IN THE

TENTH COURT OF APPEALS

No. 10-10-00269-CV

FREDERICK ALONGI AND SHERRY L. ALONGI,

Appellants

v.

ALEXA MICHELLE SCOTT MOSTELLER, 

BRONWYN SUZETTE SCOTT WALKER AND 

ERIK SHAWN SCOTT,

Appellees

From the 82nd District Court

Robertson County, Texas

Trial Court No. 07-05-17,809-CV

MEMORANDUM OPINION

Frederick and Sherry Alongi appeal from a judgment which granted a motion for 

summary judgment against them, denied their motion for summary judgment, and 

awarded attorney’s fees. The Alongis complain (1) that the trial court erred in its 

determination that three deed assignments were ambiguous as a matter of law and 

therefore were construed improperly, and (2) that the evidence was legally and 

factually insufficient to support the award of attorney’s fees. Because we find no 

reversible error, we affirm the judgment of the trial court.
Alongi v. Mosteller Page 2

Background

In 1997, Herbert B. Scott, Jr. executed three identical deed assignments of his 

mineral interest in his real property to his three children, giving each a 1/3 undivided 

interest. After Herbert Scott, Jr.’s death, the remaining interest in the property was 

conveyed to one of the three children, Erik Shawn Scott. Erik Scott conveyed the 

property to the Alongis in 2004 but retained a 1/2 interest in the mineral estate. In 2007, 

the Alongis filed an action for declaratory judgment and to quiet title regarding the 

ownership of the mineral interests in the property. The other two Scott children, Alexa 

Michelle Scott Mosteller and Bronwyn Suzette Scott Walker were named as parties in 

the Alongi’s suit, and they subsequently filed an action seeking a declaratory judgment 

between the three Scott children construing the three deed assignments.

All parties filed competing motions for summary judgment. The trial court 

granted the motion filed by the Scott children, found that the deed assignments were 

ambiguous, and reformed the deeds to convey an undivided 1/3 mineral interest to 

each. The trial court later awarded attorney’s fees to the Scott children to be paid by the 

Alongis. 

Construction of the Deeds 

In their first issue, the Alongis complain that the trial court erred by granting the 

Scott children’s motion for summary judgment and denying their motion for summary 

judgment based on a finding that the deeds were ambiguous as a matter of law. The 

Alongis complaint is limited to the trial court’s determination of ambiguity and they do 
Alongi v. Mosteller Page 3

not otherwise attack the trial court’s resolution of the ambiguity, which was to reform 

the deeds.

Ambiguity

Whether a deed is ambiguous is a question of law for the court, which we review 

de novo. Johnson v. Conner, 260 S.W.3d 575, 579 (Tex. App.—Tyler 2008, no pet.); Gore 

Oil Co. v. Roosth, 158 S.W.3d 596, 599 (Tex. App.—Eastland 2005, no pet.). A deed will 

be construed to confer upon the grantee the greatest estate that the terms of the 

instrument will permit. See Lott v. Lott, 370 S.W.2d 463, 465 (Tex. 1963); McMillan v. 

Dooley, 144 S.W.3d 159, 185 (Tex. App.—Eastland 2004, pet. denied); see also Jasper State 

Bank v. Goodrich, 107 S.W.2d 600, 602 (Tex. Civ. App.—Beaumont 1937, writ dism.w.o.j.) 

(“[T]he law can indulge the presumption that the grantor ‘intends to convey the tract to 

which he has title’ . . . when that presumption does not do violence to the language of 

the deed.”). A court’s primary goal when construing a deed is to ascertain the true 

intention of the parties as expressed in the “four corners” of the instrument. Luckel v. 

White, 819 S.W.2d 459, 461 (Tex. 1991). 

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 Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 

1980); Gore Oil Co., 158 S.W.3d at 599. However, if a written instrument remains 

reasonably susceptible to more than one meaning after the rules of interpretation have 

been applied, then the instrument is ambiguous. R & P Enters., 596 S.W.2d at 519; Gore 

Oil Co., 158 S.W.3d at 599.
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The Relevant Language

Three separate assignments were made by Herbert B. Scott, Jr., each to one of his 

three children. The pertinent language of each assignment states:

Grantor ... does hereby grant, bargain, sell, convey, assign, transfer, set 

over and deliver to Grantee and its successors and assigns one-third (1/3) 

of GRANTOR’S RIGHT, TITLE AND INTEREST in and to the Conveyed 

Assets described on the attached Exhibit A. As used herein, “Conveyed 

Assets” shall mean one-third of all of Grantor’s interests in and to: (i) onethird of all oil, gas, other hydrocarbons or other minerals, including but 

not limited to one-third of all oil, gas and mineral leasehold estates, and 

rights and interests in oil, gas and mineral leasehold estates, and rights 

and interests in oil, gas and mineral leases, one-third of all royalty 

interests, mineral fee interests, overriding royalty interests, production 

payment interests, reversionary interests, carried and net profits interests 

in oil, gas or other minerals, and one-third of all other interests payable 

out of or on account of oil, gas, other hydrocarbons or other mineral 

production; (ii) one-third of all presently existing unitization and pooling 

agreements and the properties covered and the units created thereby; (iii) 

one-third of all presently existing oil, casinghead gas and gas sales, 

purchase, exchange and processing contracts and agreements, operating 

agreements, farmouts, farmins or any other agreements related to the 

Conveyed Assets; (iv) and one-third of all oil wells, gas wells, water wells 

and injection wells, together with the rights incident thereto and the 

equipment and personal property thereon, appurtenant thereto, or used or 

obtained in connection with the Conveyed Assets. It is the intent of the 

Grantor to convey to the Grantee one-third of any and all interests of 

whatever kind or nature which Grantor owns in the Conveyed Assets.

Exhibit A contains a metes and bounds description of the property included in 

the assignments without reservation. The Alongis contend that the only interpretation 

that can be given to the assignments is that each assignment conveyed only a 1/27 

interest in the mineral estate rather than a 1/3 interest, which the Scott children 

contended that they owned. 
Alongi v. Mosteller Page 5

We agree with the trial court’s determination that the assignments were 

reasonably susceptible to more than one interpretation and were therefore, ambiguous. 

Therefore, the trial court did not err by granting the Scott children’s motion for 

summary judgment relating to the ambiguity of the assignments and denying the 

motion of the Alongis. The Alongis do not otherwise complain of the trial court’s 

granting of the motion for summary judgment after the finding of ambiguity or of the 

trial court’s reformation of the deeds. We overrule issue one. 

Attorney’s Fees

The Alongis complain that the trial court erred by awarding attorney’s fees to the 

Scott children because the evidence was legally and factually insufficient to sustain the 

award. The Alongis also seek a reversal and remand of the award of attorney’s fees 

based on the trial court’s improper granting of the motion for summary judgment; 

however, because we have overruled that issue, we will overrule this portion of the 

issue as well.

After the trial court granted the motions for summary judgment of the Scott 

children, the Scott children filed motions seeking attorney’s fees under the Declaratory 

Judgment Act with supporting affidavits attached signed by the attorneys. See TEX. CIV.

PRAC. & REMEDIES CODE ANN. § 37.009 (West 2008). The Alongis filed a response and 

objections to the motions. The trial court conducted a hearing where the Scott 

daughters’ and Erik Scott’s trial attorneys gave argument, as did counsel for the 

Alongis. No exhibits were offered or admitted into evidence during that hearing. The 

trial court took the issue under advisement and later issued an order that granted the 
Alongi v. Mosteller Page 6

motions in part. The Alongis filed an objection to the award and a request for findings 

of fact and conclusions of law, which the trial court signed.

The Alongis complain that the trial court erred by considering the affidavits filed 

by the Scott children that were attached to their motions because they were not formally 

offered or admitted into evidence. Further, the Alongis assert that the statements by the 

Scott children’s counsel did not constitute evidence because the statements were 

unsworn and therefore, were non-testimonial. Because of these errors, the Alongis 

contend that there was either no evidence or insufficient evidence to sustain the awards. 

The Alongis do not otherwise challenge the amount of the award or whether it was 

statutorily proper to award the attorney’s fees pursuant to the facts of the case. 

Admission of Evidence

 Many cases have held that evidence treated by the trial court and the parties as 

if it had been admitted is, for all practical purposes, admitted. See, e.g., Sanchez v. Bexar 

County Sheriff's Dep't, 134 S.W.3d 202, 203-04 (Tex. 2004) (per curiam) (commission 

record relied on as evidence by parties and court should be considered by appellate 

court even though not formally admitted into evidence); Texas Health Enters., Inc. v. 

Texas Dep't of Human Servs., 949 S.W.2d 313, 314 (Tex. 1997) (per curiam) (appellate 

court ordered to file administrative record that parties and court treated as admitted 

evidence although not formally tendered as evidence); Heberling v. State, 834 S.W.2d 

350, 355-56 (Tex. Crim. App. 1992) (exhibit placed before jury and referred to by 

witnesses sufficient to sustain verdict although not formally offered or admitted); 

Pickering v. First Greenville Nat'l Bank, 479 S.W.2d 76, 78 (Tex. Civ. App.—Dallas 1972, no 
Alongi v. Mosteller Page 7

writ) (exhibit that was marked, used, and referred to by attorneys and considered by 

trial court in rendering its decision was in evidence); Texas Dep't of Pub. Safety v. Latimer, 

939 S.W.2d 240, 242-43 (Tex. App.—Austin 1997, no writ) (trial court considered 

administrative record in making decision, both parties treated it as evidence, both 

referred to the record’s contents, and no objection was made that administrative record 

had not been admitted).

Analysis

Both attorneys for the Scott children referred to the affidavits attached to their 

motions in their statements to the trial court relating to the work performed on the case, 

the number of hours, and hourly rates requested. The argument put forth by the trial 

counsel for the Alongis called upon the trial court to deny the award based on the 

language of the statute. No objection was made to the consideration of the affidavits 

when they were referred to by the attorneys for the Scott children. The trial court 

referred to the substance of the affidavits in its findings of fact and conclusions of law, 

which were unchallenged by the Alongis in the trial court. We find that the trial court 

did not err by considering the substance of the affidavits because the Alongis waived 

any complaint to the affidavits by their failure to object to the trial court’s consideration 

of the affidavits. See TEX. R. APP. P. 33.1(a).

Reasonableness of Attorney’s Fees

The factors that courts have used to determine the reasonableness of attorneys’ 

fees include
Alongi v. Mosteller Page 8

(1) the time and labor required, the novelty and difficulty of the questions 

involved, and the skill required to perform the legal service properly;

(2) the likelihood . . . that the acceptance of the particular employment will 

preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances; 

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers 

performing the services; and

(8) whether the fee is fixed or contingent on results obtained or 

uncertainty of collection before the legal services have been rendered.

Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). The affidavits filed by the Scott 

children meet these requirements and are legally and factually sufficient to support the 

award. Because the affidavits are sufficient standing alone to support the award, it is 

not necessary for us to consider whether the unsworn statements of counsel at the 

hearing constituted evidence. We find that the trial court did not err in its award of 

attorney’s fees from the Alongis to the Scott children. We overrule issue two.

Conclusion

We find that the trial court did not err by granting the Scott children’s motion for 

summary judgment or in its award of attorney’s fees. We affirm the judgment of the 

trial court.

TOM GRAY

Chief Justice
Alongi v. Mosteller Page 9

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed July 13, 2011

[CV06]