ACCEPTED 13-14-00383-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 1/28/2015 4:53:06 PM DORIAN RAMIREZ CLERK
NO. 13-14-00383-CV
FILED IN 13th COURT OF APPEALS IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS FOR THE THIRTEENTH DISTRICT OF1/28/2015 TEXAS, 4:53:06 PM DORIAN E. RAMIREZ Clerk
301 WHITE OAK RANCH, LTD., JOHN D. MANNING, D/B/A JM PROPERTIES AND AURORAS, LLP Appellants, v.
OAKS OF TRINITY HOMEOWNERS’ ASSOCIATION, INC. Appellee.
ON APPEAL FROM THE RD 253 JUDICIAL DISTRICT COURT OF LIBERTY COUNTY, TEXAS
REPLY BRIEF OF 301 WHITE OAK RANCH, LTD., JOHN D. MANNING, D/B/A JM PROPERTIES AND AURORAS, LLP
ORAL ARGUMENT REQUESTED
Charles E. Fitch cfitch@fitchlaw.com Texas Bar No. 07072000 LAW OFFICES OF CHARLES E. FITCH, P.C. 11 Greenway Plaza, Suite 2820 Houston, Texas 77046 Telephone: (713) 961-1200 Facsimile: (713) 622-6107
Attorney for Appellants 301 White Oak Ranch, Ltd., John D. Manning, d/b/a JM Properties and Auroras, LLP TABLE OF CONTENTS
INDEX OF AUTHORITIES.................................................................................... iii
REPLY ISSUES PRESENTED ................................................................................ ii
SUMMARY OF THE ARGUMENT ........................................................................ 1
ARGUMENT ............................................................................................................. 2
REPLY ISSUE NO. 1: (Reply to Appellee’s Cross Point No. 1) APPELLEE’S CROSS POINT NO. 1 SHOULD BE DENIED BECAUSE THIS COURT LACKS APPELLATE JURISDICTION CONCERNING APPELLEE’S CAUSE OF ACTION FOR THE DECLARATORY JUDGMENT CLAIM THAT THE SUBDIVISION ROADS ARE “COMMON AREAS” UNDER THE RESTRICTIONS SINCE THAT CLAIM WAS SEVERED INTO A SEPARATE ACTION APART FROM THE INSTANT CASE.
REPLY ISSUE NO. 2: (Reply to Appellee’s Reply Point #1) THE SUMMARY JUDGMENT SHOULD NOT BE AFFIRMED BECAUSE APPELLEE FAILED TO MEET ITS BURDEN OF PROOF, OR EVEN ADDRESS, APPELLANTS’ AFFIRMATIVE DEFENSE OF MUTUAL MISTAKE WITH RESPECT TO THE 2005 DEED.
REPLY ISSUE NO. 3: (Reply to Appellee’s Reply Point # 5) APPELLEE HAS NOT SUBSTANTIVELY RESPONDED TO APPELLANTS’ ISSUE NO. 4 CONCERNING A FAILURE OF THE 2005 DEED TO SUFFICIENTLY DESCRIBE THE LAND PURPORTED TO BE CONVEYED.
PRAYER .................................................................................................................. 11
CERTIFICATE OF COMPLIANCE ....................................................................... 13 ii INDEX OF AUTHORITIES
Cases
Hall v. City of Austin, 450 S.W.2d 836 (Tex. 1970) ...........................................................................4
Duncan v. Calhoun County Navigation Dist., 392 S.W.3d 707 (Tex. App.—Corpus Christi 2000, pet. denied). ..................4
Bauer v. Jasso, 946 S.W.2d 552 (Tex.App.—Corpus Christi 1997, no writ.) ........................ 6
Gail v. Berry, 343 S.W.3d 520 (Tex. App.—Eastland 2011, pet. denied) ............................7
Simpson v. Curtis, 351 S.W.3d 374 (Tex. App.—Tyler 2010, no pet. h.) .....................................7
Lyons v. Lindsey Morden Claims Management, Inc., 985 S.W.2d 86 (Tex. App.—El Paso 1998, no pet. h.) ................................10
State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374 (Tex.1993) ..........................................................................11
Rules TEX. R. CIV. P. 48 .....................................................................................................10
iii SUMMARY OF THE ARGUMENT
Appellee sought a declaratory judgment on a number of claims, including
the claim that the roads in the Oaks of Trinity subdivision were “Common Areas”
under the subdivision restrictions and as such were reserved for the exclusive use
of its members. (CR 435- 436) In its order granting summary judgment the trial
court specified the reasons and basis for summary judgment, which did not include
the declaratory judgment action concerning the Common Areas Claim.
Since the declaratory judgment claim that the Common Areas included the
roads was not disposed of by summary judgment, but severed into a separate
action, this Court lacks appellate jurisdiction to consider Appellee’s Cross Point
No. 1.
The summary judgment with respect to the 2005 deed should be reversed
because Appellee did not meet its burden of proof to maintain the summary
judgment. By rendering a summary judgment that the 2005 deed did not reserve
an easement the trial court adjudicated the mutual mistake defense, which if
successful, would result in a 2005 deed that did reserve an easement. Appellants
are entitled to a trial on the mutual mistake defense because a fact issue was raised
on that issue.
The sufficiency of the legal description in the 2005 deed was not addressed
by the trial court nor by Appellee. Specifically Appellee made no attempt to
1 substantively address the effect of the failure of the 2005 deed to have a beginning
point that exists on the ground. Because the beginning point of the land to be
conveyed in the 2005 deed was non-existent the 2005 deed failed for lack of a
sufficient identification and the summary judgment should be reversed and
judgment rendered that the 2005 deed was void for lack of a sufficient legal
description.
ARGUMENT
A. Reply Issue #1 Restated
REPLY ISSUE NO. 1: (Reply to Appellee’s Cross Point No. 1) APPELLEE’S CROSS POINT NO. 1 SHOULD BE DENIED BECAUSE THIS COURT DOES NOT HAVE APPELLATE JURISDICTION TO HEAR THE APPELLEE’S CAUSE OF ACTON FOR DECLARATORY JUDGMENT CLAIM THAT THE SUBDIVISION ROADS ARE “COMMON AREAS” UNDER THE RESTRICTIONS SINCE SUCH CAUSE OF ACTION WAS SEVERED INTO A SEPARATE ACTION AND NO FINAL JUDGMENT HAS BEEN RENDERED IN SUCH SEVERED ACTION.
On February 13, 2014 Appellee filed its Plaintiff’s Fourth Amended
Petition, Request for Declaratory Judgment and Application for Permanent
Injunction. (CR 432). In such pleading declaratory judgment was sought as
follows: (i) that the 2008 Correction Quitclaim Deed was void and unenforceable;
(ii) that the roads were “Common Areas” for the exclusive use of members; (iii)
that Defendants do not have a valid easement; and (iv) that Auroras, LLP does not
have a valid easement. (CR 435-436).
On May 15, 2014 the trial court signed an Order Granting Final Summary
2 Declaratory Judgment declaring as follows: (CR 853-854)
That the 2005 deed did “not reserve an easement for ingress and egress through the roads in Oaks of Trinity, Section 1;”
That the 2008 Correction Deed did “not reserve an easement for ingress and egress through the roads in Oaks of Trinity, Section 1;”
That “roads located in the Oaks of Trinity, Section 1, are solely owned by Oaks of Trinity Homeowners’ Association, Inc.”
That “the Defendants do not have authority to grant an easement, access or otherwise, for the use of such roads to any third party;” and
“That any easement for access to the Oaks of Trinity roads claimed by Defendants, or by Intervenor, AURORAS, LLP is void and unenforceable.”
The Order Granting Final Summary Declaratory Judgment also provided
that “[a]s the remaining causes of action have been severed this judgment is final
and disposes of all parties and all claims and is appealable.” (Emphasis added)
On May 15, 2014 the trial court signed an Order For Severance of Actions.
(CR 849). The severance order provided that the declaratory actions of the parties
“relating to the existence or non-existence of an easement in favor of Defendants
and/or Intervenor for access, ingress and egress to the roads located in Oaks of
Trinity, Section One (1)” were severed and made final by the Final Judgment.
Thus, all other actions, including the action by Appellee for a declaratory judgment
to construe the roads as “Common Areas” remained, and were “stayed pending
3 outcome of appeal of severed action.” (CR 849)
The “Common Areas” argument made by Appellee (and reserved for further
action pending this appeal) was not dependent upon the existence or non-existence
of an easement for ingress or egress in favor of Appellants. Rather, it deal solely
with the question of whether the roads were “Common Areas” that were for the
exclusive use of the members. Not only do the severance and summary judgment
orders make this clear, but the trial court stated the following when ruling: “I’m not
finding that the streets are common areas. I don’t think there’s a necessity for that
at this point.” [CR 835].
Once all other actions were severed there arose two separate lawsuits. “A
severance divides the lawsuit into two or more separate and independent causes”,
Hall v. City of Austin, 450 S.W.2d 836 (Tex. 1970), “each of which terminates in a
separate, final and enforceable judgment”, Duncan v. Calhoun County Navigation
Dist., 28 S.W.3d 707, 710 (Tex.App.—Corpus Christi 2000, pet. denied).
Aside from certain interlocutory orders, not relevant here, “[t]he
longstanding rule in Texas is that appeals are allowed only from final orders or
judgments.” Duncan, 28 S.W.3d at 710. Appellee is relying on a judgment in the
instant case to dispose of an issue in the case that remains on the trial court’s
docket. Because there is no final judgment in the action in which the “Common
Area” claim is pending this Court should not address Appellee’s Cross Point. In
4 the alternative, for the reasons set forth in Appellant’s Brief at page 23-31 thereof,
Common Areas do not include roads.
B. Reply Issue #2 Restated
REPLY ISSUE NO. 2: (Reply to Appellee’s Reply Point #1) THE SUMMARY JUDGMENT CANNOT BE AFFIRMED BECAUSE APPELLEE FAILED TO MEET ITS BURDEN OF PROOF TO DEMONSTRATE THERE WAS NO FACT ISSUE ON APPELLANTS’ AFFIRMATIVE DEFENSE OF MUTUAL MISTAKE OR SCRIVENER’S ERROR WITH RESPECT TO THE 2005 DEED.
Appellee contends that the summary judgment should be affirmed because
Appellants’ reformation action was “effectively” severed and can be prosecuted in
the future. The first ground expressed by the trial court in its summary judgment
order was that the 2005 deed did not reserve an easement for ingress and egress
through the roads in Oaks of Trinity, Section 1. There is no dispute that the form
of the 2005 deed that was actually filed for record did not reserve an ingress and
egress easement. In their response to Appellee’s motion for partial summary
judgment Appellants raised the affirmative defense of mutual mistake and/or
scrivener’s error as to the 2005 deed that was filed for record, (CR 803-804) and
supported such defense by competent summary judgment evidence. (CR 732-758,
769-792).
The question raised is not what the recorded 2005 deed says, but rather what
the parties intended and whether the 2005 deed should be reformed to conform to
those intentions.
5 The issue is whether Appellee met its burden of proof on its claim that the
2005 deed did not reserve an easement. A plaintiff’s burden of proof with respect
to affirmative defenses in the summary judgment context was address by this Court
in Bauer v. Jasso, 946 S.W.2d 552 (Tex.App.—Corpus Christi 1997, no writ).
In Bauer Jasso sued Bauer for trespass. The trial court granted Jasso’s
motion for summary judgment. Bauer asserted the affirmative defense of title by
deed and adverse possession. On the movant’s burden in a summary judgment
case involving affirmative defenses this Court stated the following:
The crux of Bauer’s point of error is that the trial court erred in granting summary judgment because Jasso did not establish *556 his entitlement to summary judgment with respect to Bauer’s affirmative defense of adverse possession. Bauer complains the trial court impermissibly shifted the burden of proof to him to establish his affirmative defense instead of requiring Jasso to prove all the elements of his cause of action as a matter of law. We agree.
Bauer, at p. 555-556.
In Bauer this Court reversed the summary judgment and remanded the case.
The instant case presents an even more compelling situation for reversal
because Appellee admits in its brief to not even addressing the affirmative defense
of mutual mistake and/or scrivener’s error.
Appellee attempts to justify its failure to address this affirmative defense by
asserting that the reformation action and defense based on mutual mistake was
“effectively” severed. Appellee Brief at p. 23. Appellee contends that the
6 summary judgment order does not dispose of Appellants’ reformation action,
grounded in the affirmative defense of mutual mistake and/or scrivener’s error.
“A party is entitled to reformation of a deed when it proves that it reached an
agreement with the other party but the deed does not reflect the true agreement due
to a mutual mistake.” Gail v. Berry, 343 S.W.3d 520 (Tex.App.—Eastland 2011,
pet. denied). “The underlying objective of reformation is to correct a mutual
mistake made in preparing a written instrument, so that the instrument truly reflects
the original agreement of the parties.” Simpson v. Curtis, 351 S.W.3d 374
(Tex.App.—Tyler 2010 no pet. h.) By rendering a summary judgment that the
2005 deed did not reserve an easement the trial court adjudicated the mutual
mistake defense, which if successful, would result in a 2005 deed that did reserve
an easement. Appellants are entitled to a trial on the mutual mistake defense.
The summary judgment order makes it clear that its purpose was to render a
judgment that the 2005 deed did not reserve any easement. Yet, neither Appellee’s
motion, nor its brief in this court, address the mutual mistake defense, except to say
that it was severed out to be decided another day. If upon a trial it was found that
the 2005 deed that was recorded was the product of a mutual mistake and/or
scrivener’s error the 2005 deed, as reformed, would reserve an easement. Under
those circumstances, the summary judgment order to the extent of the relief set
forth in paragraphs 1.a., 1.d. and 1.e. would be contrary to a reformed deed. If the
7 summary judgment is affirmed and becomes final, the question arises: how would
any effort to reverse it in a different case be possible? There would not be any
basis to attack the validity of the 2005 deed – and all this would result from a
motion for summary judgment that never addressed the affirmative defense of
mutual mistake and/or scrivener’s error and where Appellee admits that it did not
substantively addressing this affirmative defense in this appeal.
C. Reply Issue #3 Restated
REPLY ISSUE NO. 3: (Reply to Appellee’s Reply Point # 5) APPELLEE HAS NOT SUBSTANTIVELY RESPONDED TO APPELLANTS’ ISSUE NO. 4 CONCERNING A FAILURE OF THE 2005 DEED TO SUFFICIENTLY DESCRIBE THE LAND PURPORTED TO BE CONVEYED.
The issue raised by Appellants’ Issue No. 4 in its Brief was whether the
following legal description was sufficient to identify the property purportedly
conveyed with reasonably certainty:
Property including any improvements: Those roads, streets, and medians within the subdivision beginning at FM 1008 to intersection with Private Road 6350 (Sweetwood Ct) in "Section 1, Oaks of Trinity, Liberty County, Texas.
[CR 530]
This issue is one of contract (deed) construction. If the legal description in
the 2005 deed was legally sufficient, then the roads were conveyed to Appellee1. If
the legal description was not sufficient then the 2005 deed was void and no roads
1 However, if the 2005 deed description is found to be legally sufficient, a fact issue was raised as to whether a mutual mistake occurred sufficient to reform that deed by the inclusion of an easement.
8 were conveyed to Appellee.
In its Reply Point 5 Appellee observes that Appellant, for the first time
asserted the legal description issue, as an alternative defense or claim, in its Third
Amended Counterclaim, which was filed March 25, 2014. It is worth noting that
no limitations claim was asserted against the alternative legal description claim.
Appellee mentions that there are three recorded instruments whereby
Appellants have expressed a conveyance of the ownership of the roads to Appellee.
Appellee then states that in “every single pleading and affidavit filed by Appellants
in this case references” Appellee’s ownership of the roads. This anecdotal
observation seems a bit odd given that in Appellee’s Original Petition, First
Amended Petition, Second Amended Petition and its Third Original Petition, there
was attached a copy of the 2005 deed that had a reservation of an easement, as the
deed that was executed by the Association, contrary to Appellee’s present
contention.
In their pleadings Appellants claimed that the 2005 deed with the easement
was executed by Appellee, a claim consistent with Appellee’s acknowledgement
(up to its Fourth Amended Petition) that such deed with easement was executed by
it in 2005. Appellants raised the legal description sufficiency defense after the
February 13, 2014 filing by Appellee of its Fourth Amended Petition, which for the
first time alleged that the 2005 deed did not reserve an easement. It was proper for
9 Appellants, in response, to plead an alternative claim that the legal description was
insufficient to support a conveyance. TEX. R. CIV. P. 48. Inconsistencies between
alternative claims or defenses do not operate as judicial admissions. Lyons v.
Lindsey Morden Claims Management, Inc. 985 S.W.2d 86 (Tex.App.—El Paso
1998, no pet. h.)
Appellee contends that while a disputed ‘fact’ issue of fact may be raised as
to the “alleged existence of an intersection” no ‘fact’ issue is raised as to the
ownership of the roads by Appellee. Appellee has it wrong – the question of the
legal sufficiency of a deed is not a fact question, but a legal one for the court.
Appellants’ Issue No. 4 certainly raised that legal construction issue.
Appellee asserts that the legal description in the 2005 deed conveyed the
“roads, streets and medians within the subdivision . . .” As pointed out by
Appellants at page 32 of its Brief, the description did not convey “all private streets
and roads in the Subdivision.” In the deed the description of the roads to be
conveyed were those “beginning at FM 1008 to intersection with . . . Sweetwood
Ct.”, a point that does not exist. Contrary to Appellee’s assertion there is no fact
issue as to the non-intersection of FM 1008 and Sweetwood Ct. – that is
demonstrated simply looking at the very plat that Appellee relies on. Appellee
made no attempt to substantively address the effect of the failure of the 2005 to
have a beginning point that does not exist on the ground.
10 Finally, Appellee makes a somewhat confusing argument at the end of its
Reply Point 5 that since the summary judgment was granted on general and non-
specific grounds the summary judgment may be affirmed on appeal if any of the
theories advanced are meritorious. Appellee does not explain how this answers the
legal description issue. Moreover, Appellee does not identify the other ‘theories’
that supposedly will support the summary judgment. Somewhat surprisingly,
Appellee ends by citing State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374
(Tex. 1993). State Farm Fire & Casualty Co. does not in any way support
Appellee because in that case the Texas Supreme Court reaffirmed the rule that
where a summary judgment specifies the grounds upon which it is based, only
those grounds will support a summary judgment. Clearly, this is a case where the
summary judgment contained the specific grounds upon which it was based, which
were bolstered and consistent with the oral ruling made by the trial court.
PRAYER
Appellants 301 White Oak Ranch, Ltd., John D. Manning d/b/a JM
Properties and Auroras, LLP, pray that the trial court’s Final Judgment be reversed
and remanded for trial.
11 Respectfully submitted,
LAW OFFICES OF CHARLES E. FITCH, P.C. BY:_/s/Charles E. Fitch______________ CHARLES E. FITCH State Bar No.: 07072000 11 Greenway Plaza, Suite 2820 Houston, TX 77046 Phone: (713) 961-1200 Fax: (713) 622-6107 Email: cfitch@fitchlaw.com
ATTORNEY FOR APPELLANTS, 301 WHITE OAK RANCH, LTD. AND JOHN D. MANNING d/b/a JM PROPERTIES AND INTERVENOR AURORAS, LLP
CERTIFICATE OF SERVICE
I hereby certify that on January 28, 2015, a true and correct copy of the foregoing instrument was served upon Appellee or its counsel of record via electronic filing, facsimile and/or certified mail, return receipt requested, and to court personnel via electronic filing.
Trisha Taylor Farine Via electronic filing Daughtry & Jordan, P.C. and/or facsimile 281-218-9151 17044 El Camino Real Houston, Texas 77058
Peter C. Blomquist Via electronic filing Shannon, Gracey, Ratliff & Miller, LLP and/or facsimile 713-655-1597 1301 McKinney St., Suite 2900 Houston, Texas 77010
Stan Nix, Pro Se Via electronic filing 2607 Cardinal Lane and/or facsimile 281-540-8032 Humble, Texas 77396
/s/ Charles E. Fitch Charles E. Fitch
12 CERTIFICATE OF COMPLIANCE
I hereby certify that this Reply Brief contains 3,228 words.