Brief of Appellee EOG Res. & Cent. Tex. Land Servs. i 

No. 12-14-00262-CV

in the

Twelfth Court of Appeals 

Tyler, Texas

Charles and Mary Lou Alford,

Appellants, 

v.

Robert Thomas McKeithen; EOG Resources, Inc.; 

and Central Texas Land Services,

Appellees. 

Appealed from the District Court

of San Augustine County, Texas

Appellee’s Brief 

of EOG and Central Texas Land Services

Jason R. Mills

Bar No. 24041494

Graham K. Simms

Bar No. 24060610

Joshua C. Ashley

Bar No. 24078161

Freeman Mills PC Oral Argument 

110 N. College, Ste. 1400 Conditionally Requested

Tyler, Texas 75702

903.592.7755 phone

903.592.7787 fax

jmills@freemanmillspc.com

gsimms@freemanmillspc.com 

jashley@freemanmillspc.com

ACCEPTED

12-14-00262-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

7/10/2015 3:09:49 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 7/10/2015 3:09:49 PM CATHY S. LUSK Clerk
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. ii 

PARTIES & COUNSEL

Appellant: Charles and Mary Lou Alford

Appellant’s Counsel: Tom Rorie

(trial & appellate) Attorney at Law

210 North Street

Nacogdoches, Texas 75961

936.559.1188 phone

936.559.0099 fax

_____________________________________________

Appellee: Robert Thomas McKeithen

Appellee’s Counsel: Noel D. Cooper

(trial & appellate) Law Offices of Noel D. Cooper

117 North Street, Ste. 2

Nacogdoches, Texas 75961

936.564.9000 phone

936.715.6022 fax

Bill McWhorter

Bill McWhorter & Associates

119 North Street, Ste. A

Nacogdoches, Texas 75961–5200

936.564.2676 phone

936.564.6455 fax

Appellee: EOG Resources, Inc.

Central Texas Land Services

Appellees’ Counsel: Jason R. Mills

(trial & appellate) Graham K. Simms

Joshua C. Ashley

Freeman Mills PC

110 North College, Ste. 1400

Tyler, Texas 75702

903.592.7755 phone

936.592.7787 fax
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. iii 

CONTENTS

Parties & Counsel ........................................................................................ ii

Contents..................................................................................................... iii

Authorities....................................................................................................v

Statement Regarding Oral Argument .........................................................viii

Issues...........................................................................................................ix

Introduction..................................................................................................1

Facts.............................................................................................................2

A. In 2003, the Alfords bought the Jessups’ pasture and home site. .........2

B. No one mentioned minerals in the handshake deal..............................2

C. The deed the Alfords were shown at closing contains a mineral 

reservation in Exhibit A, but the Alfords did not read it. .....................3

D. The Alfords sue nearly a decade later, seeking title through the 

interpretation of the deed....................................................................3

E. The trial court rules that the deed is ambiguous, and the jury finds 

that the Alfords do not have title to the minerals and are not 

entitled to reformation. ...................................................................... 4

Summary of the Argument........................................................................... 4

Argument..................................................................................................... 6

A. The trial court rightly held that the Alfords’ deed is ambiguous..........7

1. A deed is ambiguous when its meaning is uncertain and doubtful, or 

when the deed is reasonably susceptible to more than one meaning.........7

2. The Alfords’ deed is ambiguous because the effect of the mineral 

reservation is at best unclear and there are two reasonable 

interpretations of the deed...............................................................10

a. Because the Alfords and the Jessups did not discuss minerals 

when negotiating the deed, the deed’s circumstances do not 

affect the ambiguity analysis. ............................................................10

b. The effect of the mineral reservation in the deed is at best 

unclear, and there are two reasonable interpretations of the 

deed. ...............................................................................................10
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. iv 

i. The Alfords’ deed should not be construed against the 

grantors because both parties had an equal opportunity to 

control the contents of the deed and the Alfords admit that 

they did not read the whole deed before signing. ........................13

ii. The Alfords’ nonbinding cases on incorporation by reference 

do not render EOG’s interpretation of the deed 

unreasonable................................................................................16

B. The Alfords’ attempt to seek title through the interpretation of a 

voidable deed is time-barred because they waited nearly ten years 

to sue. ...............................................................................................20

C. Even if the Alfords have title, the Court should affirm the takenothing judgment in EOG’s favor because the Alfords did not 

present sufficient evidence of damages..............................................22

1. There is no basis in this case for a remand on damages.......................23

2. The Court should enter a take-nothing judgment on the Alfords’ 

damages, because the Alfords did not present sufficient evidence of 

damages........................................................................................24

Conclusion.................................................................................................. 25

Certificate of Compliance ........................................................................... 27

Certificate of Service................................................................................... 27

Appendix ....................................................................................................28
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. v 

AUTHORITIES

Cases

Alford v. Kuhlman Elec. Corp., 

716 F.3d 909 (5th Cir. 2013).................................................................... 17

Arnold v. Ashbel Smith Land Co., 

307 S.W.2d 818 (Tex. Civ. App.—Houston 1957, writ ref’d n.r.e.).....13, 14

Bob Montgomery Chevrolet, Inc. v. Dent Zone Cos., 

409 S.W.3d 181 (Tex. App.—Dallas 2013, no pet.)....................... 13, 19, 20

Coker v. Coker, 

650 S.W.2d 391 (Tex. 1983)..........................................................5, 7, 8, 10

Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc., 

999 S.W.2d 814 (Tex. App.—Houston [1st Dist.] 1999, no pet.)........ 20, 22

Dupnik v. Hermis, 

No. 04-12-00417-CV, 2013 WL 979199 (Tex. App.—San Antonio 

Mar. 13, 2013, pet. denied) ............................................................... 20, 21

Ford Motor Co. v. Castillo, 

444 S.W.3d 616 (Tex. 2014) .................................................................... 15

Ford v. Exxon Mobil Chem. Co., 

235 S.W.3d 615 (Tex. 2007)..................................................................... 21

Foster Wheeler Ener� Corp. v. An Ning Jiang MV, 

383 F.3d 349 (5th Cir. 2004)................................................................... 17

Glidden Co. v. CDNE, Inc., 

No. 12-09-00283, 2011 WL 686286 (Tex. App.—Tyler Feb. 28, 

2011, no pet.)........................................................................................... 9

Guerini Stone Co. v. P.J. Carlin Constr. Co., 

240 U.S. 264 (1916) ................................................................................16

Hill & Combs v. First Nat’l Bank, 

139 F.2d 740 (5th Cir. 1944).................................................................... 17
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. vi 

J.M. Davidson, Inc. v. Webster, 

128 S.W.3d 223 (Tex. 2003) ............................................................. 7, 8, 11

Koepke v. Martinez, 

84 S.W.3d 393 (Tex. App.—Corpus Christi 2002, pet. denied)...............22

Larson v. Cactus Util. Co., 

730 S.W.2d 640 (Tex. 1987)....................................................................23

McBride v. Hutson,

306 S.W.2d 888 (Tex. 1957)....................................................................14

Oryx Ener� Co. v. Shelton, 

942 S.W.2d 637 (Tex. App.—Tyler 1996, no writ)...................................24

Owen v. Hendricks, 

433 S.W.2d 164 (Tex. 1968)................................................................ 11, 16

Poag v. Flories, 

317 S.W.3d 820 (Tex. App.—Fort Worth 2010, pet. denied)............. 20, 21

Progressive Cnty. Mut. Ins. Co. v. Kelley, 

284 S.W.3d 805 (Tex. 2009) (per curiam)................................................ 9

Ralson Purina Co. v. Barge Juneau & Gulf Caribbean Marine Lines, Inc., 

619 F.2d 374 (5th Cir. 1980).................................................................... 17

RSUI Indemn. Co. v. The Lynd Co., 

No. 13-0080, 2015 WL 2194201 (Tex. May 8, 2015) ..................................7

Slaughter v. Qualls, 

162 S.W.2d 671 (Tex. 1942) ..................................................................... 21

Sullivan v. City of Galveston, 

17 S.W.2d 478 (Tex. Civ. App.—Galveston 1928), aff’d by 34 S.W.2d 

808 (Tex. Comm’n App. 1931, judgm’t adopted)...............................17, 18

Sullivan v. City of Galveston, 

34 S.W.2d 808 (Tex. Comm’n App. 1931, judgm’t adopted) ...................18
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. vii 

Tribble & Stephens Co. v. RGM Constructors, L.P., 

154 S.W.3d 639 (Tex. App.—Houston [14th Dist.] 2004, pet. 

denied)..............................................................................................18, 19

Other Authorities

28 Tex. Jur. 3d Damages § 222 .....................................................................24

Bruce M. Kramer, The Sisyphean Task of Interpreting Mineral Deeds and 

Leases: An Encyclopedia of Canons of Construction

24 Tex. Tech L. Rev. 1 (1993)..................................................................14

Rules

Tex. R. App. P. 43.3.....................................................................................23

Tex. R. App. P. 44.1.....................................................................................24
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. viii 

STATEMENT REGARDING ORAL ARGUMENT

Appellee believes the decisional process of the Court will not be significantly aided by oral argument. But if the Court grants Appellants’ request for 

oral argument, Appellee requests the opportunity to respond in oral argument.
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. ix 

ISSUES

1.

Deed interpretation. A deed is ambiguous when its meaning is uncertain 

or doubtful, or when the deed is reasonably susceptible to more than one 

meaning. The Alfords’ deed states that the property being conveyed is 

“more particularly described by metes and bounds on Exhibit ‘A’, attached 

hereto,” and the metes-and-bounds description included a mineral reservation. But the deed also has a section labeled “Reservations from conveyance 

and Warranty,” that describes a reservation of a life estate. Was the trial 

court wrong to conclude that the deed was ambiguous regarding the mineral 

reservation?

2.

Limitations. A grantee seeking title through the interpretation of a voidable deed must sue within four years of the deed’s execution. In 2012, the Alfords sued for title through the interpretation of a voidable 2003 deed. Is the 

Alfords’ suit time-barred?

3.

Damages. The burden is on the plaintiff to establish its damages with reasonable certainty to enable a jury to compute them. The only basis given by 

the Alfords for computing their damages is a single royalty check to McKeithen. Neither the Alfords’lease nor McKeithen’s was in evidence. Does the 

check to McKeithen under one lease enable the jury to compute the Alfords’ 

damages under a different lease with unknown terms? 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 1 /28 

INTRODUCTION

Having lost in the trial court because the mineral reservation in their deed 

was intentional and not the product of mutual mistake, and because, even if 

the reservation was a mistake, they failed to exercise due diligence in reading 

their deed, the Alfords seek to push the reset button. The Alfords now argue 

that there never should have been a trial—that, as a matter of law, the mineral reservation attached to their deed unambiguously is not part of the deed. 

But the trial court and the jury were right to find: (1) that the deed was 

ambiguous; (2) that the mineral reservation was part of the deed; (3) that the 

inclusion of the mineral reservation was not a mutual mistake1

; and (4) that 

the Alfords were not diligent in reading their deed. 

The Alfords focus their appeal entirely on ambiguity: they say the trial 

court erred because, as a matter of law, the mineral reservation is unambiguously not part of the deed. The two grounds for the Alfords’ argument are an 

inapplicable rule of construction and a fractured line of nonbinding and inapplicable cases discussing how one document may incorporate another. 

Assuming the Alfords’ cases are correct, the Alfords’ interpretation of the 

deed may be reasonable (even though no one in this case except the Alfords 

has adopted it so far). But the question is not whether the Alfords’ interpretation is reasonable; the question is whether EOG and McKeithen’s view is 

 1 Despite the jury’s finding that there was no mutual mistake, the Alfords state in their 

brief that it “is clear” that the inclusion of the mineral reservation was a mistake. Alfords’ 

Br. at 2. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 2 /28 

unreasonable. If EOG and McKeithen’s view is not unreasonable, then the 

deed is ambiguous, and the trial court’s judgment must stand. 

FACTS

A. In 2003, the Alfords bought the Jessups’ pasture and home site. 

The Alfords leased the Jessups’ 117-acre pasture for several years before

buying the pasture, along with the Jessups’ 2-acre home site, in 2003.

2 The 

Alfords bought the land for an $80,000 note payable to the Jessups over eight 

years with no interest.

3

B. No one mentioned minerals in the handshake deal. 

The purchase was basically a handshake deal.4 Ms. Alford doesn’t think 

mineral rights were ever mentioned.5 That makes sense because Ms. Alford 

admits that minerals were never part of the agreement.6 (The Alfords and the 

Jessups did, however, discuss a life estate to the Jessups in the home site.

7

)

The Alfords would have bought the property with or without the minerals.8

 2 3RR17, 22.

3 3RR19, 20.

4 3RR56

5 3RR20; 3RR56. 

6 3RR53.

7 3RR22. 

8 3RR53.
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 3 /28 

C. The deed the Alfords were shown at closing contains a mineral 

reservation in Exhibit A, but the Alfords did not read it. 

When the Alfords got to the title company for the closing, someone at the 

title company went over the terms of the conveyance with Ms. Alford.9

Ms. Alford is sure she saw Exhibit A to the deed (the exhibit with the property description containing the mineral reservation) at the title company, but 

she admits that she didn’t read it.10 Mr. Alford didn’t read Exhibit A either.11

D. The Alfords sue nearly a decade later, seeking title through the 

interpretation of the deed. 

In 2012, nearly a decade after signing the deed, the Alfords filed suit seeking a judgment declaring their title to 50% of the mineral rights under the pasture, or for reformation of the deed based on mutual mistake.

12 EOG was 

joined because, even though EOG has leases from both the Alfords and 

McKeithen, EOG had paid McKeithen royalties that the Alfords now claim

should have gone to them.

13

The Alfords moved for summary judgment on deed interpretation, asking 

the court to declare the mineral reservation to be unambiguously not part of 

the deed.14 The trial court denied that motion, and the Alfords re-urged the

 9 3RR29.

10 3RR30. 

11 3RR86.

12 1CR7-9.

13 All references to EOG in this brief also include Central Texas Land Services. 

14 2CR110. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 4 /28 

issue just before trial in a “Motion to Construe Document.”15 The Alfords 

also filed a supplemental petition alleging that the deed is ambiguous.16

E. The trial court rules that the deed is ambiguous, and the jury finds 

that the Alfords do not have title to the minerals and are not 

entitled to reformation. 

The trial court ruled that the deed was ambiguous.17 The jury found that 

the Alfords did not have title to the minerals, that the Alfords were not entitled to reformation based on mutual mistake, and that the Alfords were not 

diligent in reviewing their deed.18

The Alfords now argue that the trial court erred in finding the deed ambiguous. 

SUMMARY OF THE ARGUMENT

This case is a poor vessel for “testing the limits of incorporation.”19 The 

Court need not trouble itself with the Alfords’ complicated theory of 

incorporation cobbled together from disparate federal-court and state-court 

opinions. 

The trial court ruled that the deed in this case was ambiguous.20 Thus, 

the interpretation of the deed was a question for the jury, and the Alfords 

 15 3CR87, 118. 

16 3CR125.

17 1Supp. CR4.

18 2Supp. CR8-10. 

19 Alfords’ Brief at 2. 

20 1 Supp. CR4.
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 5 /28 

have not challenged the jury’s findings. See Coker v. Coker, 650 S.W.2d 391, 

394 (Tex. 1983) (interpretation of an ambiguous instrument is a fact issue). 

The trial court did not err in ruling that the deed was ambiguous. A deed 

is ambiguous when its meaning is uncertain and doubtful or the deed is 

reasonably susceptible to more than one meaning. Id. at 393. The Alfords’ 

deed states that the property being conveyed is “more particularly described 

by metes and bounds on Exhibit ‘A’ attached hereto,” and the metes-andbounds description includes a mineral reservation.21 Does the deed contain a 

mineral reservation? 

Maybe. The Alfords’ complicated incorporation law just goes to show

that the deed is ambiguous. Of course it’s reasonably possible that the deed 

incorporated Exhibit A only for the part of Exhibit A that strictly defines the 

metes and bounds. But it’s equally within reason that the mineral reservation 

included in the metes-and-bounds description (in the same font and text 

block) was also incorporated: after all, the reservation was part of the metes 

and bounds, and the deed language referring to Exhibit A is not clear about 

what is incorporated. 

The Court should therefore affirm the trial court’s ruling that the deed 

was ambiguous. 

On top of that, there are two more reasons to affirm. One, under Texas 

law, the Alfords had four years to sue seeking title through the construction 

 21 App. A, Deed.
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 6 /28 

of a voidable deed. The Alfords, after failing to read their deed before 

signing, waited nearly a decade to sue. Their claim is therefore time-barred. 

And two, even if the Court finds that the Alfords have title, the Alfords 

still have not proved that they are owed damages by EOG. The only evidence 

of damages offered by the Alfords was a royalty check from EOG to 

McKeithen, the other alleged owner of the minerals at issue. But the Alfords 

have not shown how the check to McKeithen provides a legal measure of the 

Alfords’ damages. Therefore, even if the Court finds that the Alfords have 

title, the Court should affirm the take-nothing judgment in favor of EOG. 

ARGUMENT

The Court should affirm the trial court’s judgment in EOG’s favor for 

three reasons.

First, the trial court correctly determined that the Alfords’ deed was ambiguous. Even if the Alfords’ interpretation of the deed is reasonable, that 

still leaves the deed ambiguous, because EOG’s interpretation is also reasonable. And the Alfords have not challenged the fact issue of the ambiguous 

deed’s interpretation. 

Second, the Alfords’ suit for title through a voidable deed is time-barred 

because the Alfords waited nearly a decade to sue. 

And third, even if the Court finds that the Alfords own the minerals, the 

Court should still affirm the take-nothing judgment in EOG’s favor because 

the Alfords did not produce sufficient evidence of damages due from EOG. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 7 /28 

A. The trial court rightly held that the Alfords’ deed is ambiguous. 

If the Court affirms that the deed is ambiguous, that is the end of the appellate analysis. The reason is that while the Alfords have challenged the trial 

court’s predicate finding of ambiguity, the Alfords have not challenged the 

jury’s factual finding that the mineral reservation was part of the deed. See 

Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983) (interpretation of an ambiguous instrument is a fact issue). So if the deed is ambiguous, then the jury’s 

finding that the mineral reservation was part of the deed must be affirmed. 

And the deed is ambiguous. 

1. A deed is ambiguous when its meaning is uncertain and doubtful, or 

when the deed is reasonably susceptible to more than one meaning. 

When interpreting documents, the court “examine[s] and consider[s] the 

entire writing in an effort to harmonize and give effect to all the provisions...so that none will be rendered meaningless.” J.M. Davidson, Inc. v. 

Webster, 128 S.W.3d 223, 229 (Tex. 2003).

A document is unambiguous “if it can be given a definite or certain legal 

meaning.” Id. at 229. But if its meaning is uncertain and doubtful, or if it is 

reasonably susceptible to more than one meaning, then the document is ambiguous. Id.; Coker, 650 S.W.2d at 393; see RSUI Indemn. Co. v. The Lynd Co., 

No. 13-0080, 2015 WL 2194201, at *3 (Tex. May 8, 2015) (“[I]f both constructions present reasonable interpretations of the [contract]’s language, we 

must conclude that the [contract] is ambiguous.”).
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 8 /28 

The court may look at the circumstances of the document’s formation 

when deciding ambiguity. Coker, 650 S.W.2d at 394. Whether a document is 

ambiguous is a question of law; but once a document is found ambiguous, its 

interpretation is a question of fact. Webster, 128 S.W.3d at 229. 

Several cases in the Supreme Court and this Court illustrate when a document is ambiguous.

In J.M. Davidson, Inc. v. Webster, the Supreme Court found a document 

ambiguous because it was unclear how two provisions in the document related to one another. 128 S.W.3d at 229. The one-page document, entitled 

“Alternative Dispute Resolution Policy” and “Employment Application Language,” stated in one paragraph that the employee agreed to arbitrate all employment-related disputes, and in a later paragraph that the employer “reserves the right to unilaterally abolish or modify any personnel policy without 

prior notice.” Id. at 225–26. 

The Court could not give the document a definite meaning because it was 

unclear whether the employer’s right to unilaterally modify “personnel policies” included the right to terminate the arbitration agreement, thus rendering the arbitration agreement illusory and nonbinding. Id. at 229. Because the 

Court could not interpret the document “by reading the agreement’s terms,”

the Court found the document ambiguous. (The Court also noted that the 

court of appeals and even the Supreme Court was divided on how to interpret the document. Id. at 229–31.)
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 9 /28 

In Progressive Cnty. Mut. Ins. Co. v. Kelley, the court of appeals found that 

two separate insurance documents unambiguously constituted two separate 

insurance policies, and the Supreme Court reversed, finding that it was ambiguous whether the documents created one policy or two. 284 S.W.3d 805 

(Tex. 2009) (per curiam). Although the documents had separate policy numbers, the second document referred to a “multi-car discount” but only listed 

one car (the first document listed four cars). Id. at 807. The Supreme Court, 

finding “some ambiguity” on that basis, considered parol evidence to interpret the parties’ understanding, but still concluded that their intent was ambiguous, and remanded. Id. at 807-08. 

Finally, in Glidden Co. v. CDNE, Inc., No. 12-09-00283, 2011 WL 686286 

(Tex. App.—Tyler Feb. 28, 2011, no pet.), this Court affirmed the trial 

court’s award of contract damages based on one definition of “costs” over 

another, finding that the contract was ambiguous about the meaning of that

term. Id. at *4. The Court considered the dictionary definition of “costs” 

and how the term was used in the parties’ agreement, and determined that 

“the term ‘costs’ is reasonably susceptible to more than one meaning.” Id.

The Court therefore held the contract ambiguous, and found that the evidence supported the trial court’s fact finding on its interpretation. Id.

Like the documents in these cases, the Alfords’ deed is also ambiguous. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 10 /28 

2. The Alfords’ deed is ambiguous because the effect of the mineral 

reservation is at best unclear and there are two reasonable 

interpretations of the deed.

Even if the Alfords’ interpretation of the deed is reasonable, the deed is 

ambiguous because EOG’s interpretation is equally reasonable. 

a. Because the Alfords and the Jessups did not discuss minerals when 

negotiating the deed, the deed’s circumstances do not affect the ambiguity 

analysis.

While a document’s circumstances are part of the ambiguity analysis, 

Coker, 650 S.W.2d at 394, here the circumstances do not push the analysis 

one way or the other. The reason is that, by Ms. Alford’s admission, the minerals were never mentioned when the deed was negotiated.22 Thus, the circumstances here are silent. 

b. The effect of the mineral reservation in the deed is at best unclear, and there 

are two reasonable interpretations of the deed.

The Alfords’ deed, after describing the property by reference to an earlier 

deed, states that the property is “more particularly described by metes and 

bounds on Exhibit ‘A’ attached hereto.”23 The tract at issue is tract one in the 

deed. And the description of tract one in Exhibit A includes, in the same text 

block and font as the metes-and-bounds description, a mineral reservation.24

The metes-and-bounds description of tract two does not include a mineral 

 22 3RR20. 

23 App. A, Deed.

24 App. A, Deed.
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 11 /28 

reservation.25 But a life-estate reservation in tract two is stated on the face of 

the deed.

26

One interpretation of the deed—the one urged by EOG and McKeithen

and found by the jury—is that the reference to Exhibit A is not limited to a 

single purpose, and so the mineral reservation is part of the deed. The deed 

refers to Exhibit A, relies on Exhibit A, and never states that Exhibit A is attached only for a certain purpose.27 (The deed does not state, as the Alfords 

claim in their brief, that the parties “were attaching Exhibit A for the sole 

purpose of providing a metes and bounds description.”28) 

In support of EOG and McKeithen’s view is established contract law, under which all parts of a document are to be given meaning, and none are to be 

rendered meaningless. J.M. Davidson, Inc., 128 S.W.3d at 229. EOG’s view 

effectuates the mineral reservation, while the Alfords’ view nullifies it. See 

Dupnik v. Hermis, No. 04-12-00417, 2013 WL 979199, at *5 (Tex. App.—San 

Antonio Mar. 13, 2013, pet. denied) (finding that a reservation of “none” on 

the face of a deed, combined with the phrase “surface only” in the attached 

property description, unambiguously reserved the mineral estate). 

Another point in support of EOG and McKeithen’s view is the long line 

of Texas cases, including Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex. 1968), 

 25 App. A, Deed.

26 App. A, Deed. 

27 App. A, Deed. 

28 Alfords’ Br. at 7. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 12 /28 

stating that the “language used [to incorporate another document] is not important provided the document signed...plainly refers to another writing.” 

The mineral reservation in Exhibit A meets the Owen standard for incorporation (the deed “plainly refers” to Exhibit A), and is therefore part of the 

deed.

The Alfords make much of the fact that the only reservation stated on the 

face of the deed was a life estate in tract two (the home site),29 but that makes 

sense considering that a life estate was not already included in the metes-andbounds description for tract two on Exhibit A. The parties did not have to repeat a mineral reservation for tract one on the face of the deed because the 

reservation was already included on Exhibit A. And as for having the parties 

initial the life-estate reservation, that too makes sense: the Jessups presumably cared much more about confirming the reservation of a life estate in their 

home than they did about a mineral estate that couldn’t keep the rain off 

their backs.

The other interpretation of the deed—the one urged by the Alfords—is 

that the deed incorporates Exhibit A only for the metes and bounds description (without the mineral reservation), and so the mineral reservation is not 

part of the deed. The points in favor of this view are that, while the deed 

does not expressly limit its incorporation of Exhibit A, the deed does refer to 

Exhibit A in the context of a metes-and bounds-description. Buttressing this 

 29 Id. at 8–9. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 13 /28 

view is the line of mostly federal cases (with a few state court-of-appeals 

cases) seeming to go beyond Owen in discussing the incorporation of documents for a narrow purpose. See Bob Montgomery Chevrolet, Inc. v. Dent Zone 

Cos., 409 S.W.3d 181, 189 (Tex. App.—Dallas 2013, no pet.).

Both of these views are reasonable, and therefore the deed is ambiguous. 

The Alfords, however, argue that two things make EOG’s interpretation unreasonable: (1) the rule of construing reservations and deeds against the grantor; and (2) the law of incorporation of documents. The Alfords are wrong 

that these points make EOG’s interpretation unreasonable. 

i. The Alfords’ deed should not be construed against the grantors because

both parties had an equal opportunity to control the contents of the 

deed and the Alfords admit that they did not read the whole deed before 

signing.

The Alfords argue that the familiar rule of construing reservations and 

deeds against the grantor requires favoring the Alfords’ interpretation over 

EOG’s.30 There are two reasons why the Alfords are wrong. 

First, this rule of construction does not apply without a predicate finding 

of ambiguity. See Arnold v. Ashbel Smith Land Co., 307 S.W.2d 818, 824 (Tex. 

Civ. App.—Houston 1957, writ ref’d n.r.e.) (citation and quotation omitted)

(“[The rule of strict construction against the grantor] is not applicable in the 

absence of ambiguity.”); but see Bruce M. Kramer, The Sisyphean Task of Interpreting Mineral Deeds and Leases: An Encyclopedia of Canons of Construction

 30 Alfords’ Br. at 4.
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 14 /28 

24 Tex. Tech L. Rev. 1, 108–111 (1993) (questioning the requirement of requiring ambiguity before construing against the drafter). The Alfords argue 

that their deed is unambiguous, so under their view this rule of construction 

cannot apply here. (The Alfords are not challenging the jury’s interpretation 

of the deed.) 

Second, the Alfords ignore the rationale of the “construe against the grantor” rule, and the rationale does not apply here. The rule “is never used as a 

hypercritical and overly literal tool,” as the Alfords want to use it. Arnold, 

307 S.W.2d at 824 (quotation and citation omitted). The rule has a commonsense purpose: “The underlying rationale for this canon is that the scrivener, 

who is usually the grantor, should be responsible for the lack of clarity in the 

use of the language.” Kramer, supra at 116. Thus, “[i]n cases where...both 

parties are equally responsible for the drafting of the instrument, this canon 

should not apply.” Id. (citing McBride v. Hutson, 306 S.W.2d 888, 891–92 

(Tex. 1957) (construing instrument in favor of grantor when drafted by 

grantee)).

Therefore, it’s important to know who drafted the deed in a particular 

case. Here, an assistant at the title company prepared the closing documents, 

and they were reviewed by an attorney there.

31 The assistant, who walks the 

parties through the closing, testified that her practice was to go over all the 

documents with both parties and makes sure everything is correct.32 She said 

 31 4RR25, 53. 

32 4RR17. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 15 /28 

that she would “review all of the information on the document.... Anything 

that’s on that document, I would review with [the parties].”33 Asked about

“the source of your information to know what to prepare when you prepare 

the documents,”34 the assistant said: “The parties of the transaction would 

come in and give us the information.”35 The assistant confirmed that this 

practice was applied in every case, in every situation.36

So the evidence in this case is that the Alfords had an equal opportunity 

to contribute to the deed’s contents and to review those contents before signing.37 The real problem is that the Alfords weren’t diligent in reviewing Exhibit A before signing the deed. The Alfords’ lack of diligence is not a valid 

reason for construing the deed against the Jessups. 

Thus, the “construe against the grantor” rule does not render EOG’s interpretation of the deed unreasonable. 

 33 4RR18. 

34 4RR18. 

35 4RR18. 

36 4RR19. Ms. Alford did testify that the deed was already prepared when she arrived 

at the title company, 3RR21–22, but she admits that the assistant went over the terms of 

the deed with her. 3RR29. And Ms. Alford admits that she held the deed for a few days before filing it, to make sure the Jessups were comfortable with the sale. 3RR32. This implies 

that during those days the deal was not, in Ms. Alford’s mind, finished, and thus could be 

altered.

37 When reviewing the sufficiency of the evidence supporting a jury verdict, the court 

“must view the evidence in the light most favorable to the verdict” and “assume jurors 

made all inferences in favor of the verdict if reasonable minds could, and disregard all 

other inferences.” Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620–21 (Tex. 2014) (quotations and citations omitted) (upholding jury verdict of fraudulent inducement). 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 16 /28 

ii. The Alfords’ nonbinding cases on incorporation by reference do not 

render EOG’s interpretation of the deed unreasonable. 

The Alfords also argue that the doctrine of incorporation by reference 

makes their interpretation reasonable and EOG’s interpretation unreasonable.38 The caselaw cited by the Alfords, however, does not support their argument. Here is why. 

The Alfords admit that there appears to be a split in the cases dealing with 

incorporation by reference.

39 One line, which the Alfords call the Owen line, 

after Owen v. Hendricks, says that the incorporation language used is not important so long as one document plainly refers to the other. 433 S.W.2d 164, 

166 (Tex. 1968). Here the deed refers to Exhibit A as being “attached 

hereto,” which, under Owen, would incorporate the mineral reservation because the mineral reservation is on Exhibit A.40

The other line of cases cited by the Alfords begins with a hundred-yearold United States Supreme Court case, Guerini Stone Co. v. P.J. Carlin Constr. Co., 240 U.S. 264 (1916), and runs through several Fifth Circuit and Texas 

court-of-appeals cases.41 This line of cases states that a reference to another 

document “for a particular purpose” incorporates the document only for that 

purpose. Id. at 277. The Alfords cite four federal cases and three Texas cases 

that refer to the Guerini rule. None of these cases controls here. 

 38 Alfords’ Br. at 2, 4–6. 

39 Alfords’ Br. at 4–5. 

40 App. A, Deed. 

41 Alfords’ Br. at 5–6. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 17 /28 

Only one of the federal cases cited by the Alfords arises under Texas law. 

But that case, Hill & Combs v. First Nat’l Bank, 139 F.2d 740 (5th Cir. 1944),

did not cite any Texas law on incorporation, and affirmed a jury verdict on interpretation because the contract was ambiguous, which is the result that

EOG urges here. Id. at 743.

The other three federal cases cited by the Alfords are not relevant either. 

Each of those cases arose in another state and was governed by other law. See 

Ralson Purina Co. v. Barge Juneau & Gulf Caribbean Marine Lines, Inc., 

619 F.2d 374, 374–75 (5th Cir. 1980) (admiralty case originating in Louisiana

involving a federal maritime statute); Foster Wheeler Ener� Corp. v. An Ning 

Jiang MV, 383 F.3d 349, 358–59 (5th Cir. 2004) (admiralty case originating in 

Louisiana involving a federal maritime statute and an international maritime 

agreement); Alford v. Kuhlman Elec. Corp., 716 F.3d 909, 913 (5th Cir. 2013)

(contract case originating in Mississippi applying Mississippi law).

42

The first Texas case cited by the Alfords is Sullivan v. City of Galveston, 17 

S.W.2d 478 (Tex. Civ. App.—Galveston 1928), aff’d by 34 S.W.2d 808 (Tex. 

Comm’n App. 1931, judgm’t adopted). Sullivan involved two sureties who 

backed their principal’s obligation to pay a certain rate of interest on a bond 

issued to the city. Id. at 480–81. The sureties agreed to pay “the rate stipulated in [the principal’s] written obligation of even date herewith.” Id. at 480. 

 42 Each of these federal cases is also distinguishable on the facts and the holdings, but 

EOG will not discuss those distinctions because it is sufficient that the cases do not involve Texas law. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 18 /28 

But there was no written interest obligation “of even date herewith”—the 

“written obligation” (a bond to the city) stating the interest rate was dated 

several months before. Id. at 481. The sureties claimed that their surety obligation was therefore void, but the court of appeals found that “it is clear 

from all the facts and circumstances in evidence that all the parties to the 

transaction understood what paper was referred to, and that it was referred to 

only for the purpose of fixing the rate of interest.” Id. at 490. The court went 

on, citing Guerini but no Texas cases, to note that the outside document had 

no effect on the referring document other than to supply the interest rate. Id.

Apart from not being binding on this Court, Sullivan does not apply here 

for two reasons. One, Sullivan was based on “all the facts and circumstances” evidencing the parties’ understanding, not on the particular words 

of incorporation. So the Guerini reference is merely dicta. And two, the 

Commission of Appeals opinion in Sullivan (which the Alfords did not cite) 

relied not on Guerini but on common sense: the interest rate, said the Commission of Appeals, “can be...ascertained” without the referenced document

because the rate was stated in the city board’s resolution authorizing the 

bond in the first place. 34 S.W.2d at 811–12. Thus, according to the Commission of Appeals, “the fact that the reference was made to a written instrument which did not exist becomes immaterial.” Id. at 811. 

The second Texas case cited generally by the Alfords (without a pin citation or any quoted language) is Tribble & Stephens Co. v. RGM Constructors, 

L.P., 154 S.W.3d 639 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 19 /28 

Tribble was, like Guerini, a construction-contract case. Id. at 663–64. Tribble 

held that a “flow down” provision in the contractor–subcontractor contract

did not as a matter of law incorporate an alternate-dispute-resolution provision of the contractor–owner contract. Id. at 663–64. The court found that 

“fact issues exist as to the intent of the parties” to bind the subcontractor to 

the ADR provision. Id. at 669. Thus, this case favors EOG and not the Alfords. 

The final Texas case cited by the Alfords as support for Guerini is Bob 

Montgomery Chevrolet, Inc. v. Dent Zone Cos., 409 S.W.3d 181 (Tex. App.—

Dallas 2013, no pet.). Dent Zone involved a one-page application for Dent 

Zone’s “PDR Linx Service Program.” The application said that “Additional 

benefits, qualifications, and details of the [program] are available for your review at our website: [url].” Id. at 184 n.1. When Dent Zone sued and the 

Chevrolet dealership objected to Texas jurisdiction, Dent Zone cited a forum-selection clause listed on the website referenced in the application. Id. at 

184–85. 

After citing Texas law on incorporation by reference, including Owen, the 

court of appeals referred to “the general principal of contract law that reference to a document for a particular purpose incorporates that document only 

for the specified purpose.” Id. at 189. For this “general principal,” the court 

of appeals cited not a single Texas case, but rather a section in Corpus Juris 

Secundum. Id. at 189. The court of appeals then found that the internet document was not incorporated into the application for any purpose, but instead
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 20 /28 

contained “informative material only, not binding terms and conditions.” Id.

at 190. Thus, the “particular purpose” language in Dent Zone is dicta. The 

court found that there was no incorporation at all. 

Therefore, the incorporation cases cited by the Alfords do not show that 

EOG’s interpretation of the deed is unreasonable. 

B. The Alfords’ attempt to seek title through the interpretation of a

voidable deed is time-barred because they waited nearly ten years 

to sue. 

In addition to ambiguity, there is another ground for affirmance: limitations.43 EOG and McKeithen pleaded limitations as a defense in the trial 

court and moved for a directed verdict on limitations.44 This claim may be 

decided as a matter of law, because when a claim accrues is a question of law. 

Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003).

A suit seeking title through the interpretation of a voidable deed must be 

brought within four years of when the claim accrues. Poag v. Flories, 317 

S.W.3d 820, 826 (Tex. App.—Fort Worth 2010, pet. denied) (suit seeking to 

quiet title through interpretation of deed is barred by four-year statute); Dupnik v. Hermis, No. 04-12-00417-CV, 2013 WL 979199, at *2–*3 (Tex. App.—

San Antonio Mar. 13, 2013, pet. denied) (trespass-to-try-title suit where parties sought interpretation of deed is barred by four-year statute). 

 43 Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814, 818 

(Tex. App.—Houston [1st Dist.] 1999, no pet.) (noting that an appellee may, by crosspoint, present an additional ground for affirmance).

44 3CR106, 112; 4RR76–87. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 21 /28 

A deed is void when it has no legal effect. Poag, 317 S.W.3d at 825–26

(quoting Slaughter v. Qualls, 162 S.W.2d 671, 676 (Tex. 1942)). A deed is voidable when it “operates to accomplish the thing sought to be accomplished, 

until the fatal vice in the transaction has been judicially ascertained and declared.” Id. 

The legal injury caused by a voidable deed occurs when the deed is recorded, or, in limited cases, when the flaw is discovered. Id. at 827; Dupnik, 

2013 WL 979199, at *4; see also Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 

615, 617 (Tex. 2007) (recorded instruments in a grantee’s chain of title generally establish an irrebuttable presumption of notice of defects). 

The Alfords’ deed is voidable, not void, because it admittedly accomplished a transfer of title to the Alfords: the Alfords received the surface estate conveyed in the deed.

The Alfords’ deed was recorded in April 2003.45 The Alfords sued in 

2012.

46 The Alfords’ claims accrued when they executed and recorded their

problematic deed. Poag, 317 S.W.3d at 827. And even if the Alfords’ claims 

could be tolled by the discovery rule, the discovery rule does not apply here 

because the Alfords admit that they did not read all of the deed.47 Dupnik, 

2013 WL 979199, at *4. On top of that, the jury found that the Alfords were 

not diligent.48

 45 App. A, Deed. 

46 1CR4.

47 3RR30, 86. 

48 2Supp. CR10. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 22 /28 

The Alfords’ suit is therefore time-barred because they waited nearly ten 

years to sue. 

C. Even if the Alfords have title, the Court should affirm the takenothing judgment in EOG’s favor because the Alfords did not 

present sufficient evidence of damages.

Even if the Court finds that the Alfords, rather than McKeithen, have title 

to the minerals, the Court should affirm the take-nothing judgment in favor 

of EOG, because the Alfords have no evidence of damages owed by EOG.49 

The jury did not answer the damages question in the charge because they 

found that the Alfords did not own the minerals.50 But EOG moved for a directed verdict on the Alfords’ damages.51 A directed verdict is proper when 

“the evidence offered on a cause of action is insufficient to raise an issue of 

fact.” Koepke v. Martinez, 84 S.W.3d 393, 395 (Tex. App.—Corpus Christi 

2002, pet. denied). Because the trial court denied EOG’s motion for directed 

verdict, this Court may review that denial under a legal sufficiency or no-evidence standard. Id.52

 49 This basis for affirmance is being raised under the same authority as EOG’s limitations argument: Dean, 999 S.W.2d at 818 (noting that an appellee may, by cross-point, present an additional ground for affirmance).

50 2Supp. CR8, 12.

51 4RR88.

52 EOG is not required to raise this point as an appellant, because a win on this issue 

does not increase EOG’s trial-court relief. See Dean, 999 S.W.2d at 818 (noting that an appellee may, by cross-point, present an additional ground for affirmance that does not expand the relief sought). 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 23 /28 

1. There is no basis in this case for a remand on damages. 

The Alfords ask the Court, upon determining the mineral ownership, to 

remand on the issue of damages for removal of the minerals. But there is no 

basis for a remand on damages. 

The Rules of Appellate Procedure state that “[w]hen reversing a trial 

court’s judgment, the court must render the judgment that the trial court 

should have rendered.” Tex. R. App. P. 43.3; see also Larson v. Cactus Util.

Co., 730 S.W.2d 640, 641 (Tex. 1987) (“If a court of appeals holds that there 

is no evidence to support a damages verdict, it should render a take nothing 

judgment as to that amount.”). The only exceptions are when “a remand is 

necessary for further proceedings” or “the interests of justice require a remand for another trial.” Tex. R. App. P. 43.3(a)–(b). 

If this Court finds that the Alfords have mineral title, then the Court 

should render the judgment that the trial court should have rendered. No 

further proceedings are necessary, because the parties have already tried this 

case to a verdict on damages.53 Nor are there any special circumstances invoking the “interest of justice” exception. 

Therefore, if the Alfords have title, the question on appeal is what judgment the trial court should have rendered on the Alfords’ damages. The answer is a take-nothing judgment.54

 53 2Supp. CR13.

54 If the Court does remand for a trial on damages, the Court should remand on liability as well. Tex. R. App. P. 44.1 (“The court may not order a separate trial solely on 

unliquidated damages if liability is contested.”). 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 24 /28 

2. The Court should enter a take-nothing judgment on the Alfords’ 

damages, because the Alfords did not present sufficient evidence of 

damages. 

“The burden is on the plaintiff to establish its damages with reasonable 

certainty to enable a jury to compute them.” Oryx Ener� Co. v. Shelton, 942 

S.W.2d 637, 642 (Tex. App.—Tyler 1996, no writ). “A plaintiff must prove, 

with some degree of certainty, a factual basis to support the amount of damages awarded.” 28 Tex. Jur. 3d Damages § 222. 

Because EOG owns a mineral lease covering the Alfords’ land, the only 

damages the Alfords could be entitled to if they own the minerals are unpaid 

royalties. Apparently recognizing this, the only evidence offered by the Alfords to show damages is a check from EOG to McKeithen (as guardian of

the Jessups’ estate) for $167,000 with the memo: “Royalty Account.”55 The 

check does not state what the royalty is attributable to, but McKeithen testified that it was from the Jessups’ property (the property claimed by the Alfords).

56

The basis for EOG’s directed-verdict motion was that the Alfords put 

forth no evidence of (1) the amount of production from their claimed minerals; (2) the revenue produced from the minerals; or (3) their royalty interest 

in the minerals.57 Thus, EOG argued, the jury cannot calculate what the Alfords’ damages are.58

 55 3RR69 at Ex. 13. 

56 3RR69. 

57 4RR88.

58 4RR88. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 25 /28 

The Alfords responded to EOG’s motion by pointing solely to the 

“amount [EOG] paid McKeithen,” as evidenced by the royalty check.59 But 

that check cannot enable the jury to compute the Alfords’ damages.

The jury cannot compute what the Alfords should have been paid based 

solely on the check to McKeithen because the Alfords and McKeithen have 

different leases. And neither the Alfords’ lease nor McKeithen’s lease was introduced at trial, so the Alfords have not proved that the lease terms under 

which McKeithen was paid are the same as the lease terms under which the 

Alfords would be paid if they owned the minerals.

60

Because the Alfords have not given the jury (and thus this Court) a sufficient factual basis to compute the damages owed to them, the Court should 

affirm the take-nothing judgment in favor of EOG. 

CONCLUSION

This Court should affirm the trial court’s judgment in EOG’s favor for 

three reasons.

First, the trial court was right to find the Alfords’ deed ambiguous. Even 

if the Alfords’ interpretation of the deed is reasonable, that still leaves the 

deed ambiguous, because EOG’s interpretation is also reasonable. And the 

Alfords have not challenged the jury’s interpretation of the ambiguous deed. 

 59 4RR88. 

60 The Alfords introduced a memorandum of their lease, but the memorandum merely 

states the primary term of the lease, not the royalty terms. 5RR at Ex. 10. No part of 

McKeithen’s lease was introduced. 
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 26 /28 

Second, the Alfords’ suit for title through a voidable deed is time-barred 

because the Alfords waited nearly a decade to sue. 

And third, even if the Court holds that the Alfords own the minerals, the 

Court should still affirm the take-nothing judgment in EOG’s favor because 

the Alfords did not produce sufficient evidence of damages due from EOG. 

Respectfully submitted,

/s/ Jason R. Mills

Jason R. Mills

Bar No. 24041494
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 27 /28 

CERTIFICATE OF COMPLIANCE

Counsel certifies that this brief contains, as counted by MICROSOFT WORD, 

6184 words. It was typed in 14-point Equity. 

Dated: July 10, 2015 /s/ Jason R. Mills

Jason R. Mills

CERTIFICATE OF SERVICE

Counsel certifies that this brief was served on the following parties through 

e-filing on July 10, 2015. 

Tom Rorie

Attorney at Law

210 North Street

Nacogdoches, Texas 75961

936.559.1188 phone

936.559.0099 fax

Noel D. Cooper

Law Offices of Noel D. Cooper

117 North Street, Ste. 2

Nacogdoches, Texas 75961

936.564.9000 phone

936.715.6022 fax

Bill McWhorter

Bill McWhorter & Associates

119 North Street, Ste. A

Nacogdoches, Texas 75961–5200

936.564.2676 phone

936.564.6455 fax

/s/ Jason R. Mills

Jason R. Mills
Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 28 /28 

APPENDIX

1. Appendix A — Deed, Apr. 25, 2003. 
Appendix

A

to Appellee’s Brief

—

Deed, April 25, 2003
•«S X

AT«5,*00 W.

WARRANTYPEEP WITH VENDORS URN

01ANA KOVAR, COUNIYClfRX SANAUGUSnNE CO,TEXAS

BY k^/^/AAy jo/m

Date: Ajttil 25»2003

GrutOK JACKP. JESSUP AND WIFE, ANNIB ELIZABETH JESSUP

Grantor'sMallb^Address(indndlngooBaty)t Route 3,Box484, SanAugutbe,SanAugustineCoun^,Texas 75972

Grantee: CHARLES ALFORD AND WIFE, MARY LOU AUPORD

Grantee's Maffing Address Ondudlng couotjO: Route 1.Box 529, San Augustme, SanAugostise Cous^, Texas 75972

Cenddaratlon:

' (i) The sumofTEN AND NO/ICO DOLLARS ($10.00) and other good and vahidile considetations toGianun paid, twR

inhand, byGiantee herein, die receipt ofwUdiisIteiefay aeknowled^d; and

9) Anote ofevendate duct isindiepiine^aBxnanof$80,000.00 and isexecutedbyGrantee, p^dile todie

orderofQrannn. It issecuredby a vendor'slienteniaed inthisdeed andby a deedof inixtofevendatefiomGranteetoJ.

KenMuekeboy, Iknstee.

Pn^erty Ondnding any fntprovemenls):

ntACTONB:

BEING 117.50 acrea ofland, silnated onCtntis Jemqi Survey, about seven nsQes west of dwtowu of San Augustme, fax

San Augusdne County, XlBXBt, andbeing dieproper^ described inDeed fitnnT.B.Foustatn endwife, hfimde Fountain, C. a Bums andwift. Maty Bmu, and J. S.Jessnp and wift,UnaJesstp, to JaekJessi^, dated May 24.1950. recorded in

VoL 105, Pege 498, Deed Records, Sen Augusdne County, Texas, and being more pailieulBify described bymstes and bounds onBiddbit "A" attached heteto.

TOACTTWOt

BEING 2acres, more orless, and being ad(hat certain tract; lotorparcel ofland,situated inSanAognsdne County, Texas, and being out ofand apart ofdisCurtis Jessnp Survey, about 8ixdles Westofdwtown ofSanAugistine, Texas, and b^

die property described in Deed fiotn J. S.Jessi^(Sharp Jeasup) andwife, UnaJessqi. to J. P. JcBSiqi and wife, Annie

EliabediJessie,dated October 17, 1958, recorded inVoL 122, Page 206, Deed Records, SanAugustine County, Texas,

sndbeingmore partisulailydesaibedbymetes andbounds anE:diibit''A"atta^edhaeto.

TRACT THREE:

BEINGid ofOrantK8(7ackF.Je3Sup's) undividedinterest in andto 9 aetes of dot eeitain 110.5 sen tract as describedin

Deed of Gift fiost Jenetde Jbssiqi Stotts, GlennRay Jessnp end Johnnie DeE Jesst^ Dumesnil, dated June 23, 1982,

feootded inVoL235,Page424,DeedRecords, SanAugustiiie County,Texas.

ReservattensfiromConvqunce and Warranty: ForGxainor,8

IVactTwo for die lemainderofdielldi ofGrantor, ssalift estate.

Exe^donsto Convsyanee and Warranty:

Eiwwnrnti, ii^]la4f>way andpmsatytive ri^ds, wfaeSiei of tecord of not; bU ptesendy recorded restiictioiis, reservations, mveiisiila.ciHidilifliB.oflandBMlBas^fB3iicMlaevefwieMMMt nAeTrtwn1i«n»iwHfl(vmii»y>iv»«i»_ dial Effect

Aepnpcity.

Grantor, fordiecuosideTadan and sid^ect tothereservationa fiom and exeeptiona toconveyance andwarranty, gwnrta, geUs and conveys to Grantee the property, together with all and sbigubtr the rights and appurtenanses thereto in anywise,

belonging, to have and to bold It to Gmtee, Oiantes's heirs, executors, adaaiBiatmton, suooeasora, or assigns forever.

Grantor binds Grantor andGrantor's belts, cxecutoia, adndnistiaton, andsnccesseaa to waxraiit andfbiever defend bU and

aingular dttproperty toGrantee and Grantee's heirs, executors, adndniittators, successors, and assigns against every person

vduniBoever lawfiiUy dahnhig ortoclahndw same oranypart disieof except astothe reservations fiomand excqitlons to

conveyance and warranty.

The veodor'a lien against and snpexior dde to die propeity ate retained unta each note itescribed isfiiUy paid accoiding to

its tenns, at wideh dnm this Deed shall become absolute.

Whendtecontextrequites, singularnouns andpronounsinclude diephnaL

fdiefidl ssesslon, benefit, and use of

YVAco ^

PLAINTIFFS'

EXHIBIT 2
LZ

THE STATE OF TEXAS

COUNTY OF SAN AUGUSTINE

ThisiastninienttrosadmowledgedbsfoseinebyJACKP. JESSUP ANDWIFE,ANNIEELIZABETH JESSUP,

on this the 25th day ofApril, 2003.

oonnisvmjsmn

NotuyPi^e

Stataedltaia

MyComrriMtonBiplfM NOTARY PUBLICFO

PREPARED BY: J. KEN MUCKELROY, ATTORNEY ATLAW, P.C.

104 SouftBtoadmgr, SsaAugustine, Texas 759^

Phone: (936) 275<2304 Pax: (936) 275-2305

AFTER RECORDATION, PLEASERETURN TO 3. KEN MUCKELROY, ATTORNEY

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2 wS 2 S'2®-i Thehoe up abid creek, Xatise-SO E.184 vra^ 2ad.S.80.30

'• fitb a'Sn ?2 2'2S • ?*^9® y".4th.S.68 Eo70 vrb, Sth.N.sfoo vra. • T^bce SS.2S.45 oi .iS"!®.TM' W.lXTS vra Iron, stake South Baak,NeoJper creek. .to bagljip jtriff, ao©fe«> <*^fT 117.5 aorea of innd

f'Ij that the pantora 4."° J®herein2^ reaervea kgreedIn"bytheir and bet«e& own riighttheoneparties haXf ofhereto* all

ktod and chaTector which may be on or under the

|;.' other 2?S«2 «?? lalXeralB without interference of purpoaa of nlnSng aaalgne and or drllXlng for hla aaaigna. oil and

K *

^TOgF'^oi

• all that oertaln tract, lot or poroal of Ippd, situated in Sea Augi^Hna County, Soxaa, belag out

Of uid a part of the Ourtia Jeeeup Burvey, ahout Bnilea We8t o;s tSe town of San Ausuetino,

Texaa, and beins out of the let. tract doacrlbed in an oil, gaa-W nineral lease enecuted by

Sharp Jesspp and wife, to T. W. Blount and W, ?. Haya, reoorded in Volume 92, p. 319 of the

Deed fiecord. ofSan Auguatine County, Sexae. boiag known as a 75 aere traet. and being 2 acres

of land, and thus deeeribedt

BSMHHlHft at a point in the 2BL of said 75 aore, B. 24 V2 deg. Bast 2«0 feet from the

HI come, of said 75 acre tract in the B.Boak of Heoipor Creek (now called Becky Creek),

2HBSCB South 2h 1/2 deg, B. with the EEL of said 75 acre tract, 30O feet,

2HBH0B at right anglea to said SBL (approxiaatoly 8. 66 deg. W.) 290 1/2 feet,

MBMOB Berth 24 1/2 deg. West parallel with the BBL oXeaid 75 acre tract 500 feet, 7HSH0B at right angles (approximately H. 66 deg. Baat) 290 1/2 feet to the beginning,

oontalnlns-2 acrosj store or Iosob

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