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

# No. 12 - 14 - 00262

- CV

**in the Twelfth Court of A**  **ppeals T**  **yler , Texas** 
Charles and Mary Lou Alford , Appellant s ,

v. Robert Thomas McKeithen; EOG Resources, Inc.; and Central Texas Land Services, Appellee s.
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**Brief of Appellee EOG**  **Res. & Cent. Tex. Land Servs.** ii P ARTIES & C OUNSEL 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 Appellee s’ 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 C ONTENTS 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 uncerta in 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 interpretatio ns 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.** i v 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.

................................ ................................ ............................... 2 0 C. Even if the Alfords have title, the Court should affi rm the take

nothing 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 o f Service

................................ ................................ ................... 27 Appendix

................................ ................................ ................................ .... 28**Brief of Appellee EOG**  **Res. & Cent. Tex. Land Servs.** v A UTHORITIES Cases Alford v. Kuhlman Elec. Corp. , 716 F. 3 d 909 ( 5 th Cir. 2013 )

................................ ................................ .... 17 Arnold v. Ashbel Smith Land Co. , 307 S.W. 2 d 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. 3 d 181 (Tex. App.

— Dallas 2013 , no pet.)

....................... 13 , 19 , 20 Coker v. Coker , 650 S.W. 2 d 391 (Tex. 1983 )

................................ .......................... 5 , 7 , 8 , 10 Dean v. Lafayette Place (Section One) Council of Co

- Owners, Inc. , 999 S.W. 2 d 814 (Tex. App.

— Houston [ 1 st 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. 3 d 616 (Tex. 2014 )

................................ ................................ .... 15 Ford v. Exxon Mobil Chem. Co. , 235 S.W. 3 d 615 (Tex. 2007 )

................................ ................................ ..... 21 Foster Wheeler Ener� Corp. v. A n Ning Jiang MV , 383 F. 3 d 349 ( 5 th 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 , 13 9 F. 2 d 740 ( 5 th Cir. 1944 )

................................ ................................ .... 17**Brief of Appellee EOG**  **Res. & Cent. Tex. Land Servs.** vi J.M. Davidson, Inc. v. Webster , 128 S.W. 3 d 223 (Tex. 2003 )

................................ ............................. 7 , 8 , 11 Koepke v. Martinez , 84 S.W. 3 d 393 (Tex. App.

— Corpus Christi 2002 , pet. denied)

............... 22 Larson v. Cactus Util. Co. , 730 S.W. 2 d 640 (Tex. 1987 )

................................ ................................ .... 23 McBride v. Hutson , 306 S.W. 2 d 888 (Tex. 1957 )

................................ ................................ .... 14 Oryx Ener� Co. v. Shelton , 942 S.W. 2 d 637 (Tex. App.

— Tyler 1996 , no writ)

................................ ... 24 Owen v. Hendricks , 433 S.W. 2 d 164 (Tex. 1968 )

................................ ................................ 11 , 16 Poag v. Flories , 317 S.W. 3 d 820 (Tex. App.

— Fort Worth 2010 , pet. denied)

............. 20 , 21 Progressive Cnty . Mut. Ins. Co. v. Kelley , 284 S.W. 3 d 805 (Tex. 2009 ) (per curiam)

................................ ................ 9 Ralson Purina Co. v. Barge Juneau & Gulf Caribbean Marine Lines, Inc. , 619 F. 2 d 374 ( 5 th 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. 2 d 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. 2 d 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. 3 d 639 (Tex. App.

— Houston [ 14 th 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. A pp. P. 43.3
................................ ................................ ..................... 23 Tex. R. App. P. 44.1
................................ ................................ ..................... 24**Brief of Appellee EOG**  **Res. & Cent. Tex. Land Servs.** viii S TATEMENT REGARDING O RAL ARGUMENT Appellee believes the decisional process of the Court will not be significantly aided by oral argument. But if the Court grants Appellants’ request fororal argument, Appellee requests the opportunity to respond in oral argument.**Brief of Appellee EOG**  **Res. & Cent. Tex. Land Servs.** ix I SSUES

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 descr iption include d 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 mine ral
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 A l fords for computing their damages is a single royalty check to McKeith en
. 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 I NTRODUCTION 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
the ir 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 no t 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 res ervation was part of the deed; (3) that the
inclusion of the mineral reservation was not a mutual mistake 1 ; 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 g rounds for the Alfords’ argument are an inapplicable rule of constructio n and a fractured line of nonbinding and inapplicable cas es discussing how one document may incorporate another. Assuming the Alfords’ cases are correct, t he 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 an d McKeithen’s view is not unreasonable, then the deed is ambiguous, and the trial court’s judgment must stand.

F ACTS

A. In 2003, t he Alfords bought the Jessups ’ pasture and home site. The Alfords leased the Jessup s’ 117
- acre pasture for several years before buying the pasture , along with the Jessup s’ 2
- acre home site , in 2003

. 2 The Alfords bought the land for a n $80,000 note payable to the Jessups over eight years with no interest

. 3

B. No one mentioned minerals in t he handshake deal.
The purchase was basically a handshake deal. 4 M s. 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, ho wever, 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.
W hen the Alfords got to the title company for the closing , s omeone 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 containin g 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 t he Alfords and
McKei then , 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 c ourt to declare the mineral reservation to be unambigu ously not part of
the deed. 14 The trial court denied that motion, and the Alford s 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 D ocument

. ” 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. 18The Alfords now argue that the trial court erred in finding the deed ambiguous.

SUMMARY OF THE A RGUMENT
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 d eed 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 th e deed is reasonably susceptible to more than one meaning. Id. a t 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

- and

bounds 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 rul ing that the deed was ambiguous. On top of that, there are two more reason s 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 Al fords was a royalty check fr om 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 Alfor ds have title, the Court should affirm the take

- nothing judgment in favor of EOG.

A RGUMENT 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, thatstill 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.
Se cond, 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 E OG’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 i s 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 mean ing, 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 circumstanc es 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 interpreta tion 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 Suprem e 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 Dispu te 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. a t 225

– 26

. The Court could not give the document a definite meaning because it was unclear whether the employer’s right to unilaterally modi fy “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 n ot 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 docu ment

. 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 Supr eme Court reversed, finding that it was ambiguous whether the documents created one policy or two. 284 S.W.3d 805 (Tex. 2009) (per curiam)

. Alt hough 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
reserv ation 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 Jess ups did not discuss minerals when negotiating the deed, the deed’s circumstances do not a ffect 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 analysisone 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 th e 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 t ract o ne 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 deedrefers 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 t he Alford s 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
effe ctuates 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. Hendri cks , 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 / 28stating 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 alr eady included in the metes

- and

bounds 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 pa rties
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 o ther 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 federa l 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 (T ex. 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 thes e 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 c ontrol the contents of the deed and the Alfords admit that they did not read the whole de ed 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 w r ong. 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 i n 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 lit eral tool, ” as the Alfords want to use it. Arnold , 307 S.W.2d at 824 (quotation and citation omitted). The rule has a common
sense purpose: “The underlying rationale for this canon is th at 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, a n assistant at the ti tle company prepared the closing documents, and they were reviewed by an attorney there

. 31 T he assistant , who walks the parties through the closing , testified that her practice was to go over all the documents with both parties and ma kes 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.... Anythin g 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 oppor tunityto 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 Exhib it A before signing the deed. The Alfords’ lack of diligence is not a valid
reason for constru ing 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 day s 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. Hendri cks , 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 becaus e the mineral reservation is on Exhibit A. 40
The other line of case s cited by the Alfords begins with a hundred

- year
old United States Supreme Court case , Guerini Stone Co. v. P.J. Carlin Constr. Co. , 240 U.S. 264 (1916) , and runs through severa l 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 control s here.

38 Alford s’ 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 t hat 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 beca use the contract was ambiguous, which is the result that
EOG urges here. Id. a t 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
in volving a federal maritime statute ) ; Foster Wheeler Ener� Corp. v. An Ning Jiang MV , 383 F.3d 349 , 358

– 59 (5th Cir. 2004) ( admiralty case orig inating in
Louisiana involving a federal maritime statute and an international mar itime
agreement ); Alford v. Kuhlman Elec. Corp. , 716 F.3d 909 , 913 (5th Cir. 2013) (contract case originating in Mi ssissippi 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 cour t 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 49 0
. The court went on, citing Guerini but no Texas cases, to note that the outside document had
no effec t 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 refer ence 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
beca use the rate was stated in the c ity 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 a n alternate

- dispute

- resoluti on provision of the contractor

– owner contract

. Id. at 663

– 64

. T he 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 favor s 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
benefi ts, 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 theChevrolet 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 par tic u l ar purpose incorporates that document only for the spec ified 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 i s 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 verdi ct 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 with in 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 cross

point, 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 admit tedly 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 take

nothing judgment in EOG’s favor because t he Alford s did not present sufficient evidence of damages

. Even if the Court finds that the Alfords, rather than McKeithe n, 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 t o raise an issue of
f

act.” 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 app ellee 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 judg ment, 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 amou nt.”). The only exceptions are when “a remand isnecessary 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 mi neral title, then the Court should render the judgment that the trial court sh o uld 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 invok ing 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 tria l 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 s ome 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) f or $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 t he A l fords put
forth no evi dence of (1) the amount of production from their claimed minerals ; (2) the revenue produced from the minerals ; or (3) their royalty inter est in the minerals. 57 Thus, EOG argued, the jury cannot cal culate 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 Alf ords should have been paid based solely on the check to McKeithen because the Alfords and McKeithen have
different lea s es. 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 ju ry (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

.

C ONCLUSION This Court should affirm the trial court’s judgment in EOG’s favor for
three reasons. First, t he 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 hold s that the Alfords own the minerals , the
Co urt 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, 201 5 /s/ Jason R. Mills Jason R. Mills

CERTIFICATE OF SERVI CE Counsel certifies that this brief was served on the following parties through

e
- filing on July 10, 201 5

. 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 A PPENDIX

1
. Appendix A

— Deed, Apr. 25 , 2003.

# Appendix **A** to Appellee’s Brief

— Deed, April 25, 2003•«S X AT«5,*00 W. WARRANTY PEEP WITH VENDORS URN

01 ANA KOVAR, COUNIY ClfRX SAN AUGUSnNE CO, TEXAS

BY k^/^/AAy jo/m Date: Ajttil 25» 2003 GrutOK JACK P. JESSUP AND WIFE, ANNIB ELIZABETH JESSUP Grantor's Mallb^ Address (indndlng ooBaty)t Route 3,Box 484, San Augutbe, San Augustine Coun^, Texas 75972

Grantee: CHARLES ALFORD AND WIFE, MARY LOU AUPORD Grantee's Maffing Address Ondudlng couotjO: Route 1. Box 529, San Augustme, San Augostise Cous^, Texas 75972 Cenddaratlon: ' (i) The sum of TEN AND NO/ICO DOLLARS ($10.00) and other good and vahidile considetations to Gianun paid, twR in hand, by Giantee herein, die receipt of wUdi is Iteiefay aeknowled^d; and 9) A note of even date duct isin die piine^aBxnanof$80,000.00 and is executed by Grantee, p^dile to die orderof Qrannn. It issecuredby a vendor'slien teniaed inthisdeed andby a deedof inixt of evendate fiom Granteeto J. KenMuekeboy, Iknstee. Pn^erty Ondnding any fntprovemenls): ntACTONB: BEING 117.50 acrea of land, silnated on Ctntis Jemqi Survey, about seven nsQes west of dw towu of San Augustme, fax San Augusdne County, XlBXBt, and being die proper^ described in Deed fitnn T.B. Foustatn end wife, hfimde Fountain, C.

a Bums and wift. Maty Bmu, and J. S. Jessnp and wift, Una Jesstp, to Jaek Jessi^, dated May 24.1950. recorded in VoL 105, Pege 498, Deed Records, Sen Augusdne County, Texas, and being more pailieulBify described by mstes and bounds on Biddbit "A" attached heteto. TOACTTWOt BEING 2 acres, more or less, and being ad (hat certain tract; lot or parcel of land, situated inSan Aognsdne County, Texas, and being out of and apart ofdis Curtis Jessnp Survey, about 8 ixdles Westof dwtown of San Augistine, Texas, and b^ die property described in Deed fiotn J. S. Jessi^ (Sharp Jeasup) and wife, Una Jessqi. to J. P. JcBSiqi and wife, Annie Eliabedi Jessie, dated October 17, 1958, recorded in VoL 122, Page 206, Deed Records, San Augustine County, Texas, snd being more partisulailydesaibed by metes and bounds anE:diibit''A"atta^edhaeto. TRACT THREE: BEING id 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,Deed Records, San Augustiiie County, Texas. ReservattensfiromConvqunce and Warranty: ForGxainor,8 IVact Two for die lemainderofdielldi of Grantor, ssalift estate. Exe^dons to Convsyanee and Warranty: Eiwwnrnti, ii^]la4f>way and pmsatytive 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, for die cuosideTadan and sid^ect tothe reservationa fiom and exeeptiona to conveyance and warranty, 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 and Grantor's belts, cxecutoia, adndnistiaton, and snccesseaa to waxraiit and fbiever defend bU and aingular dtt property to Grantee and Grantee's heirs, executors, adndniittators, successors, and assigns against every person vduniBoever lawfiiUy dahnhig orto clahndw same or anypart disieof except asto the reservations fiom and excqitlons to conveyance and warranty. The veodor'a lien against and snpexior dde to die propeity ate retained unta each note itescribed is fiiUy paid accoiding to

its tenns, at wideh dnm this Deed shall become absolute. When dte context requites, singularnouns and pronouns include die phnaL

fdiefidl ssesslon, benefit, and use of YVAco ^ PLAINTIFFS' EXHIBIT 2LZ THE STATE OF TEXAS COUNTY OF SAN AUGUSTINE ThisiastninienttrosadmowledgedbsfoseinebyJACKP. JESSUP ANDWIFE,ANNIE ELIZABETH JESSUP, on this the 25th day of April, 2003. oonnisvmjsmn NotuyPi^e Stataedltaia My ComrriMtonBiplfM NOTARY PUBLIC FO PREPARED BY: J. KEN MUCKELROY, ATTORNEY AT LAW, P.C. 104 Souft Btoadmgr, Ssa Augustine, Texas 759^ Phone: (936) 275<2304 Pax: (936) 275-2305 AFTER RECORDATION, PLEASE RETURN TO 3. KEN MUCKELROY, ATTORNEY iinirAe:Isndyatup4lfa(d.ol\ev, JKM; TC 3?

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### f' 4."° J® 2^ kgreed "by and bet«e& the parties hereto* I j that the pantora herein reaervea In their own riight one haXf of all ktod and chaTector which may be on or under the .' 2?S«2 «?? purpoaa of nlnSng and drllXlng for oil and |; other lalXeralB without interference of aaalgne or hla aaaigna.

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### 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 B nilea 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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