Ivarene and Victor Hosek v. Rosale Scott

Opinion

ACCEPTED 04-14-00655-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/8/2015 8:28:17 PM KEITH HOTTLE CLERK

No. 04-14-00655-CV FILED IN On Appeal to the Fourth Court of Appeals 4th COURT OF APPEALS SAN ANTONIO, TEXAS 3/9/2015 11:00:00 AM San Antonio, Texas KEITH E. HOTTLE Clerk

Ivarene and Victor Hosek, Appellants

v.

Rosale Scott, Appellee

On Appeal from the 81st Judicial District Court of Atascosa County, Texas, Trial Court No. 13-06-0559-CVA, the Honorable Fred Shannon, Presiding

Appellants’ Brief

Respectfully submitted, THE CHIMENE LAW FIRM Michele Barber Chimene TBN 04207500 15203 Newfield Bridge Ln. Sugar Land, TX. 77498 PH: (713) 474-5538; no fax available michelec@airmail.net

COUNSEL FOR APPELLANTS, THE HOSEKS

Oral Argument Requested No. 04-14-00655 Hosek v. Scott

IDENTITY OF PARTIES

In the Trial Court: Plaintiffs/Appellants: Ivarene and Victor Hosek Trial Counsel: Robert J. Ogle TBN 15231350 bob@ogleattorney.com 508 E. San Antonio St. Boerne, TX. 78006

Defendant/ Appellee: Rosale Scott Trial Counsel: G. Wade Caldwell TBN 03621020 gcaldwell@beclaw.com Raquel G. Perez TBN 00784746 rperez@beclaw.com Zachary Fanucchi TBN 24028548 zfanucchi@beclaw.com Barton, East & Caldwell, P.L.L.C. One Riverwalk Place, Ste. 1825 700 N. St. Mary’s St. San Antonio, TX. 78205 Additional Appellate Counsel for the Hoseks on Appeal: Michele Barber Chimene TBN 04207500

i IDENTITY OF PARTIES, cont’d. michelec@airmail.net The Chimene Law Firm 15203 Newfield Bridge Ln. Sugar Land, TX. 77498

ii TABLE OF CONTENTS

Contents IDENTITY OF PARTIES.............................................................................................................................. i TABLE OF CONTENTS ............................................................................................................................. iii INDEX OF AUTHORITIES......................................................................................................................... v STATEMENT OF THE CASE .................................................................................................................... vi STATEMENT ON ORAL ARGUMENT.................................................................................................... vi ISSUES PRESENTED................................................................................................................................ vii STATEMENT OF FACTS ........................................................................................................................... 1 SUMMARY OF ARGUMENT .................................................................................................................... 3 ARGUMENT & AUTHORITIES ................................................................................................................ 5 ARGUMENT ON FIRST & SECOND ISSUES ...................................................................................... 5 The trial court erred in granting summary judgment in favor of Ms. Scott because the petition deed is ambiguous and the summary judgment evidence establishes that a general issue of material fact exists whether the minerals reverted to the surface owner after twnety-five years and cessation of produc- tion. ....................................................................................................................................................... 5 This summary judgment was harmful error because the partition deed was ambiguous and summary judgment evidence conclusively establishes that the minerals reverted to the surface owner after the expiration of 25 years ......................................... 5 STANDARD OF REVIEW ON FIRST AND SECOND ISSUES ........................................................... 5 ARGUMENT & AUTHORITIES: ........................................................................................................... 6 ARGUMENT AND AUTHORITIES ON THIRD ISSUE: .................................................................... 13 The trial court abused its discretion in awarding attorneys' fees because sides benefitted equally from an interpretation of the deed and an award to Ms. Scott was not fair and equitable. .................................................................................................. 13 STANDARD OF REVIEW ON THIRD ISSUE: ................................................................................... 13 ARGUMENT & AUTHORITIES: ......................................................................................................... 13 ARGUMENT & AUTHORITIES ON FOURTH ISSUE:...................................................................... 15 The trial court abused its discretion in allowing the possibility of forcing the Hoseks to pay the costs of necessary and irrelevant documents which were included in the record at the demand of Ms. Scott’s counsel merely to raise the cost of the appeal for the Hoseks. ................................................................................................. 15

iii STANDARD OF REVIEW ON FOURTH ISSUE: ............................................................................... 15 ARGUMENT & AUTHORITIES: ......................................................................................................... 15 CONCLUSION & PRAYER ...................................................................................................................... 17 CERTIFICATE OF COMPLIANCE .......................................................................................................... 18 CERTIFICATE OF SERVICE ................................................................................................................... 18 APPENDIX:................................................................................................................................................ 20

iv INDEX OF AUTHORITIES

Cases Bagby v. Bredhauer, 627 S.W.2d 190 (Tex. App. – Austin 1981, no writ) ................................................ 10 Berrand, Inc. v. Whataburger, Inc., 214 S.W.3d 122 (Tex. App – Corpus Christi 2006, pet denied).......... 6 Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) ........................................................................................ 13 Brown v. Havard, 593 S.W.2d 939 (Tex. 1980) ........................................................................................... 7 City of Temple v. Taylor, 268 S.W.3d 852 (Tex. App. – Austin 2008, pet. denied) ................................... 13 DeWitt Cty. Elec. Co-Op, Inc. v. Parks, 18 S.W.3d 96 (Tex. 1999) ............................................................. 7 Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280 (Tex. 1996) ..................................................... 6 Frost Nat’l Bank v. L & F Distribs, Ltfd., 165 S.W.3d 310 (Tex. 2005) ...................................................... 8 Houchins v. Devon Energy Prod. Co., LP, No. 01-08-00273-CV, 2009 Tex. App. LEXIS 8064 (Tex. App. –Houston [1st Dist.] Oct. 15, 2009, pet denied) ........................................................................................ 7 J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) ..................................................................... 6 Luckel v. White, 819 S.W.2d 459 (Tex. 1991) .............................................................................................. 8 National Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517 (Tex. 1995) ................................................ 11 Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508 (Tex. 1995) ............................................................... 6 Plainsman Trading Co. v. Crews, 898 S.W.2d 786 (Tex. 1995) .................................................................. 8 Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003).................................................. 5 Reilly v. Rangers Mgmt, Inc. 727 S.W.2d 527 (Tex. 1987) .......................................................................... 9 Rio Bravo Oil Co. v. Weed, 121 Tex. 427 (Tex. 1932) .......................................................................... 10-11 San Antonio St. Ry Co. v. Adams, 87 Tex. 125 (Tex. 1894). ...................................................................... 12 Securtec, Inc. v. County of Gregg, No. 06-01-00164-CV, 2002 Tex. App. LEXIS 8812 (Tex. App. – Texarkana Dec. 11, 2002, no pet.) .......................................................................................................... 14 T C Dallas #1, LP v. Republic Underwriters Ins. Co., 316 S.W.3d 832 (Tex. App. – Dallas 2010, no pet.) .................................................................................................................................................................. 6 Tanglewood Homes Ass’n v. Henke, 728 S.W.2d 39 (Tex. App. – Houston [1st Dist.] 1987, writ ref’d n.r.e.) ....................................................................................................................................................... 14 Terrill v. Tuckness, 985 S.W.2d 97 (Tex. App. – San Antonio 1998, no pet.) ............................................. 6 Thomason v. Bradgett, No. 02-12-00303-CV, 2013 Tex. App. LEXIS 8576 (Tex. App. – Fort Worth July 11, 2013, pet. denied) ................................................................................................................................ 8 Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951) .................................................. 7, 11 Western Invs. v. Urena, 162 S.W.3d 547 (Tex. 2005) .................................................................................. 6 Statutes TEX. CIV. PRAC & REM. CODE § 37.001 et seq .................................................................................................. v Rules TEX. R. CIV. P. 166(a)................................................................................................................................. 4

v STATEMENT OF THE CASE

Trial Court: This case was a declaratory judgment action under Texas Civil Practice and Remedies Code § 37.001 et seq.. (CR 1-5). The Hoseks requested construction of a deed of partition to determine whether they owned all or half of the minerals under their land in Atascosa County. (CR 75-77). Partial summary judgment was granted in favor of Ms. Scott owning an undivided one-half interest in the minerals under the Hoseks’ land. (Supp. CR 89-90). A hearing was held on the issue of attorneys’ fees, (RR 1-60), after which Judge Shannon awarded Ms. Scott attorneys’ fees of $39,500, plus $2,500 if a Motion for New Trial was filed, 12,500 for appeal to this court, $3,500 if petition for review was filed, and $12,500 if the petition was granted. (CR 208-213). Final Judgment was June 19, 2014. (CR 212).

Post-trial and appeal: Finding of Facts and Conclusions of Law were requested. (CR 227). The Hoseks filed a Motion for New Trial. (CR 248-250). The Court made Findings of Fact only as to attor- ney fees. (CR 345; 405-12). Notice of Appeal was filed on June 19, 2014. (CR 415).

STATEMENT ON ORAL ARGUMENT

The Hoseks believe that the issues in this case are straightforward and that

oral argument will not help decide the case. However, if Ms. Scott is granted oral

argument, the Hoseks wish to be allowed to argue.

vi ISSUES PRESENTED

The trial court erred in granting summary judgment in favor of Ms. Scott because the partition deed is ambiguous and summary judgment evidence establishes that a genuine issue of fact exists whether the minerals reverted to the surface owner after the expiration of 25 years and cessation of production.1 This summary judgment was harmful error because the partition deed is ambiguous and summary judgment evidence conclusively establishes that the minerals reverted to the surface owner after the expiration of 25 years and cessation of production. The trial court abused its discretion in awarding attorneys’ fees because both sides benefitted equally from an interpretation of the deed and an award to Ms. Scott was not fair and equitable. The trial court abused its discretion in allowing the possibility of forcing the Hoseks to pay the costs of unnecessary and irrelevant documents which were included in the record at the demand of Ms. Scott’s counsel merely to raise the cost of the appeal for the Hoseks.

1 There was no actual production during the twenty-five year period to extend the agreement not to partition. vii No. 04-14-00655-CV

On Appeal to the Fourth Court of Appeals San Antonio, Texas

Ivarene and Victor Hosek, Appellants

v.

Rosale Scott, Appellee

On Appeal from the 81st Judicial District Court of Atascosa County, Texas, Trial Court No. 13-06-0559-CVA, the Honorable Fred Shannon, Presiding

TO THE HONORABLE COURT OF APPEALS: COME NOW, IVARENE and VICTOR HOSEK, and file this, their

Appellants’ Brief in the above-referenced case. The Hoseks will show as follows:

STATEMENT OF FACTS

On October 4, 1978, Fridolin Alex Voigt and his wife, Pearl Schnautz Voigt,

deeded the family farm to their children, Ivarene Voigt Hosek (and her husband

Victor) and Rosale Voigt Scott, in equal undivided shares. (Supp CR 16; 45). The

Hoseks and Ms. Scott then partitioned the tract, but made an agreement not to

partition the minerals for twenty-five years or so long as production continued. 1 (Supp. CR 19-24; 45). Because the twenty-five years started with the present, the

partition deed did not partition the minerals, and they were severed from the surface

estate. (Supp. CR 20-22). The partition read as follows:

“This partition does not include any of the oil, gas, or other minerals in, on or under the above described tract of land, and same are to remain undivided for a period of twenty-five years from the date hereof and as long thereafter as oil, gas, or other minerals are produced in paying quantities from the above described lands.”

(Supp. CR 20-22). The deed was unclear what happened to the minerals after the

twenty-five years was up. The intent of the deed was clearly a partition of interests,

(Supp. CR 19-24), yet did the statement that the partition did not include the minerals

just mean that the minerals were not partitioned during the time the parties had

agreed to not partition them, or did it leave them unpartitioned forever? And if they

were left unpartitioned forever, why was a twenty-five year period mentioned,

instead of just saying that the deed did not partition the minerals? This was an

ambiguity that would much later cause an oil company landman to send a quit claim

deed to Ms. Scott for signature, and begin this lawsuit, but up until the quit claim

deed, the parties treated the minerals in similar fashion.

After the twenty-five years had passed, (in 2004), both parties treated the land

as though the minerals had reverted to the respective surface owners. Ms. Scott sold

parts of her property to the Moraleses in 1986, (Supp. CR 28), and to the Kings in

1990. (Supp. CR 31). She told the buyers that they would own the 50% of the

2 minerals owned by the Hoseks under Ms. Scott’s tract after the twenty-five years

expired. (Supp. CR 49, 62, 64, and 78). The buyers paid Ms. Scott, not Ms. Hosek,

for the minerals. (Supp. CR 50). Ms. Scott even asked the Hoseks to ignore the

agreement to not partition and have the minerals revert to the surface owner before

the twenty-five years were up so that she could please her buyer and convey 100%

of the minerals immediately. (Supp. CR 73-76). There are even current wells pooled

with the land Ms. Scott sold, and the Hoseks are not getting paid any royalties on the

hydrocarbons produced, because all parties have treated the minerals as reverting to

the surface owner. Only when oil was found on the Hoseks’ land, and an oilman

asked Ms. Scott to sign a quit claim deed to cure the ambiguity in the poorly-drafted

Partition Deed did Ms. Scott make her claim. (Supp. CR 50).

SUMMARY OF ARGUMENT

The Partition Deed at the heart of this case, (Supp. CR 19-24), is ambiguous

because it does not say what happens to the minerals after a twenty-five year

agreement not to petition and two possibilities are valid: (1), the Partition is

completed and the minerals revert to the surface owner, or (2) the minerals stay

unpartitioned forever. The trial court erred in saying the deed was unambiguous.

This brief discusses the many rules of contract interpretation which cause the deed

to be ambiguous. 3 Subsequent treatment of the minerals by the parties before the conflict arose

provides airtight proof as to what the parties intended. Ms. Scott told two buyers for

her land that the minerals would revert to the surface owner, and after the twenty-

five years were up, they would own the minerals. Ms. Scott attempted to bring to a

close the agreement not to partition the minerals before the twenty-five years were

up, so as to give what was the temporarily the Hosek’s minerals to the buyer

immediately. If the minerals did not revert to the surface owners, Ms. Scott has sold

the Hosek’s minerals under Ms. Scott’s land without paying the Hoseks for them,

and there are now wells pooled on that land that the Hoseks also aren’t getting paid

for. The landmen for current wells believe that the Hoseks own all the minerals

under their tract and the buyers own all the minerals under Ms. Scott’s tract. They

only gave Ms. Scott a quit claim deed to sign because the deed was ambiguous. The

trial court’s summary judgment should be reversed and the Hoseks found to own the

minerals (100%) under their land.

Both parties needed this ambiguous deed interpreted, so attorneys’ fees should

not have been awarded to either side. Such was not equitable and just.

The costs of an unnecessarily-long Clerk’s Record requested by Ms. Scott’s

counsel should not be assessed against the Hoseks. This point is not moot because

the appellate court could still do this, and such would not be just and equitable.

Expanding the record beyond what was proper was just one of the many techniques 4 of gamesmanship Ms. Scott’s counsel used to make the appeal cost the Hoseks more

than it should.

ARGUMENT & AUTHORITIES

ARGUMENT ON FIRST & SECOND ISSUES

The trial court erred in granting summary judgment in favor of Ms. Scott because the partition deed is ambiguous and summary judgment evidence establishes that a genuine issue of fact exists whether the minerals reverted to the surface owner after the expiration of 25 years and cessation of produc- tion.2

and

This summary judgment was harmful error because the partition deed is ambiguous and summary judgment evidence conclusively establishes that the minerals reverted to the surface owner after the expiration of 25 years and cessation of production.

STANDARD OF REVIEW ON FIRST AND SECOND ISSUES

To prevail on a summary judgment, the movant is required to prove that there

is no genuine issue as to any material fact and that movant is entitled to judgment as

a matter of law. TEX. R. CIV. P. 166(a). The appellate court reviews the trial court’s

grant of a summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, the Court

2 Again, noting that there was no production during the twenty-five years. 5 must accept as true evidence favoring the non-movant, indulging in every reasonable

inference and resolving all doubts in the non-movant’s favor. Park Place Hosp. v.

Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995); Western Invs. v. Urena, 162

S.W.3d 547, 550 (Tex. 2005).

When an instrument is unambiguous, and the dispositive facts are not in

dispute, a court may grant summary judgment and render a declaratory judgment

regarding the parties’ rights under the instrument. Berrand, Inc. v. Whataburger,

Inc., 214 S.W.3d 122, 131-32 (Tex. App – Corpus Christi 2006, pet denied); T C

Dallas #1, LP v. Republic Underwriters Ins. Co., 316 S.W.3d 832, 837 (Tex. App.

– Dallas 2010, no pet.). Extrinsic evidence of intent is admissible if the deed is

ambiguous on its face. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280,

283 (Tex. 1996).

ARGUMENT & AUTHORITIES:

In construing a written agreement, we must ascertain and give effect to the

parties’ intentions as expressed in the agreement. Terrill v. Tuckness, 985 S.W.2d

97, 101 (Tex. App. – San Antonio 1998, no pet.). The Hoseks believe that the

Partition Deed is ambiguous. (Supp. CR 21-22). Deciding whether a deed is

ambiguous is a question of law for the courts. J.M. Davidson, Inc. v. Webster, 128

S.W.3d 223, 229 (Tex. 2003). The court may look to principles of contract

interpretation to determine whether a deed term is ambiguous. Brown v. Havard,

6 593 S.W.2d 939, 942 (Tex. 1980). A deed term is not ambiguous because of a simple

lack of clarity. DeWitt Cty. Elec. Co-Op, Inc. v. Parks, 18 S.W.3d 96, 100 (Tex.

1999). A deed term is not ambiguous simply because the parties disagree on its

meaning. Houchins v. Devon Energy Prod. Co., LP, No. 01-08-00273-CV, 2009

Tex. App. LEXIS 8064 (Tex. App. – Houston [1st Dist.] Oct. 15, 2009, pet denied).

An ambiguity arises only after the application of established rules of construction

leave a deed susceptible to more than one meaning. Id.; Universal C.I.T. Credit

Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951). For an ambiguity to exist, both

potential meanings must be reasonable. Id.

The conflict over the interpretation of the Partition Deed arises out of the

failure of the document to state what will occur after the expiration of the twenty-

five year period and cessation of production. (Supp. CR 21-22, infra, pg. 2). Either

the mineral rights revert to the surface owner or they do not. The conflict also arises

as to whether the phrase, “This partition does not include any of the oil, gas, or other

minerals in, on or under the above described tract of land…” stands on its own, to

leave the minerals undivided until another act partitions them, or whether it is over-

riding that this phrase is joined with the conjunction “and” with “same are to remain

undivided for a period of twenty-five years…” to mean that the minerals are

undivided only for the twenty-five years set out in the same sentence.

Arguing for ambiguity are the following principles of deed interpretation:

7 (1) Texas courts apply the “four corners” rule, Luckel v. White, 819 S.W.2d

459 (Tex. 1991), and (a) look not at isolated terms but consider the

instrument as a whole, (b) to convey on the grantee the greatest estate that

the terms of the deed will permit. Plainsman Trading Co. v. Crews, 898

S.W.2d 786, 789 (Tex. 1995); Thomason v. Bradgett, No. 02-12-00303-

CV, 2013 Tex. App. LEXIS 8576 (Tex. App. – Fort Worth July 11, 2013,

pet. denied). The phrase “This partition does not include any of the oil,

gas, or other minerals in, on or under the above described tract of land…”

is an isolated phrase. (Supp. CR 21-22). It should not be interpreted alone

from the phrase to which it is joined: “same are to remain undivided for a

period of twenty-five years…” (Supp. CR 21-22). It also should not be

allowed to contradict the patent purpose of the document: to partition the

estate. While on first blush, the fact that the partition is said to not include

the minerals may be interpreted to mean the minerals are never partitioned,

if the whole document is read harmoniously, Frost Nat’l Bank v. L & F

Distribs, Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005), the isolated phrase

that the minerals are not partitioned should be read with the phrase which

immediately follows it and with the fact that this is a partition deed. This

gives the equally logical interpretation that the minerals are not partitioned

for twenty-five years to allow for sharing of current production, but that

8 they are partitioned after twenty-five years, to accomplish full partitioning

of the estates, the stated goal of the document. (Supp. CR 19-24).

(2) The consideration of the whole document, in harmony, comes from “a

utilitarian standpoint bearing in mind the particular business activity

sought to be served, and a court will avoid when possible and proper a

construction which is unreasonable, unequitable, and oppressive.” Reilly

v. Rangers Mgmt., Inc. 727 S.W.2d 527, 530 (Tex. 1987). While it is

inequitable to deprive one party of presently-occurring or soon-to occur

production that they may be counting on, (although this turned out to be

wishful thinking), it is oppressive to omit the minerals from eventual

partition, when two people who may have different businesses and

different goals are trying to partition their estates.

(3) There is the presumption that when lands are partitioned among co-

owners, the whole of the land is partitioned, unless some portion of the

land is expressly excepted from the partition. Pewitt v. Renwar Oil Corp.,

261 S.W.2d 904, 906 (Tex. Civ. App. – Houston 1962, writ ref’d n.r.e.).

In this case, reading entire sentences as a whole, the only thing that is

expressly excepted are the minerals for twenty-five years. (Supp. CR 19-

24).

9 (4) The presumption is that the grantor, (Ms. Scott in the case of the land the

Hoseks will receive), intends to convey to her grantee (the Hoseks) all of

the appurtenant rights incident to the beneficial enjoyment of property

which she had conveyed. Rio Bravo Oil Co. v. Weed, 121 Tex. 427 (Tex.

1932). In this case, conveyance of all of the appurtenant rights would

mean the minerals revert to the surface owners after the twenty-five years

or production are up.

(5) Where the instrument is capable of two constructions, one of which will

give effect to the whole of the instrument while the other would defeat it

in whole or in part, preference is given to the construction that will uphold

the instrument. Bagby v. Bredhauer, 627 S.W.2d 190 (Tex. App. – Austin

1981, no writ). This is a partition deed, and reverter of the minerals to the

respective surface owner after twenty-five years upholds the whole

instrument. (Supp. CR 19-24). Reverter does not ignore the phrase that

the minerals are not (presently) partitioned, because that phrase is

implemented for the twenty-five years of the agreement not to partition.

(Supp. CR 20-22).

Thus, there are two reasonable interpretations of the Partition Deed: one in

which the minerals remain unpartitioned after the twenty-five years (thwarting

the full effect of partition) and one in which the minerals revert to the

10 respective surface owner after the twenty-five years are up (giving full life to

the partition document). Therefore, the Partition Deed is ambiguous.

Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951). The

trial court erred in finding that it was unambiguous.

If a contract or deed is ambiguous, then parol evidence is admissible for the

purpose of ascertaining the true intentions of the parties. National Union Fire Ins.

Co. v. CBI Indus., 907 S.W.2d 517 (Tex. 1995). Such parol evidence was admitted

with the Hoseks’ Response to Motion for Partial Summary Judgment. (Supp. CR

42-82). The Affidavit of Alan Cummings, Board Certified Attorney in Oil and Gas

and noted Tittle Examiner uses statutory construction similar to just presented to

testify that the parties intended the minerals to revert to the surface owner after

twenty-five years. (Supp. CR 51). The Affidavit of Ivarene Hosek testifies as to her

present understanding, that expressed by her sister at the time, and the present

understanding of the oil companies who researched title. (Supp. CR 49-50). All

believe that the minerals were intended to revert to the respective surface owner.

(Supp. CR. 49-50).

If any doubt exists as to the intention of the grantors, and a deed is ambiguous,

a practical and reasonable construction given it by the parties thereto before any

controversy has arisen as to its meaning will generally be given controlling effect by

the courts. Rio Bravo Oil, 121 Tex. at 426-47; San Antonio St. Ry Co. v. Adams, 87

11 Tex. 125, 131 (Tex. 1894). There was testimony from several parties, and

correspondence written before the controversy arose that the parties treated the

minerals as reverted to the surface owners. Ms. Hosek testified via affidavit that her

sister told buyers of Ms. Scott’s land that they would own all the minerals under

Scott’s land after reversion. (Supp. CR. 49-50). The deposition testimony of Rosale

herself testified that the Hoseks would own the minerals for 14 more years, and then

the buyer would get the minerals under the Scott tract. (Supp. CR. 64). There was

testimony that Ms. Scott attempted to break the non-partition agreement before the

twenty-five years was up so as to be able to transfer all of the minerals under her

land to prospective buyers. (Supp. CR. 76). And in a letter to Mr. King, one eventual

buyer of Ms. Scott’s land and minerals, Ms. Scott told Mr. King he would get all the

minerals under the land in fourteen years. (Supp. CR 78-79). This is especially

credible because it all occurred before any controversy came up. (Supp. CR 68).

The only testimony that Ms. Scott thought the partition would be renegotiated after

the twenty-five years, (Supp. CR. 72) came up after the conflict arose and much oil

money hinged in the balance.

Thus, the great preponderance of the evidence establishes that the intent of the

parties was that the Hoseks’ minerals have reverted to them and that 100% of the

minerals under the Hoseks’ land belong to them. Therefore, the deed was originally

ambiguous, not unambiguous as the trial court decided, and the parol evidence

12 conclusively established that the minerals reverted to the surface owners after

twenty-five years. The summary judgment was harmful because there are currently

producing oil units into which the minerals under the Hoseks’ land are pooled, but

half the money due the Hoseks is not being paid to them, due to Ms. Scotts’ false

claim. (Supp. CR 50). Other royalty owners are also being denied payment and the

wells may even be abandoned. (Supp. CR 50). The trial court’s summary judgment

must be reversed.

ARGUMENT AND AUTHORITIES ON THIRD ISSUE:

The trial court abused its discretion in awarding attorneys’ fees because both sides benefitted equally from an interpretation of the deed and an award to Ms. Scott was not fair and equitable.

STANDARD OF REVIEW ON THIRD ISSUE:

The standard of review for an award of attorneys’ fees on a declaratory

judgment is abuse of discretion. City of Temple v. Taylor, 268 S.W.3d 852, 858

(Tex. App. – Austin 2008, pet. denied). Whether attorneys’ fees are equitable and

just is a matter of law. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). The

UDJA does not require an award of attorneys’ fees to the prevailing party. Id.

ARGUMENT & AUTHORITIES:

In this case, reversal of the attorneys’ fees award is necessary regardless of

whether the summary judgment is reversed.

13 If a court reverses a declaratory judgment, it is usually equitable and just to

reverse the award of attorneys’ fees to the former winner. Tanglewood Homes Ass’n

v. Henke, 728 S.W.2d 39 (Tex. App. – Houston [1st Dist.] 1987, writ ref’d n.r.e.);

Scottsdale Ins. Co. v. Travis, 68 S.W.3d 72 (Tex. App. -- Dallas 2001, pet. denied).

In this case, if the Court reverses, it is because all parties treated the minerals as

having reverted to the surface owner. Ms. Scott even sold mineral interests that she

could only sell if the rights had reverted.3 It was therefore dishonest of her to claim

that the minerals did not revert. She should just have signed the quitclaim deed and

there never would have been a lawsuit with attorneys’ fees. (Supp. CR 49-50). It is

not equitable and just to award attorneys’ fees to someone whose defense was

dishonest.

Even if this Court does not reverse the summary judgment, the attorneys’ fees

award is not just and equitable and should be reversed. “Just and equitable” should

in most cases be tied to the party who caused the necessity of the suit. Where one

party caused the suit by having an improper interpretation, they may often be liable

for attorneys’ fees. However, it is not necessary to award attorneys’ fees to the

prevailing party. Securtec, Inc. v. County of Gregg, No. 06-01-00164-CV, 2002

Tex. App. LEXIS 8812 (Tex. App. – Texarkana Dec. 11, 2002, no pet.). In this case,

3 Her testimony is that she thought she kept her half and only sold the Hoseks’ half! (Supp. CR 77). 14 both parties “caused” the suit in that they both needed the Partition Deed interpreted,

regardless of who had the right interpretation, as a 50% interest in minerals was at

stake, so there is no party who “caused” the lawsuit more than the other, and no party

should receive attorneys’ fees. This court should reverse and render on the question

of attorneys’ fees.

ARGUMENT & AUTHORITIES ON FOURTH ISSUE:

The trial court abused its discretion in allowing the possibility of forcing the Hoseks to pay the costs of necessary and irrelevant documents which were included in the record at the demand of Ms. Scott’s counsel merely to raise the cost of the appeal for the Hoseks.

STANDARD OF REVIEW ON FOURTH ISSUE:

A trial judge has discretionary authority to assess court costs against either of the parties or to apportion such costs between them in a fair and equitable manner. San Antonio Hous. Auth. v. Underwood, 785 S.W.2d 25 (Tex. App. – San Antonio 1989, no writ).

ARGUMENT & AUTHORITIES:

Many unnecessary steps were engaged in by opposing counsel in this case in

an apparent effort by opposing counsel to raise the cost of the case prohibitively for

the Hoseks. For example, Ms. Scott engaged in lengthy tactics to make the Hoseks

add parties they did not wish to add, when she could have just added them herself at

minimal expense. Ms. Scott’s legal bills, which she sought to make the Hoseks pay,

15 contained duplication and triplication of effort, and even when cut almost in half,

were more than those of the Hoseks counsel by more than ten thousand dollars.

The most outrageous effort, however, was a request for approximately sixteen

documents which Ms. Scott’s counsel asked to be added to the record on appeal.

(CR 417). The trial court overruled the Hoseks’ objection to these additions and left

it an open question whether the Hoseks would be forced to pay for this addition.

(CR 427). This was an abuse of discretion, because it was not a fair and equitable

addition. It slowed down the appeal and added to the cost for no reason. Ms. Scott

had not perfected any appeal. (CR 423). The issues on appeal were two: (1) the

interpretation of the Partition Deed and (2) the award of attorneys’ fees. (CR 423).

Pleadings which had been superseded, or documents, such as documents relevant to

abatement or supercedeas, which were not relevant to any issue on appeal, should

not have been included in the appellate record and the Hoseks ask that this Court

rule that they are not charged the cost of adding these documents to the record, as

such would not be fair and equitable and would be an abuse of discretion.

Gamesmanship should not be tolerated when it may affect a party’s ability (and

constitutional right) to present its case. See Pennzoil Co. v. Arnold Oil Co., 30

S.W.3d 494 (Tex. App. – San Antonio 2000, orig. proceeding).

16 CONCLUSION & PRAYER

Bad drafting of a partition deed created an ambiguous document, contrary to

the trial court’s conclusion that the deed was unambiguous. A great preponderance

of the evidence of how the Hoseks and Ms. Scott treated the deed, before the conflict

arose, conclusively established that the minerals reverted to the surface owner after

the twenty-five year agreement not to partition included in the deed ended. This

evidence proves that the Hoseks own 100% of the minerals under their land,

therefore, the trial court’s judgment was harmful because it caused an incorrect

judgment to result and a whole neighborhood of royalty owners to have their royalty

payments withheld – not a small matter when ranching income in the area is

currently limited by a pervasive drought.

Both parties needed the deed interpreted, so the award of attorneys’ fees

against just the Hoseks should be reversed. “Just and equitable” is a question of law,

so a judgment proving that neither side should recover attorneys’ fees should be

entered.

Again, the assessment of costs must be “just and equitable.” Therefore a

judgment should be entered that the Hoseks not pay for the extra Clerks’ Record the

counsel for Ms. Scott required.

WHEREFORE, PREMISES CONSIDERED, the Hoseks ask that the

summary judgment entered by the trial court be completely reversed, and judgment

17 entered that the deed is ambiguous and the Hoseks own 100% of the minerals under

their land. The Hoseks ask for such other and further relief as may be just.

Respectfully submitted,

______/s/ MB CHIMENE_______

THE CHIMENE LAW FIRM Michele Barber Chimene TBN 04207500 15203 Newfield Bridge Ln. Sugar Land, TX. 77498 PH: 713 474-5538; no fax michelec@airmail.net

COUNSEL FOR THE HOSEKS

CERTIFICATE OF COMPLIANCE

The undersigned certifies that this brief was produced in 14 pt Times New Roman font with the required margins and number of words. There are 5373 words in this brief according to my computer’s word counter. _______/s/ MB CHIMENE_______

CERTIFICATE OF SERVICE

On this, the 8th day of March, 2014, undersigned counsel has served via ECF and email a true and correct copy of this brief according to the Rules of Civil Procedure on this following, as witnessed by my hand.

G. Wade Caldwell rperez@beclaw.com TBN 03621020 Zachary Fanucchi gcaldwell@beclaw.com TBN 24028548 Raquel G. Perez zfanucchi@beclaw.com TBN 00784746 Barton, East & Caldwell, P.L.L.C.

18 One Riverwalk Place, Ste. 1825 700 N. St. Mary’s St. San Antonio, TX. 78205 _______/s/ MB CHIMENE_________

19 APPENDIX:

A Texas Civil Practice and Remedies Code §§ 37.001 et seq B Final Judgment C Findings of Fact D The Partition Deed E Response to Motion for Partial Summary Judgment

20 TAB A A Texas Civil Practice and Remedies Code §§ 37.001 et seq

21 Texas Civil Practice & Remedies Code CPRC 37.001 In this chapter, “person” means an individual, partnership, joint-stock company, unincorporated association or society, or municipal or other corporation of any character CPRC 37.002 (a) This chapter may be cited as the Uniform Declaratory Judgments Act. (b) This chapter is remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered; (c) This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that it enact it and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees; CPRC 37.003 (a) A court of record within its jurisdiction has power to declare rights, status and other legal relations whether or not further relief is or could be claimed. An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for; (b) The declaration may be either affirmative or negative in form and effect, and the declaration has the force and effect of a final judgment or decree; (c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the exercise of the general powers conferred in this sectionin any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty; CPRC 37.004 (a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, ordinance, contract or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status, or other legal relations thereunder; (b) A contract may be construed either before or after there has been a breach; (c) Notwithstanding Section 22.001, Property Code, a person described by subsection (a) may obtain a determination under this chapter when the sole issue concerning title to real property is the proper boundary between adjoining properties.

CPRC 37.005 A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee, guardian, other fiduciary, creditor, or of the estate of a decedent, an infant, mentally handicapped person, or insolvent may have a declaration of rights or legal relations in respect to the trust or estate: (1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; (2) To direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; (3) To determine any question arising in the administration of the trust or estate, including questions of construction of wills and other writings; or (4) To determine the rights or legal relations of an independent executor or independent administrator regarding fiduciary fees and the settling of accounts.

CPRC 37.0055 (a) In this section, “state” includes any political subdivision of that state. (b) A district court has original jurisdiction of a proceeding seeking a declaratory judgment that involves: (1) a party seeking declaratory relief that is a business that is: (A)organized under the laws of this state or is otherwise owned by a resident of this state; or (B) a retailer registered with the comptroller under Section 151.106, Tax Code;

(2) a responding party that: (A)is an official of another state and (B) asserts a claim that the party seeking the declaratory relief is required to collect sales or use taxes for that state based on the conduct of the business that occurs in whole or in part within this state. (c) A business described by Subsection (b)(1) is entitled to declaratory relief on the issue of whether the requirement of another state that the business collect and remit sales or use taxes to that state constitutes an undue burden on interstate commerce under Section 8, Art I, United States Constitution. (d) In determining whether to grant declaratory relief to a business under this section, a court shall consider: (1) The factual circumstances of the business’s operations that give rise to the demand by the other state, and (2) The decisions of other courts interpreting Section 8, Art. I, United States Constitution. CPRC 37.006 (a) When declaratory relief is sought, all persons who have or claim an interest that would be affected must be made parties. A declaration does not prejudice the rights of a person not a party to the proceeding. (b) In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party and entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard. CPRC 37.007 If a proceeding under this chapter involves the determination of an issue of fact, the issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court where the proceeding is pending. CPRC 37.008 The court may refuse to render or enter a declaratory judgment or decree if the judgment or decree would not terminate the uncertainty or controversy giving rise to the proceeding. CPRC 37.009 In any proceeding under this chapter, the court may award costs and reasonable and necessary attorneys’ fees as are equitable and just. CPRC 37.010 All orders, judgments and decrees under this chapter may be reviewed as other orders, judgments and decrees. CPRC 37.011 Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application must be by petition to a court having jurisdiction to grant the relief. If the application is deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith. TAB B Final Judgment CAUSE NO, 13-06~0559-CVA

IVARENE HOSEK AND VICTOR § . IN THE DISTRlCT .COURT HOSEK, § § Plaintiffs, § § v. § 8lsT JUDICIAL DISTRICT § ROSALE SCOTT, § § . Defendant. § ATASCOSA COUNTY, TEXAS

FINAL JUDGMENT

The Court; having ·considered the pleadings~ .the file,. the evidence presented~ and the

argument of counsel, finds that the followingfmal judgment should be entered. ' . ' .'

On March 3, 2014, the Court issued an Order Granting Defendant's Motion for Partial Summary Judgment. That Order provided, and the Court hereby incorporates that Order, and

orders, adjudges and.decrees as follows:

The Court rules that the Deed ofPartition dated August 17,.1979 between

Plaintiffs IVARENE. HOSEK and VICTOR HOSEK (the · "Hoseks''} and .

Defendant ROSALE SC.OTT ('~Scott") recorded at VoL 510, Page 126, Real ·

roperty Records of. Atascosa County, Texas (the "Partition Deed") is

unambiguous as a matter of law and ~as the effect as urged by .Defendant.

·. IT IS THEREFORE·ORDERED that judgment. is gr:anted in favor of

Defendant ROSALE SCOTT and that: (1) the Partition Deed is u,rtambiguous as a

. matter of law; (2) the .Partition Deed partitioned the surface, but did not partition

. the minerals; (3) as to the mine,s, the Hoseks and Scott agr~d not On! y tha~ they

were not part1t1orted~ but also ;th~t they. would .not part1tron them until ·the . .fLB) OJ ·. 37 0'0.()0<.-fl ,M . . MARGARET E. urn.ETON. DISTRICT a.ERK Page 1·1

210 i• expiration of the stated titne limits, and whether the minerals would ever be

partitioned by the ownets remained an open· question and the Hoseks and .Scott

continued. to own an. undivided .· . . one-half of the minerals, each; and ' ' .. (4) that since

there has been no subsequent 1)artitiort of the mirtera~s, Defendant ROSALE

SCOTT therefore currently owns fifty percent (50%) of.the minerals under the . . . . .

169.27 ac.res ofiand, the surface of which was deededtothe:Hoseks on .pages 1-3

of the Partition Deed, whose legal description is. attached as .$xhibit "A" and incorporated by reference. ·

On Jm1e 18, 2014, the Court issued an Order Granting Defendant's Notice of.Nori-Suit

·WithourPrejudice Of Defendant's Remaining Counterc~afms Agliinst Plaintiffs, which non-suited

. Defendant's counterclaimsfotbonuses and royalties against Plaititiff.

On June 18, 2014, the Court issued an Order Granting Attorneys' Fees, which granted

Defenda~t attorneys' fees as ~]lo:wn inthatOrder. Therefore, it is or4ered,:adjudged and decreed -that Defendant ROSALE SCOTT have and r~cover judgroent against Plaintiffs IVARENE . . . . . . . . . : . - '

HOSEK and VICTOR HOSEKin the following amounts: . . . . . .

1. $ ~ 1, 57J70. @_.··in attorney's fees tbroughenttyofjudgmentand·setting of a supersedeas bond. .

. 2. A conditional award o[additi<:mal reasonable and necessary attorney's fees of$ _ __

I ! .f 1--, $!) ~in f . . . ·. . the event a ne:w trial is sought in the trial court and Rosale Scott '. . .·

prevails, plus if an appeal occurs and Rosale Scott prevails, in the following amounts: .. <.e.-=- . . .. .. ~.. .. 1) $11-- )'T'D · for an appeal .to the Court of Appeals; 2) $ 7., )-rT'O · if any . . part of the judgment is appealed to the Texas Supreme Court by Writ.ofEn-or; and 3)

Page 12

. c•~•: }~r~"~t::~~:_::::-:'·~:~~:, ... VOL. 0

8?2 PAGE - ., t/tJi;"T . 211 ... ,,,.. "l.; l< ··cB-- . . .. · .·. ... . ·. $ l J.-;, ~- should the petition for review be granted . . . by the Texas Supreme Court

and Rosale Scott prevails.

THEREFORE, IT IS ORDE~D, ADJUDGED AND DECREED· that. judgment is

entered as set forth above ..· . . . . . .

IT IS FURTHER, ORDE~D that all court costs in~urred by Rosale Scott in ·

conpection with this action are taxed against Plaintiffs; Ivaiene Hosek and Victor Hosek;

i IT·~IS FURTHER ORDERED, ADJUDGED, AND DECREED .thaUhis Judgment shall

draw post-judgment interest at the rate of five ,percent (5%) per anbtim from the date of this

Judgment until it is paid, pius costs o.fcourt. · . . IT IS ·FURTHER ORDERED, ADJUDGED; ANI:> DECREED that Defendant. shall

immediately have all writs, orders and. other assistancefor collection ofthisjudgment, for which

let execution issue immedfately;

IT. IS FURTHER ORDERED, ADJUDGED. AND· DECREED that all relief not·

specifically granted is denied .

· This judgment finally disposes of all parties and claims, is appealable and is a final

judgment.·

SIGNED this dayof .· ~ ~2014.

.0~~~

Pagej3 : ,;:CIVIL }3:¥~~1(~~·~~;:~~'

VOL 8'CJ PAGE J!::f~{P-~: 212 • APPROVED AS TO .FORM ONLY:

Michele Barber Chitrtene . State Bar No. 04~07500 . . THE CHIMENE LAW FIRM 15203 Newfield Bridge Lane . Sugar Land, Texas 77498 Telephone:. 713-474~5538 Email: .micbelec@airmail.net

Co-counsel:

ROBERT J. OGLE . State SarNo. 15231350 .I ROBERTJ. OGlE~ ATTORNEY AT LAW 508 E; San Antonio Street Boerne, Texas 78006 Telephone: (830) 249-9358 Facsifuile: (830) 249-8508 Email: ·Bob@ogleattorney,com

ATTORNEY FORPLAINTIFFS, VICTOR HOSEK AND IVARENE HOSEK •

" . BARTON,:EAST & CALDWELL; L.L.P. One.RiverWalk Place,Suite 1825 · 700N. St Macy's Street San Antonio; Texas 78205 Telephone: (210) 225;.1655 Facsimile: (21 0) 225.:8999 ·

By: ~------~~~~--~--~--~-- .G. WADECALDWELL State Bar No . .03621020. Email: gcaldwell@beclaw;com RAQUEL G. PEREZ I. ·State BarNo. 00784746 I ·Email: ·q;erez@beclaw.com

ATTORNEYS FORDEFENDANT, RO~AL:E SCOTT M:\2000\2.200 OIL AND OAS CLIENTS\ Ill Hosek v SCottiP,IeadlrigsllUDOMENT.do<'.

Pagel4 ·ciVIL

VOL 3'S .PAGE [L/:1£1. 213 TAB C Findings of Fact FLED £..t : I t, o·a.oCKLM MARGARET E. UITl.ETON, DISTRICT Q.ERI(

SEP - 2 2014

:-~ CAUSE NO. 13-06-0559-CVA

IV ARENE HOSEK AND VICTOR § . IN THE DISTRICT~ HOSEK, § § Plaintiffs, § § v. § 81 ST JUDICIAL DISTRICT § ROSALE SCOTT, § § Defendant. § ATASCOSA COUNTY, TEXAS -- ·• ..... ~- -- ··-- . -- - .....

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On this day came on to be considered Defendant Rosale Scott's Proposed Findings of

Fact and Conclusions of Law and the Hosek's Proposed Findings of Fact and Conclusions of

Law.

The Court, after considering the Proposed Findings of Fact and Conclusions of Law of

both parties, finds the Defendant's proposed Findings and Conclusions as to attorneys' fees are

consistent with its previously declared rulings, and should be entered as the Court's Findings of

Fact and Conclusions of Law. The Court declines to adopt the Plaintiffs' Proposed Findings of

Fact and Conclusions of Law. The Court declines to make Findings of Fact and Conclusions of

Law-as_to_the_.merits of the Summary Judgment for ' ' "' the reasons- set. - forth in Defendant's " . ' ~ "

Objections to the Hoseks' Proposed Findings of Fact and Conclusions of Law.

With respect to the granting of attorneys' fees to Defendant, the Court now makes the

following findings of fact and conclusions oflaw.

I. FINDINGS OF FACT

1. An award of attorneys' fees to Defendant Rosale Scott is reasonable and

necessary.

Page 11

405 ~' i . ; i ' ,I

2. G. Wade Caldwell is the attorney for Defendant Rosale Scott and provided live

testimony, an affidavit, and time records that were entered into evidence to support Defendant's

Motion for Award of Attorneys' Fees.

3. Mr. Caldwell Yias licensed to practice law in the state of Texas in 1984 and has

practiced in San Antonio, Texas.

4. Mr. Caldwell practices law primarily in civil litigation and oil and gas and is

familiar withJhe.fees customarily charged in Bexar .. - . -- and Atascosa counties-· on cases . ,_ .such ·-"'" ___..,_this..... ___ ... _.. "' as . _

one.

5. Mr. Caldwell is familiar with the factors taken into account by the State Bar of

Texas and courts in the state of Texas in determining reasonable and necessary attorney's fees.

6. Mr. Caldwell is familiar with the fees charged for similar cases in Atascosa

County, Texas.

7. Since Mr. Caldwell has practiced law in the state of Texas since 1984, he is

familiar with the range of billing rates for legal services rendered by attorneys possessing his

experience, skill, knowledge, reputation, and background in the civil litigation field.

8. Attorneys from Bexar County frequently practice law in Atascosa County because

of, the_~lO.§.€?. ,p_rox!:rpi!y between Bexar and Atascosa Counties. Therefore, it is reasonable to

charge attorney fee rates from Bexar County in Atascosa County.

9. Mr. Caldwell has experience handling appeals in Texas State appellate courts.

10. Practicing in the civil litigation field regarding mineral titles is a complex area of

practice.

11. Mr. Caldwell obtained a positive result for Defendant because Defendant

prevailed on her Motion for Partial Summary Judgment.

Page 12 406 12. Plaintiffs did not achieve a benefit by filing the instant litigation to the extent that

the court found in favor of Defendant.

13. This case was defended by defense counsel on a contingency fee basis for forty

percent (40%) of the gross amount recovered by Defendant. Defense counsel also advanced

expenses incurred in this litigation.

14. Even though the law firm of Barton, East & Caldwell, P.L.L.C. defended the case

on a.contingency basis, the attorneys and legal st~ff that worked on the case tracked thei~ tj_me Qn

an hourly basis.

15. Defendant Rosale Scott submitted copies of time records from the law firm of

Barton, East and Caldwell, P.L.L.C. reflecting time spent by attorneys and legal staff from May,

2013 to March 2014. Privileged information was redacted from the time records. The time

records were attached to Defendant's Motion for Award of Attorneys' Fees and were admitted

into evidence.

16. The amount of $315.00 per hour ($240.00 for associates) is a fair, reasonable and

customary hourly fee for an attorney practicing in Atascosa County with the knowledge, skill

and experience of Mr. Caldwell for this type oflawsuit.

_U.:.._ ,. TheJe.CLcharged in this case is well within the parameters of the customarily

charged fee in Atascosa County, Texas for civillitiga.tion matters.

18. The rates of legal assistants reflected in the time records submitted by Defendant

are reasonable and necessary and their work was done under the supervision of an attorney. 'I I 19. The work reflected on the time records submitted by Defendant was reasonable

and necessary.

Page 13 407 .. • <

20. The time records submitted by Defendant reflect that slightly less than 355 hours

were spent on the claims which allow recovery of attorneys' fees between May 2013 and

February 28, 2014. This is a reasonable amount of time in light of the fact that the parties

engaged in written discovery, took depositions, filed and argued a Plea in Abatement, filed a

Motion for Partial Summary Judgment, filed a Motion to Strike Expert Report and Exclude

Expert, filed Motions to Compel, and were set for trial in January 2014.

21. Between the date last reflected in the time records submitted by Defendant,

additional legal work was performed by Mr. Caldwell as well as other members of his legal staff,

including preparing, filing and arguing the Motion for Attorneys' Fees, preparing a Final

Judgment, subpoenaing records from EOG Resources, Inc., and setting the objections of EOG

Resources, Inc. for hearing. In his affidavit, Mr. Caldwell estimates that this involves an

additional 50 hours ofwork. This additional legal work was both reasonable and necessary.

22. Mr. Caldwell provided evidence both in the form of live testimony before the

court as well as in an affidavit admitted into evidence as to how the fees of his law firm were

segregated, as required by Texas law.

23. Defendant segregated and did not include, in the fees that Defendant is seeking,

- __ fees which are related ,... ...only to the counterclaim or other non-recoverable case matters.

24. The total hours reflected on the time records submitted by Defendant total

approximately 381.73. From this amount, Defendant segregated and deducted approximately

28.8 hours that reflected legal services performed for solely non-recoverable claims or other non-

recoverable case matters.

25. Defendant segregated the attorneys' fees relating to the Motion for Partial

Summary Judgment and requested 100% of those fees.

Page 14 408 26. Non-segregable time entries are time entries where the legal services advance

- both recoverable and non-recoverable claims and the time entries were not clear if the work

related solely to the claims which allow recovery of attorneys' fees.

27. Mr. Caldwell provided evidence that in his opinion, eighty percent (80%) of these ·

non-segregable time entries are for work attributable to the claims which allow recovery of

attorneys' fees and twenty (20%) is related to work attributable to non-recoverable claims.

Therefore, subtracting the non-recoverable entries and reducing the non-segregable entries by

twenty percent (20%), the reasonable and necessary attorneys' fees incurred through the last

invoice on the time records submitted by Defendant are swnmarized and calculated as follows:

(a) non-segregable fees are $57,945.83; (b) recoverable fees relating to the Motion for Partial

Summary Judgment are $17,832.49; (c) non-recoverable fees relating to EOG are $6,502.50; and

(d) non-recoverable fees relating to the counterclaim are $368.00. Accordingly, total attorneys'

fees are $82,648.82.

28. Defendant then segregated and reduced the total attorneys' fees of $82,648.82 by

the following amounts: (a) $11,589.17 which constituted a 20% reduction ofthe non-segregable

fees; (b) $6,502.50 which constituted the non-recoverable fees relating to EOG; and (c) $368.00

. . .... -·- which constituted non-recoverable fees relating to the counter-claim.

29. Accordingly, the total attorney fees sought by Defendant through February 28,

2014 total $64,189.15. These attorneys' fees are both reasonable and necessary.

30. Defendant then requested an additional $10,000 of attorneys' fees for additional

work performed from the date last reflected on the time records through the collection of

judgment.

31. Accordingly, Defendant sought total attorneys' fees in the amount of$74,189.15.

Page 15 409 .. .!!' • •

32. $74,189.15 is a reasonable and necessary attorney's fee for the legal services

\ performed on behalf of Defendant for the claims which allow recovery of attorneys' fees, for the

I work reflected on the time records thru February 28, 2014 and performed thru the entry of a

supersedeas bond.

33. If a motion for new trial 'is necessary, a reasonable and necessary, attorneys' fee

would be $3,500.00.

34. In the event any part of the judgment is appealed to the appropriate Court of

Appeals and Defendant prevails, a reasonable and necessary, attorneys' fee would be

$30,000.00.

35. In the event any part of the judgment is appealed to the Texas Supreme Court by

Writ or Error and Defendant prevails, a reasonable and necessary, attorneys' fee would be

$15,000.00.

36. Should the petition for .review be granted by the Texas Supreme Court and

Defendant prevails, a reasonable and necessary, attorneys' fee would be $25,000.00.

II. CONCLUSIONS OF LAW

37. Under the Declaratory Judgment Act, a court may award reasonable and

necessary'attomeys' fees as are equitable and just. GuideOne Elite Ins. v. Fielder Rd. Baptist

Ch., 197 S.W.3d 305,311 (Tex. 2006); Bocquetv. Herring, 972 S.W.2d 19,21 (Tex. 1998).

38. The Texas Supreme Court has adopted eight factors to be used by the fact finder

to determine the reasonableness of attorneys' fees. Arthur Andersen & Co. v. Perry Equipment

Corp., 945 S.W.2d 812 (Tex. 1997).

39. The Arthur Anderson factors are also considered in contingency fee cases. Id. at

818.

Page 16

410 .. I' •

40. The eight Arthur Anderson factors are:

a. The time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly;

b. The likelihood that the acceptance of the particular employment will preclude other employment by the attorney;

c. The fee customarily charged in the locality for similar legal services;

d. The amount involved and .the results obtained;

e. The time limitations imposed by the client or by the circumstances;

f. The nature and length of the professional relationship with the client;

g. The experience, reputation, and ability of the attorney performing the services; and

h. Whether the fee is fixed or contingent on results obtained - that is, the uncertainty of collection before the legal services have been rendered.

Arthur Anderson, 945 S.W.2d at 818·819.

41. A party is not required to present evidence on all eight Arthur Anderson factors.

Academy Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex.App.-

Houston [141h Dist] 2000, no pet).

42. Defendant Rosale Scott submitted sufficient evidence of the relevant Arthur

Anderson factors.

43. - Itenuzea time records can establish the time and labor required in a case. Morrell

Masonry Sup. v. Lupe 's Shenandoah Reserve, LLC, 363 S.W.3d 901, 909 (Tex. App. -

Beaumont 2012, no. pet.).

44. An award of attorneys' fees to Defendant Rosale Scott is equitable and just.

45. Although $74,000.00 is a reasonable and necessary attorneys' fee for the work

performed by defense counsel in this case through the entry entry of a supersedeas bond, it is

equitable and just to reduce such fee to $39,500.00.

Page 17

411 46. If a motion for new trial is necessary, a reasonable and necessary attorneys' fee

would be $3,500.00, however, it would be equitable and just to reduce such fee to $2,500.00.

47. In the event any part of the judgment is appealed to the appropriate Court of

Appeals and Defendant prevails, a reasonable and necessary attorneys' fee would be $30,000.00,

however, it would be equitable and just to reduce such fee to $12,500.00.

48. In the event any part of the judgment is appealed to the Texas Supreme Court by

Writ or Error and Defendant prevails, a reasonable and necessary attorneys' fee would be

$15,000.00, however, it would be equitable and just to reduce such fee to $3,500.00.

49. Should the petition for review be granted by the Texas Supreme Court and

Defendant prevails, a reasonable and necessary attorneys' fee would be $25,000.00, however, it

would be equitable and just to reduce such fee to $12,500.00.

SIGNED this Y~ day of August, 2014.

~DJ.SHANNON Presiding Judge

G. AD CALDWELL State Bar No. 03621020 BARTON, EAST & CALDWELL, P.L.L.C. One Riverwalk Place, Suite 1825 700 N. St. Mary's Street San Antonio, Texas 78205 Telephone: (210) 225-1655 Facsimile: (210) 225-8999

ATTORNEYS FOR DEFENDANT M:\200012200 OIL AND GAS CLIENTS\12 I Hosek v Scon\Pieadings\Order Adopting Defs FOF.docx

Page 18 412 TAB D Partition Deed J.

• DEED 510 • V:l.c:l:or Hoaek, at a1 to ltoaala Voigt Scott, at a1

Th'lt '~<'·'· V1ct,r H-:~aelt ant\ l·til"e, !V'I\r"~:le '/o1,t Hn13ek, ot the Chunty or \·!p ""ln, St··~e of Te~as, and RoeB.le Voi;&t Scott of the County of i3(>x,.r, State or 'l'exA.a, ll~tve nnd hold 1n oo::tlan the lPnda here1na:t'ter m~~~1oned, ~nd ~re dee1roua or maki~g partition of tb~ akm&, it is hereby covunanteC!, grllnted, and agreed by and be"t;-r.-en Raid par1:1es, and eaoh or~ ther.l covenl!'.n':a, 5rants, conoludea, a.nd. agrees :f'o:r b1~~tael.f,

t!'le::!lselvep, hie and their heirs and assigns,. tllat a :partition o:t' said lP.nda be :rafl >'~nd to thP.msel.vea nn(\ t<:~ tnem ar~'\ their heirs l.'.nd as31~-na

for th~1r 'i<~rt, ahR:"e, 1ntl;!:t" st.1tn..,"b:!l.l'l ~u;rVE<:f Ih. 2l.O, Ab"!l'tr"rct Uo. e49; l.0$.?7 s.croen out o'f' the Gn"l, '''· Th(l!!l·"Ae SurvF-y ~lfl. 209, Abstr·•11t li':l. S:.05; l!lnrl 64 acres out ot thr-: Jol':.'"l S'i'lith l!•Ir\'"!:f Ho. 21J, Ab'!t "let ~':!. SOL:.; >'\nd be1n'{ a :-.art ?.i' 5u'bC!.1•r1o1.ona !Iva. I, II, r,..nd III ot the Robert ICJ'9use l.l.OJ P.cre tr"'r.-:;, e.1d r.~o~.i\1. 207.77 acr•}s-, in one body, b•!!ln~ daaor1bed by metes r.n

??i:::::o::.: s • .50 de;s. ">? • ··r. 793 .o :'.'l"<'t ..,1 ;;::,. tho North line ?f' ,..,_ trl 20 t'•Jnt ro·•d to ,:. e: t":te ::~et on lll\1!1':1 1'or tbe ~o-.;er GQ'J. th111Ut r~l')rn"r <:~f' ;;i;1a tr•-:ct :md tllt1 J.o•:t~r eouth':~tsi: corn!.'!.' of a JZ2.6 £\are tr,1c~;

?~U~ :-t. uo dec\. O"J 1 1:1. 1?:37 • .5 tfet to 2 s'&·,.ite oet tor the \:l:wr south•test corner of' th111 tr1et e.nn ti\!;) 1n"lor a•JUthes.i!!t" corne-r ?~ ocld 32'2.6 tta-re tr;,~t;

:'HE':o:a: s. 50 deg. 00' iT. lS6o.o teet 'C•J :\ str~e s:et t'or the u••:·;e?' ::t•outh·~P.rt f!l')rne-,. Oj' thtP trl'at 'l\nd a Cl·:>::ont·::" or &"in J22.6 aere tt"t•... tJ ~;

12H f. ;:.,., ....... ~ . -··· .

• • .

·( JEED 51 0 .'l ...-.,... ........""!',"!•-.---....._ ...

TF':::i~CE t'l'. 40 deg. 00' \i. ?.91.5.0 teet t., :~ stl\kf. set in tl:P. acmth f·;nce line c1' an 5.6 11ors 1::!:"1\0'C for thb llorth•·:-e-at no!"ner of this traot B.n!\ tlla Northe,st corner of :Jflic.t 32'-· 6 !'ere tro~tet; '?H!l:i~·JE N. 69 r\llg. 3?' E. :t.l?. • .5 feet wlt!'l t&ncP Hne to the ~~uthe~st r.?!"ner fF-noe ~ost of sn1~ 8.6 ~ere tr~c~;

THS!H:~E N. 0 de:)• 33 W, :3?3 • .5 rr~e'C llllth ftt:tDe line to the 1 nol:'tht> .. ':'!t corner fence !'loet of snid 8,6 Acre troct; T~NCE N• .59 deg. 32 1 E • .5?0.0 teet With fenoe line to oornar tenoe ~oat;

TW.IiCE N. 39 deg. 'J7 1 "II. 363 • .5 teet ~"1th t'elloe 11ne to corner fence Tl:Jf.lt foi' aoi'nt: I" 1 SRJ!le being the ''lea-:: cornei' or Bubdi v1aion No. III; 'l'HEllCE ~If • .53 deg. 31 1 E. 14)2.0 feet ,.,1 ~h !'ence line to !lorner r~nce :uo~>t t'?r the Northear.t oornt•r of this trqot, sa!l!fl being the No7'th corner or 9ubdl-.riaion No. III; '!'H!!:?tCE 5. 40 deg. 00 1 E • .508).0 feet "'ith the co:n£on h?u.nc\a:-y f:•nce lin~ of SubcUv1s1'lnB llos. III i!..n:t IV to the :place of b" !!1n!'l1n•; 1 ctJnt'l1ninz ,.,1 thin tht- ab,ve metes <~n•l b:rund:! 207. ?7 'ltlres or l~n~, oom~I'i~e~ a~ aforanaid of 11 ~cres out o~ the J~hn Herron eurv•·y l1n. 214; 2.7 'lCl'Pt;J n•1t o'f thP. .!f. B. 'l'l'u'o'l:mJ.d Survey I:n. 210; 10.5.7? rnt'li!f1 out or thP :leo. t-1. '!'h':!'V'I.'! Su;•v:!y N.-,. 209; a~ 6q. Rcreo out o'!' th:· J"l!m S!r.i th &1:-VP.Y No. ?:t). Su""Vf!ycd on AJ'or1J. 19 1 1948, by John,,;. ?P.•'l, C•n1nty Surveyor of Atr~ncoett C"'unty, TrY.fl9. And b~1n3 the Sll!!lH 1P.nd neeor1be

-2-

12?

h ··~'-'····

.

. . 84 . • • DEED 510 • 1.:·

':'~Z:lCE !·:. l~'j ·~eg. 00 nln. :1. J3,54.?.0 ree1; to n 1/2 1nch ,··· !.v ·r~~~~,.~~!l .~.i.nP. n,'t i'?t' th?. Uv s: _,ot'"nt r :>:.. th1R t!'r:ot:

r:-:t:::G.::. ll. 50 'te?;. 28 :nl.:-. E. 500.00 feet ttl the Pla..::e ot ~ ..·,:1n:'!1n-::, ,., .. :'1~~<~1n!.n; )3 • .5 a.::r·l< of l11n.:, as su::-veyad on the ground t·~' J:Jr., 'vl.'\T.?r Se;,;:.~.1n, Regiatcr; ..~ Public Slu•vf.yor No. 1'1'16, on 10!:Us, t!1,.. l;th. ::•·:· f'J'i' Jum~, 1977. ~h1s ?art1t~nn d~ea not lnnlude ~ny of' the oil, ~as ~nd other ·.i.n'"r·•'o:: ln, ..,:-~,ol' un:\er the above del'lcri'bed t~at oi' l"~nd, and sP.me arP. t<;'l l"P-o1n undivided for ;;. r·eri'l

d<~teo h1Jr<:o1' nno. as l~mg there£>.f'ter a.a oil, g':'.t.l or other £1nera.J.e P':'E' m•o•1uned 1n '!laying qunnt1tieo frorn the above desnr1bed l.and. Sc~·>nd. Thr, '!"lid R>o?.le Voli.)t Snot::; sh;tll, f't>'ll!l hence!'orth

Flrert Tt• ·~t: :aatnii J..J•';.77 :~cr!!$ o::' l.an:l 1n <:he Gen ~r. 'ln'lmas, J•1"'n Ct•"1"'., l'!n<~ o::l. Het'!'lant!..::r. SUJ".ru;ril, a!'d ht':in,x ':eccrlbed b:r metes 1•'1)•)~ r·,n.f\ P:\1 tt..v. :'l-Jr:1~a '-: :..1ne nr a ti!""at or 249~ a.cr+s oon- v·~y-:~ t•• :.!. :: .. .:\1-!:;ut 'ly C. ;.. :~orif1' of ··r?-..1:::!!. th1, t:rP.ct iS e. J..Srt, :>r't'' et··"'.'l "oe1n:! r:et for th'l! •;;;1;':: "~•:•n'!:l' :.~ a l,S::l-'J/k- acre tr11.c'C and t?-:·· tl!'"r ~~~'!"''!' "l:' t:;l.!' trfl'"lt "nf. th•: lo•·rer :l''JI'1l!:l. corner of ~' us;.Q4 ,. ., I'!' t\"1' ('! t; TH::O:!!·J:: 1~. 40 de:{• '1. :J?.:lJ feet li'ith t..'l" s<>•lth-'e!lt line of !"''1. ' 20 ro·~'l.. ror.·.l "n:1 thl!l nn !'1.t.t e.st llne of' ot'lginfi'l ?.49!- li'.()re tr~·C'!t to~ FT.'k<:> qpt f'>'!' t'ho n.,r-::h 'l"lr>n<-T' of' t'i'i'!! t:-•·>;>t :on.'i the north oorner r.~ ~Dt~ ~r1 ~\~"l ~4~~ R~~e tr~~t; 'l'!!Ti':! s. 50 •le·;. 17' :1. 2.58~ fee:t ~1!i0h the n•.>uthea:•::r.··ttnt llnl! 'if sa.1·1. ~.lr9t ll"'re trac-t;; '!'~:: ·::;:: 5. 40 ne·: . =:. 4'?()!) t'ec:t; w1 ~::. t~ .. J:li)U~':l 'E'et f'~:l~G line o!" "".l·' '?!<.:?~ r•:-.rP. !:·.\;.,... 1.;;1,.. •..,"1 to a nt'.:,th t'.r;~.rv r- "'j,. i;h\~ t-"'C't. :"In~;_ thl.! t·reet com-r or n lJ.9.04 e.nre 't'r'l\(\'C; ';'if·~::~=: !% • •?'J 1.erf. "E. 1154.,; fe9t t'J tt al'l--t!ilor: C:ll"ner of" 'tihil i;t'·;~t un.-• 119.01.;. C'O ... ~ tr:""ot• 7?... ;1:::!: !t, JS •!e.;. 3~ 1 :1. 108?.5 feet ·dth f~w:e line to o. 'lt."i':P f"e't 'J:'I S!l<:!.'.' !''J!' " ::O""•l'Jn C">l':l' 1:' 'l!' thts tro;.ot Rnd lJ.9.04 ·~ore t!"·~fltj 'l'~:;:oi:. '"· .50 'I.e:. E. ';!?.'·· fr:et t!'t a post: lle'C t'o!' o OO::l';!On •"l!':lA!" nf t't:1'1 't!''Wt cnn. 119.04 an!"e tr••c't; 'l'a::::t::r~ !{. l.:.O '1.'!3, i:f. }0!.. feet to l'l ]"•l)!!t 'tf!li for a COtl!:IOn nr:-r-:1.e.·r of ul-: ~A t!'·...~~"; nn·l. 119 .a!:. nnre tr!!:::t; :rrr!:.:'::lii: :1. ,50 Q.e:{• E:. :J8L• reo'.; to <~ 3t"l.k·· s,:t I'or P oo:.l'lO::l :1''·''!1''!' o~ tl'.:s >;;r;: •t 11nd. 119.01~ n.ere trP.'Jt; 'J"'rl'·::;~'l: 3. !J.I) clei. E. J.70?., faet, pnra~l\.•l to t.:'nd :)0 f'eet :~· th.· n p•t!:'l•·::-.-t ll.n'll or !'le.1n 21•9'f r;qrl'! subd1V1;:~l•m :rn•.l ""'utnmu:t tn" of c:-:1·1. 2~ fc;r;t rol'lcl to ::>. Atrlt" set for "'· c·J~Mon o~n:·ner ?f t'!11s :or.-::t <~n•. ll;l.04 ~>nre trr-.ct; _,_

85 ·" • (DEED 510 ·-·;-'1--·---rwr--·-··· • -·· ·"-"-::tr·

Th"Zif'::!: H• .5? •le~. 'a: • .30 :'.,ctto the place -.;t' Be~inning. An:l. bf;'1n1" tn:- URi'le lllnd nt>nv~·ye:'\ 'Co i"rl:t.:,ll.n A. Voii!jt ~t u.-:: by ··:. H. T}lA!:le, et U'::, by de~c,_ r';.t•~d Jon·.:.u.:.•y ~9, 194..5, a)l}Jft£1.. t•1:'1S C\!' !'~'"'!"'re'. in ·!-.l.Lu·ne l?J, PlilgP.:'I oOl-oO:J 'Jt tlls DPe:! a-·~ords of At

SPil'):tr'l Tr!\o::t. Al.l ti:!.Rt otrtu1n t::o~·ct 0~ :;t;.rceJ. or land. cont ... in!.ng 38 • .5 n"'!rer.. of J.ancl, bein~ a portlnn ot.., 2.07.77 !lort' tl'... ;,t •lt>••orihccl,. ,..,, Fir3i: 'rraet, con\·~yed to Viator Ho!!ek und ;·rift:, I·ra.rt>ne Yni~t Hn11a::, qnrl. !hs:;~le Voi'lt Baott, by ll~.rr!lnty Deed de ted C:~t.,b!'r 9, 19?8, of rP.aord in Volu~e 491, Pag~B 288-~1, De~~ ReaordB of Atasccna OountyL Tf'XR!! 1 oor.~m•1Aed of 23.10 RClt•rs Ollt ·7ll~ the H. B. TheoiJold 6urveyi'i2lO, Ab!'-rtoot #849, Rnd 15.1:. noree out or th!! Geoo, 1i'. 'rhomPe Su~vey #209, AbRtr~ct #8~8, C91d J8.5 Rcres being ~ore p&rtioUlRrly ~er.cri~ed ~~ ~oll~w~: '9~G-!l'!'!InG R.t 11 J./2 1:1ch galvAn7.1ed pi~ set ?n the llorth.·~st br:nndHr:r J.1."le- ?f P."~id 207.7? ,ore trr1ct f'>r the Hort!'l. ncrner ot' this tr,.nt. 1'r1Jm •·t'h1'1h ;1Pneo of 'b~t;inning, th"' ~h~th oorn·r of B9id 2:J7,77 ·Ul 'lnr;, trP-::t '!Je!l.rA !·1. 40 ne.:~. 00 min. J.'i'Ci~ i'r.et; ··1. -fooo6 '!'n~:?!CF 8. L:.n •1~.,;. E. 335~.20 feet t" n ';/ll. 1.!1oh i!inlvnni~an ni!)'' fou':'l~. 'ln t!l:.- lhrt~"J!!'It right-o."-N'l.Y linr· or 11.n ex!.3tlnjS 50 ro·~t ""t')llnty rr..nf! 1'o:r t~! :::~.:tW o,rnf·r of' thi -=1 tC'' ~ti

r::-i:snc;;; '3. 50 de:;;. ~g :nin. it. 500.00 t'E·et l'lon:; the No:oth~.. ~~-:. r1<;bt-of-•,·<>y li!l!! o: !IPic'l e:~'!.s"~!.nr;;. 50 I"a-:t C:~l'lr.t~· road :for If .1/2 1:1nh .~;~1.,•ani:<~r· ~-,:t~e !le~ tor the SrJuth cot':1(:·r r,i' -;:-::..o -::r,ot; T:E!JC::: ~. 40 deg. oo :nln. \'/, 3:35u.20 r.~.:~'t to r: :/z inch ;;::t.l ..IJ=~.ni···o:i·\ pi,.;! .:;:..:t, for tl~e ':/f:!•!t '1Jl.. "".f· ;- ct -:.'":.!.;: t:. . . ,~-:;;

tew!t to 'the J:a.ne 'l-r 'r~!E:!i*1-;: !. ~1 . 1E'~. 2e rn1n. E., 500.00 bf-~1nn1!~F;, ~·mt:;.inlng :38.5 a-~rea of J.;m·t, as eurv·ye'i on the grnund 'o~· Me, Vi(,tor SeijU~n, R~~i!!ts~t•cl Pu.bllo Suroveyor i.1o. 1776, on th1.a, thP J.:3t~!. :l

'·''itn<>~u -,u::o ~'1nds thin

U?H

~ ....... 86 .' ..-. ••

B• :.-,-;oe ::t··, th~ U:1·\~r·l15n<'-! ···tthorl ty, on t!Us dey peraonal.ly ~""':"':•.' ...,rt:'r1 I•Jt:~·C"~t!:l~ V"J:\.gt H:">q,;t, ·::11':)'"'11 1:"". m•:t t'J be the por:1on whose !lPme 1.1' ~U'!)"':Or!b~~! 'ii'J t?lP r':;-.:.' :~!~Er i!l~t:-~~cnt, e.n~ !i~?.Jl"J~tlet1.gr-d to ::!e "~1'\ir;~~. r•Y.ecute{L ';hf ~;ar.:'= ~·or th~ 1.'.11')•QAL'~ •1ml c'J:\31•1!-rl.'.tion tr..;.re-1n .r..~:..l'-l·~.-1?'~·· ;{·~:-.~·.;;::,::);;.;··~~ •.n::te'' m:r !",,..:-~·~ n:1. t .! ·:~ -.:- or·~.:-,., :J:1 "::hi~;~ the ; 2-: ~~l-.7 . . of.:.' AU l;~ J, .k. D. 1'./?~. /!. .\-. :~ t-·> ...//:/ ·-.:::..~;:·iro:l!l :Ro:;l9:tsEl.lAN - ·. .: :~·t.t.r.'TY 'Public in and :ror_ ~-ila.on county. oxexaa

;:or; :.ii!':Y CIF \'IILSON

/7~ -----

;JO!!: R. WISDWi Mt.Ol'V Public 1!-1 aud ~iii!. W1l11on County, ~ex.aa

87 l.. I.I&..LU J .L U - · - : - - - - _ _ _ P' _ _ _ ., _ _ _

········-- ·::-~· ·--··-·---,t·t--- :1

Filed for record A11gust: _ _ _ _2_2_,_ _..:A.D. • 1979

duly recorded August _ _ _ _ _2_3.;.'--....:A.D., 1979 at >lt

Atascosa Couaty Deed Records, Volume _ _ _ _ _ _ _ _ _S;...;l:;,;O;__ __..jPagea 2:10

8r30 o'Clock

o'Clock ---- P. M. and

---·...:· A M 126-131 :ln

.·.··

88 EXIDBITA

207.77 acres of land, situated about 20 miles S 85 deg. E. from Jourdanton, Texas, and being made up of 11 acres out ofthe John Hefron Survey No. 214, Abstract No. 393; 27 acres out of the H. B. Theobold Survey No. 210, Abstract No. 849; 105.77 acres out of the Geo. W. Thomas Survey No. 209, Abstract No. 848; and 64 acres out of the John Smith Survey No. 213, Abstract No. 804; and being a part of Subdivisions Nos. I, II and Ill of the Robert Krause 1103 acre tract, and said 207.77 acres, in one body, being described by metes and bounds as follows, to-wit:

BEGINNING at a corner fence post on theN. W. side of a 20 foot public road traversing the Robert Krause tract of land, the same·being~the east corner of Subdivision No. III, and the east corner of this tract;

THENCE S. 50 deg. 00' W. 793.0 feet with the North line of said 20 foot road to a stake set on same for the lower southwest corner of this tract and the lower southeast corner of a 322.6 acre tract;

THENCE N. 40 deg. 00' W. 1737.5 feet to a stake set for the inner southwest corner of this tract and the inner southeast corner of said 322.6 acre tract;

THENCE S. 50 deg. 00' W. 1560.0 feet to a stake set for the upper southwest corner of this tract and a corner of said 322.6 acre tract;

THENCE N. 40 deg. 00' W. 2915.0 feet to a stake set in the south fence line of an 8.6 acre tract for the Northwest corner of this tract and the Northeast corner of said 322.6 acre tract;

THENCE N. 69 deg. 37' E. 112.5 feet with fence line to the Southeast corner offence post of said 8.6 acre tract;

THENCE N. 0 deg. 33' W. 373.5 feet with fence line to the Northeast corner fence post of said 8.6 acre tract;

THENCE N. 59 deg. 32' E. 570.0 feet with fence line to corner fence·post;

THENCE N. 39 deg. 07' W. 363.5 feet with fence line to corner fence post for corner, same being the West corner of Subdivision No. III;

THENCE N. 53 deg. 31' E. 1432.0 feet with fence line to corner fence post for the Northeast corner of this tract, same being the North corner of Subdivision No. III;

THENCE S. 40 deg. 00' E. 5083.0 feet with the common boundary fence line of Subdivisions Nos. Til and IV to the place of beginning, containing within the above metes and bounds 207.77 acres of land, comprised as aforesaid of 11 acres out of the John Hefron Survey No. 214; 27 acres out of the H. B. Theobald Survey No. 210; 105.77 acres out of the Geo. W.

92 Thomas Survey No. 209; and, 64 acres out of the John Smith Survey No. 213. Surveyed on April 19, 1948, by John M. Peel, County Surveyor of Atascosa County, Texas.

And being the same land described in deed dated May 6, 1948, from L. W. Stieren to FRIDOLIN VOIGT and recorded in Vol. 189, Pages 379-382, of the Deed Records of Atascosa County, Texas.

LESS all that certain tract or parcel of land containing 38.5 acres of land, being a portion of the 207.77 acres tract described as First Tract, conveyed to Victor Hosek and wife, Ivarene Voigt Hosek, and Rosale Voigt Scott, by Warranty Deed dated October 9, 1978, of record in Volume 491, Pages 288-291, Deed Records of Atascosa County, Texas, comprised of 23.10 acres out ofth~_ll. B. Theobold Survey #210, Abstract #849, and 15.4 acres out of the Geo. W. Thomas Survey #209, Abstract #848, said 38.5 acres being more particularly described as follows:

BEGINNING at a 112 inch galvanized pipe set on the Northeast boundary line of said 207.77 acre tract for the North comer of this tract, from which Place of Beginning, the North comer of said 207.77 acre tract bears N. 40 de g. 00 min. W ., 1701.00 feet;

THENCE S. 40 deg. E. 3354.20 feet to a 3/4 inch galvanized pipe found on the Northwest Right-of-Way line of an existing 50 feet county road for the East corner of this tract;

THENCE S. 50 deg. 28 min. W. 500.00 feet along the Northwest Right-of-Way line of said existing 50 foot county road for a 1/2 inch galvanized pipe set for the south corner of this I tract;

THENCE N. 40 deg. 00 min. W. 3354.20 feet to a 1/2 inch galvanized pipe set for the West comer of this tract; ) THENCE N. 50 deg. 28 min. E. 500.00 feet to the Place of Beginning, containing 38.5 acres ofland, as surveyed on the ground by Victor Seguin, Registered Public Surveyor No. 1776, on the 13 1h day of June, 1979. I I

93 TAB E Response to Motion for Partial Summary Judgment • NO.lJ-06-0559-CVA • t(' Fn.ED \ ' dl 3 CYO..~ MARGARET E. UlTlETON, DISTRICT Q.ERK

rJi\N. _:G--2~1; .. IVARENE HOSEK AND VICTOR § IN THE DISTRICT couWf'~~ HOSEK § Plaintiffs, § § v. § 81ST JUDICIAL DISTRICT § ROSALE SCOTT § Defendant § ATASCOSA COUNTY, TEXAS

PLAINTIFFS.' RESPONSE TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME Plaintiffs, Ivarene Hosek and Victor Hosek, Non-Movants herein, and

request this Honorable Court to DENY Movant's Motion for Partial Summary Judgment.

L

INTRODUCfiON

A. When a movant files a motion for summary judgment based on summary

judgment evidence, the court can grant the motion only when the movant's evidence proves, as a ·

matter of law, all the elements of the movant's cause of action or defense, or disproves the facts

of at least one element in the non-movant's cause or defense.

B. When evaluating a motion for summary judgment, the court must:

1. Assume all the non-movant's proof is true;

2. Indulge every reasonable inference in favor of the non-movant; and

3. Resolve all doubts about the existence of a genuine issue of material fact

against the movant.

II.

A. The Hoseks, the Non-Movants in this cause, filed a declaratory judgment action

37 I

"""' lr.

r • • against Movant Scott, seeking an interpretation of a Partition Deed. The Partition Deed is

attached hereto as Exhibit "A". The Partition Deed reads as follows:

"This p~ition does not include any of the oil, gas and other minerals in, on, or under the

above described tract of land, and same are to remain undivided for a period of twenty-five(25)

years from date hereof and as long thereafter as oil, gas or other minerals are produced in paying

quantities from the above described land."

The conflict over the interpretation of this Deed arises out of the failure of the document

to state what will occur after the expiration of the 25 year period and cessation of production.

The Deed does not expressly state what happens upon that occurrence, and thus the conflict was

born.

The deed was drafted by an attorney who is deceased. The Hoseks are aware that the

language was intended that the undivided mineral interests revert to the surface owners after the

expiration of 25 years and cessation ~f production, which occurred in 2004. The Hoseks,

together with Ms. Scott, instructed the attorney to prepare an instrument which gave effect to

their intention.

Movant Scott sold her land with the minerals and received cash consideration for the sale.

She now seeks one half of the minerals beneath the Hoseks' land, citing the defective deed as the

source of her title. In the letter attached as Exhibit "5" to S~ott's deposition, Scott tells her

prospective buyer that he will receive the minerals under the land she will sell him after the

expiration of the 25 year period.

Movant filed a counterclaim against Non-Movants seeking affirmative relief for damages

and a declaration that she owns one-half of the minerals under the Hoseks' land. Movant is aware

that the Hoseks have leased their minerals to an oil company and that royalties are being

38 • • withheld until this conflict is resolved. During the course of exploration and development of the

minerals on the Hoseks' property, no oil company or title examiner opined that Movant Scott

owned any interest.

The Hoseks' retained expert, title examiner Allen D. Cummings, opines that the most

natural interpretation of the Partition Deed language is that the minerals reverted to the surface

owner after the expiration of 25 years and cessation of production. The report of Mr. Cummings,

as well as his CV, are attached to his affidavit, being Exhibit "C" hereto.

B. Movant alleges there is no genuine issue of material fact as to any element of

interpretation of the Partition Deed. The very existence of this litigation disproves this claim. The

wording is susceptible to multiple meanings by virtue of the Movant's claim that the language

did not have its commonly accepted meaning.

C. Non-Movants claim a genuine issue of material fact exists as to Movant's

counterclaim and submit affidavits, discC?very, documentary evidence and Movants' pleadings, as

summary judgment evidence, referenced in an appendix attached hereto, filed with this response

· and incorporated by such reference for all purposes as if recited verbatim herein.

III.

A. Non-Movants filed a claim against Movant seeking affirmative relief for the

interpretation of a Partition Deed.

B. Movant alleges Movant is entitled to a partial summary judgment as a matter of

law, and alleges that Movant can prove her counterclaim.

1. - Non-Movants claim a genuine issue of material fact exists as to Movant's

claim and submit affidavits, discovery, documentary evidence and Movants' pleadings, as

summary judgment evidence, referenced in an appendix attached hereto, filed with this f.' : i

• • response and incorporated by such reference for all purposes as if recited verbatim herein.

IV. A. The Court should deny Movant's Motion for Partial Summary Judgment and

pennit evidence to be presented and heard to establish the proper interpretation of the Partition

Deed made the basis of this lawsuit. The very existence of this dispute proves that there are

multiple interpretations of the document, and the evidence presented in this pleading establishes

that the Non-Movants' interpretation is the proper meaning of the document.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Non-Movants pray that this Court will

deny Defendant's Motion for Partial Summary Judgment, or order such other relief as may be

appropriate.

Respectfully submitted,

By: ----~------+---~----~~------­ Robert J. Ogle Texas BarNo. 1523135 508 E. San Antonio St. Boerne, TX 78006 Tel. (830) 249-9358 Fax. (830) 249-8508 Attorney for Plaintiffs Ivarene Hosek and Victor Hosek

40 . r

• • CERTIFICATE OF SERVICE

I certifY that on .J,.._ ~•cr3 ,2014 a true and correct copy of PlaintiffS' Response to Motion for Summary Judgment was served by electronic mail on G. Wade Caldweli at gcaldwell@beclaw.com.

41 • NO. 13-06-0559-CVA • IVARENE HOSEK AND VICTOR § IN THE DISTRICT COURT HOSEK § Plaintiffs, § § v. § 81ST JUDICIAL DISTRICT § ROSALE SCOTT § Defendant. § ATASCOSA COUNTY, TEXAS

APPENDIX TO PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

TABLE OF CONTENTS

All summary judgment evidence in this appendix is incorporated by reference into Plaintiffs' Response to Defendant's Motion for Partial Summary Judgment.

I. Pleadings

Exhibit A

II. Affidavits

Affidavit of Ivarene Hosek. ExhibitB Affidavit of Allen D. Cummings, expert witness ExhibitC

III. Discovery

1. Deposition Excerpts

True and correct copies of excerpts from the transcript of the deposition ofRosale Scott with a true copy of the certificate of the deposition officer and the affidavit of Robert J. Ogle. Exhibit D

42 • • NO. \3· 0(,. 0591. cv A IVARENE HOSEK AND VICTOR § IN THE DISTRICT COURT HOSEK § Plaintiffs, § § v. § ~JUDICIAL DISTRICT § ROSALE SCOTT § Defendant. § OF ATASCOSA COUNTY, TEXAS

ORIGINAL PETITION FORDECLARATORYJUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME Ivarene Hosek and Victor Hosek, Plaintiffs herein, filing this Petition for

Declaratory Judgment, pursuant to the Texas Uniform Declaratory Judgments Act, Chapter-37 of

the Texas Civil Practice and Remedies Code, and would show the Court the following:

I. DISCOVERY CONTROL PLAN LEVEL

Plaintiffs intend that discovery be' conducted under Discovery Level 2.

ll. PARTIES AND SERVICE

A. Plaintiff, Ivarene Hosek brings this action individually. Plaintiff resides in

Wilson ·County, Texas.

B. The last three numbers of Ivarene Hosek's driver's license number are 673. The

last three numbers of Ivarene Hosek's social security number are 641.

C. Plaintiff, Victor Hosek brings this action individually. Plaintiff resides in Wilson

County, Texas.

D. The last three numbers of Victor Hosek's driver's license number are 194. The . . last three numbers of Victor Hosek's social security number are.212.

E. I 44 ,.

• • with process at her home at the following address: 1032 Hanover, New Braunfels, Texas 78132.

Service of said Defendant as described above can be effected by personal delivery.

ill. JURISDICTION AND VENUE

A. The subject matter in controversy is within the jurisdictional limits of this court.

B. Plaintiffs seek:

1. monetary relief of $100,000 or less and non-monetary relief.

C. This court has jurisdiction over the parties because Defendant is a Texas resident.

D.. Venue in Atascosa County is proper in this cause under Section 15.011 of the

Texas Civil Practice and Remedies Code because this action .involves real property as provided

by said Section, and this county is where all or part of the·real property is located.

IV. FACTS

On October 4, 1978, Fridolin ~ex Voigt and wife, Pearl Schnautz Voigt, deeded the

family farm to their children, Ivarene Hosek (and her husband Victor) and Resale Scott, in

undivided shares. Ivarene and Rosale then partitioned the property on August 17, 1979, but

reserved minerals for twenty five years, so that each would have a one half mineral interest in the

·entire tract. The partition gave Ivarene a tract of 207.77 acres, less a 38.5 acre tract, and gave

Rosale a 130.77 acre tract, plus the 38.5 acres reserved out of Ivarene's 207.77 acres. Ivarene

then purchased back from Rosale the 38.5 acres on October 16, 1979, so that she possessed the

original 207.77 acre tract. The 38.5 acre purchase also reserved minerals for 25 years. After 25

years, on August 17, 2004, the minerals reverted back to the owner of the respective tracts.

Resale sold approximately 60 acres of her acreage to Evaristo Morales and wife, Rene Morales

on March 4, 1986. Then Rosale sold approximately 70 acres to William W. King and wife, Rosie

King on January 29, 1990. Ivarene still owns her 207.77 acres together with her husband, Victor

2 .; :

Hosek. •• • Ivarene has attempted to lease her acreage for oil and gas production, and Rosale claims

an interest in some of the minerals under Ivarene's land. Rosale's claims are unfounded in law

and in fact and are costing Ivarene substantial potential oil and gas income by making a claim for

· payment of funds to which she is not entitled.

V. RELIEF REQUESTED

There exists a genuine controversy between the parties herein that would be terminated

by the granting of declaratory judgment. Plaintiffs therefore request that declaratory judgment

be entered as follows; ·

A. A judgment of the court that Ivarene Hosek and Victor Hosek own one hundred

per cent of the minerals, including oil and gas, lying under their property, described in Exhibit A

attached hereto and made a part hereof, and a judgment of the court that Rosale Scott owns no

minerals lying under the said tract.

VI. ATTORNEY'S FEES

Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, request is

made for all costs and reasonable and necessary attorney's fees incurred by Plaintiffs herein,

including all fees necessary in the event of an appCftl of this cause to the Court of Appeals and

the Supreme Court of Texas, as the Court deems equitable and just.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendant be cited to

appear and answer herein, and that on final trial hereof declaratory judgment be granted as

.requested herein and Plaintiffs be awarded costs and reasonable and necessary attorney's fees,

and for such other and further relief that may be awarded at law or in equity.

3 46 :!"- ...

• • Respectfully submitted,

By: ~ltJrf- RobertJ.~1 Texas Bar No. 15231350 508 E. San Antonio St. Boerne, TX 78006 Tel. (830) 249-9358 Fax. (830) 249-8508 Attorney for Plaintiffs Ivarene Hosek and Victor Hosek

4 47 .. •• • 20?.77 ROrP.~ ot l~nd, eituatc~ Qbout 20 ~leo 9 85 deg. s. t'r,,.., J"Ju\'1\ .. n'l:l'ln, ':'A;o:R.'F, R.:"ld 'be1n~ m:ute uo o'i' 1l acres ou't of' tbe John n""'~·m Sur"Tey ~o. 211.:., Ablltreot iJo • .39:3;" 2? •cree out l)f the H. B. '!'hl'.,bnl.o:\ 'Sul"ve:r 14-l. :?.l.O, .r\b11tn-ct Un. 849r l.0~.77 I!Ool'Ein out o'!' the Gr.-.. tf. Th(li!V!\11 Survl'y Nl'l. 209, AbRtr·'r.:t 11?. s...s; ancl 64 ac;reg out of t!lP. Jol':"' Srr.ith Sll':'\"~Y He. 21:3, :\b'7t '!let !fo. BOt:.: "'•JlL'!. bein-=S" a ;:art ?f Subc'!.1"1!!l..ons !lws. I, II, :=.nd III ot tbe Robert !Crause ll03 P.cre tr,.~-::, a:td r,P,i1\ 2.07.77 IHJ:'r.lr, 1n one body, 'beln:r d!lser1'bed by mettts ::nc1 bcundfl :II! f'nl-;.oH:~, t?-"~1t:

:9.::3-!ir.~::::~G at ll. o~Jr:lar frnce •..oost on thfl :1. '1. side ot a 20 fl)ot po.:~l1c rot1d tr'"'E-!"sin..I tttt Robert 2'.:::-a.~se tract err land., thft same being ':he e'll.st I'IO.t"1'1or ot Subdivis!cn Ito. III, end. tile eRst corner of thl.c tr:-t:~; ~::Z:IC.:: s. SO de,:r. ')')' ··t. 79:3.0 :'i"""t ""it!l the North l!ne 'Jf' !.''l\d 20 to :< st,.:ce ::~et on 1)1\1!1\" :ror tbe 1o·.,;er at.>u.thl·rest t.''JI'J"; ro<~d. ~"rnP.r o! 'Cilia trr.;ot nnd the lo•:1n• SQu.th':A.st: cornl.'r of a ;22.6 acre ttwr1C~:

'!'!-!Ei!J?: ~~. La.O de& .. 0' 1 l·T. l?)?.S ffoet to !. ali".ke set tor the, t~::tor Sl')uth•feet corner of "::!'1111 tr'lc":: e.nn the 1n"'or s,ut!le~e~ corner ?!.' s~ld 322.6 acre tr~·nt;

:'H:::•;oz: S. 50 de!J. 00 1 \I, lS60.0 :t'aet t;tJ :\ atrlte set !'or the u•r:P.~· !!•mth·~Art nl'lrnf'T' of' th'\.~ tract Md a C!O:'tlt'!' or t:"1r:\ ;22.6 aczoe tt't;.,iJ~:

~~~*CE B. 40 4e~. oo• w. ?.~ts.o feet t~ ~ s~. set 1n tt~ Bonth f'~noe line or an !.6 acre 'Cl'I\CI1i foro th~r tlort"n"'E'I!ti no:rner of' th1a tzos~t ann the Northe~st corner or 9~1d '2?..6 •ere tr&ct; ?:iSN~ N. 6~ ~eg. 3? 1 E. ll~.S teet ~lt~ t&n=P line tn t~e ~')Uthe~~t C'lr.l!:"ner te:noe 'flOGt or snid 8.6 111.are trqa~; TE::flCE: N. 0 de:). ,,, w. ;j?, • .; reoet With :t'i!Me Une to tbe l~ortht' .. '.'!toorner fence !"O'Ift of ea.1d 8.6 ll'lore troct; TH3NOE N. 59 de~ • .32 1 E. 570.0 feet with ftinoa line to corner tenoe ~oet;

'l'HZ'.NCE N. 39 deg. TJ7 1 ~·t. :;6.3.5 teet ~"ith te"3e Une to corner r~noe n~gt ro~ corner, same being the Wea~ corner ot Subdivision No. J.::O:; TBEilCE N. 53 deg. 3J.I E. J.4)2.0 teet td ~h :renee line to corner rr.nee ~cat f~r the Northea$t eorn~r of this tr-ct, sama being the North corne~ or Subd1v1e1on No. III; TP.~NOE S. 40 deg. 001 E. 5083.0 fe&t ¥1th the co3E.on ~unl\e.ry f:•nce J.1nll of Subd.iv1s1nns I~os. III in.ll!l. IV to the pl&oe ot b 4 ~1n~1ru;, CQn~inin~ within th~ ab?ve metes ~n~ b~ndH 207.77 ~ores or J.~n~ com~r1ped. a~ Arora~a1d o~ J.J.-~ares out ot the J~hn Herron Surv17 fm. 2lll.; 27 llC:t"U n•11l 01' thP: !:!. B. !?h.Pobo1 th:· J?hn S!r.i th Surv'AY No. ?J.;3. 5u"'Vt~yod. on A}'1rll J.9, 1948, by Joh.'l ,.; • Pe•• 1, Oflllnty Surve~or of .1\t:~Beoee. 01unt,y, !P.,·JI s. And bP.1n3 the SrnBH l~nd c\e<>cr1bed in dee!\ ·da.;td. Ml!,y 6, l9Lo5, from L. \·1. SUeren to .f'RI'DOl.Ill VOIG1' '!l.n.;l. reoo'l:"di'IC\ 1n Vol. 159, Pag-eo '79-:382, of thP. DA~ct R~o~rna of Atn=oos~ Oount~. To~~r..

EXHIBIT A 48 -~,,,------------·------------------------------------------- • N0.13-06-0559-CVA

IVARENE HOSEK AND VICTOR § IN THE DISTRICT COURT HOSEK § Plaintiffs, § § v. § 81ST JUDICIAL DISTRICT § ROSALE SCOTT § Defendant. § ATASCOSA COUNTY, TEXAS

AFFIDAVIT

BEFORE ME, the undersigned authority, personally appeared Ivarene Hosek, who being

du1y sworn, deposed as follows:

"My name is Ivarene Hosek. I am at least 18 years of age and of sound mind. I have

personal knowledge of the facts alleged in Plaintiffs' Response to Defendant's Motion for

Summary Judgment. I hereby swear that the following statements in support of Plaintiffs'

Response to Defendant's Motion for Summary Judgment are true and correct.

"My sister and I made an agreement to partition the property we bought from our parents

on October 4, 1978. We agreed to let the minerals remain undivided for a period of twenty five

years and as long thereafter as oil and gas were being produced. After that time, the minerals

would be vested in the surface owner. This is the document that our attorney, Joe R. Wiseman,

was directed to draft, and it was signed by us on August 17, 1979. My sister and I shared the cost

of the attorney fees to Joe Wiseman to prepare this document. My sister knew of our agreement

regarding the minerals and told this to her buyers, who purchased her property after my sister

told them they would own the minerals after the expiration of the twenty five year period, being

August 17, 2004.

My sister only made this claim for one half of the minerals under my property after being

49 • asked by the oil company to sign a title curative document to address the poorly drafted Partition

Deed. The oil companies who researched the title read this document and presumed that my

husband and I owned all the minerals under our property after the expiration of the twenty five

year period. My sister is fully aware of this. My sister has sold her land with the minerals and

been paid for them, now she wants half of my minerals. Her actions have prevented me and all

mineral owners of the pooled well unit from being paid any royalties. The oil company, EOG,

has made it known to me that it may need to either abandon the well unit that has been drilled or

exclude our acreage from the pooled unit if this issue is not resolved. I and many other mineral

owners may be adversely affected by my sister's claims." ·

g~ ~

SUBSCRIBED AND SWORN TO BEFORE ME on ~~;:( l ~ 0/ tf , by \ VD4-re,.ne Ho~e}(

PATRICIA L OGLE MY COMMISSION EXPIRES December 19, 2014

50 • • NO. 13-06-0559-CVA

IVARENE HOSEK AND VICTOR § IN THE DISTRICT COURT HOSEK § Plaintiffs, § § v. § 81ST JUDICIAL DISTRICT § ROSALESCOTT § Defendant. § ATASCOSA COUNTY, TEXAS AFFIDAVIT IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

BEFORE :ME, the undersigned authority, personally appeared Allen Cummings, who

being duly sworn, deposed as follows:

"My name is Allen D. Cummings. I am at least 18 years of age and of sound mind. I

have personal knowledge of the facts alleged herein, which are true and correct.

"My qualifications as a board certified oil and gas attorney and title examiner are

attached hereto. I frequently perform title opinions for drilling and exploration for oil companies,

including EOG, who, I have been advised, has a lease on the Hoseks' minerals. I have reviewed

the Partition Deed which is in dispute, and I prepared my professional opinion as a title examiner

in the form of the report which is attached hereto. This is my opinion based upon my knowledge

and experience, and this is a true and correct copy of my report."

SIGNED o~.9, 2013. Allen D. Cummings,

SUBSCRIBED AND SWORN 0 BEFORE ME on /1e,~ 30, ~0(.3, by Allen D. Cummings ..

. ROSA YBARRA NOtary PubUc, State of Texas My commission Expires

c January 16, 2017

51 ..· • Allen D. £ummings - - - - - - - - - - - - - - - - - - - • Auorner at Law Prilleipalotlice,S.AIIImlia: 1771N!Loop410, Sult.EOO, SanAII!oaio, TOl!U78217 l1«

November 29, 2013

Robert J. Ogle, Esq. The Law Offices of Robert J. Ogle, P.C. 508 E. San Antonio St. Boerne, TX 78006

Re: Deed of Partition dated 8/17/1979, recorded 510 DR 126, Atascosa County, Texas, by and between Victor Hosek, and wife, Ivarene Voigt Hosek and Rosale Voigt Scott.

Dear Mr. Ogle:

You have asked me to provide you my opinion, based solely on my review of the above- referenced Deed of Partition, concerning the ownership of the oil, gas and other minerals in and under the lands described in said Deed of Partition. The lands in Deed of Partition are described as a 207.77-acre tract ofland, described by metes and bounds, in the "First" section of the Deed of Partition and tracts of 130.77 acres and 38.5 acres, each described by metes and bounds, in the "Second" section of the Deed of Partition. The Deed of Partition recites that the parties hold the lands described in common. Following the description of the lands in each section of the Deed ;of Partition is the following clause: This partition does not include any of the oil, gas and other minerals in, on or under the above described tract of land, and same are to remain undivided for a period of twenty-five years from the date hereof and as long thereafter as oil, gas or other minerals are produced in paying quantities from the above descn'bed land. This clause does not say what is the effect of the Partition Deed at the end of 25 years, i.e. on 8/17/2004, if there was not then, and thereafter, production in paying quantities from the lands described. Therefore, in order to detennine the present ownership of the oil, gas and other minerals in the lands described in the Deed of Partition, assuming there has not been continuous production in paying quantities, we must determine the effect of this clause.

Whether this clause renders the Deed of Partition ambiguous is a question of law to be detennined by a court. However, the cases on construction of deeds and contracts show that the courts will first apply the rules of construction to determine from the four comers of the instrument the intent of the parties as expressed in the instrument, regardless of what may have been the subjective intent of the parties to the instrument. Luckel v. White, 819 S.W.2d 459 (Tex. 1991). If. after the application of the rules of construction, there are two or more reasonable interpretations, then a court may find the instrument is ambiguous. Universal C.l T. Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951).

52 Robert J•. Ogle November 29,2013 Page2of2 • • It is well settled that a partition deed does not convey title, but rather dissolves the. tenancy of lands owned' in comrtlon and segregates the possession and use of the·landS anicmg individual co- owne~ .. Houston 0!/. Co. ofTexas v. Kirkindr;zll, 1.45 s~w.2d 1074 (Te~. l94l). In addition, there is a presumption tlla,t wb,en lands. are partitioned among co-owners; the whole of the land is partitioned, unless some portion of the lapd is expressly excepted from the partition. Pewitt v. RenwarOi/ Corp., 261 S~W.2d 904, 906 (Tex. Civ-. App.- Houston, 1962,.-wrlt refused n.r.e.)

Readi~g the above clauseJn light of these twO principles, It would appeat tht1t the parties.to the Deed. of Partition, expressly excluded from the partition the oil, gas al1Cl othet minerals in the lands for a tet.ni detli1ed as "twenty-five years ~ . . and as long thereafter as ·oil, gas or other minerals are produced i.n paying qiJ!intities from the above described land." It woulc;I also appear the most reasonable construction of this clause, even though it Is not expressly stated~ is the parties fntended, after the expressly excluded term, that ilie use and posseS.sion of the oil, gas and other minerals would ·be segregated to the owners of the individual trE).cts described in· the first and second section~ of the Deed of Partition. In other words, the exclusio~ from the wtended partition of possession and use of all the lands as to. oil, gas and other minerals ends after 25 years or, if there is production in paying quantities from theJands, then when there is no longer production in paying quantities. ItJs,important tO note again, the partition deed does hot affect title to the {a(lds, but only the se~gation of possession and use.

You:haye as~ed me ~o provide you my opinion about whether such a construction of the Deed of Partition violates the Rule AgainSt Perpetuities (the "Rule")~ The Rule i~ applicable to. a future estate? which may not vest during lives in being plus twenty·one year~; it has no application to present interests or •to provisions which m~y postpose possession beyond a period of lives in being and twenty·one years. See generally, Kelly v. WQmack, 268 S. \V. 2g 903, 905 (Tex. 1954) and Hamman v. Bright &Co., 924 S.W:2d 168, (Tex. App• ., Amarillo 1996). In as much as the Deed of Partition does not affect title,_ but only the segregation of the use and possession of the in :oil, gas and other minerals by the co-owners whojoined the partition, it would appear that the above construction would not be subject to the Rule. Because the parties. own title to the lands subject. to the Deed of Partition in common, only the segre.gatio+t of use and possession of the oil, gas and other minerals is postponed for the Stated term. Without this clause, ilie oil,_ gas and other minerals woUld have been partitioned upon exec1.rtion and delivery of the. Deed o(Partition.

Based on the foregoing, it is my opinion that use .and posse~sion of t~e oil. gO$ a~d other miner.:Us in the lands descdbed in the Deed of Partition; is vested in the party to vv~()m the individul,ll tia9ts are partitioned therein, absent continuous production in paying· quantities from and after 8/1712004. This opinion is based on solely on examination ofthe Deed ofPattition as a single document and without ilie benefit ofother instrum~nts in the chain of ti:tle that could affect my opini_on on the effect ofthe Deed of partition. .

~-~~~-· truly,.· ~ ·•. t . . . .· . ; ' .' f... .:. • ...... , .· ..

/ Allen D. Cumming

53 ALLEN D. CUMMINGS • • BIOGRAPIDCAL INFORMATION

ALLEN D. CUMMINGS ATTORNEY AT LAW 4801 Woodway Drive, Suite 300 East, Houston, Texas 77056 1777 NE Loop 410, Ste. 600, San Antonio, Texas 78217 Telephone and Fax 888-832-1115 acummings@acummings-law.com

EDUCATION:

J.D. Southern Methodist University, Dallas, Texas- 1974 M.B.A. University of Phoenix- 2005 B.A. State University ofNew York at Buffalo, Buffalo, New York- 1964

PROFESSIONAL ACTIVITIES:

Admitted: Texas- 1975 Board Certified Oil, Gas and Mineral Law, Texas Board of Legal Specialization 1987

Haynes and Boone, LLP - February 1999 to February 2006 Cotton, Bledsoe, Tighe & Dawson, P.C.- 1980 to January 1999 Attorney, Texas Oil & Gas Corp.- 1978-1980 Attorney, Otis Engineering Corporation, a subsidiary ofHalliburton Company- 1975-1978

Member, State Bar of Texas Pattern Jury Charges Oil and Gas Committee, August 2013 Member, Texas Board of Legal Specialization Oil, Gas and Mineral Law Exam Commission, February 2013 Chair, The American Association of Professional Landmen, Annual Meeting Workshop, June 2007 Co-Chair, Rocky Mountain Mineral Law Foundation Special Institute, Development Issues and Conflicts in Modem Oil and Gas Plays, November 2004 Oil, Gas and Energy Resources Law Section, State Bar of Texas: Chairman (2001-2002) Officer (1997-2001), Council Member (1994-1997) Editor, Section Report (1996-1997) Course Director, Advanced Oil, Gas and Energy Resources Law Course 2001, State Bar of Texas Course Director, 22nd Annual Oil, Gas & Mineral Law Institute, University of Texas School of Law and Oil, Gas and Mineral Law Section, State Bar of Texas Oil, Gas and Mineral Law Section, Houston Bar Association, Editorial Board Section Newsletter ( 1991- 1993), Officer (1993-1996), Chairman (1996-1997)

HONORS: Order of the Coif

LAW RELATED PUBLICATIONS:

Co-author for the Oil, Gas and Mineral Law for Legal Assistants and Attorneys, State Bar of Texas PDP, 1984 Workshop Regarding Title Examination and Division Orders Author/speaker for University of Texas 12th Annual Advanced Oil, Gas & Mineral Law Institute (1986), Conveying and Reserving Mineral Interests Co-author/speaker for the State Bar ofTex11s PDP 1986 Advanced Estate Planning and Probate Course, Perfecting Title and Transferring Real Property Out of the Estate

Rev. 2013 II 9 Paget of7

54 ALLEN D. CUMMINGS • • BIOGRAPHICAL INFORMATION

Author/speaker for the State Bar of Texas PDP 1987 Advanced Oil, Gas & Mineral Law Course, Land Litigation Applied to Oil and Gas Disputes Author/speaker for South Texas College of Law 1989 Advanced Oil & Gas Law Institute, Current Oil and Gas Title Issues Author/speaker for University ofTexas 17th Annual Oil, Gas & Mineral Law Institute (1991), Selected Title Problems in Title Examination Co-author/speaker for South Texas College of Law 1991 Advanced Oil & Gas Law Institute, A Comparison of Field Wide Unitization in Texas, Oklahoma and New Mexico Author/speaker for South Texas College of Law 1992 Advanced Oil & Gas Law Institute, Division Orders and Payment for Production Proceeds Author/speaker for State Bar of Texas PDP 1992 Advanced Oil, Gas & Mineral Law Course, Selected Title Issues: Partition and Probate Author/speaker for State Bar of Texas PDP 1993 Advanced Oil, Gas & Mineral Law Course, Planning to be a Reasonable and Prudent Operator Author/speaker for 1994 Houston Association of Professional Landmen Spring Technical Workshop, Recent Developments in Oil and Gas Law Author/speaker for South Texas College of Law 1994 7th Annual Advanced Oil & Gas Law Institute, Case Law and Legislative Update Author/speaker for Permian Basin Landmen's Association 1994 Fall Seminar, Case Law and Legislative Update Author/speaker for Dallas Association of Petroleum Landmen's/Dallas Bar Association Energy Law Section 1995 Educational Seminar, Recent Developments in Oil & Gas Law Co-author, State Bar Section Report Oil, Gas & Mineral Law, Mar. 1995, Vol. 19, No.3, Litigating Gas Royalty Cases Author/speaker for Dallas Bar Association Energy Law Section Review of Oil and Gas Law X, Aug. 1995, Pooling A Non-executive Interest: Problems and Options for the Owner and the Lessee Author/speaker for State Bar of Texas 1995 Advanced Oil, Gas & Mineral Law Course, Pooling Issues--Avoiding Pitfalls Speaker/modified, updated and republished with permission by Tevis Herd for 1996 University of Houston Law Center Advanced Oil & Gas Short Course, Assuring the Title: Concurrent Ownership, Pooling, Probate, Etc. Speaker for The Southwestern Legal Foundation 47th Annual Institute on Oil and Gas Law and Taxation, February 1996, Gas Royalty Issues for the Third Millennium Speaker for 1996 Houston Association of Professional Landmen Technical Workshop, COPAS-Joint Accounting: Have They Built a Better Mousetrap? Author/speaker for Denver Landmen Association, March 1996, Pooling Issues--Avoiding Pitfalls Speaker for The Southwestern Legal Foundation 37th Annual Institute for Professional Landmen Seminar April1996 Horizontal Drilling--Title and Related Legal Issues Author/speaker for Permian Basin Landman's Association May 1996 Seminar, Pooling Issues--Avoiding Pitfalls Author/speaker for Dallas Bar Association Energy Law Section Review of Oil and Gas Law XII Seminar, August 1997, Horizontal Drilling--Title and Other Issues Author/speaker for State Bar of Texas 1997 Advanced Oil, Gas & Mineral Law Course,

Rev. 2013 II 9 Page 2 of7

55 ALLEN D. CUMMINGS • • BIOGRAPHICAL INFORMATION

Pooling and Community Leases: Problems and Options for The Executive Owner, the Non- executive Owner and the Lessee Author/speaker for AAPL Corpus Christi Landman's Institute, October 1997, Horizontal Drilling--Title and Other Issues Author/speaker for Permian Basin Landmen's Association, November 1997, Horizontal Drilling--Title and Other Issues Author/speaker for San Antonio Association of Professional Landmen Ninth Annual Mid-Winter Seminar, March 1998, Pooling and Community Leases: Problems and Options for The Executive Owner, the Non- Executive Owner and the Lessee Author/speaker for Petroleum Accountants Society of Houston, Ninth Annual Education Day, June 1998, The AFE: Authority for Everything? Author/speaker for 1998 Mineral Owners Conference, September 1998, Conflicting Rights of Pipeline Companies and Surface Owners in Condemnation and Use of Pipeline Easements Author/speaker for Houston Bar Association, Oil, Gas and Mineral Law Section Luncheon Program, September 1998, Current Developments in Oil, Gas and Mineral Law Author/speaker for State Bar of Texas 1998 Advanced Oil, Gas & Mineral Law Course, Ethics: Problems Arising from Prior Representation Co-Author/speaker for The Southwestern Legal Foundation 50th Annual Institute on Oil and Gas Law and Taxation, February 1999, The Use of Tort and Statutory Duties to Enlarge Contract Obligations Under the Lease and the Operating Agreement - Oklahoma Law and Texas Law Author/speaker for Texas Bankers Association Asset Management Seminar, March 1999, Current Developments in Oil, Gas and Mineral Law Author/speaker for American Association of Professional Landmen Convention, June 1999, Protecting the Non-executive Owner Co-author/speaker for The University of Texas School of Law 26th Annual Ernest E. Smith Oil, Gas and Mineral Law Institute, March 2000, Trade Secrets and Proprietary Information Author/Speaker for National Association of Lease and Title Analysts 15th Annual Conference, October 2000, Horizontal Drainholes - Pooled and Not Author/speaker for San Antonio Association of Professional Landmen 12th Annual Mid-Winter Seminar, February 2001, Pooling Issues - Avoiding Pitfalls and Recent Developments in Pooling Author/speaker for The University of Texas School of Law 27th Annual Ernest E. Smith Oil, Gas and Mineral Law Institute, March 2001, Recent Developments and Specific Pooling Issues Author/speaker for State Bar of Texas 2001 Advanced Oil, Gas & Energy Resources Law Course, The Clairvoyance of A.W. Walker, Jr. Author/speaker for The-University of Houston Bar Foundation 2002 Advanced Oil & Gas Short Course, Joint Operating Afreements- Current Issues Author/speaker for the 48 Annual Rocky Mountain Mineral Law Institute, July 2002, A Meeting of the Minds on Title Defects Author/speaker for State Bar of Texas 2002 Advanced Oil, Gas & Energy Resources Law Course, Dangers Associated With Use Of And Reliance Upon Prior Title Opinions Speaker for National Association of Lease and Title Analysts 15m Annual Conference, October 2002, Rights, Obligations and Problems Of Depth Severed Mineral And Leasehold Ownership Rev. 2013 11 9 Page3 of7

56 ALLEN D. CUMMINGS • • BIOGRAPHICAL INFORMATION

Author/speaker for the 49th Annual Rocky Mountain Mineral Law Institute, July 2003, Rights, Obligations and Problems Of Depth Severed Mineral And Leasehold Ownership Author/speaker for The University of Houston Bar Foundation 2004 Advanced Oil & Gas Short Course, Joint Operating Afreements - Current Issues Author/speaker for the 55 Annual Program on Oil and Gas Law, The Institute for Energy Law of The Center for American and International Law, February 2004, The Fundamentals: State of the Art ofNegotiating Environmental Issues in Energy Industry Purchase and Sale Agreements, Part 2: Flexible Approaches to Negotiating Author/speaker for The University of Texas School of Law 30ih Annual Ernest E. Smith Oil, Gas and Mineral Law Institute, March 2004, Today's Marketing, Yesterday's Leases, Check Stub Statutes: The Perfect Storm Author/speaker for Rocky Mountain Mineral Law Foundation Special Institute, Oil & Gas Agreements: The Exploration Phase, June 2004, Complex Exploration Agreements; Getting Down to Business Author/speaker for State Bar of Texas 2004 Advanced Oil, Gas & Energy Resources Law Course, Standard for Proof of Damages under the Joint Operating Agreement and Lagniappe Author/speaker The University of Texas School of Law 32ild Annual Ernest E. Smith Oil, Gas and Mineral Law Institute, March 2006 Old AMis- New Problems Co-author/speaker for Rocky Mountain Mineral Law Foundation Special Institute, Oil & Gas Agreements: Sales and Financing, May 2006, Organizing and Executing Due Diligence -Quickly Speaker, The Houston Association ofProfessional Landmen, Spring Workshop, May 2006, The Accommodation Doctrine Speaker, The Houston Association of Professional Landmen, Technical Conference, June 2006 Ethical Issues: Preferential Rights to Purchase and Package Sales Author/speaker for the 52nd Annual Rocky Mountain Mineral Law Institute, July 2006, Old Area of Mutual of Interest and Dedication Agreements- New Problems Speaker, The Houston Association of Professional Landmen, Technical Conference, April 2007 Ethical Issues: Negotiating and Applying AMI Clauses Speaker, The American Association of Professional Landmen, Annual Meeting Workshop, June 2007 Negotiating, Drafting and Applying AMI Clauses Checklist for Assignments Speaker, San Antonio Bar Association Natural Resources Section Monthly Luncheon, June 2007 Negotiating, Drafting and Applying AMI Clauses Author/speaker for State Bar of Texas 26ili Annual Advanced Oil, Gas & Energy Resources Law Course, September 2008 Measuring the Quality ofTitle Speaker, San Antonio Bar Association Natural Resources Section Monthly Luncheon, January 2009 Oil and Gas Operations in Urban Areas Author/speaker The University of Texas School of Law 35th Annual Ernest E. Smith Oil, Gas and Mineral Law Institute, Oil and Gas Fundamentals Boot Camp March 2009 The Joint Operating Agreement- The Basics Speaker, The Houston Association of Professional Landmen, Technical Conference, April2009 Pooling and Unitization: Barnett and Haynesville Shales Author/speaker for Rocky Mountain Mineral Law Foundation Special Institute, Oil & Gas Agreements: The Exploration Phase, May 2009 and March 2010, Area of Mutual Interest Agreements

Rev. 2013 11 9 Page 4 of7

57 ALLEN D. CUMMINGS • • BIOGRAPHICAL INFORMATION

Author/speaker for State Bar of Texas 28th Annual Advanced Oil, Gas & Energy Resources Law Course, October 20 10 Thinking About Boilerplate Author/speaker The University of Texas School of Law 37th Annual Ernest E. Smith Oil, Gas and Mineral Law Institute, Oil and Gas Fundamentals Boot Camp April 2011 Texas Title Examination Standards: Introduction and Practical Exercises Author/speaker for State Bar of Texas 29th Annual Advanced Oil, Gas & Energy Resources Law Course, October 2011 The Pitfalls of Using tfti! '.Vr11DgAny Form Author/speaker for Rocky Mountain Mineral Law Foundation Special Institute: Mineral Title Examination, February 2012, Basis of Opinions, Types of Opinions, and Layout of Opinions Author/speaker The University of Texas School of Law 38th Annual Ernest E. Smith Oil, Gas and Mineral Law Institute, March 2012 Consent Asked For- But Not Received; the Enforceability of Consent to Assignment or Transfer Provisions Speaker for American Association of Professional Landmen Annual Meeting, June 2012 Pooling in Resource Plays Author/speaker for State Bar of Texas 301h Annual Advanced Oil, Gas & Energy Resources Law Course, Oil, Gas and Energy Resources 101 October 2012, Anatomy ofa Joint Operating Agreement Author/speaker The University of Texas School of Law 39th Annual Ernest E. Smith Oil, Gas and Mineral Law Institute, Fundamentals of Oil, Gas and Mineral Law March 2013 Texas Title Examination Standards: Introduction and Practical Exercises Author/speaker The Center for American and International Law, Texas Mineral Title Course May 2013 Texas Title Examination Standards: Introduction and Practical Exercises Author/speaker for State Bar of Texas 31st Annual Advanced Oil, Gas & Energy Resources Law Course, 1 October 20 13 NPRis: From Operator's Perspective in a Horizontal World Author/speaker for Civil Justice Conference, October 2013 Area of Mutual Interest and Preferential Right to Purchase Agreements

MEMBERSHIPS:

State Bar of Texas San Antonio Bar Association Houston Producer's Forum American Association of Professional Landmen Houston Association of Professional Landmen

Prior Expert Testimony

1. For Defendant, Cause No. A-172, 979; M & M Resources, Inc. v. DSTJ, L.L.P. and DSTJ Corporation; 58th District Court, Jefferson County, Texas. Deposition April2006.

2. For Respondent, Case No. 77 198 00189 06 MAVI, Enerplus Resources (USA) Corporation v. Slawson Exploration Company, Inc., American Arbitration Association, Denver, Colorado. Testify March2007.

3. For Respondent, Hunt Petroleum Corporation, eta/., v. LLOG Exploration Company, LLC, et al., Rev. 2013 II 9 Page 5 of7

58 • •• ALLEN D. CUMMINGS BIOGRAPHICAL INFORMATION

Arbitration Proceeding, Houston, Texas. Testify March 2007.

4. For Intervenors in Cause No. C-1535-02-H; Stephens Production Company, a Division of Stephens Production Group, Inc., as Plaintiffs v. Charlie Hudson, et al., as Intervenors, v. Paul Freeman, et al., as Defendants; 3891h Judicial District Court, Hidalgo County, Texas. Testify September 2008.

5. For Plaintiff, Cause No. 0-06-161; Gastar Exploration Texas LP v. John E. Mcfarlane, et al., 87th Judicial District Court, Leon County, Texas. Deposition November 2008.

6. For Movants for Establishing a Producers Committee, In Re: SEMCRUDE, L.P., et al. Chapter 11 Case No. 08-11525(BLS), Adversary No. 08-51444(BLS) (TEXAS), United States Bankruptcy Court for the District of Delaware. Testify February 2009.

7. For Plaintiff, Cause No. 2008-05053, Carrizo Oil & Gas, Inc. v. 2001 Trinity Fund, LLC, 295th Judicial District Court, Harris County, Texas. Testify October 2009.

8. For Plaintiff, Civil Action No. H-08-3341, Preston Exploration Company, L.P., et al. v. GSF, L.L.C., et al.; United States District Court for the Southern District of Texas, Houston Division. Testify March2010.

9. For Plaintiff, Cause No. 2009-66618, Davis Petroleum Corporation v. ERG Resources, LLC, 269th Judicial District Court, Harris County, Texas. Deposition February 2011.

10. For Defendants, Civil Action No. 2:08-CV-345 TJW, Charles H. Coli, et al., v. Abaca Operating, U.C. et al., United States District Court for the Eastern District of Texas, Marshall Division. Deposition February 2011.

11. For Claimant, Tauren Exploration, Inc., et a/. v. EXCO Operating Company, LP, et al., Arbitration Pursuant to November 2009 Purchase & Sale Agreement (Not Administered). Testify January 2012.

12. For Plaintiff, Cause No. 08-04-07047-CV, OZ Gas Corporation v. Remuda Operating Company, et al., 112th Judicial District Court, Crockett County, Texas. Testify February 2012.

13. For Plaintiff, Cause No. 201()...15225, Devon Energy Production Company, L.P. v. KCS Resources, LLC, 129th Judicial District, Harris County, Texas. Deposition March 2012.

14. For Plaintiff, Cause No. CV11-04-320; Merit Management Partners I, LP, eta/. v. Lakota Energy Limited Partnership; 271st Judicial District, Wise County, Texas. Deposition May 2012, testify October 2102.

15. For Claimant, Arbitration Proceeding (Not Administered) concerning Cause No. P-12,779-C, Kathleen Wild v. FrankJ. Schuster, et ai.,_County Court N9. 3, Sitting in Probate, Hidalgo County, Texas. Testify August 2012.

16. For Plaintiff, Cause No. 11-0849, Noel Diane Jones, eta/. v. Petrohawk Properties, L.P., et al., 71st Judicial District, Harrison County, Texas. Deposition September 2012 and March 2013; testify September 2013.

17. For Defendant, Cause No. 26527, John G. Middleton, et a/. v. Fairways Exploration & Rev. 2013 11 9 Page 6 of7

59 ALLEN D. CUMMINGS • • BIOGRAPHICAL INFORMATION

Production, LLC, 344th District Court, Chambers County, Texas. Deposition March 2013.

18. For Defendant, Cause No. DC-12-05303; Orca Assets, G.P. LLC v. JP Morgan Chase Bank, N.A., et al, B-44th District Court, Dallas County, Texas. Deposition October 2013.

Rev. 2013 11 9 Page 7 of7

60 • • • !

NO.lJ-06-0559-CVA

IVARENE HOSEK AND VICTOR § IN THE DISTRICT COURT HOSEK § Plaintiffs, § § v. § 81ST JUDICIAL DISTRICT § ROSALE SCOTT § Defendant. § ATASCOSA COUNTY, TEXAS

AFFIDAVIT OF Robert J. Ogle

BEFORE ME, the undersigned authority, on this day personally appeared Robert J.

Ogle, the undersigned affiant, who swore on oath . that the following facts are true: .

"My name is Robert J. Ogle. I am over 18 years of age, of sound mind and fully

competent to make this affidavit. I have personal knowledge of the facts herein stated and they

are all true and correct.

"I was present at the depositio~ of Rosale Scott taken on November 1, 2013. The

attached deposition transcript excerpts accurately reflect the deposition testimony given by

SIGNED ON j.,. <""'I J. 2014. a Rosale Scott and is an exact true and correct copies of excerpts of the deposition transcript."

T Roe:ti:Jmt #= SUBSCRIBED AND SWORN TO BEFORE ME on ~ " ~0/ t ,by RP bu+ r o0 l t,.

PAlRICIA L OGLE MY COMMISSION EXPIRES December 19, 2014

61 Rosale S c o t t . • November 1, 2013 Page 42

1 Q. So was this a point of negotiation between you

2 and Mr. King about reservation of the minerals? 3 A. Well, I didn't talk to Mr. King very much 4 really. I mean we talked a couple of times. We didn't 5 even talk about oil rights really, oil or mineral 6 rights.

7 Q. You just testified that you wanted 30 but you 8 could only get 20.

9 A. Yes.

10 Q. So you obviously negotiated with Mr. King for 11 the mineral rights. 12 A. Well, he did. 13 Q. Well, he negotiated successfully. 14 A. Yeah. 15 Q. But you negotiated with him over the mineral 16 rights?

17 A. Yes.

18 (Exhibit 5 marked) 19 Q. (By Mr. Ogle) I am going to hand you what has

20 been marked our Exhibit Number 5 and see if you can tell

21 me what that is. Do you know what that is? 22 A. Yes. 23 Q. And what is it? 1 24 A. I know what it is but I don't recall writing J 25 that letter.

. f ._j Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 210-697-34Ci_a, Electronically signed by Sarah Prugh (201-387-426·3457) 6bd34b3b-f084-4322-a027-d4fd4sJlfi'1 b Rosale Scott. • November 1, 2013 Page 43

1 Q. Would you look at page two and tell me if that 2 is your signature? 3 A. It looks like it. 4 Q. And what is the date of the letter? 5 A. August 22nd, 1989. 6 Q. So you are not going to tell the court that you 7 didn't write this letter; are you? 8 A. I don't recall writing it. 9 Q. You don't recall writing it. Are you saying 10 you didn't write it? 11 A. I just don't recall writing it. 12 Q. Okay. Is it entirely possible that you did 13 write it? 14 A. No. i 15 MR. CALDWELL: Objection, form, t 16 17 speculation. Q. (By Mr. Ogle) I am asking you if it is possible I 18 that you wrote this letter. 19 MR. CALDWELL: Objection, form. You can 20 go ahead and answer. I have to object as to form. 21 THE WITNESS: Yes, it is possible but I 22 don't remember it. 23 Q. (By Mr. Ogle) Do you have a theory for who you 24 think wrote it? 25 A. No. All I can say is that I was I had been

Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 210-697-34 q.g., Electronically signed by Sarah Prugh (201-387-426·3457) sbd34b3b-t084-4322-ao27 -d4td4eJlM1 b Rosale Scott- • November 1, 2013 Page 44

1 ill with glaucoma. That is in the letter here. And J ] 2 also, I was grieving for my mother who passed away the

4 3 year before. Q. All right. I want to draw your attention to a I1 5 paragraph, one of the paragraphs in this letter. It is •j

6 the third paragraph. And at the last part of that 7 paragraph, I think it is the last three sentences, this 8 letter says Victor and Ivarene Hosek own half of the oil 9 and mineral rights for another 14 years. Then you will

I 10 get their half. I want to keep my half for another 30 11 years if possible. So is this a letter from you to :12 Mr. Wesley King? Is that what this is? :13 MR. CALDWELL: Object as asked and 14 answered. '15 Q. (By Mr. Ogle) Is this a letter from you to 16 Wesley King? 17 A. I don't remember writing it or sending it. 18 Q. So you don't think that you said any of these 19 things in this letter? 20 A. I don't know. I I, 21 Q. So you couldn't tell me what you meant when you. 22 saiq that, if you don't remember it; is that right? 23 A. Yes. 24 Q. This letter would indicate it was written by 25 you that you knew that after 25 years, the mineral

'' '

Kim Tindall and Associates, LLC 645 Lockhill Selma, suite 200 san Antonio, Texas 78216 210-697-3400 210-697-34~e_ Electronically signed by Sarah Prugh (201-387-426·3457) 6bd34b3b·f084-4322-a027 od4fcl46?4m1 b Rosale S c o t t . • November 1, 2013 Page 45

1 ownership would go back to the surface owner. Could you

2 agree with me on that?

3 MR. CALDWELL: Objection, form.

4 THE WITNESS: This is not a legal

5 document.

6 Q. (By Mr. Ogle) I am just asking you to answer my

7 question. I am not asking you whether it is a legal

8 document. If you had written that, it would indicate

9 that you knew that the 25 year period was a period after

10 which the surface owner would own the minerals under

11 their land. Isn't that right? Isn't that what it says?

12 A. I don't know.

'13 Q. You don't know what it says?

14 A. I don't know.

"15 Q. When did you first see this letter?

16 A. Well, when it was sent to me by Mr. Caldwell.

17 Q. And do you know where it carne from?

18 A. I don ' t know.

19 Q. Do you know if it came from Mr. King?

20 A. I don't know.

21 Q. You don't know anything about it? Date of the

22 letter is August 22, 1989 so.that would have been 10

23 years, 11 years after the partition deed; is that right?

24 A. How long, I don't know.

25 Q. The date on the letter in front of you is

Kim Tindall and Associates, LLC 645 Lockhill Selma, suite 200 San Antonio, Texas 78216 210-697-3400 210-697-34Qik Electronically signed by Sarah Prugh (201·387-426--3457) 6bd34b3b-f084-4322-a027-d4fd4&Jlilf1 b Rosale Scott. • November 1, 2013 Page 46

1 August 22, 1989; is that right? 2 A. That's right. 3 Q. So I am asking you to agree with me that that 4 is 10 and a half years after the 10 years after the 5 partition deed is dated? 6 A. Yes. 7 Q. So if you did say there is·another 14 years, 8 then you will get their half to Mr. King, you would have 9 indicated that after the 25 year period, that the 10 11 surface owners would own their minerals; isn't that right? I~ 12 MR. CALDWELL: Objection, form, 13 speculation. 14 Q. (By Mr. Ogle) You can still answer the 15 question. 16 A. I don't remember the letter. I don't remember 17 writing it. 18 Q. Okay. 19 A. I had been ill and sometimes I forget things I 20 21 when I am sick. Q. Well, isn't this when you were negotiating the I• 22 sale with Mr. King? Isn't this a period of time that 23 24 you were negotiating the sale to Mr. King? A. I'm sorry. I can't hear you. I 25 Q. Isn't this the time that you were negotiating I \

Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 210-697-340.~ Electronically signed by Sarah Prugh (201·387-426-3457} 6bd34b3b-f084-4322-a027 ·d4fd4Gi~1 b Rosale Scott. • November 1, 2013 Page 47

1 the sale to Mr. King?

2 A. Yes.

3 Q. And so you remembered before that you

4 negotiated about 30 years versus 20 years. You

5 remembered that.

6 A. Yes.

7 Q. And that happened around the same time as this

8 letter was· written; correct?

9 A. Well, yeah. I don't know. I don't know.

10 Q. So you remembered that part of the negotiation

11 but you don't remember this letter.

12 A. No, I don't. I don't remember writing it.

13 Q. Did you have an attorney representing you when . 1·4 you were negotiating the sale to Mr. King?

·T5 A. Mr. Steinle.

16 Q. Okay. And so would Mr. Steinle have documents

17 perhaps about these negotiations?

18 A. I don't know.

19 Q. When did when were you approached about signing .I 20 a quit claim deed for the purposes of oil and gas

21 drilling on this property?·

22 A. My husband passed away in January, January 3rd,

23 and it was soon after that. I don't know, February,

24 March.

25 Q. Of what year?

i \

Kim Tindall and Associates, LLC 645 Loc.khill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 210-6 97-34 QA. Electronically signed by Sarah Prugh (201-387-426,3457) . 6bd34b3b-f084-4322-a027-d4fd4s~fo1 b Rosale Scott. • November 1, 2013 Page 48

1 A. This year.

2 Q. And who approached you about signing a quit

3 claim deed?

4 A. Ivarene called me and told me that the oil

5 company representative was going to send me a paper to

6 sign. She didn't say quit claim. She said a paper.

7 Q. And did the oil company send you a paper to

8 sign?

9 A. Yes.

10 Q. And what did they say?

11 A. And they called me too. Mr. -- I can't

12 remember his name but.

13 Q. So you had the opportunity to talk directly to

14 the oil company representative about this quit claim

rs deed; didn't you?

16 A. Yeah, I guess he said a quit claim on the

17 phone. I think he did.

18 Q. Did he explain to you what it was and why it

19 was needed? ; 20 21 A.

Q. No.

.And so what did yo~ do with this quit claim Ii j

22 deed?

23 A. Well~ he sent it. And when I got it, I read I 24 25 it. And my question was why, why would I have to sign

anything now after all of these years? Why would I have I Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 210-697-34~ Electronically signed by Sarah Prugh (201-387-426·3457) 6bd34b3b-fOB4-4322-aD27 ·d4fd46d4f01 b ( Rosale Scott. • November 1, 2013 Page 49

1 to sign a quit claim? I called my daughter and she said 2 no, don't sign it. And I talked to several people. I 3 talked to my cousins. I even called Lutheran Thrivent 4 Financial. I talked to -- I believe it was an attorney 5 there who told me do not sign that. Do not sign the 6 quit claim.

7 8 MR. CALDWELL:

conversations with attorneys because those are Don't talk about any ! 9 attorney/client privilege. 1 10 THE WITNESS: I am not sure if it was 11 ~ttorney. I talked to him on the phone. Maybe not~ I 12 don't know.

13 MR. CALDWELL: Okay. 14 ., Q. (By Mr. Ogle) Do you remember the name of the 1'5 . person you talked to?

16 A. No.

17 18 19 Q.

A. What is your cousin's name that you talked to? Cousin? I Q. The cousin you talked to, what is that cousin's 20 name?

21 A. Her name is Willadene Kyrish, K-Y-R-I-S-H. 22 Q. And why did you call her or why did you think 23 she would have some special knowledge about this? 24 A. I called her well, we talk on the phone 25 sometimes. She calls me sometimes. Especially since my

I \

Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 210-697-34~~ sbd34b3b-to84-4322-ao27 -d4fd4s~Yo1 b Electronically signed by Sarah Prugh (201-387-426-3457) Rosale Scott. • November 1, 2013 Pa·ge 50

1 husband passed away. They have been -- always asked if 2 they can help me. Okay. My daughter and my son-in-law 3 said you need an attorney. 4 Q. Which daughter? 5 A. Diane. 6 Q. Okay. 7 A. And Gilbert, my son-in-law. 8 Q. Okay. 9 A. And so I called -- I called Willadene and asked 10 her if she knew of an attorney because I need one. 11 Q. Okay. And she did she refer you to a lawyer? 12 A. Yes, she did. ;13 Q. What lawyer did she refer·you to? 14 A. I can't remember his name, not right now I 15 can't. 16 Q. When you get this deposition, can you fill that 17 in for me so I will know who? 18 A. All right. 19 Q. Was it a San Antonio lawyer or a Floresville 20 lawyer or a New Braunfels lawyer? 21 A. San Antonio. 22 Q. And you talked to that lawyer and did you talk 23 to that lawyer in San Antonio? 24 A. Well, my son-in-law tried to get an 25 appointment. In fact, he did get an appointment with

Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 210-697-34~~ Electronically signed by Sarah Prugh (201-387-426-3457) 6bd34b3b-f084-4322-a027 ·d4fd46d4f01 b Rosale Scott. • November 1, 2013 Page 51

1 that attorney. And then that attorney called him back 2 and told him that he could not represent me because

3 there was a conflict of interest.

4 Q. Okay. That is all you need to say. You 5 shouldn't tell me anything that he actually told you 6 substantive. Okay. And so then what did you do?

7 A. My daughter looked on the internet to find an 8 attorney for me. Diane, she found Mr. Caldwell for me.

9 Q. Okay. And did you hire Mr. Caldwell?

10 A. Yes.

11' Q. Did you sign a contract with Mr. Caldwell?

12 A. Yes.

13 Q. Have you paid any fees to Mr. Caldwell?

14' A. Well, just I think it was 2500 for -- I don't 15 · know -- what do they call it? I can't remember. 16 MR. CALDWELL: Retainer?

17 THE WITNESS: Yeah, retainer.

18 Q. (By Mr. Ogle) Okay. And are you paying him 19 hourly or are you paying him under a contingency 20 contract?

21 A. Contingency, yeah, contingency now, yeah.

22 Q. And so do you pay now. So you were paying 23 hourly for a while and then you went to contingency; is 24 that right?

25 A. He took it like that, yeah.

i \

Kim Tindall and Associates, LLC 645 Lockhill Selma, suite 200 San Antonio, Texas 78216 210-697-3400 210-697-34QA Electronically signed by Sarah Prugh (201-387-426-3457) 6bd34b3b-f084-4322-a027-d4fd46J4tb1 b -------------------------------------·----- -·--

. Rosale Scott • • November 1, 2013 Page 52 I 1 Q.

A. I don't think you got over on him.

What? i 2 3 Q. I'm sorry. I was being flippant. So it

4 started out hourly and then it went to a contingency

5 contract; is that right?

6 A. The retainer was

7 Q. I see.

8 A. first. And then, yeah, it is a contingency

9 contract.

10 Q. Okay. If you were in a position where you were

11 standing in front of the judge telling the judge what

12 you think that partition deed said and what it means,

13 what would you tell him?

14 15 A. I think that what I think it says is that it

would be renegotiated after the 25 year period. I ~

16 Q. And so even if it doesn't say that, that is

17 what it should have said; is that right?

18 A. Well, that was my understanding.

19 Q. So if it didn't say that, it was wrong; is that

20 right?

21 A. Okay.

22 Q. You can't look at your

23 MR. CALDWELL: You can answer if you

24 understand his question.

25 THE WITNESS: If it didn't say that, it

I \

Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 21 0- 6 9 7- 3 4 Q.S. . Electronically signed by Sarah Prugh (201-387-426·3457) 6bd34b3b·f084-4322-a027 ·d4fd46!~1 b Resale Scott. • November 1, 2013 Page 53

1 was wrong. I don't know. I don't know. 2 Q. (By Mr. Ogle) You don't really know what the 3 deed says? 4 MR. CALDWELL: That is not what she said. 5 Q. (By Mr. Ogle) Do you really know what the deed 6 says? 7 A. Yes. 8 Q. What does it say?

10 9 A. 25 years. But that was -- I thought it or I understood that it would be renegotiated after 25 years. It j I 11 (Exhibit 4 marked) 12 Q. (By Mr. Ogle) I am going to hand you -- my 13 exhibits are all out of order, I apologiz~ -- what is 14 Exhibit Number 4 and see if you can identify that, 1"5 please, ma'am. Can you tell me what that is? 16 A. That was a letter that Mr. Wetherbee decided 17 that was Mr. Wetherbee's idea. It was never my idea. 18 Q. Who is Mr. Wetherbe~?

19 A. The attorney. 20 Q. What attorney? Is he your attorney? 21 A. He was in the same office as Mr. Steinle. 22 Q. Who went.and talked to Mr. Wetherbee. 23 A~ Well, I was talking to him about selling the -- 24 MR. CALDWELL: Mrs. Scott, if he is your 25 attorney, you can't testify about what you and your I Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 san Antonio, Texas 78216 210-697-3400 210-697-34ff3 Electronically signed by Sarah Prugh (201-387-426·3457) 6bd34b3b-f084-4322-8027 -d4fd46d4f01 b Resale Scott. November 1, 2013 Page 54

1 attorney talked about; okay?

2 THE WITNESS: Okay.

3 MR. CALDWELL: So you can't testify about

4 what you and Mr. Wetherbee discussed. You understand?

5 THE WITNESS: Okay.

6 Q. (By Mr. Ogle) We will dance around that. Did

7 you go to Mr. Wetherbee for help, legal help?

8 A. I'm sorry. I can't hear.

9 Q. Did you go to Mr. Wetherbee for legal help?

10 A. Yes.

11 Q. And what help were you asking for?

12 MR. CALDWELL: I'm sorry. That would

13 be -- you can't discuss what you asked Mr. Wetherbee to

14 do for you. You can give your understanding -- you can

15 1 explain wh~ you went to go see an attorney.

16 THE WITNESS: Why I went to see him?

17 MR. CALDWELL: Yes.

18 THE WITNESS: To sell the 60 acres.

19 Q. (By Mr. Ogle) Okay. And were you talking

20 were you negotiating selling the 60 acres at that time?

21 A. I don't understand the question.

22 Q. Were you negotiating? Okay. Look at the date

23 on this letter.

24 A. The date, okay.

25 Q. What is the date? What is the date?

Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 210-697-34~ Electronically signed by Sarah Prugh (201-387-426-3457) 6bd34b:Urf084-4322-a027·d4fd4614fi1 b ..------------------~-----·.

Rosale Scott. • November 1, 2013 Page 55

1 A. December 6, 1985. 2 Q. Okay. So at that time, December 6, 1985, you 3 you were looking into negotiating selling your property; 4 is that correct? 5 A. Yes. 6 Q. And was that the Morales sale that you were 7 negotiating?· 8 A. Yes. 9 Q. And did you go do Mr. Wetherbee as part of 10 these negotiations? Just yes or no. Don't tell me 11 anything you said to him or he saia to you. 12 A. Yes. 13 Q. So you went to Mr. Wetherbee to help you figure 14 out how to sell the land to the Moraleses? 15 A. Yes. 16 Q. Did the Moraleses want the minerals? Is that 17 what was happening? 18 A. Yes, they sure did.

19 Q. And you -- Mr. Wetherbee, when this letter was 20 written to Mr. and Mrs. Hosek, he was representing you; 21 is that right? 22 A. Yes. 23 Q. And so why did you have this letter written to 24 Mr. and Mrs. Hosek? What did you want to accomplish? 25 A. I didn't ask him to write it. He decided to

Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 . 210-697-34~ Electronically signed by Sarah Prugh (201-387-426-3457) 6bd34b3b-f084-4322-a027-d4fd46J421 b ;. Rosale S c o t t . • November 1, 2013 Page 56

1 write this letter. I never agreed to it.

2 Q. On his own, did you tell him not to send this

3 letter?

4 A. He might have asked me if he could write the

5 letter but --

6 MR. CALDWELL: Mrs. Scott, you can't go Il 7 into the _substance of what you and Mr. Wetherbee talked I \I

8 about. Okay?

9 THE WITNESS: All right.

10 MR. CALDWELL: You can explain did you

11 authorize him to send this letter or know it was going

12 out?

13 THE WITNESS: Well, yes, I did.

14 Q. (By Mr. Ogle) And what do you believe it is

16 asking for?

for? What do you think this letter is asking I I t 17 A~ That we would exchange the oil and mineral I 18 rights there, that my sister would get all of her

19 interest in the minerals under the surface if I would do

20 the same, you know, exchange.

21 Q. Instead of waiting for the 25 year period?

22 A. Yeah. I don't know exactly what he was doing.

23 He was the attorney. I don't -- I didn't know anything

24 about that.

25 Q. Did the Moraleses want the minerals under their

Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 210-697-34~ Electronically signed by Sarah Prugh (201-387426·3457) 6bd34b3b-f0844322-a027-d4fd46J421 b Rosale Scott. • November 1, 2013 Page 57

1 60 acres? Did the Morales want their minerals under the

2 60 acres did they want them?

3 A. Yes. Yes.

4 Q. And did you ultimately sell it to them without

5 the minerals?

6 A. I thought I had kept one-half. I wanted to

7 keep-my half. I thought I had kept one-half. When I

8 looked at the deed, it said seller reserves her

9 interests, you know. And there is no date, no date on

10 it, no time.

11 Q. Did -- after 2004, were you ever approached for

12 an oil and gas lease after 2004?

13 A. 2004, no, no, I don't know. I didn't think so.

14 Q. Did any ofl company -- did anybody ever

15 approach you for an oil and gas lease on your 130 acres?

16 A. After 2004?

17 Q. At any time, at any time?

18 A. I don't recall.

19 20 Q.

A. So you don't think that happened?

No, I don't recall. It.

21 MR. OGLE: All right. If we ·could take

22 about a five minute break, I am pretty close.

23 (Recess taken)

24 Q. (By Mr. Ogle) We are back on the record,

25 Mrs. Scott. Did you want to say something about Exhibit

Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 210-697-34 a.a.. Electronically signed by Sarah Prugh {201-387-426·3457) 6bd34b3b-f084-4322-a027,.d4fd46cll~1 b -------------- ---····--··

• • ,'

27835 Bonn Mount~in San .Antonio· 'l':l\ 78260 - I August 22, 1989 Mr. Wesley King 4211 Weslow Houston TX 17081

Dear Mr • ICing

Row are you getting along? l hope you and 70~~ family are well. I.t ha·s· beett a long,. hot and dry s.ummer• So-rry to b-e so slow in 'Wt'i ting to you.. I nave had a few healtn pt:oblems. I developed Actite Glaue.oma and have haif le.se%: . surgery in beth my ey.es. I inherited the condi ti.on. sill.Ce· my mother had' 1 t. I~ wot.tld have been leas .severe if the doctors I vil:r.t·ed had made the proper· · diagnoses.· Althoog& r had the symptoms for ~~ months and visited two doc.toz:s, (one was an Opb.thalmo1ogis·t), they .both mada au tncorre~ diagnos.,.s, and I had to so to the hos~ltal emargenc.y room on. Jnly lith·. 7'ha: emergeney ·room doct~ made att immediate diagnGses of glaucoma and I sp.ep.t. tWQ days in tbe hospital. Then I bad .fl'n alls+giQ react~on to t~e medication. I r.,.s .givP.n to. get tb.e pressure and pa.iJi dow.n in ~ eyes, so r am just liow getting ba.ck . t.o normal aga.ili.. ·

r was kind of su1:prired wh:en you .called' im.d saic't. yoa are sti'll interested. iJJ 'buying the farin land I still ha.ve left.. The :rexas economy is so. bad r1.gbt now• .Ju;t. t am l:'eady ~o sell lf you sti.ll •ant' to buf. i t d~otit dil. and riid..n.et.al t'igb·ts·. In 1983, I was offered $120,.000.:00. for the. whole place (l3£) a.crt>,s) bu·t oil Blld mineral rights were .incla.dea..:· ·

Hui_b· had planned' to tear down the tractor sh.ed, and US'e the materiais wh'i!n w.-e build a. hOru.Zin LaVenia.. But, s:in:c-e we· have uo:t been able to sell. our· p.r~s.~nt home here· iq Bui:verde,. be nys · ther~ £s no 1'eBSOl2 to te~ i't ·dow since ou2: plan~r to· bu'ilcf hav.e. hen delayed. H.e· says :tbe: shed is worth $.3 .o.oo·;. · th.e;-~fore, I .would like .$sa,ooo-.oo to>tal pti~e tor tfie ptope;-ty. ·(~out $:750 . · · .per acte). If possible, I would. lik-e $~,g,ooO . down paym~nt at:~d the balari.ce. · · ($3D"OOO) in paymentS at 10 percerit interest: .for: ten yean.•. Victor & 'lvarE>n·e Hos~·k; OWD half the ~if and' minen:l. rigb~ for anothe.~ ll~ ·yea~s.. :t:'hen: yol:l' -w:Ul. get· their half. I. want to keep my half far arioth.er. ~o··yea'l's:; H poss.ib·le.• · · ~

tf it: iS' agreeable wii:b. you to lee ~. Kolodde COn.ti4"Ue. his. lf'aSe ·u1rt.il.mi d .Febru.aty .1990, l will coiltac·t a law'yer. as ·SO()tl. .as· ,poss;Lb.l~. and g-et the_ le~if documen~s prepared~ As stow· as .tho"Se lawyers a:r.e (f'llom· lilY. exp.etlenee)., .J.:t brl~re-; they get. the: p.ap.ers re:ady an~ay, · W.e h:Scr $ whole place. · Jii&y.' be.. 19'90 $t11'Yey'ed in. 19.85 sa "noth~r surv..ey should not be l:'eq,\llre:q uille.GS YDil want · anotlier survey:. i will p&J for the;·lawy.er 1 & fees.,.:.. .

Is: hard f~r me to explain how I feel about that pj.ac.e..: Therl! are s-o. many me~orie; tf,1.~re, btJt mos~ q£ t:hell!-are:·Jit+llapp,y:, d~~appots:it:tll8. ·memorle-s l.f.ke bsta, ,hack.- breaking wo;r::k (my. pa.r~l:,\-ts bel:1ev·ecl ·in· child labor), my ttareots ~- con'S tanJ:; fighting.,. and bein~ denied s. higb. !'{ohool. education whfcft liim.ted r.rty· opportunitit"-s for t:b..e_, ies.t of rAY 'life •.. My fatber wa$ an alc:oholi~ a.url :DIY. mother h:ad a ne.rvous b:J:eikdown wl'!~n I wa~ a 'DilhY. and· s.he Jje:ve~ t-ealiy ..r,coveted:. · She h.Sd- ~.ueb a l~ne tyJ ·unhappy life.,~ · . ' .-· . . ·,, • •• I guess the reason I'm telling you all this is that I have to convi.nce myself that I am better off selling the place. Perhaps then I can say in my min~ ''its over" and I'm better off letting it· go, Going there and t~inking about the past only depresses me and makes me feel bad·, .an~ no one can chan$.., ·the past. It has been hard fo't· me to decide to sell, but I have finally madfo the decision.

So, let. me know if.you still w.ant to buy the pla~P. If you obj~ct to any.of the c·ondit:icms I mentioned. 'let Jlle know and we can tallc about it. Perhaps, . we should meet somewhere to dis.ctiss all this in p-P.rson befo·re I get· the .legal papers p·repared in final. If you will call me the next t!mP. you plan to go down to your farm, we will ·tcy to· .meet you . the.re to talk about all this.

I hav.e not yet signed up for the McCoy water, Mr. Xolodzi£> sent me- two cop'f"'s of his letter, but he for.got to enclose tb~ information sheet, so. if you want the. ·watE!r• please send me a sign-:up sbeet and I will fil~ :! t out and send· it to th.e water company .. ·I trie.d twice before,· ·but 11othing liappened anyway, s:o 1· guess I .don 1 t feel o.tery qp'tim:i,.stic about any pt"ogress. in that area.

· t-Tell, I must c.lose, and I hope to hear from you soon.. Talc.e care.

Sincerely.

~%,4e4 a.o~~le ~,. $cott

..r I I ., I .I I

l I I I l •J I j· ... ·2 ,{ ·' :I :; l -Lj ... 79 · :IJ ·; ·i Rosale Scott. • November 1, 2013 Page 66

1 CAUSE NO. 13-06-0559-CVA

2 IVARENE HOSEK AND VICTOR ) IN THE DISTRICT HOSEK, ) 3 ) Plaintiffs ) 4 ) VS. ) 81ST JUDICIAL DISTRICT 5 ) ROSALE SCOTT, ) 6 ) Defendant ) ATASCOSA COUNTY, TEXAS 7

8 REPORTER'S CERTIFICATE

9 ORAL DEPOSITION OF ROSALE SCOTT

10 NOVEMBER 1, 2013

11 12 r; Sarah A. Prugh, Certified Shorthand Reporter in 13 and for the State of Texas, hereby certify to the 14 following: 15 That the witness, ROSALE SCOTT, was duly sworn and hat the transcript of the deposition is a true record the testimony given by the witness;

18 That the deposition transcript was duly submitted on

19 --~·\\~-~\~~~-~\~~~----- to the witness or to the attorney for \ 20 the witness for examination, signature, and return to me

21 22 That pursuant to information given to the deposition 23 officer at the time said testimony was taken, the 24 following includes all parties of record and the amount 25 of time used by each party at the time of the

Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 76216 210-697-3400 210-697-3408 Electronically signed by Sarah Prugh (201-387-426·3•57) 6bd34b3b-f084-4322-a027-d4fd46JlQ1 b Rosale S c o t . • November 1, 2013 Page 67

1 deposition: 2 Mr. Robert J. Ogle (lh27m) Attorney for Plaintiffs 3 Mr. G. Wade Caldwell (OhOm) Attorney for Defendant 4 5 That a copy of this certificate was served on all 6 parties shown herein on and filed 7 with the Clerk. 8 I further certify that I am neither counsel for, 9 related to, nor employed by any of the parties in the 10 action in which this proceeding was taken, and further 11 that I am not ~inancially or otherwise .interested in the 12 outcome of this action. 13 Further certification requirements pursuant to 14; Rule 203 of the Texas Code of Civil Procedure will be 15 ' complied with after they have occurred. 16 Certified to by me on this lOth day of November, 17 2013. 18 19 20 Sarah A. Prugh, CSR Texas CSR 3972 21 Expiration: 12/31/15 Firm Registration Number 631 22 Kim Tindall & Associates, LLC 645 Lockhill Selma, Suite 200 23 San Antonio, Texas 78216 210-697-3400 24 25 I \

Kim Tindall and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 76216 210-697-3400 210-697-3408 Electronically signed by Sarah Prugh (201·387-426-3457) 6bd34b3b-f084-4322-a027 -d4fd4si3!1 b ------------------------

.. Rosale S c o t t . • November 1, 2013 Page 68

1 FURTHER CERTIFICATION UNDER TRCP RULE 203

3 The original depositio~was not returned to the

4 deposition officer on

5 If returned, the attached Changes and Signature

6 page(s) contain(s) ·any changes and the reasons therefor.

7 If returned, the original deposition was delivered

8 to Mr. Robert J. Ogle, Custodial Attorney.

9 $Q\D-dDis the deposition officer's charges to the

10 Plaintiffs for preparing the original deposition and any

11 copies of exhibits;

12 The deposition was delivered in accordance with Rule

13. 203.3, and a copy of this certificate, served on all

14 ' i parties shown herein; was filed with the Clerk.

15 Certified to by me on this ~~ day of

16 17 18 19 20 ~...,~X\-~"''~ ByBW 21 Sarah A. Prugh, CSR Texas CSR 3972 22 Expiration: 12/31/15 Firm Registration Number 631 23 Kim Tindall & Associates, LLC 645 Lockhill Selma, Suite 200 24 San Antonio, Texas 78216 210-697-3400 25 { \ \

Kim Tindal.! and Associates, LLC 645 Lockhill Selma, Suite 200 San Antonio, Texas 78216 210-697-3400 210-697-3408 Electronically signed by Sarah Prugh (201-387-426-3457) 6bd34b3b-f084-4322-a027-d4fd46&a1 b .