wynne/jackson Development, L. P. and W/J Lakes, L. P. v. Pac Capital Holdings, Ltd. D/B/A Pac Group, Ltd. ( 2013 )

NUMBER 13-12-00449-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WYNNE/JACKSON DEVELOPMENT,
L.P. AND W/J LAKES, L.P., Appellants,
v.
PAC CAPITAL HOLDINGS, LTD. D/B/A
PAC GROUP, LTD., ET AL., Appellees.
On appeal from the Probate Court
of Denton County, Texas.
MEMORANDUM OPINION ON REHEARING
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion on Rehearing by Chief Justice Valdez
We grant appellants’ motion for rehearing, withdraw our opinion and judgment
dated February 7, 2013, and issue this opinion on rehearing.
Appellants, Wynne/Jackson Development, L.P. and W/J Lakes, L.P. (collectively,
“Wynne Jackson”), appeal a final summary judgment entered in favor of appellees, PAC
Capital Holdings, Ltd. d/b/a PAC Group, Ltd., Hillwood Oil & Gas Operating Company,
L.P., Hillwood Energy Texas, L.P., Denton Independent School District (“DISD”), and
the Owners’ Association at Country Lakes, Inc. (“HOA”). We reverse and render in part
and remand in part.
I. BACKGROUND1
This is a dispute over the proper calculation of royalties to be paid on minerals
being produced from wells in Denton County. The appeal centers on the proper
construction of a clause in the three “Porter Deeds,” which were executed in 1968. The
Porter Deeds conveyed extensive tracts of land to third party purchasers, but reserved a
non-participating royalty interest (“NPRI”) in the mineral estate. That NPRI was
described as “one-half (1/2) of the usual one-eighth (1/8) royalty in and to all oil, gas,
and other minerals produced, saved and sold from [such property].”
PAC Capital is the current owner of the NPRI and the successor in title to the
grantor. The NPRI reservation is identical in each of the three Porter Deeds. PAC
Capital’s entitlement to receive royalty payments is not at issue; the parties dispute the
proper calculation of payments due to PAC Capital under the NPRI.
Wynne Jackson, DISD, and the HOA own parcels of land subject to the NPRI
claimed by PAC Capital. Therefore, the calculation of PAC Capital’s NPRI payments
will affect each of these parties.
Hillwood Oil & Gas Operating Company, L.P. and Hillwood Energy Texas, L.P.
operate the wells at issue. Their leases were executed after the Porter Deeds and
provide for royalty payments equal to one-fourth (1/4) of production.
1
This case is before this Court on transfer from the Fort Worth Court of Appeals pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
2
The parties disagree as to the proper construction of the NPRI reservation. PAC
Capital contends that the NPRI reserved what is commonly referred to as a “fraction of
royalty.” See, e.g., Range Res. Corp. v. Bradshaw, 266 S.W.3d 490, 493 (Tex. App.—
Fort Worth 2008, pet. denied) (“A ‘fraction of royalty’ conveys a fractional share of the
royalty that is contained in an oil and gas lease—it is not fixed, but rather ‘floats’ in
accordance with the size of the landowner’s royalty contained in the lease and, in
addition to the landowner’s royalty, the fraction of non-participating royalty also shares
proportionally in any overriding royalty interest reserved in the oil and gas lease, and the
holder of the executive right owes a duty to the NPRI owner in establishing the
landowner's royalty in an oil and gas lease.”). If so, this would entitle PAC Capital to
receive an NPRI equal to one-half of whatever royalties are provided for in mineral
leases that have been executed since 1968 when the Porter Deeds were executed.
Wynne Jackson contends that the NPRI reserved what is commonly referred to as a
“fractional royalty.” Id. (“A ‘fractional royalty’ interest entitles the owner to the specified
fractional amount stated in the deed of oil, gas, or other minerals produced from the
land and remains constant regardless of the amount of royalty contained in a
subsequently-negotiated oil and gas lease.”). This would mean a fixed royalty equal to
one-half of one-eighth of production, which equals 1/16 and remains fixed regardless of
the language contained in any mineral lease executed after the Porter Deeds.
Thus, under the Hillwood leases, if PAC Capital is correct, it would receive a one-
eighth royalty. If Wynne Jackson is correct, PAC Capital would receive a one-sixteenth
royalty.
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On May 27, 2012, PAC Capital filed suit, seeking a declaration that its NPRI
interest under the Porter Deeds was a “fraction of royalty.” Wynne Jackson filed an
answer and counterclaim, seeking a declaration that the NPRI was a “fractional royalty”
equal to one-sixteenth of production. PAC Capital and Wynne Jackson filed cross
motions for partial summary judgment on the issue of the proper calculation of the
NPRI. The trial court ruled in favor of PAC Capital. Pursuant to a rule 11 agreement
and stipulation by the parties, the trial court subsequently entered a final judgment in
favor of PAC Capital. See TEX. R. CIV. P. 11. This appeal ensued.2
II. ANALYSIS
A. Standard of Review
We review summary judgments de novo. Alejandro v. Bell, 84 S.W.3d 383, 390
(Tex. App.—Corpus Christi 2002, no pet.). In a traditional motion for summary
judgment, the movant has the burden of showing both that there is no genuine issue of
material fact and entitlement to judgment as a matter of law. TEX. R. CIV. P. 166a(c);
see also Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); Ortega v. City Nat’l Bank,
97 S.W.3d 765, 772 (Tex. App.—Corpus Christi 2003, no pet.). In deciding whether
there is a genuine issue of material fact, evidence favorable to the nonmovant is taken
as true, and all reasonable inferences are made, and all doubts are resolved, in favor of
the nonmovant. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
Summary judgment is proper if the movant disproves at least one element of each of
2
Other issues in the case were resolved and are not before this Court. The Hillwood parties
agreed to be bound by the trial court’s determination regarding the NPRI and to continue the deposit of
funds into the court’s registry via a rule 11 agreement. See TEX. R. CIV. P. 11. An unopposed motion to
dismiss the Hillwood parties from this appeal is pending before this Court and is hereby granted. Wynne
Jackson and the HOA had filed cross claims against each other regarding who would bear the brunt of a
PAC Capital victory (i.e., if PAC Capital’s payments increase, whose will decrease?), but they filed a rule
11 agreement purporting to resolve their cross claims. See id. The parties entered into a stipulation as to
PAC Capital’s reasonable and necessary attorney’s fees so as to avoid a trial solely on the issue of fees.
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the plaintiff's claims or affirmatively establishes each element of an affirmative defense
to each claim. Id. The nonmovant has no burden to respond to a traditional summary
judgment motion unless the movant conclusively establishes its cause of action or
defense. Swilley, 488 S.W.2d at 68.
When both parties move for summary judgment on the same issue and the trial
court grants one motion and denies the other, as here, the reviewing court considers the
summary judgment evidence presented by both sides, determines all questions
presented, and if the reviewing court determines that the trial court erred, renders the
judgment the trial court should have rendered. See Fed. Deposit Ins. Corp. v. Lenk,
361 S.W.3d 602, 611 (Tex. 2012).
B. Applicable Law
The construction of an unambiguous deed is a question of law for the court.
Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986). In interpreting a deed, the primary
duty of a court is to ascertain the intent of the parties by a fundamental rule of
construction known as the “four corners” rule. Luckel v. White, 819 S.W.2d 459, 461
(Tex. 1991). The interpretation of the contract is controlled by the parties’ intentions as
expressed within the four corners of the instrument. Altman, 712 S.W.2d at 118. In
seeking to ascertain the intention of the parties, the court must attempt to harmonize all
parts of a deed. Id. Even if different parts of the deed appear contradictory or
inconsistent, the court must strive to construe the instrument to give effect to all of its
provisions. Luckel, 819 S.W.2d at 462.
A mineral estate consists of five interests: (1) the right to develop; (2) the right to
lease; (3) the right to receive bonus payments; (4) the right to receive delay rentals; and
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(5) the right to receive royalty payments. French v. Chevron U.S.A., 896 S.W.2d 795,
797 (Tex. 1995). A mineral fee owner has a possessory estate in the land. Pickens v.
Hope, 764 S.W.2d 256, 263 (Tex. App.—San Antonio 1988, writ denied). As such, he
has the right to develop the minerals himself or the exclusive power to lease the land to
another for mineral development. Elick v. Champlin Petroleum Co., 697 S.W.2d 1, 3–4
(Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.); Campbell v. Dreier, 382 S.W.2d
179, 183 (Tex. Civ. App.—San Antonio 1964, writ ref’d n.r.e.). In contrast, a non-
participating royalty owner has no possessory estate in the land, and hence, no right to
lease the land to another for mineral development or to produce the minerals himself.
Pickens, 764 S.W.2d at 264. A “non-participating royalty” does not entitle the owner to
produce the minerals himself, or permit him to join in a lease of the mineral estate to
which the royalty is appurtenant, or entitle him to share in bonus or delay rentals that
may be paid for the lease, but merely entitles him to a share of production under the
lease free of exploration and production expenses. Id.
A “fractional royalty” is a fixed amount of the minerals that are produced. See,
e.g., White v. White, 830 S.W.2d 767, 770 (Tex. App.—Houston [1st Dist.] 1992, writ
denied) (“[T]he grantor intended to convey three-eighths of all the oil and gas and other
minerals ‘produced and saved,’ in other words, a fractional royalty, not a fraction of
royalty.”); Helms v. Guthrie, 573 S.W.2d 855, 857 (Tex. App.—Fort Worth 1978, writ
ref’d n.r.e.) (“Our holding is that [grantor] contractually provided that he should own a
‘fractional royalty’ of 1/16th of the total production, not a ‘fraction of royalty,’
determinable upon the execution of some future lease.”). A fractional royalty remains
constant regardless of the amount of royalty provided for under any particular mineral
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lease. Range Res. Corp. v. Bradshaw, 266 S.W.3d 490, 493 (Tex. App.—Fort Worth
2008, pet. denied) (“A ‘fractional royalty’ interest entitles the owner to the specified
fractional amount stated in the deed of oil, gas, or other minerals produced from the
land and remains constant regardless of the amount of royalty contained in a
subsequently-negotiated oil and gas lease.”); Hawkins v. Tex. Oil & Gas Corp., 724
S.W.2d 878, 889 (Tex. App.—Waco 1987, writ ref’d n.r.e.) (“A conveyance of ‘1/2 of the
1/8th royalty interest’ has been held to convey a 1/16th fractional royalty, entitling the
royalty owner to one out of every sixteen parts of production regardless of the royalty
retained in any lease.”).
A “fraction of royalty” conveys a fractional share of the royalty that is contained in
an oil and gas lease—it is not fixed, but rather “floats” in accordance with the size of the
landowner’s royalty contained in the lease and, in addition to the landowner’s royalty,
the fraction of non-participating royalty also shares proportionally in any overriding
royalty interest reserved in the oil and gas lease, and the holder of the executive right
owes a duty to the NPRI owner in establishing the landowner’s royalty in an oil and gas
lease. Range Res. Corp., 266 S.W.3d at 493. The amount to be paid to the owner is
determinable upon the execution of some future lease and is calculated by multiplying
the fraction in the royalty reservation by the royalty provided in a lease. Id.
C. Discussion
In this case, the relevant language in the Porter Deeds provides as follows:
There is excepted herefrom and reserved unto Grantor a non-participating
royalty of one-half (1/2) of the usual one-eighth (1/8) royalty in and to all
oil, gas, and other materials produced, saved and sold from the above-
described property, provided, however, that although said reserved royalty
is non-participating and Grantee shall own and possess all leasing rights
in and to all oil, gas and other minerals, Grantor shall, nevertheless, have
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the right to receive one-half (1/2) of any bonus, overriding royalty interest,
or other payments, similar or dissimilar, payable under the terms of any
oil, gas and mineral lease covering the above-described property.
The foregoing language covers four of the five components of the mineral estate:
(1) the right to lease, which is conveyed in its entirety; (2) the right to receive bonus
payments, which is conveyed subject to a reservation; (3) the right to receive delay
rentals, which is conveyed subject to a reservation; and (4) the right to receive royalty
payments, which is conveyed subject to a reservation. At issue in this case is the
proper construction of the reservation with respect to the right to receive royalty
payments.
The relevant clause states, “There is excepted herefrom and reserved unto
Grantor a non-participating royalty of one-half (1/2) of the usual one-eighth (1/8) royalty
in and to all oil, gas, and other materials produced, saved and sold from the above-
described property.” In Harriss v. Ritter, the Texas Supreme Court was presented with
a deed that included a nearly identical reservation of “one-half of one-eighth of the oil,
gas and other mineral royalty.” Harriss v. Ritter, 279 S.W.2d 845, 847 (Tex. 1955). In
its decision, the Texas Supreme Court held, “[T]he reservation is susceptible of but one
interpretation.” Id. The court held, “as a matter of law that the term ‘one-half of one-
eighth of the oil, gas and other mineral royalty’ could have but one meaning and that is
1/16th of the royalty on all the oil, gas and other minerals that may be produced from
said land.” Id. Again, this is consistent with the interest being a fractional royalty. Here,
the only difference in the relevant language is that the words “the usual” are used to
qualify the one-eighth royalty.
8
Similar language was interpreted by the San Antonio Court of Appeals in
Pickens. Pickens, 764 S.W.2d at 258–59. In Pickens, the language provided for “an
undivided 1/4 of the usual 1/8 royalty in all of the oil, gas or other minerals produced,
saved and sold from the premises conveyed under the terms of any valid oil and gas
lease.” Id. The court held that the language reserved a “stated fraction” (i.e., 1/32) of
the minerals produced as a royalty. Id. at 267. The court further held that, in the event
of production, the grantor was entitled to “no more and no less” than the stated
fraction—“and this irrespective of who manages the lease or upon what terms were
contained in a lease.” Id. Thus, the court treated the interest as a fractional royalty.
Based on the foregoing precedent, we conclude that the interest in this case is a
fractional royalty, not a fraction of royalty. In so holding, we note that appellees have
cited and relied upon the decision of the Fort Worth Court of Appeals in Sundance
Minerals. See Sundance Minerals, L.P. v. Moore, 354 S.W.3d 507, 510 (Tex. App.—
Fort Worth 2011, pet. denied). Unfortunately, the opinion in Sundance Minerals did not
quote the operative language of the deed in its entirety; instead, the court summarized
the language, thus making it impossible to compare it directly to the language at issue in
this case. In its opinion, the Fort Worth Court of Appeals indicated that the deed
included language that reserved “an undivided and non-participating one-half interest in
the oil, gas, and other mineral rights.” See id. The court noted that, if the language had
not been qualified, it would have entitled the grantees to receive one-half of any royalty
paid under a lease, as well as a one-half interest in any bonuses and rentals. Id.
Interpreting the deed as a whole, the court concluded that the language was applicable
only to the right to receive royalty payments. Id.
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In this case, the language of the deeds does not purport to reserve an undivided
interest in the entire mineral estate, as did the deed in Sundance Minerals. Moreover,
unlike the deed in Sundance Minerals, the deeds in this case clearly reserve the rights
of the grantor as they relate to bonus payments and delay rentals. Appellees argue that
the reservations should be lumped together and construed as a single reservation;
however, this would blur the distinction between the different components of the mineral
estate when the deeds clearly sought to maintain that distinction.
In sum, we are guided by the precedent of the Texas Supreme Court in Harriss
and the precedent of the San Antonio Court of Appeals in Pickens in concluding that the
deeds in this case reserved what is known as a fractional royalty. We are mindful of the
Fort Worth Court of Appeals’ decision in Sundance Minerals; however, we believe this
case is sufficiently distinguishable to preclude any conflict with that decision.
Accordingly, we conclude that Wynne Jackson is entitled to judgment as a matter of
law. The trial court’s ruling to the contrary was error. Therefore, Wynne Jackson’s
issue is sustained.
III. ATTORNEY’S FEES
In its motion for rehearing, Wynne Jackson requests that we remand the case to
the trial court for resolution of its claim for attorney’s fees under the Uniform Declaratory
Judgment Act (“UDJA”). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.004(a) & 37.009
(West 2008). The Court requested a response from appellees. See TEX. R. APP. P.
49.2. PAC has filed a response, stating that although it opposes Wynne Jackson’s
motion for rehearing, it “agrees with the general proposition that a court of appeals may
remand a decision in a declaratory judgment action solely on the issue of attorney’s
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fees under the UDJA.” PAC also states that “it is the trial court that should decide
whether Wynne Jackson is entitled to its attorney’s fees.” HOA has also filed a
response. HOA states that it “has no opposition to [the] motion for rehearing whereby
[Wynne Jackson] request[s] that the Court amend its Memorandum Opinion and
Judgment to include a remand to the trial court on the issue of . . . attorney’s fees under
the Declaratory Judgment Act.”
A. Applicable Law
Section 37.009 of the Texas Civil Practice and Remedies Code provides that “[i]n
any proceeding under this chapter, the court may award costs and reasonable and
necessary attorney’s fees as are equitable and just.” See TEX. CIV. PRAC. & REM. CODE
ANN. § 37.009. The Texas Supreme Court has interpreted this language to mean that
the decision to award attorney’s fees is within the discretion of the trial court. See
Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (“[The UDJA] provides that the court
‘may’ award attorney fees. The statute thus affords the trial court a measure of
discretion in deciding whether to award attorney fees or not.”). “[W]hen we reverse a
declaratory judgment, and the trial court awarded attorney’s fees to the party who
prevailed [in the] trial [court], we may remand the attorney’s fee award for
reconsideration in light of our disposition on appeal.” Sava Gumarska in Kemijska
Industria D.D. v. Advanced Polymer Sciences, Inc., 128 S.W.3d 304, 324 (Tex. App.—
Dallas 2004, no pet.).
B. Discussion
Based on the foregoing, we conclude that it is appropriate to remand the
attorney’s fee award for reconsideration in light of our disposition on appeal. See
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Mohican Oil & Gas, LLC v. Scorpion Exploration & Prod., 337 S.W.3d 310, 324 (Tex.
App.—Corpus Christi 2011, pet. denied) (“Therefore, we will remand the issue of
attorneys’ fees for determination by the trial court.”).
IV. CONCLUSION
The judgment of the trial court is reversed and a judgment is rendered in favor of
Wynne Jackson. We reverse and remand the issue of attorney’s fees to the trial court.
____________________
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
6th day of June, 2013.
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