611/f: 210.579.1399
nnevinslaw@yahoo.com jdslaw@satx.rr.com
Counsel for Appellee Pleasant Hill Rocky Community Club
10
CERTIFICATE OF COMPLIANCE
In accordance with Texas Rule of Appellate Procedure 9.4, by signature below
I certify that the foregoing computer-generated brief contains 2069 words.
CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of May 2015, a true and correct copy of
Appellee’s was served on counsel of record/interested parties in accordance
with the Texas Rules of Civil Procedure.
Samuel V. Houston, III Zachary P. Hudler
State Bar No. 24041135 State Bar No. 24032318
HOUSTON DUNN, PLLC ZACHARY P. HUDLER, P.C.
4040 Broadway, Suite 440 100 E. Pecan Street, Suite One
San Antonio, Texas 78209 Johnson City, Texas 78636
210.775.0882/f: 210.826.0075 830.868.7651/f: 830.868.7636
sam@hdappeals.com zachary@hudlerlaw.com
Counsel for Appellant Trent Lindig
/S/ Jeff Small
Jeff Small
Norman L. Nevins
11
Trent Lindig v. Pleasant Hill Rocky Community Club
Combined Opinion