Case Number 01-14-00135-CV 

IN THE COURT OF APPEALS

FOR THE FIRST JUDICIAL DISTRICT OF TEXAS

AT HOUSTON

Peter Hardsteen, Paulina Mayberg Hardsteen, and Texas Farm Bureau

Insurance Company,

 Appellants,

vs.

Dean’s Campin’ Company,

 Appellee.

ON APPEAL FROM THE 506TH JUDICIAL DISTRICT COURT OF GRIMES COUNTY, TEXAS

CAUSE NO. 27885

APPELLANTS’ RESPONSE TO APPELLEE’S MOTION FOR LEAVE

BAKER BOTTS L.L.P.

Michael Cancienne

State Bar No. 24055256 

Caroline Carter

State Bar No. 24078318 

910 Louisiana Street 

Houston, Texas 77002-4995 

Telephone: (713) 229-6200 

Facsimile: (713) 229-6100 

michael.cancienne@bakerbotts.com

caroline.carter@bakerbotts.com 

Joe Falco, III

State Bar No. 06793001 

1903 Dove Crossing, Suite C 

P.O. Box 907 

Navasota, Texas 77868-0907 

Telephone: (936) 825-6533 

ATTORNEYS FOR APPELLANT 

TEXAS FARM BUREAU INSURANCE COMPANY

T. Ernest Freeman

State Bar No. 07431600 

The Freeman Law Firm, P.C.

1770 St. James Place, Suite 120

Houston, Texas 77056 

Telephone: (713) 973-1000 

Facsimile: (713) 229-2703 

ATTORNEY FOR APPELLANTS PETER 

HARDSTEEN AND PAULINE MAYBERG 

HARDSTEEN

ACCEPTED

01-14-00135-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

1/7/2015 9:53:11 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1/7/2015 9:53:11 AM CHRISTOPHER A. PRINE Clerk
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Appellee Dean’s Campin’ Company (“Appellee”) seeks leave to file a 

post-submission brief to make yet another attempt at reading key language out of 

the Settlement Agreement between Appellants Peter and Pauline Hardsteen and 

Texas Farm Bureau (“Appellants”) and Rexhall Industries, Inc. (“Rexhall”), which 

Appellee is seeking to enforce.1

 Appellants respectfully request that the Court 

deny Appellee’s motion because justice does not require the introduction of 

Appellee’s proposed brief, which rehashes arguments that Appellee previously 

made and attempts to provide the Court with yet another interpretation of the 

Settlement Agreement, which should have been raised in earlier briefing and at 

oral argument. TEX. R. APP. P. 38.7; Rogers v. City of Fort Worth, 89 S.W.3d 265, 

284 (Tex. App.—Fort Worth 2002, no pet.) (“Ordinarily, an issue raised for the 

first time in a post-submission brief is not preserved for appellate review.”) (citing 

Romero v. State, 927 S.W.2d 632, 634 n. 2 (Tex. 1996)).2

 

More importantly, Appellee’s latest attempt to interpret this 

Settlement Agreement fares no better than its earlier efforts. Appellee’s post-

 1 As argued in Appellants’ Brief and Reply, Appellee lacks standing to enforce the 

Settlement Agreement. Nevertheless, because Appellee’s post-submission brief only addresses 

the interpretation of the Settlement Agreement, Appellants will respond only to the issues raised 

in that brief. 

2 Appellee suggests that the issue it seeks to raise in its brief—the interpretation of the 

indemnity provision of the Settlement Agreement—was raised for the first time in rebuttal. See 

Post-Submission Brief at 1. To the contrary, this issue was discussed extensively in both 

Appellants’ initial presentation and Appellee’s presentation at oral argument. Appellee’s desire 

to have the last word on this issue does not entitle it to file a post-submission brief to present 

arguments that easily could have been raised during its argument. 
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submission brief makes clear that the only way the Settlement Agreement can be 

read to establish that Appellants owed a duty of indemnity to Rexhall is to ignore 

language from the indemnity provision limiting indemnity to specified situations 

“relating to the Occurrences or the Suit to the extent such parties may be found 

liable in any way to Plaintiff, Pauline Hardsteen or Intervenor.” 1 CR 688. 

Ignoring such language is contrary to Texas law requiring that a contract be read to 

give meaning to every term and that indemnity provisions be read in favor of the 

alleged indemnitor. 

A contract for indemnity is read as any other contract. In 

construing a contract, courts give the language its plain 

grammatical meaning unless it would defeat the intention 

of the parties. Indemnity agreements are strictly 

construed in favor of the indemnitor. This rule prohibits 

the extension, by construction or implication, of the 

indemnitor's obligations beyond the precise terms of the 

agreement. Strictly construing indemnity agreements is a 

rule of substantive law that applies only after the parties' 

intent has been ascertained through ordinary rules of 

construction. 

Kellogg Brown & Root Int’l, Inc. v. Altanmia Commercial Mktg. Co. W.L.L., No. 

CIV.A. H-07-2684, 2008 WL 5114962, at *19 (S.D. Tex. Dec. 3, 2008) (quotation 

marks and internal citations omitted); see also Appellants’ Brief at 21. Appellee’s 

argument that the final part of the indemnity provision can be ignored because the 

intent of the parties can be inferred from other language in the Settlement 

Agreement runs counter to these basic principles of contract interpretation and the 
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plain language of the Settlement Agreement. Moreover, it is unsupported by any 

evidence of the parties’ intent. 

To the extent that Appellee is attempting to imply that the Settlement 

Agreement is ambiguous, Appellee has presented no evidence in support of its 

interpretation of the agreement. If the Court finds that the Settlement Agreement is 

ambiguous, summary judgment was therefore inappropriate, and this case should 

be reversed and remanded. See Appellants’ Reply Brief at 6 n.2.3

PRAYER

In the event that the Court permits Appellee to file its brief, 

Appellants respectfully request that this Court consider the above response as a 

response to the brief.

 3 Despite making the bald assertion that the Settlement Agreement should be read against 

Appellants as its drafters, see Post-Submission Brief at 5, Appellee likewise presents no evidence

that Appellants were the drafters of this agreement. 
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RESPECTFULLY SUBMITTED,

BAKER BOTTS L.L.P.

By: /s/ Michael Cancienne____

Michael Cancienne

State Bar No. 24055256

Caroline Carter

State Bar No. 24078318

910 Louisiana Street

Houston, Texas 77002-4995

Telephone: (713) 229-6200

Facsimile: (713) 229-6100

michael.cancienne@bakerbotts.com

caroline.carter@bakerbotts.com

Joe Falco, III

State Bar No. 06793001

1903 Dove Crossing, Suite C

P.O. Box 907

Navasota, Texas 77868-0907 

Telephone: (936) 825-6533

ATTORNEYS FOR APPELLANT 

TEXAS FARM BUREAU

By: /s/ T. Ernest Freeman_____

T. Ernest Freeman

State Bar No. 07431600

The Freeman Law Firm, P.C.

1770 St. James Place, Suite 120

Houston, Texas 77056

Telephone: (713) 973-1000

Facsimile: (713) 229-2703

ATTORNEY FOR APPELLANTS PETER 

HARDSTEEN AND PAULINE MAYBERG 

HARDSTEEN
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CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that, 

according to the word count of the computer program used to prepare this 

document, the document contains 695 words.

/s/ Michael Cancienne

Michael Cancienne

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of January, 2015, a copy of the 

foregoing was served by electronic mail and certified mail, return receipt 

requested, on the following counsel of record:

Glenn J. Fahl

Fahl & Associates, P.C.

Attorneys at Law

3900 Essex Lane, Suite 330

Houston, Texas 77027

James A. Rodman

The Rodman Law Firm

1515 W. 35th Street, Building C

Austin, Texas 78703

/s/ Michael Cancienne

Michael Cancienne