Trent Lindig v. Pleasant Hill Rocky Community Club

Opinion

ACCEPTED 03-15-00051-CV 4905311 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/15/2015 4:19:13 PM JEFFREY D. KYLE CLERK NO. 03-15-00051-CV

FILED IN IN THE COURT OF APPEALS 3rd COURT OF APPEALS THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS AUSTIN, TEXAS 4/15/2015 4:19:13 PM JEFFREY D. KYLE Clerk

TRENT LINDIG, Appellant, V.

PLEASANT HILL ROCKY COMMUNITY CLUB, Appellee.

ON APPEAL FROM THE 33RD DISTRICT COURT, BLANCO COUNTY, TEXAS HONORABLE J. ALLAN GARRETT PRESIDING CAUSE NO. CV07580

APPELLANT’S BRIEF

HOUSTON DUNN, PLLC Samuel V. Houston, III State Bar No. 24041135 4040 Broadway, Suite 440 San Antonio, Texas 78209 (210) 775-0882 – Telephone (210) 826-0075 – Fax sam@hdappeals.com ZACHARY P. HUDLER, P.C. Zachary P. Hudler State Bar No. 24032318 100 E. Pecan Street, Suite One Johnson City, Texas 78636 (830) 868-7651 – Telephone (830) 868-7636 – Fax zachary@hudlerlaw.com

ATTORNEYS FOR APPELLANT

IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties to this appeal and the names and

addresses of those parties’ counsel:

APPELLANT APPELLATE COUNSEL Trent Lindig Samuel V. Houston, III HOUSTON DUNN, PLLC 4040 Broadway, Suite 440 San Antonio, Texas 78209

TRIAL/APPELLATE COUNSEL Zachary P. Hudler ZACHARY P. HUDLER, P.C. 100 E. Pecan Street, Suite One Johnson City, Texas 78636

APPELLEE APPELLATE COUNSEL Pleasant Hill Rocky Jeff Small Community Club LAW OFFICE OF JEFF SMALL 12451 Starcrest Drive, Suite 100 San Antonio, Texas 78216

TRIAL/APPELLATE COUNSEL Norman L. Nevins THE NEVINS LAW FIRM 206 West Main Street Fredericksburg, Texas 78624

TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL ..................................................... i TABLE OF CONTENTS ................................................................................. ii TABLE OF AUTHORITIES .......................................................................... iv STATEMENT OF THE CASE ....................................................................... vi STATEMENT REGARDING ORAL ARGUMENT....................................... vii ISSUE PRESENTED ................................................................................... vii STATEMENT OF FACTS ............................................................................... 1 I. The Lindig Family Has Owned the 1.3 Acre Tract in Blanco County That Is at Issue in this Appeal For Many Years. ............ 1 A. Trent’s Great Grandfather, Albert Lindig, Conveyed the Disputed Property Subject to a Limitation That It Could Only Be Used for School Purposes.......................... 1 B. Acknowledging That a School Was No Longer Being Operated on the Property, the Blanco County School Board Trustees Execute a Deed Purporting to Convey the Property to the Pleasant Hill Improvement Association. ....................................................................... 2 C. The Lindigs Continued To Assert Their Ownership Rights in the Property After 1952. ..................................... 3 D. The Lindigs Assert That Any Use By the Club or Other Groups Was Done with the Lindigs’ Permission. .............. 4 II. Trent Files Suit to Confirm His Ownership in the Property, Leading the Club to Assert a Competing Ownership Claim to the Property. ........................................................................... 4 SUMMARY OF THE ARGUMENT................................................................ 6 ARGUMENT.................................................................................................. 7 I. The Trial Court’s Construction of the 1927 Deed and the Reverter Clause Is Reviewed De Novo on Appeal. ..................... 7 II. Applying Well-Established Legal Principles, the Court Should Conclude That Trent Owns the Property Because the Reverter

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Clause Was Triggered. ................................................................ 8 A. The 1927 Deed Created a Possibility of Reverter and Vested Albert Lindig’s Heirs with a Future Possessory Interest in the Property. .................................................... 8 B. The Limitation in the 1927 Deed Was Breached When a School No Longer Operated on the Property. .............. 10 C. The Club’s Construction of the 1927 Deed Is Flawed and Unsupported By Any Authority................................ 12 III. Conclusion and Prayer.............................................................. 13 CERTIFICATE OF COMPLIANCE .............................................................. 14 CERTIFICATE OF SERVICE........................................................................15 APPENDIX ....................................................................................................A

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TABLE OF AUTHORITIES Page CASES Bagby v. Bredthauer, 627 S.W.2d 190 (Tex. App.—Austin 1981, no writ) ... 9 City of Houston v. Van De Mark, 83 S.W.3d 864 (Tex. App.—Texarkana 2002, pet. denied) ....................... 7 Cooke v. Morrison, 404 S.W.3d 100 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ............... 7 Cypress-Fairbanks Indep. Sch. Dist. v. Glenn W. Loggins, Inc., 115 S.W.3d 67,(Tex. App.—San Antonio 2003, pet. denied) ...................... 9 El Dorado Land Co. v. City of McKinney, 395 S.W.3d 798 (Tex. 2013) ... 8, 9 Eyssen v. Zeppa, 100 S.W.2d 417 (Tex. Civ. App.—Texarkana 1936, writ ref’d) ................. 12 Hausser v. Cuellar, 345 S.W.3d 462 (Tex. App.—San Antonio 2011, pet. denied) (en banc) .... 8 Leeco Gas & Oil Co. v. Cnty. of Nueces, 736 S.W.2d 629 (Tex. 1987) ........... 8 Luckel v. White, 819 S.W.2d 459 (Tex. 1991) ....................................... 7, 8, 12 Mickens v. Longhorn DFW Moving, Inc., 264 S.W.3d 875 (Tex. App.—Dallas 2008, pet. denied) ............................ 7 Monroe v. Scott, 707 S.W.2d 132 (Tex. App.—Corpus Christi 1986, writ ref’d n.r.e.) .......... 8 Stewart v. Blain, 159 S.W. 928 (Tex. Civ. App.—Galveston 1913, no writ)............... 10, 12, 13 Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n, 432 S.W.3d 381 (Tex. App.—San Antonio 2014, pet. denied)................... 11 XTO Energy Inc. v. Nikolai, 357 S.W.3d 47 (Tex. App.—Fort Worth 2011, pet. denied) ....................... 11

STATUTES & RULES TEX. CIV. PRAC. & REM. CODE § 51.014(d) ....................................................... 7 TEX R. CIV. P. 248 .......................................................................................... 5

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OTHER AUTHORITIES 36 David B. Brooks, Texas Practice Series:

County and Special District Law § 30.10 (2d ed.) .................................... 3 BLACK’S LAW DICTIONARY 716 (7th ed. 1999) .................................................. 9

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STATEMENT OF THE CASE

Nature of the Case:

Appellant Trent Lindig brought suit to confirm his ownership in a 1.3

acre tract of land in Blanco County, alleging a trespass to try title action, a suit

to quiet title, and declaratory judgment claim. CR 439-43. Trent’s principal

argument is that a reverter clause in a 1927 Deed executed by his great

grandfather had been triggered when the property was no longer being used

for school purposes. CR 441. As a result, Trent claimed fee simple ownership

of the property. CR 441. Appellee Pleasant Hill Rocky Community Club

challenged Trent’s ownership claim by first asserting that the reverter clause

had not been triggered. CR 454-55. Alternatively, even if the clause was

triggered, the Club claimed title through adverse possession. CR 455-57. After

denying the parties’ summary judgment motions, the trial court addressed the

reverter clause in connection with a motion filed by Trent pursuant to Texas

Rule of Civil Procedure 248. 4 RR 4-5.

Trial Court:

District Judge J. Allan Garrett considered Trent’s Rule 248 Motion.

Trial Court Disposition:

The trial court interpreted the 1927 Deed in the Club’s favor, ruling that

“the circumstances have not occurred to trigger the reverter clause.” CR 475;

Appx. A. The trial court also granted the parties’ agreed request to permit an

immediate appeal of the order on Trent’s Rule 248 Motion. CR 479; Appx. B.

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STATEMENT REGARDING ORAL ARGUMENT

This appeal presents a straightforward issue regarding the construction

of a deed. The authorities cited herein compel the result advanced by Trent.

Nonetheless, should the Court determine that oral argument is necessary,

Trent reserves the right to participate in any future oral argument.

ISSUE PRESENTED Appellant believes this case presents the following issue:

1. Did the trial court err when it concluded that Trent Lindig was not the rightful owner of the disputed property by virtue of the reversionary interest created in the 1927 Deed from Albert Lindig to the Blanco County Board of Trustees?

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TO THE HONORABLE THIRD COURT OF APPEALS:

Appellant Trent Lindig respectfully presents this brief requesting that

the Court reverse the trial court’s order denying the relief requested in his Rule

248 Motion.

STATEMENT OF FACTS

I. The Lindig Family Has Owned the 1.3 Acre Tract in Blanco County That Is at Issue in this Appeal for Many Years.

A. Trent’s Great Grandfather, Albert Lindig, Conveyed the Disputed Property Subject to a Limitation That It Could Only Be Used for School Purposes.

The Lindig family has owned a multi-acre tract of land in Blanco County

since the early 1900s. See CR 104, 385. That tract of land, which is described

in deeds as being part of the Seaborn Hopper Survey, includes the disputed 1.3

acre tract of land that is at the center of the dispute between Trent and the

Pleasant Hill Rocky Community Club. See CR 101, 116. This appeal concerns

the interpretation of a deed executed by Trent’s great grandfather, Albert

Lindig, in 1927 (hereinafter the “1927 Deed”). See CR 96-98.1

Albert Lindig conveyed the 1.3 acre tract to “J.C. Goar, T.E. Patton, Scott

Klett, J.J. Fuchs and Gus Artzt, constituting the County Board of Trustees for

Blanco County, Texas.” CR 96. The deed limited the type of activity that could

be conducted on the property in three separate clauses. In describing the

consideration being exchanged in the conveyance, the deed recites “that the

1 The 1927 Deed appears multiple times in the appellate record. Trent references the most legible copy in this brief.

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land herein conveyed shall be used for School purposes only.” CR 96. The

deed’s granting clause provides that the property “shall be used for School

purposes for the Pleasant Hill School District No. 21.” CR 96. The deed’s

habendum clause confirms that the property was being conveyed to the

County Board of School Trustees “for School Purposes.” CR 97. Consistent

with this limitation, the deed contains a reverter clause setting forth the

following: “But it is understood that in case the said School House or any other

house which may be built and used for a School house is removed from said

land herein described then the said above described land shall revert back to

me, my heirs, assigns or legal representatives.” CR 96.

A school operated on the property in the years following 1927. See CR

102, 116. It is undisputed, however, that a school was no longer being operated

on the property by 1952. CR 102, 110, 116, 132, 458; see also CR 253. The same

remains true today. CR 102.

B. Acknowledging That a School Was No Longer Being Operated on the Property, the Blanco County School Board Trustees Execute a Deed Purporting to Convey the Property to the Pleasant Hill Improvement Association.

In August 1952, the Blanco County Board of School Trustees attempted

to convey the property to the Pleasant Hill Improvement Association for use

“as a Community Center for the benefit of Pleasant Hill Community in Blanco

County, Texas.” CR 381.2 The deed recites that the property was “formerly

2 The grantees in the 1927 Deed comprise the “County Board of Trustees for Blanco County, Texas.” CR 96. The grantors in the 1952 Deed are identified collectively as the “Blanco

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used for school purposes but now [is] no longer so used.” CR 381. The deed

also acknowledges the reversionary interest created in the 1927 Deed. CR 382.

In particular, the conveyance “is made subject to the reversionary interest of

Albert Lindig, his heirs or assigns, as set forth in his deed to the Blanco County

School Trustees dated September 10, 1927.” CR 382.

C. The Lindigs Continued To Assert Their Ownership Rights in the Property After 1952.

After a school ceased to operate on the property, the Lindigs continued

to assert their ownership rights in the property. Lindig family members have

maintained the property and made improvements on it, including putting up

fences, putting up a gate, and clearing the property on a regular basis. CR 94.

The Lindigs have also been paying the property taxes. CR 94, 98-99, 260-305.

Real property and probate records also demonstrate that the Lindig

family continued to assert its ownership interest in the property. Following

Albert Lindig’s death, the property passed to Trent’s grandfather (Felix Lindig)

and then to his grandmother (Addie Lindig). CR 117, 396, 401; see also CR

106. In a series of transfers, Trent’s grandmother eventually conveyed the

entirety of her interest in the property to Trent’s parents, Al Louis Lindig and

Brenda Lindig. CR 116, 117, 387-92. Then, on December 4, 2006, Al Louis

County Board of School Trustees.” CR 381. Presumably, these references are synonymous given that Texas law has provided, in some instances, that “the management and control of the public schools within a county” may be “vested in a ‘board of county school trustees.’” 36 David B. Brooks, Texas Practice Series: County and Special District Law § 30.10 (2d ed.).

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Lindig and Brenda Lindig conveyed their interest in the property to Trent. CR

393; see also CR 204.

D. The Lindigs Assert That Any Use By the Club or Other Groups Was Done with the Lindigs’ Permission.

The Lindigs maintain that they permitted the Pleasant Hill community

to use the property. CR 115, 118; see also CR 94. The Pleasant Hill Rocky

Community Club, 3 along with other groups, had been given permission to use

the property for various functions. CR 103, 104, 106. In June 2013, the Lindigs

withdrew any previously-granted permission to the Club. CR 103, 115. Club

members, however, refused to vacate the property. See 438.

II. Trent Files Suit to Confirm His Ownership in the Property, Leading the Club to Assert a Competing Ownership Claim to the Property. Trent filed suit in September 2013, seeking to confirm his ownership

rights in the property. CR 5. The Club responded, asserting that it was the

rightful owner of the property. CR 30. In that regard, the Club asserted a

counterclaim seeking a ruling that the 1952 Deed vested it with title and

challenging Trent’s assertion that the reverter clause in the 1927 Deed had

been triggered. CR 31-35. Alternatively, the Club claimed ownership through

adverse possession. CR 31-35.

3 There is a dispute between the parties as to whether the Pleasant Hill Rocky Community Club is a successor in interest of the Pleasant Hill Improvement Association and able to claim an ownership interest by virtue of the 1952 Deed. See CR 351; see also CR 118.

5

The parties submitted traditional and no-evidence motions for summary

judgment. CR 3, 80, 83, 367, 370, 373. Those motions were denied. CR 361,

363; 3 RR 34. The week before trial, Trent sought a ruling from the trial

court—through Texas Rule of Civil Procedure 248—with respect to his

construction of the 1927 Deed and its reverter clause. CR 460.

The trial court held a hearing on Trent’s Rule 248 Motion. The parties

were permitted to re-urge their respective motions for summary judgment “on

the legal issue of reverter and the interpretation of the 1927 deed.” 4 RR 5. In

connection with Trent’s motion, the trial court further clarified that—

consistent with the parties’ agreement—the ruling on the reverter issue would

be subject to an immediate appeal pursuant to Texas Civil Practice and

Remedies Code section 51.014(d). 4 RR 7.

At the conclusion of the hearing, the trial court made two findings: (1)

the 1927 Deed is unambiguous; and (2) the Club “has current title to the

subject property” because “the circumstances that give rise to that reverter

have not occurred.” 4 RR 14. Those oral rulings were reduced to a written

order. CR 475; Appx. A. Further, pursuant to the parties’ agreement, the trial

court signed an order permitting Trent to seek an immediate appeal of the

order. CR 479; Appx. B.

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SUMMARY OF THE ARGUMENT The possibility of reverter created in the 1927 Deed unequivocally vests

Trent with title to the disputed property. Reading the entire deed and giving

effect to all relevant clauses, the only reasonable construction is that the

Lindigs’ reversionary interest became a present possessory interest once a

school was no longer operating on the property. Obviously, without a school,

the property could not be used for school purposes. It is undisputed that the

property has not been used for school purposes since August of 1952. Thus,

Trent is the rightful owner of the property.

The Court should reject the Club’s flawed argument. The Club posits that

the reversionary interest created in the 1927 Deed does not become a present

possessory interest so long as the building that once housed the now-

abandoned school is still on the property. Not only does this argument violate

well-established rules for deed construction, which require the Court to

harmonize all parts of a deed, but this same argument has been expressly

rejected in a prior appeal involving substantially similar deed provisions.

While the building may still be on the property, it cannot be a schoolhouse if

there is no school. Accordingly, the trial court’s order must be reversed.

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ARGUMENT

I. The Trial Court’s Construction of the 1927 Deed and the Reverter Clause Is Reviewed De Novo on Appeal. Texas Rule of Civil Procedure 248 permits a trial court to resolve

questions of law in a pretrial hearing. Mickens v. Longhorn DFW Moving,

Inc., 264 S.W.3d 875, 880 (Tex. App.—Dallas 2008, pet. denied). The

construction of the 1927 Deed was appropriately raised through Trent’s Rule

248 Motion because “[t]he construction of an unambiguous deed is a question

of law for the court.” Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). The

construction of a reverter clause also presents a question of law. City of

Houston v. Van De Mark, 83 S.W.3d 864, 867 (Tex. App.—Texarkana 2002,

pet. denied). 4 Thus, the trial court’s construction of the 1927 Deed and its

reverter clause is reviewed de novo on appeal. Cooke v. Morrison, 404 S.W.3d

100, 111 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

In construing a deed, the Court’s primary duty “is to ascertain the intent

of the parties from all of the language in the deed by a fundamental rule of

construction known as the ‘four corners’ rule.” Luckel, 819 S.W.2d at 461. The

Court does this by examining and considering “the entire writing in an effort

to harmonize and give effect to all the provisions of the agreement, even if

different parts of the deed appear inconsistent or contradictory.” Hausser v.

Cuellar, 345 S.W.3d 462, 466 (Tex. App.—San Antonio 2011, pet. denied) (en

4 The trial court found the 1927 Deed to be unambiguous. CR 475. Trent agrees that the deed is unambiguous.

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banc). It is presumed that every clause is “to have some effect; therefore, the

language of the deed should be interpreted so that no provision is rendered

meaningless.” Id.

II. Applying Well-Established Legal Principles, the Court Should Conclude That Trent Owns the Property Because the Reverter Clause Was Triggered.

A. The 1927 Deed Created a Possibility of Reverter and Vested Albert Lindig’s Heirs with a Future Possessory Interest in the Property.

A person conveying property can retain an interest in the property

through a reversionary interest. El Dorado Land Co. v. City of McKinney, 395

S.W.3d 798, 802 (Tex. 2013). There are a number of reversionary interests

that are recognized in Texas. Id. They include reversions, possibilities of

reverter, and rights of entry. Id. Collectively, reversionary interests represent

“future interests that remain with the grantor . . . and may be viewed ‘as claims

to property that the grantor never gave away.’” Id. at 802-03 (citation

omitted).

A possibility of reverter describes “a future interest retained by a grantor

that conveys a determinable fee.” Id. at 801 n.6. Stated differently, “it is the

grantor’s right to fee ownership in the real property reverting to him if the

condition terminating the determinable fee occurs.” Luckel, 819 S.W.2d at

464. It is a property interest that has value. Leeco Gas & Oil Co. v. Cnty. of

Nueces, 736 S.W.2d 629, 631 (Tex. 1987). It can be assigned or sold. Monroe v.

Scott, 707 S.W.2d 132, 134 (Tex. App.—Corpus Christi 1986, writ ref’d n.r.e.).

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The interest cannot be destroyed through a subsequent conveyance of the

property. See id. Finally, title vests in the grantor (or his heirs) immediately

once the limitation imposed by the deed is breached. Cypress-Fairbanks

Indep. Sch. Dist. v. Glenn W. Loggins, Inc., 115 S.W.3d 67, 71 (Tex. App.—San

Antonio 2003, pet. denied); see also El Dorado Land Co., 395 S.W.3d at 803.

No particular words are required to create a possibility of reverter.

Bagby v. Bredthauer, 627 S.W.2d 190, 196 n.4 (Tex. App.—Austin 1981, no

writ). Rather, the Court’s analysis focuses upon the grantor’s intent as

expressed in the deed. Id. A possibility of reverter is created by a deed that (1)

prescribes a limitation on the grantee’s rights with respect to the property, and

(2) contains a reverter clause that does not require the grantor to re-enter the

property to claim the reversionary interest. See id.

The 1927 Deed can only be characterized as having created a possibility

of reverter in Albert Lindig and his heirs should the property cease to be used

for school purposes. As consideration for the transaction between Albert

Lindig and the Blanco County Board of Trustees, the deed recites “that the

land herein conveyed shall be used for school purposes only.” CR 96. Further,

the granting clause in the deed provides that the property “shall be used for

School purposes for the Pleasant Hill School District No. 21.” CR 96. The

habendum clause 5 reflects that the property is being conveyed “for School

5 The habendum clause is the “part of a deed that defines the extent of the interest being granted and any conditions affecting the grant.” BLACK’S LAW DICTIONARY 716 (7th ed. 1999).

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Purposes.” CR 97. Finally, the deed’s reverter clause acknowledges that “in

case the said School House or any other house which may be built and used for

a School house is removed from said land herein described then the said above

described land shall revert back to me, my heirs, assigns or legal

representatives.” CR 96. If a school was not being operated on the property

then it is obviously not being used for “school purposes.”

Similar language has previously been found to create a possibility of

reverter. In Stewart v. Blain, the deed recited that the grantor was conveying a

tract of land “‘for the purpose of erecting a schoolhouse.’” 159 S.W. 928, 929

(Tex. Civ. App.—Galveston 1913, no writ). The deed went on to explain that

“‘in the event of the removal of the schoolhouse therefrom by said county

judge and his successors in office the said acre of land shall revert back to me

or my heirs or assigns, and this deed shall become void and inoperative.’” Id.

Analyzing the deed, the court held the following:

It seems to us that these provisions mean, and were intended to mean, that the grantees should own and use and enjoy the property so long as it was so used for the purpose for which it was conveyed, and that when this condition ceased the title and right of possession should at once revert to the grantor, “or his heirs or assigns.”

Id. at 931. The Court should reach the same result in this case.

B. The Limitation in the 1927 Deed Was Breached When a School No Longer Operated on the Property.

It is undisputed that a school was not operating on the property by the

time that the 1952 Deed was signed. The witnesses offering affidavit and

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deposition testimony all confirm that the school closed in the early 1950s. See

CR 102, 110, 116, 132, 253, 458. Indeed by the time that the property is

(purportedly) conveyed to the Pleasant Hill Improvement Association, a

school was not being operated on the property. The 1952 Deed confirms this

fact. See CR 381. The granting clause in the deed recites that the property was

“formerly used for school purposes but now no longer [is] so used.” CR 381.

This recitation is conclusive.

“The doctrine of estoppel by deed precludes parties to a deed from

denying the truth of any material fact asserted in the deed.” Teal Trading &

Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n, 432 S.W.3d 381,

388 (Tex. App.—San Antonio 2014, pet. denied); XTO Energy Inc. v. Nikolai,

357 S.W.3d 47, 56 (Tex. App.—Fort Worth 2011, pet. denied). “Estoppel by

deed binds, not only the parties to the deed, but also their successors-in-

interest.” Teal Trading & Dev., LP, 432 S.W.3d at 388. The doctrine “may

arise from the recitals, reservations, and exceptions within a deed.” Id.

Given that it is undisputed that a school no longer operated on the

property by 1952, the reverter clause has been triggered. Based upon the

record, title vested in Albert Lindig and his heirs once the property was no

longer being used for school purposes. Thus, the trial court’s order must be

reversed.

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C. The Club’s Construction of the 1927 Deed Is Flawed and Unsupported By Any Authority.

The Club’s construction of the 1927 Deed must be rejected because it is

based upon an isolated reading of the 1927 Deed. According to the Club, the

possibility of reverter is dependent upon a single fact: whether the actual

building that once housed the school is still on the property. See CR 471-72.

This position, of course, violates well-established principles for deed

construction. Namely, the Court must “harmonize all parts of the deed.”

Luckel, 819 S.W.2d at 462. In that connection, Albert Lindig’s intent could not

be more clear. The land was to “be used for school purposes only.” CR 96. This

limitation is also found in the 1927 Deed’s granting and habendum clauses. CR

96-97. Thus, giving effect to the entire deed, the possibility of reverter sprang

to life once the property was no longer being used for school purposes. See

Eyssen v. Zeppa, 100 S.W.2d 417, 419 (Tex. Civ. App.—Texarkana 1936, writ

ref’d) (holding that “the words ‘so long as said tract or parcel of land is used

for school purposes’ . . . created a conditional limitation and that the title

thereto ipso facto reverted to the grantor”).

The argument advanced by the Club has already been rejected. As was

discussed in section II.A, supra, the deed in Stewart v. Blain provided that the

property was being conveyed “‘for the purpose of erecting a schoolhouse.’” 159

S.W. at 929. Similar to the 1927 Deed, the reverter clause in Stewart provided

that “‘in [the] event of the removal of the schoolhouse therefrom . . . said acre

of land shall revert back to me or my heirs or assigns.’” Id. The grantor’s heirs

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sought to confirm their ownership interest given that a school was no longer

operating on the property. Id. 930-31. While the property was no longer being

used for school purposes, the building that once housed the school was still on

the property. Id. at 930.

The court concluded that the possibility of reverter was triggered once

the property was no longer used for school purposes, i.e., when there was no

longer a school operating on the property. Id. at 931. The reverter was not

dependent upon whether the building was still on the property. Id. According

to the court, the “sale and the abandonment of the land for school purposes

was to all intents and purposes ‘a removal of the schoolhouse therefrom.’ The

building may be there yet, but it is not a schoolhouse.” Id. The Court should

reach the same result in this case. Accordingly, the trial court’s order should be

reversed.

III. Conclusion and Prayer.

Trent is the rightful owner of the disputed property. The limitation

found in the 1927 Deed has been breached. Under the deed’s unambiguous

terms, the reversionary interest became a present possessory interest once a

school ceased to operate on the property. Because there was no school, the

building could not be a schoolhouse. Therefore, the trial court’s order must be

reversed.

WHEREFORE, PREMISES CONSIDERED, Appellant Trent Lindig

respectfully prays that the Court reverse the trial court’s order on Appellant’s

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Rule 248 Motion, declare that Appellant holds title to the disputed property,

and grant other and further relief to which he may be justly and equitably

entitled.

Respectfully submitted,

/s/ Samuel V. Houston, III SAMUEL V. HOUSTON, III State Bar No. 24041135 HOUSTON DUNN, PLLC 4040 Broadway, Suite 440 San Antonio, Texas 78209 Telephone: (210) 775-0882 Fax: (210) 826-0075 sam@hdappeals.com

Zachary P. Hudler State Bar No. 24032318 ZACHARY P. HUDLER, P.C. 100 E. Pecan Street, Suite One Johnson City, Texas 78636 (830) 868-7651 – Telephone (830) 868-7636 – Fax zachary@hudlerlaw.com

ATTORNEYS FOR APPELLANT

CERTIFICATE OF COMPLIANCE

In accordance with Texas Rule of Appellate Procedure 9.4, the undersigned certifies that the foregoing computer-generated brief contains 3,399 words.

/s/ Samuel V. Houston, III SAMUEL V. HOUSTON, III

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CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been served in accordance with the Texas Rules of Appellate Procedure on the 15th day of April, 2015, to the following:

Jeff D. Small Via email/e-service LAW OFFICE OF JEFF SMALL 12451 Starcrest Dr. #100 San Antonio, Texas 78216 jdslaw1951@gmail.com

Norman L. Nevins Via email/e-service THE NEVINS LAW FIRM 206 West Main Street Fredericksburg, Texas 78624 nnevinslaw@yahoo.com

/s/ Samuel V. Houston, III SAMUEL V. HOUSTON, III

APPENDIX A. Rule 248 Hearing Order B. Order pursuant to Texas Civil Practice and Remedies Code § 51.014(d)

A

NO.CV07580

TRENT LINDIG § IN THE DISTRICT COURT § v. s 33td JUDICIAL DISTRlCT § PLEASANTIIlLL ROCKY § COMMUNITY CLUB § BLANCO COUNTY~ TEXAS

RUUf 248 HEARING ORDJ'£R

On December 11, 2014, the trial court heard Plaintiff Trent .Llndig's MOTIONFORRULE 248 HEARING. The parties appeared in person and by their attomey8. By agreement, the parties re-urged their respective motion$ for summary judgment asking the Court to determine unresolved questions of law. The Court considered the evidence and arguments of counsel, and finds and concludes that the 1927 Deed dated and recorded September 10, 1927, fu:lm Albert Lindig to the County Board of Trustees for Blanco County5 Texas (attached hereto as Exhibit "A") is hOt ambiguous. The Court finds further that the circumstances h~ve not·occutted to trigger the reverter clause contained in the foregoing deed.

It is, thereforej ORDERED and DECLARJID that the above-referenced 1927 Deed is unambiguous and no reversion has occutted under the terms of that deed.

Signed~':"~ -1£.., 201r

Judge Presiding

JAN - 9 201("

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1111to • tha a:boTo · urua11d oounty -. . llo~d of Bohaal . !i'ruotoon, . and . tbui.J: ~una11nnol:'11 ·

l'litliDDa 1117 hlllid tbla tho 10th. dn;ir ~ Do.;ptam1>al', .A.D. 1927 • .AJ.bor1' Lilldlg Tho Stnte of Texnu, County. a!' nlnnco.. ) . llo:roro 111e, tho U»da~oignod auth11d ty in 01111 fl11' lllnnl!_o Caunt;v, !l'axaa, an thia W.;y :paraonally a;ppQarud Albort Ll.111lig 1 lmollll to 110 tu b11 thq ;paraan whoaa lllltle in .allbM 1 ~ .. pcrl)ia~ t11 tlla Corel!Ding i1111t.;U1Dimt 1 1111d aolmowled'l!arl to me tlsut ho exebutotl the ~a tm; tba -t1 lJllrponea Ibid conoiduation thuain uxplleoasd.

Olvan under llll' band und aelll. or a1'1'illa thla tho lOf:ll., dD.Y ol' Bo;ptl!llb.a:ir._ t..~ll. 1927.

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y, JI. Gour, Uotury l'llhl111, lllanva llo11nty, 'h::cn••.

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by.Ma nota far &5'00.00, dun two Ylllll'D artor-lla~11,: al.x notais 1'01! 175'9:0~ a~o~(~ 2, 4, -,; 6,. 'I and B .)'alU'D ai'teJ: d11to 111111 ana nota :Ul.' #3'/l.·Ollt' :1111 9 ;Yo..ru attar .~tn,.Jllld. aoom:'!.4 by lion on·oe.rt111n lnnd moro tul~ d1111orilloil in lleed dat.acl Detiember l!j', 1!1Jl31 o:c.fuutocl by .ll.borl. :r. K1:'11ua t,~ 31.'n.qt 9chni1dt and wi:ro 1md now aha;,,. at roaol'd in Vol. ~9 ;4" lill Dom llaoudo o:r lllanoo llounty, '!'axon, to wb.iah tno1'l'lllll111d: and tha .u:aca11d 'lhersot reflll'QllGG in hl!l!ll Jiadll fol' o 11111:ro 001FJ11qt11 duuor1lttion of 1111.id ii!Jid D11d tbo indabtndnaa hove montJ:ohad, .ea.id '1and no• b aing onned b.Y ::ii a. l!ata Schnlld b• andbuaballd, Jtrnat Su~d , wha han llllda 1111plioatian to 1'llll ' Ji'8DEHAL IA.1D ll.~nc DH llDUSTQlf, tar n •lonn in thp 11um. •0~700.00 to bu 'ovidunoed by A11m:timt1011j 1into ]!a;rablu to all.id ~k in 011!111-f!nnUal. :pll,Yl'llUl~DtemUnrr onr a 11er.t1H1 /. '

or Yl>D.1'!11 to bu uacuio, acl by Daed . or 'b:uat an uald 111114 to J'.Jt.Dpnuat .. . ~untau tor all.I.II "Bank.I and . · • .. 171!1!!llt\9, "is aid !Janie hna doelinud to Bak~on! lolllt unl.ao~ it11 lion.'nball. bo a. :fij,nt. and auplll!.14r lion to any and all liDDa 11111llnot oaid d:· · · '.

ll01f, :tlll!it!l!'OllB, tor lltld in oanaill ation at tb.oprOlllbao and 11113 DDLIJ.1\ in bMd :paid by /· .

1111id Dank, nacipt or whiah !Q' her.aby aolQlowla dsad, ltia honb;r D]l•nitiaal1y ngraed thafi llDY'

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and au lien• 'llow held and ovq_71 by tile 11ndoraiBt1•d nsainat aqid lllltd, oholl lla, 111¥1 tho nllllla -: in llerehy do11J.nr11d to 110., 11,.fund aP<l iJlfarh.; to .tho lion :1.n ta.yor or ,oaid :B1111k1 that tho note !

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ln t'avor or' enid Ba.Ilk 11..v{lla Deed of l'ruat nuuuring IPlllln, nd aU rona'lllll.a tbe11o1:, ahall. ba .

Q~ld i.mut111atbl1

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' BRd la a i'irat and BUl!,UI' li1!11 on oald l.l\nd 1 and nbnJ.l. GO J."-111 •QO long a& lloto, or nn:v :Pllrt ttfuooi, r ... llil1ll nnpdc!, and tllnt.ndd :Bank llaY iaulca anid: lonn upoa quoh tUJB nM :for auull' 1m~ of tl.Jlln nn lt uay datari:iinth • , · '

Ii Thill th..la).l'd d~y o:f ;..,1!1101:, 1921 • • , , ' / · · ' Tl1oado.ra Xoonnaako •, l !rJIQ~~~.) •. I O~y

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lie.Coro i:io, ,tba undaroigqad nut11a1'ity, 011:.'thill day »!'X'~onally 11p:i;all1'~d !!!heoihro lro~nn~lll!:a'

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. I •, 'rlie page to w111a111llJd 6QNifli1411ll IS llfff~ed hi 11 full .

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! ~ lruu and correct cnpy of lhe original on file end ut ' \ r"bcord in my office., ~? U 'JC\J I Ams~ ~ 3 i ~~.. KAR!iN NEW A ,Cqun~ (.!!

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479

NO.CV07580

TRENT LINDIG § IN THE DISTRICT COURT § v. § 33rd JUDICIAL DISTRICT § PLEASANT HILL ROCKY § COMMUNITY CLUB § BLANCO COUNTY, TEXAS

Order pursuant .to Texas Civil Practice and Remedies Code §5L014 (d)

On December 11, 2014, the trial courtheard.PlaintiffTrentlindig's MOTIONRJR.RULE 248 HEARING and ruled that the 1927 Deed at issue in this cause was not ambiguous and that the reverter clause in that deed had not been triggered. The Court on its own initiative and with the agreement of the parties hereby grants permission for the immediate appeal of its order declaring the 1927 Deed to be unambiguous and that the circumstances triggering the reverter in that deed have not occw:red because the Court finds that order involves a controlling question of law as to which there is a substantial ground for difference of opinion. Further, the Court finds that an immediate appeal. from the order will materially advance the ultimate termination of the litigation.

It is ORDERED, therefore, that Plaintiff Trent Lindig is granted permission to appeal this Court's RULE 248 HEARING ORDER referenced above.

It is, further, ORDERED that during the appeal of the aforementioned Order that the status quo as of December 11, 2014, shall remain in force. and effect until further Court. Signed ~~r -1L_, 201g"

Approved by:

~l~~l~ NormanL.Nevins ~~l. ~ ~~ior Jeff Small l,,."'"' ""JI:~ Attomey for Trent Lindig, 7 Attomeys for Pleasant Hill · Plaintiff/Counter-Defendant · -.,1,. _ Rocky Community Club . OEB8Y ELSBURY ~ A f~ ~ DefendantJCounter-Plaintiff Ci.ERK DISTRIC1' COURT BLANCO COON1Y, 1EXA'.1 FILED

JAN - 9 20fi