mike-boulanger-trustee-on-behalf-of-westlum-trust-v-waste-management-of ( 2012 )

Opinion issued August 31, 2012.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-10-01002-CV
———————————
MIKE BOULANGER, TRUSTEE, ON BEHALF OF WESTLUM TRUST,
Appellant
V.
WASTE MANAGEMENT OF TEXAS, INC., WASTE MANAGEMENT,
INC., AND USA WASTE LANDFILL OPERATIONS AND TRANSFER,
INC., Appellees
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Case No. 2010-28400
OPINION ON REHEARING
Mike Boulanger, as Trustee on behalf of the Westlum Trust, moved for
rehearing of our December 15, 2011 opinion and judgment. We deny the motion
for rehearing. To clarify the governing standards of deed interpretation and
construction, however, we withdraw our prior opinion and judgment and issue the
following opinion and judgment in their stead.
In this dispute regarding the interpretation and construction of a deed,
Boulanger and Waste Management of Texas, Inc., Waste Management, Inc., and
USA Waste Landfill Operations and Transfer, Inc. (collectively, Waste
Management) claim competing title to an abandoned railroad right-of-way. The
trial court granted summary judgment in favor of Waste Management. Boulanger
appeals, contending that the summary judgment should be reversed because the
trial court erred by looking beyond the four corners of the deed at issue,
considering construction aids and extrinsic evidence in the absence of any pleading
or finding of ambiguity, and failing to recognize the existence of a fact issue as to
the ownership of the right-of-way. We affirm the trial court’s judgment.
Background
The Sam Houston Recycling Center sits at the southwest corner of Westview
Drive and Lumpkin Road in Houston, Texas. The property consists of two tracts of
land: (1) the “Main Tract” of approximately 3.6406 acres and (2) the “Panhandle
Tract” of approximately 2.117 acres. Running in a north-south direction between
the Main Tract and the Panhandle Tract is the forty-foot-wide railroad right-of-way
that is the subject of this property dispute.
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The Main Tract and the Panhandle Tract originally were part of a larger,
142-acre tract of land owned by C.P. Lumpkin. Lumpkin split the 142 acres into
various parcels. The Main Tract and the Panhandle Tract were included in one
parcel, which consisted of 14.177 acres. In 1955, Lumpkin conveyed 13.697 acres
of the parcel, including the Main and Panhandle Tracts, by deed to Cramerus
Realty Company (the Cramerus Deed). The Cramerus Deed identified the property
conveyed by metes and bounds description and stated that it was “LESS the
following tract of land reserved for railroad right-of-way:”
BEGINNING at a point in the North line of Tract “F” above
from which the Northwest corner of tract “F” bears N. 88 deg. 38’ 23”
W. 681.93 feet;
THENCE S. 88 deg. 38’ 23” E., along the North line of Tract
“F”, 40.01 feet to a point;
THENCE S. 88 deg. 38’ 33: W. along the South line of Tract
“F” 40.01 ft. to a point;
THENCE North 522.70 feet to the place of beginning, and
containing 0.480 acres of land.
The parties dispute the legal effect of this language. Boulanger argues that
the language excluded the right-of-way from the conveyance of the Main and
Panhandle Tracts and that Lumpkin (and later his heirs) retained title to the right-
of-way until Boulanger acquired it in 2005. In contrast, Waste Management argues
that Lumpkin’s heirs had no interest to convey to Boulanger because the Cramerus
Deed passed fee title to the right-of-way along with the Main and Panhandle Tracts
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and, through a series of subsequent conveyances, Waste Management acquired the
right-of-way in 1991. According to Waste Management, the language at issue
served only to notify Cramerus that the land conveyed was burdened by the right-
of-way. Waste Management asserts that, because there is no alternate route
between the Main and Panhandle Tracts, “if [the right-of-way is not] utilized as
part of the Sam Houston Recycling Center, [it] would be a useless, land-locked
piece of real estate.”
Boulanger sued Waste Management, seeking to enjoin Waste Management’s
use of the right-of-way and to recover actual and punitive damages for trespass and
unjust enrichment. Waste Management generally denied the allegations in
Boulanger’s petition and filed counterclaims for trespass to try title and suit to
quiet title. Before the case proceeded to a jury trial, Waste Management filed a
combined no-evidence and traditional motion for partial summary judgment,
asserting that Boulanger had no evidence of the ownership element of his trespass
claim or, alternatively, that Waste Management had conclusively negated that
element.1 Without stating its reasons, the trial court granted Waste Management’s
1
Both of Boulanger’s theories of recovery were contingent upon a showing that he
holds title to or lawful possession of the right-of-way. To recover damages on his
trespass to real property claim, Boulanger must show that (1) he owns or has a
lawful right to possess the disputed property, (2) Waste Management entered his
land and the entry was physical, intentional, and voluntary, and (3) Waste
Management’s trespass caused him injury. See Tex. Woman’s Univ. v. The
Methodist Hosp., 221 S.W.3d 267, 286 (Tex. App.—Houston [1st Dist.] 2006, no
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motion. Waste Management dismissed its claims against Boulanger, rendering the
trial court’s partial summary judgment final and appealable.
Summary Judgment Standard of Review
We review summary judgments de novo and according to well-settled
standards. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005);
City of Galveston v. Tex. Gen. Land Office, 196 S.W.3d 218, 221 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied). Waste Management was entitled to a no-
evidence summary judgment if, after adequate time for discovery, there was no
evidence of one or more essential elements of Boulanger’s claim. See TEX. R. CIV.
P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). To prevail on
its its traditional summary judgment motion, however, Waste Management was
required to conclusively negate at least one essential element of Boulanger’s claim
or conclusively establish each element of an affirmative defense. See TEX. R. CIV.
P. 166a(c); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 50809 (Tex. 2010);
City of Galveston, 196 S.W.3d at 221. Under both standards, we view all evidence
pet.). “Unjust enrichment occurs when the ‘person sought to be charged [has]
wrongfully secured a benefit or [has] passively received one which it would [be]
unconscionable to retain.’” Villarreal v. Grant Geophysical, Inc., 136 S.W.3d 265,
270 (Tex. App.—San Antonio 2004, pet. denied) (quoting City of Corpus v. S.S.
Smith & Sons Masonry, Inc., 736 S.W.2d 247, 250 (Tex. App.—Corpus Christi
1987, writ denied)).
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in a light favorable to Boulanger and indulge every reasonable inference in his
favor. See Dorsett, 164 S.W.3d at 661; City of Galveston, 196 S.W.3d at 221.
Deed Construction
The resolution of this appeal turns on the construction of the Cramerus
Deed. “As is often true in litigation involving the interpretation and construction of
written instruments,” both Boulanger and Waste Management insist that the
Cramerus Deed is “‘plain and unambiguous’ and admits of no reasonable meaning
other than that for which they contend.” McMahon v. Christmann, 303 S.W.2d
341, 343 (Tex. 1957). Their disagreement, however, is not limited to a difference
of opinion regarding the legal effect of Lumpkin’s conveyance; Boulanger and
Waste Management also dispute whether the trial court properly applied the law
relating to the interpretation and construction of deeds.
Boulanger argues in his second and fourth issues that neither the trial court
nor this Court may apply rules of construction or consider extrinsic evidence in the
absence of a pleading and finding that the Cramerus Deed is ambiguous. Absent
ambiguity, according to Boulanger, courts are bound by the language used in the
“four corners” of the deed in determining the property conveyed. Waste
Management, however, argues that to construe the Cramerus Deed, the courts may
consult construction aids to ascertain the parties’ intent and give legal effect to the
language used in the conveyance. According to Waste Management, the existence
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of an ambiguity is a prerequisite only to the admission of extrinsic evidence. Thus
in sum, Boulanger and Waste Management agree that courts should not consider
extrinsic evidence before determining that a deed is ambiguous, but they disagree
whether rules of construction may be considered before such determination.
The majority of the deed-construction cases cited by Boulanger do not
support his position that a pleading and finding of ambiguity must precede the
application of rules of construction. In both Neel v. Killam Oil Co., Ltd., 88 S.W.3d
334, 339−41 (Tex. App.—San Antonio 2002, no pet.), disapproved of by Hausser
v. Cuellar, 345 S.W.3d 462, 470 (Tex. App.—San Antonio 2011, pet. denied) (en
banc) and Cherokee Water Co. v. Freeman, 33 S.W.3d 334, 353−54 (Tex. App.—
Texarkana 2000, no pet.), the court applied rules of construction in a manner
inconsistent with Boulanger’s position—i.e., the court considered rules of
construction to avoid a finding of ambiguity in the deed at issue, not as a method of
resolving an already-declared ambiguity. In Cherokee Water, the court described
only the admission of extrinsic evidence as being dependent on a determination of
ambiguity in the deed. See 33 S.W.3d at 353. Nevertheless, in his motion for
rehearing, Boulanger asserts that a holding contrary to his position would be in
direct contradiction of the Eastland Court of Appeals’s statement in Gail v. Berry,
343 S.W.3d 520, 525 (Tex. App.—Eastland 2011, pet denied), that the rules of
construction will not be considered absent an allegation that a deed is ambiguous.
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That statement, however, follows the Eastland Court of Appeals’s own authority
adopting a two-step procedure for deciding a deed’s meaning: first, that court
interprets a deed by applying “rules of interpretation” and second, if application of
the rules of interpretation reveals that a deed is ambiguous, the court employs
“canons of construction” to give the deed legal effect. See, e.g., Moon Royalty,
LLC v. Boldrick Partners, 244 S.W.3d 391, 394 (Tex. App.—Eastland 2007, no
pet.) (drawing distinction between application of “rules of interpretation” and
“canons of construction”); Stewman Ranch, Inc. v. Double M. Ranch, Ltd., 192
S.W.3d 808, 811 (Tex. App.—Eastland 2006, pet. denied). As our sister court of
appeals in Tyler has observed, the two-step procedure adopted by the Eastland
Court of Appeals is not the method used by other Texas courts, including this
Court, in determining whether a deed is ambiguous. See Elder v. Anadarko E & P
Co., No. 12-10-00250-CV, 2011 WL 2713817, at *2 (Tex. App.—Tyler July 13,
2011, no pet.) (mem. op.); see also Buffalo Ranch Co., Ltd. v. Thomason, 727
S.W.2d 331, 333 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) (applying
canons to determine that deed was not ambiguous). “In practice, the courts of
Texas and other jurisdictions have used the terms ‘interpretation’ and
‘construction’ interchangeably. Consequently, both terms have been used to refer
to the rules or canons applied by courts to determine whether a written instrument
is ambiguous.” Elder, 2011 WL 2713817, at *2 (emphasis added); see, e.g.,
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Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589
(Tex. 1996) (stating that “if the contract is subject to two or more reasonable
interpretations after applying the pertinent rules of construction, the contract is
ambiguous”) (emphasis added); Universal C.I.T. Credit Corp. v. Daniel, 243
S.W.2d 154, 157 (Tex. 1951) (stating that “a contract is ambiguous only when the
application of pertinent rules of interpretation to the face of the instrument leaves
it genuinely uncertain which one of two or more meanings is the proper meaning”)
(emphasis added).
What is clear is that intent is the benchmark for judicial interpretation of
deeds. “Because ‘once a dispute arises over meaning, it can hardly be expected that
the parties will agree on what meaning was intended,’ courts use canons of
construction to help ascertain the parties’ intent.” French v. Chevron U.S.A., Inc.,
896 S.W.2d 795, 797 (Tex. 1995) (quoting Southland Royalty Co. v. Pan Am.
Petroleum Corp., 378 S.W.2d 50, 59 (Tex. 1964) (Calvert, C.J., concurring)
(recognizing that courts “have built up a system of rules of interpretation and
construction to arrive at meaning, ignoring testimony of subjective intent”)); see also
Buffalo Ranch Co., 727 S.W.2d at 333 (concluding that deed language reserving
mineral interest was not ambiguous because it could be “accorded a certain legal
meaning by applying appropriate rules of construction”); Humble Oil & Refining
Co. v. Kirkindall, 119 S.W.2d 731, 733 (Tex. Civ. App.—Beaumont 1938), aff’d,
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145 S.W.2d 1074 (Tex. 1941) (“The canons of law for the construction of deeds
are for the purpose of discovering the intent of the makers.”). The “fundamental
rule of construction” is the “four corners” rule. Luckel v. White, 819 S.W.2d 459,
461 (Tex. 1991); CenterPoint Energy Houston Elec., L.L.P. v. Old TJC Co., 177
S.W.3d 425, 430 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Even if we
could discern the actual subjective intent of the parties, it is not that intent that
governs the interpretation of the deed. Luckel, 819 S.W.2d at 462; see also J.M.
Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). Instead, we must
discern the intent of the parties as expressed in the deed as a whole, striving to
harmonize all of its parts and give effect to all of its provisions. Luckel, 819
S.W.2d at 462; CenterPoint Energy, 177 S.W.3d at 430.
Nowhere in the cases cited by Boulanger do we find a directive that
ambiguity must be found to exist before the rules of construction can be considered
in aid of ascertaining the parties’ intent. Rather, the absence of ambiguity
precludes only the admission and consideration of extrinsic evidence. See
Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 283 (Tex. 1996);
CenterPoint Energy, 177 S.W.3d at 431 (“A court may consider the parties’
interpretations of the contract through extrinsic or parol evidence only after a
contract is first determined to be ambiguous.”). The courts’ use of rules of
construction in interpreting and construing deeds has a practical basis. “It avoids
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the difficulties inherent in the admission of extrinsic evidence. ‘Individual
adjudication of deeds would lead to disparate results depending on circumstances
extraneous to the instrument.’ It would also complicate the job of title examiners
who would be unable to rely on the written word.” Elder, 2011 WL 2713817, at *3
(quoting Bruce M. Kramer, The Sisyphean Task of Interpreting Mineral Deeds and
Leases: An Encyclopedia of Canons of Construction, 24 TEX. TECH. L. REV. 1, 19
(1993)).
The decision of whether an ambiguity exists is a question of law. See J.M.
Davidson, 128 S.W.3d at 229; CenterPoint Energy, 177 S.W.3d at 430. If the deed
is worded in such a way that it can be given a definite or certain legal meaning,
then it is not ambiguous and the court will be confined to the writing. See
CenterPoint Energy, 177 S.W.3d at 43031. A mere disagreement about the proper
interpretation of a deed, however, does not make the deed ambiguous; the
instrument is ambiguous only if, after application of the rules of construction, the
deed is reasonably susceptible to more than one meaning. See Brown v. Havard,
593 S.W.2d 939, 942 (Tex. 1980); Universal C.I.T. Credit Corp., 243 S.W.2d at
157; see also Buffalo Ranch Co., 727 S.W.2d at 333 (concluding that deed
language reserving mineral interest was not ambiguous because it could be
“accorded a certain legal meaning by applying appropriate rules of construction”);
Houchins v. Devon Energy Prod. Co., L.P., No. 01-08-00273-CV, 2009 WL
11
3321406, at *4 (Tex. App.—Houston [1st Dist.] Oct. 15, 2009, pet. denied) (mem.
op.) (observing that ambiguity arises only after application of established rules of
construction leaves deed susceptible to more than one meaning). Likewise, the
construction of an unambiguous deed is a question of law, which we review de
novo. See Luckel, 819 S.W.2d at 461; CenterPoint Energy, 177 S.W.3d at 430.
Having concluded that Waste Management states the correct rule for the
interpretation and construction of the Cramerus Deed and that the trial court, like
this Court, could consider rules of construction even absent a pleading or finding
of ambiguity, we overrule Boulanger’s second and fourth issues.
The Cramerus Deed
Boulanger’s remaining issues address the merits of the trial court’s summary
judgment. Boulanger contends that summary judgment was improper because the
trial court misconstrued the plain language of the Cramerus Deed as conveying
title to the railroad right-of-way or, alternatively, because of ambiguity in the deed
or the existence of fact issues as to the ownership of the right-of-way. Because
ownership is the dispositive issue in this case, we must determine whether
Lumpkin granted Cramerus fee title to the right-of-way.
A single word gives rise to the parties’ differing opinion as to the legal effect
of Lumpkin’s conveyance: “LESS.” The Cramerus Deed conveys a single parcel of
property “LESS the [described] tract of land reserved for railroad right-of-way,”
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which effectively divides the parcel into the Main and Panhandle Tracts abutting
the east and west side of the right-of-way. Using dictionaries to define “less” as
commonly meaning “devoid of,” Boulanger contends the Cramerus Deed excluded
the right-of-way from the conveyance of the Main and Panhandle Tracts. Waste
Management disagrees that “LESS” excludes the right-of-way and suggests a
different construction of the term—namely, one having the effect of conveying fee
title to all the land described while notifying Cramerus that the grant is burdened
by the railroad right-of-way and reserving the railroad’s right to use that land.
Recognizing that “separate ownership of long narrow strips of land, distinct
from the land adjoining on each side, is a fruitful source of litigation and disputes,”
the Texas Supreme Court developed a rule with respect to the legal construction of
conveyances like Lumpkin’s to Cramerus: “[I]t is presumed that a grantor has no
intention of reserving a fee in a narrow strip of land adjoining the land conveyed
when it ceases to be of use to him, unless such fee is clearly reserved.” Cantley v.
Gulf Prod. Co., 143 S.W.2d 912, 915 (Tex. 1940) (presuming that language
“keeping” thirty-foot-wide road easement did not reserve title to strip of land
underlying easement in absence of evidence of clear intention to do so). Stated
differently, “[w]hen an instrument conveys land definitely described in the
instrument and then excepts from the conveyance a road, railroad right-of-way or
canal right-of-way occupying an easement on, over or across the land conveyed,
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the instrument conveys the fee to the entire tract, subject to such right-of-way,
unless the deed clearly indicates that the grantor intended to reserve the strip.”
Moore v. Rotello, 719 S.W.2d 372, 37576 (Tex. App.—Houston [14th Dist.]
1986, writ ref’d n.r.e.) (concluding that “save and except” language in deed was
not express reservation of interest in property, it had no other effect than to say that
grant was burdened with railroad right-of-way, and deed conveyed fee title to
entire tract of land).
There is no disagreement that the right-of-way at issue is a forty-foot-wide
strip of land that adjoins and separates the Main and Panhandle Tracts conveyed in
the Cramerus Deed. And, we see no reason why “less” should have a different
legal effect than “keeping” or “save and except,” as those terms have given rise to
the presumption stated above in Cantley and Moore. See Cantley, 143 S.W.2d at
915; Moore, 719 S.W.2d at 37576. Although he asserts that the “evidence shows
the [right-of-way] is not a narrow strip of land” and that it has some individual
value because “[m]ost lots located in any metropolitan area such as Houston are 50
or so feet wide” and “many lots where townhomes are constructed are only 20 feet
in width,” Boulanger has not cited to any place in the record where the evidence of
such facts appear. Moreover, as we have already determined that the word “less”
has special meaning beyond its common dictionary definition, we find no other
language in the Cramerus Deed clearly indicating that Lumpkin intended to reserve
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the right-of-way for his own use. In the absence of such language, we apply the
Cantley and Moore presumption and determine that the Cramerus Deed is
reasonably susceptible to only one construction—i.e., the construction urged by
Waste Management. We therefore conclude that the Cramerus Deed
unambiguously conveyed fee title to all of the land described therein, including the
Main Tract, the Panhandle Tract, and the right-of-way. The property description
that follows the word “less” merely served to notify Cramerus that the grant was
burdened by the railroad right-of-way.
Boulanger concedes that, if the Cramerus Deed conveyed fee title to the
right-of-way, then Waste Management acquired that title under the Waste
Management Deeds in 1991, so we need not consider whether the Waste
Management Deeds are valid or whether Waste Management’s chain of title is
complete. Further, because the Cramerus Deed is unambiguous, we will not decide
whether the extrinsic evidence attached to the summary judgment motion and
response raises an issue of fact as to ownership of the right-of-way. See
CenterPoint Energy, 177 S.W.3d at 430. Instead, we conclude only that the trial
court did not err in granting summary judgment for Waste Management.
We overrule Boulanger’s first, third, and fifth issues.
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Conclusion
Having found no error, we affirm the trial court’s summary judgment.
Harvey Brown
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
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