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.

O N A PPEAL FROM THE 506 TH J UDICIAL D ISTRICT C OURT OF G RIMES C OUNTY , T EXAS C AUSE N O

. 27885

APPELLANTS’ RESPONSE TO APPELLEE’S MOTION FOR LEAVE

B AKER B OTTS 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

A TTORNEYS FOR A PPELLANT T EXAS F ARM B UREAU I NSURANCE C OMPANY 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

A TTORNEY FOR A PPELLANTS P ETER H ARDSTEEN AND P AULINE M AYBERG H ARDSTEEN ACCEPTED 01-14-00135-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 1/7/2015 9:53:11 AM CHRISTOPHER PRINE

CLERKActive 17532678 2 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 Industrie s, 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 previo usly
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. T EX

. R. A PP

. 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 attem pt 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 th e 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.Active 17532678 3 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 cont ract, 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, o f 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.

Kello gg 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 fi nal 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 theActive 17532678 4 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 agre ement. 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

P RAYER
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.Active 17532678 5 R ESPECTFULLY S UBMITTED ,

B AKER B OTTS 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

A TTORNEYS FOR A PPELLANT T EXAS F ARM B UREAU
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

A TTORNEY FOR A PPELLANTS P ETER H ARDSTEEN AND P AULINE M AYBERG H ARDSTEENActive 17532678 6 C ERTIFICATE OF C OMPLIANCE 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

C ERTIFICATE OF S ERVICE 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