The opinion
ACCEPTED
01-14-00135-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/7/2015 9:53:11 AM
CHRISTOPHER PRINE
CLERK
Case Number 01-14-00135-CV
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS
AT HOUSTON 1/7/2015 9:53:11 AM
CHRISTOPHER A. PRINE
Clerk
Peter Hardsteen, Paulina Mayberg Hardsteen, and Texas Farm Bureau
Insurance Company,
Appellants,
vs.
Dean’s Campin’ Company,
Appellee.
ON APPEAL FROM THE 506TH JUDICIAL DISTRICT COURT OF GRIMES COUNTY, TEXAS
CAUSE NO. 27885
APPELLANTS’ RESPONSE TO APPELLEE’S MOTION FOR LEAVE
BAKER BOTTS L.L.P. T. Ernest Freeman
Michael Cancienne State Bar No. 07431600
State Bar No. 24055256 The Freeman Law Firm, P.C.
Caroline Carter 1770 St. James Place, Suite 120
State Bar No. 24078318 Houston, Texas 77056
910 Louisiana Street Telephone: (713) 973-1000
Houston, Texas 77002-4995 Facsimile: (713) 229-2703
Telephone: (713) 229-6200
Facsimile: (713) 229-6100 ATTORNEY FOR APPELLANTS PETER
michael.cancienne@bakerbotts.com HARDSTEEN AND PAULINE MAYBERG
caroline.carter@bakerbotts.com HARDSTEEN
Joe Falco, III
State Bar No. 06793001
1903 Dove Crossing, Suite C
P.O. Box 907
Navasota, Texas 77868-0907
Telephone: (936) 825-6533
ATTORNEYS FOR APPELLANT
TEXAS FARM BUREAU INSURANCE COMPANY
Appellee Dean’s Campin’ Company (“Appellee”) seeks leave to file a
post-submission brief to make yet another attempt at reading key language out of
the Settlement Agreement between Appellants Peter and Pauline Hardsteen and
Texas Farm Bureau (“Appellants”) and Rexhall Industries, Inc. (“Rexhall”), which
Appellee is seeking to enforce. 1 Appellants respectfully request that the Court
deny Appellee’s motion because justice does not require the introduction of
Appellee’s proposed brief, which rehashes arguments that Appellee previously
made and attempts to provide the Court with yet another interpretation of the
Settlement Agreement, which should have been raised in earlier briefing and at
oral argument. TEX. R. APP. P. 38.7; Rogers v. City of Fort Worth, 89 S.W.3d 265,
284 (Tex. App.—Fort Worth 2002, no pet.) (“Ordinarily, an issue raised for the
first time in a post-submission brief is not preserved for appellate review.”) (citing
Romero v. State, 927 S.W.2d 632, 634 n. 2 (Tex. 1996)).2
More importantly, Appellee’s latest attempt to interpret this
Settlement Agreement fares no better than its earlier efforts. Appellee’s post-
1
As argued in Appellants’ Brief and Reply, Appellee lacks standing to enforce the
Settlement Agreement. Nevertheless, because Appellee’s post-submission brief only addresses
the interpretation of the Settlement Agreement, Appellants will respond only to the issues raised
in that brief.
2
Appellee suggests that the issue it seeks to raise in its brief—the interpretation of the
indemnity provision of the Settlement Agreement—was raised for the first time in rebuttal. See
Post-Submission Brief at 1. To the contrary, this issue was discussed extensively in both
Appellants’ initial presentation and Appellee’s presentation at oral argument. Appellee’s desire
to have the last word on this issue does not entitle it to file a post-submission brief to present
arguments that easily could have been raised during its argument.
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submission brief makes clear that the only way the Settlement Agreement can be
read to establish that Appellants owed a duty of indemnity to Rexhall is to ignore
language from the indemnity provision limiting indemnity to specified situations
“relating to the Occurrences or the Suit to the extent such parties may be found
liable in any way to Plaintiff, Pauline Hardsteen or Intervenor.” 1 CR 688.
Ignoring such language is contrary to Texas law requiring that a contract be read to
give meaning to every term and that indemnity provisions be read in favor of the
alleged indemnitor.
A contract for indemnity is read as any other contract. In
construing a contract, courts give the language its plain
grammatical meaning unless it would defeat the intention
of the parties. Indemnity agreements are strictly
construed in favor of the indemnitor. This rule prohibits
the extension, by construction or implication, of the
indemnitor's obligations beyond the precise terms of the
agreement. Strictly construing indemnity agreements is a
rule of substantive law that applies only after the parties'
intent has been ascertained through ordinary rules of
construction.
Kellogg Brown & Root Int’l, Inc. v. Altanmia Commercial Mktg. Co. W.L.L., No.
CIV.A. H-07-2684, 2008 WL 5114962, at *19 (S.D. Tex. Dec. 3, 2008) (quotation
marks and internal citations omitted); see also Appellants’ Brief at 21. Appellee’s
argument that the final part of the indemnity provision can be ignored because the
intent of the parties can be inferred from other language in the Settlement
Agreement runs counter to these basic principles of contract interpretation and the
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plain language of the Settlement Agreement. Moreover, it is unsupported by any
evidence of the parties’ intent.
To the extent that Appellee is attempting to imply that the Settlement
Agreement is ambiguous, Appellee has presented no evidence in support of its
interpretation of the agreement. If the Court finds that the Settlement Agreement is
ambiguous, summary judgment was therefore inappropriate, and this case should
be reversed and remanded. See Appellants’ Reply Brief at 6 n.2.3
P RAYER
In the event that the Court permits Appellee to file its brief,
Appellants respectfully request that this Court consider the above response as a
response to the brief.
3
Despite making the bald assertion that the Settlement Agreement should be read against
Appellants as its drafters, see Post-Submission Brief at 5, Appellee likewise presents no evidence
that Appellants were the drafters of this agreement.
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RESPECTFULLY SUBMITTED,
BAKER BOTTS L.L.P.
By: /s/ Michael Cancienne____
Michael Cancienne
State Bar No. 24055256
Caroline Carter
State Bar No. 24078318
910 Louisiana Street
Houston, Texas 77002-4995
Telephone: (713) 229-6200
Facsimile: (713) 229-6100
michael.cancienne@bakerbotts.com
caroline.carter@bakerbotts.com
Joe Falco, III
State Bar No. 06793001
1903 Dove Crossing, Suite C
P.O. Box 907
Navasota, Texas 77868-0907
Telephone: (936) 825-6533
ATTORNEYS FOR APPELLANT
TEXAS FARM BUREAU
By: /s/ T. Ernest Freeman_____
T. Ernest Freeman
State Bar No. 07431600
The Freeman Law Firm, P.C.
1770 St. James Place, Suite 120
Houston, Texas 77056
Telephone: (713) 973-1000
Facsimile: (713) 229-2703
ATTORNEY FOR APPELLANTS PETER
HARDSTEEN AND PAULINE MAYBERG
HARDSTEEN
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C ERTIFICATE OF C OMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that,
according to the word count of the computer program used to prepare this
document, the document contains 695 words.
/s/ Michael Cancienne
Michael Cancienne
C ERTIFICATE OF S ERVICE
I hereby certify that on this 7th day of January, 2015, a copy of the
foregoing was served by electronic mail and certified mail, return receipt
requested, on the following counsel of record:
Glenn J. Fahl
Fahl & Associates, P.C.
Attorneys at Law
3900 Essex Lane, Suite 330
Houston, Texas 77027
James A. Rodman
The Rodman Law Firm
1515 W. 35th Street, Building C
Austin, Texas 78703
/s/ Michael Cancienne
Michael Cancienne
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