Alvie Max Winegar and Alice Winegar v. Noel David Martin, Roberta Sue Martin, Travis Ryan Martin, and Angela R. Martin ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-019-CV
ALVIE MAX WINEGAR APPELLANTS
AND ALICE WINEGAR
V.
NOEL DAVID MARTIN, APPELLEES
ROBERTA SUE MARTIN,
TRAVIS RYAN MARTIN,
AND ANGELA R. MARTIN
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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OPINION
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I. INTRODUCTION
The primary issue in this appeal is whether a royalty reservation in a deed
reserved the grantor’s entire 1/3 royalty interest or only a 1/3 of his 1/3 royalty
interest, or a 1/9 royalty interest. The trial court granted summary judgment
in favor of Appellees Noel David Martin, Roberta Sue Martin, and Travis Ryan
Martin (the Martins) 1 and against Appellants Alvie Max Winegar and Alice
Winegar, judicially declaring that Appellants own an undivided 1/9 (1/3 of the
grantor’s 1/3) nonparticipating royalty interest. In seven issues, the Winegars
appeal the trial court’s summary judgment in favor of the Martins. We will
affirm.
II. F ACTUAL B ACKGROUND
Alvie Winegar, Noel David Martin, and Travis Martin purchased 107.123
acres of property in Hood County as 1/3 cotenants. The purchase included the
surface estate and 100% of the mineral estate. In 2003, Alvie agreed to sell
his 1/3 interest in the land to the Martins and Angela and reserve to himself a
nonparticipating royalty interest.
The first paragraph of the deed from Alvie to the Martins and Angela
conveyed to the Martins and Angela “all of Grantor’s undivided ONE-THIRD
(1/3) interest on the real property more particularly described in Exhibit ‘A’
attached hereto.” The second paragraph provides in part,
Included in this Deed and conveyed from Grantor to Grantee is the
right to receive all royalty (except as limited by the reservation
below), bonus, delay rentals, and the right to enter into or make oil,
1
 Appellee Angela R. Martin was married to Travis Ryan Martin, but they
divorced before this suit was filed. Angela did not contest the relief sought by
the Winegars at trial, she did not join in the Martins’ motions for summary
judgment, and she has not filed a brief in this appeal.
2
gas, and/or mineral leases. Out of the undivided mineral interest
conveyed, Grantor reserves to himself, and his heirs, successors,
personal representatives, and assigns, an undivided ONE-THIRD
(1/3) of royalty (“non-participating royalty interest”), which
reserved non-participating royalty interest shall only be payable out
of oil, gas, or other minerals that may be produced from the Lands.
By this reservation, Grantor shall not participate in the making of
any leases on the undivided mineral interest conveyed to Grantee,
or be entitled to receive or own any bonus or delay rentals for the
granting of any lease on the Lands by Grantee.
In April 2004, the Martins and Angela executed a mineral lease with
Quicksilver Resources, covering the entire 107.023-acre property. In December
2007, Quicksilver sent Alvie a division order showing that he owned a 1/9
royalty interest in the property. 2
The Winegars filed suit against the Martins and Angela in February 2008,
seeking a declaration that they own a 1/3, rather than a 1/9, royalty interest,
reformation of the deed based on mutual mistake, and economic damages. The
Martins filed a counterclaim seeking a declaration that the Winegars own a 1/9
royalty interest. The Winegars and the Martins filed cross-motions for summary
judgment on their requests for declaratory judgment. The Martins also moved
for summary judgment on statute of limitations grounds and moved for no-
2
 Earlier that year, Alvie had conveyed 1/2 of his royalty interest to his
wife, Alice. Thus, any royalty interest reserved to Alvie is now owned by him
and Alice.
3
evidence summary judgment on the Winegars’ remaining claims. 3 After a
hearing, the trial court entered a final judgment granting the Martins’ motions
for traditional and no-evidence summary judgment and denying the Winegars’
motion for partial summary judgment. In its order, the trial court judicially
declared that the deed from Alvie to the Martins and Angela reserved to Alvie
“an undivided 1/9th (1/3rd of [Alvie’s] 1/3rd) nonparticipating royalty interest.”
The trial court denied all other relief requested. The Winegars filed this appeal.
III. S TANDARDS OF R EVIEW
A. Traditional Summary Judgment
In a summary judgment case, the issue on appeal is whether the movant
met the summary judgment burden by establishing that no genuine issue of
material fact exists and that the movant is entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment
de novo. Mann Frankfort, 289 S.W.3d at 848.
We take as true all evidence favorable to the nonmovant, and we indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.
20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Sw. Elec. Power Co.
3
 The Winegars later filed a supplemental petition pleading the discovery
rule and quasi-estoppel to avoid the Martins’ statute of limitations defense.
4
v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We consider the evidence
presented in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could and disregarding evidence
contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort,
289 S.W.3d at 848. We must consider whether reasonable and fair-minded
jurors could differ in their conclusions in light of all of the evidence presented.
See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City
of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).
The summary judgment will be affirmed only if the record establishes that
the movant has conclusively proved all essential elements of the movant’s
cause of action or defense as a matter of law. City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
When both parties move for summary judgment and the trial court grants
one motion and denies the other, the reviewing court should review both
parties’ summary judgment evidence and determine all questions presented.
Mann Frankfort, 289 S.W.3d at 848. The reviewing court should render the
judgment that the trial court should have rendered. Id.
B. No-Evidence Summary Judgment
After an adequate time for discovery, the party without the burden of
proof may, without presenting evidence, move for summary judgment on the
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ground that there is no evidence to support an essential element of the
nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The motion must
specifically state the elements for which there is no evidence. Id.; Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must
grant the motion unless the nonmovant produces summary judgment evidence
that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.;
Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment
for evidence that would enable reasonable and fair-minded jurors to differ in
their conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller, 168
S.W.3d at 822). We credit evidence favorable to the nonmovant if reasonable
jurors could, and we disregard evidence contrary to the nonmovant unless
reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant
brings forward more than a scintilla of probative evidence that raises a genuine
issue of material fact, then a no-evidence summary judgment is not proper.
Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).
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IV. Deed Construction
In the Winegars’ fourth, fifth, and sixth issues, they argue that the trial
court erred by declaring that the deed from Alvie to the Martins and Angela
reserved an undivided 1/9 royalty interest because it unambiguously reserved
a 1/3 royalty interest and because, alternatively, the reservation language in the
deed is ambiguous, making summary judgment improper.
A. General Rules of Deed Construction
The primary duty of the court in interpreting what estate a deed conveys
is to ascertain the intent of the parties. Alford v. Krum, 671 S.W.2d 870, 872
(Tex. 1984), overruled on other grounds by Luckel v. White, 819 S.W.2d 459
(Tex. 1991). We look to the intent that is expressed by the instrument, not the
intent that the parties may have had but failed to express in the instrument.
Alford, 671 S.W.2d at 872; Pierson v. Sanger, 93 Tex. 160, 163, 53 S.W.
1012, 1013 (1899).
In seeking to ascertain the intention of the parties, the court must attempt
to harmonize all parts of a deed because the parties to an instrument intend
every clause to have some effect. Woods v. Sims, 154 Tex. 59, 64, 273
S.W.2d 617, 620 (1954); see Plainsman Trading Co. v. Crews, 898 S.W.2d
786, 789 (Tex. 1995). In determining the legal effect of a deed, whether as
to grant, exception, reservation, consideration, or other feature, the inquiry is
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not to be determined alone from a single word, clause, or part but from every
word, clause, and part that is pertinent. Zephyr Oil Co. v. Cunningham, 265
S.W.2d 169, 174 (Tex. Civ. App.—Fort Worth 1954, writ ref’d n.r.e.).
The question of ambiguity in a deed is a question of law. Cherokee Water
Co. v. Freeman, 33 S.W.3d 349, 353 (Tex. App.—Texarkana 2000, no pet.)
(citing Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex. 1987)). An
instrument is not ambiguous if it can be given a definite or certain meaning as
a matter of law. Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). If,
however, a deed is subject to two or more reasonable interpretations, it is
ambiguous. See Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940
S.W.2d 587, 589 (Tex. 1996). An ambiguity does not arise simply because the
parties advance conflicting interpretations; instead, both interpretations must
be reasonable. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861
(Tex. 2000).
If the language in a deed is ambiguous, a fact question exists for the jury
to resolve, making summary judgment improper. Corine, Inc. v. Harris, 252
S.W.3d 657, 659 (Tex. App.—Texarkana 2008, no pet.) (citing J. Hiram
Moore, Ltd. v. Greer, 172 S.W.3d 609, 614 (Tex. 2005)). If a court finds the
language in a deed to be unambiguous, the court may construe the deed as a
8
matter of law. Id. (citing Westwind Exploration, Inc. v. Homestate Sav. Ass’n,
696 S.W.2d 378, 381 (Tex. 1985)).
B. Legal Distinction Between Reservations
from Land “Conveyed” and Land “Described”
Specific rules of construction apply to cases in which a grantor owns an
undivided mineral interest and reserves a fraction of that interest. See Averyt
v. Grande, Inc., 717 S.W.2d 891, 893 (Tex. 1986). Courts have drawn a
distinction between reservations from the land “conveyed” and reservations
from the land “described.” See Middleton v. Broussard, 504 S.W.2d 839, 842
(Tex. 1974). If the deed reserves a fraction of the minerals under the land
conveyed, then the deed reserves a fraction of the part of the mineral interest
actually owned by the grantor and conveyed by the deed. Averyt, 717 S.W.2d
at 893; Hooks v. Neill, 21 S.W.2d 532, 538 (Tex. Civ. App.—Galveston 1929,
writ ref’d). In Hooks, the grantor owned and conveyed all of his undivided 1/2
interest in a tract of land. 21 S.W.2d at 538. The grantor reserved a 1/32
interest in oil under the “said land and premises herein described and
conveyed.” Id. The court focused on the words “and conveyed” and held that
the deed unambiguously reserved 1/32 of the 1/2 minerals that the grantor
conveyed, or a 1/64 mineral interest. Id.
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On the other hand, when the deed reserves a fraction of the minerals
under the land described, then the deed reserves a fraction of the minerals
under the entire tract of land, regardless of the part of the mineral estate
actually conveyed. Averyt, 717 S.W.2d at 893; King v. First Nat’l Bank of
Wichita Falls, 144 Tex. 583, 586, 192 S.W.2d 260, 262 (1946). In King, the
deed conveyed a 1/2 interest “in and to the following described land” and
reserved “from the ‘hereinabove described land’ an undivided one-eighth of the
‘usual and customary one-eighth royalty reserved by the landowner.’” 144 Tex.
at 586, 192 S.W.2d at 262. The court focused on the words “described land”
and held that the grantor reserved an undivided 1/8 “of the royalty from the
entire land,” rather than 1/8 of the grantor’s undivided 1/2 interest that he
conveyed. Id. at 586–87, 192 S.W.2d at 262–63.
The rules from Hooks and King have been consistently applied by the
Texas Supreme Court and our sister courts. Compare Averyt, 717 S.W.2d at
894 (holding that reservation of royalty from minerals “that may be produced
from all of the described land” reserved royalty from minerals produced from
whole of tracts described in deed), and Middleton, 504 S.W.2d at 841, 843
(holding that a conveyance of 1/64 royalty interest in minerals under “all of the
above described land and premises” operated to convey 1/64 royalty interest
from all lands described, not just the fractional interest conveyed), with Clack
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v. Garcia, 323 S.W.2d 468, 468–69 (Tex. Civ. App.—San Antonio 1959, no
writ) (holding that reservation of undivided 1/16 interest in minerals under and
that may be produced from “the interest of said grantors in said land” was
reservation of 1/16 of grantor’s interest, or 1/256 mineral interest), and Dowda
v. Hayman, 221 S.W.2d 1016, 1018 (Tex. Civ. App.—Fort Worth 1949, writ
ref’d) (holding that reservation of 1/2 of all the minerals “on and under the land
and premises herein conveyed” reserved 1/2 of the grantor’s mineral interest
in the land being conveyed).
C. Deed Reserved One-Ninth Royalty Interest
Here, the deed provides, “Out of the undivided mineral interest conveyed,
Grantor reserves . . . an undivided ONE-THIRD (1/3) of royalty
(“non-participating royalty interest”) . . . .” [Emphasis added.] This reservation
is similar to that in Hooks; it reserved a fraction (1/3) of royalty interest out of
the mineral interest conveyed. See Clack, 323 S.W.2d at 468–69; Dowda,
221 S.W.2d at 1018; Hooks, 21 S.W.2d at 538. The deed conveyed a 1/3
mineral interest, which included a 1/3 royalty interest. The deed reserved to
Alvie 1/3 of royalty out of the 1/3 mineral interest conveyed, or a 1/9 royalty
interest.
The Winegars attempt to distinguish the reservation in this case from that
in Hooks, Clack, and Dowda. They argue that in those cases, the grantor
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conveyed a mineral interest and then reserved a percentage of the mineral
interest conveyed, whereas here, Alvie conveyed his mineral interest and then
reserved a royalty interest out of the mineral interest conveyed. In other words,
Alvie conveyed all of his 1/3 interest in the minerals—including the rights to
develop, to lease, to receive bonus payments, to receive delay rentals, to
receive royalty payments (the bundle of sticks)—and then reserved one of those
sticks out of the bundle (i.e. royalty interest). See Luckel, 819 S.W.2d at 463
(“A royalty interest is an interest in land that is a part of the total mineral
estate.”); Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986) (stating the five
essential attributes of mineral estates are the rights to develop (right of ingress
and egress), to lease (executive right), to receive bonus payments, to receive
delay rentals, and to receive royalty payments). This distinction does not
change our holding. The deed carved an undivided 1/3 of royalty “out of the
undivided [1/3] mineral interest conveyed.” In other words, Alvie reserved a
fraction—1/3—out of the entire 1/3 interest in royalty that he owned. See
Clack, 323 S.W.2d at 468–69; Dowda, 221 S.W.2d at 1018; Hooks, 21
S.W.2d at 538.
Taking as true all evidence favorable to the Winegars as the nonmovants
and indulging every reasonable inference and resolving any doubts in their
favor, we hold that the Martins met their summary judgment burden by
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establishing that no genuine issue of material fact exists and that they are
entitled to judgment as a matter of law that the deed unambiguously reserved
an undivided 1/9 nonparticipating royalty interest. See Tex. R. Civ. P. 166a(c);
Mann Frankfort, 289 S.W.3d at 848; Parker, 249 S.W.3d at 399; Sw. Elec.
Power Co., 73 S.W.3d at 215. We overrule the Winegars’ fourth, fifth, and
sixth issues.
V. No Mutual Mistake
In the Winegars’ seventh issue, they argue that the trial court erred by
granting the Martins’ no-evidence summary judgment because the Winegars
presented some evidence on the issue of mutual mistake. 4
Under the doctrine of mutual mistake, when parties to an agreement have
contracted under a misconception or ignorance of a material fact, the
agreement will be avoided. Williams v. Glash, 789 S.W.2d 261, 264 (Tex.
1990). When a party alleges that, by reason of mutual mistake, an agreement
does not express the real intentions of the parties, extrinsic evidence is

4
The Winegars also argue in their seventh issue that a fact issue exists
regarding their “counter-defense” of quasi-estoppel. They pleaded quasi-
estoppel to avoid the Martins’ limitations defense, and because we uphold the
trial court’s summary judgment on grounds other than limitations, we need not
address this issue. See Tex. R. App. P. 47.1; Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe,
915 S.W.2d 471, 473 (Tex. 1995).
13
admissible to show the real agreement. See Johnson v. Conner, 260 S.W.3d
575, 581 (Tex. App.—Tyler 2008, no pet.). When a party seeks reformation
due to mutual mistake, the party must show what the parties’ true agreement
was and that the instrument incorrectly reflects that agreement due to a mutual
mistake. See id. (citing Estes v. Republic Nat’l Bank of Dallas, 462 S.W.2d
273, 275 (Tex. 1970)).
To prove a mutual mistake, the evidence must show that both parties
were acting under the same misunderstanding of the same material fact.
Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 326 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied); see also City of The Colony v.
N. Tex. Mun. Water Dist., 272 S.W.3d 699, 735 (Tex. App.—Fort Worth 2008,
pet. filed) (holding appellant produced no evidence to support mutual mistake
element requiring that both parties be mistaken about a common intention).
Here, the Winegars argue that the Martins “judicially admitted that there
was a mistake” when they stated in their motion for summary judgment, “The
Martins did not understand that [Alvie was] reserving a 1/3 royalty.” This
statement is not a judicial admission of mutual mistake; if anything, it shows
that the parties had opposite understandings of the deed’s effect—the Martins
did not know Alvie thought he was reserving a 1/3 royalty interest while Alvie
thought he was reserving a 1/3 royalty interest. See Walden, 97 S.W.3d at
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326; Johnson, 260 S.W.3d at 581–82. Likewise, no evidence exists that the
Martins knew of Alvie’s purported misunderstanding that he thought he was
reserving a 1/3 royalty interest. See Seymour v. Am. Engine & Grinding Co.,
956 S.W.2d 49, 58 (Tex. App.—Houston [14th Dist.] 1996, writ denied)
(“Knowledge by one party that the other is acting under a mistake of fact is
equivalent to a mutual mistake.”).
The Winegars further assert that the Martins’ statement that they did not
understand that Alvie was reserving a 1/3 royalty interest directly conflicts with
an email exchange between David Martin and Mark Kalpakis, an attorney who
was David Martin’s neighbor. In the email exchange, David Martin requested
that Kalpakis provide “language for the title company that would allow me to
retain the executive rights and provide only 1/3 interest in future royalties.”
[Emphasis added.] One could infer from this email that, by using the phrase
“provide only 1/3 interest in future royalties,” David Martin meant a 1/3 interest
in future royalties either out of the mineral interest conveyed or out of the entire
mineral interest. 5 Any plausible inference would be a guess; consequently,
5
 Furthermore, Kalpakis responded to David Martin’s email by providing
the reservation language that was later used in the deed from Alvie to the
Martins and Angela, reserving a 1/3 royalty interest out of the mineral interest
conveyed. We have already explained that this reservation unambiguously
reserved a 1/9 royalty interest.
15
“neither fact may be inferred.” See City of Keller, 168 S.W.3d at 813 (quoting
Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805
(Tex. 1991)). Considering the record as a whole, we cannot say that David
Martin’s email to Kalpakis created conflicting evidence of probative value such
that reasonable and fair-minded jurors would differ in their conclusion that the
Martins believed Alvie was reserving 1/3 of his 1/3 royalty interest, rather than
his entire 1/3 royalty interest. See Hamilton, 249 S.W.3d at 426 (citing City
of Keller, 168 S.W.3d at 822); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63
(Tex. 1983).
Examining the entire record in the light most favorable to the Winegars,
as the nonmovants, indulging every reasonable inference and resolving any
doubts against the Martins’ motion, we hold that the Winegars have not
produced a scintilla of probative evidence raising a genuine issue of material
fact on mutual mistake. See Smith, 288 S.W.3d at 424; Sudan, 199 S.W.3d
at 292. We overrule the Winegars’ seventh issue.
VI. C ONCLUSION
The Winegars’ remaining three issues dispute whether the trial court
granted the Martins’ summary judgment motion at least in part on limitations.
Having overruled the Winegars’ fourth through seventh issues and having held
that the trial court did not err by granting summary judgment in favor of the
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Martins and by judicially declaring that the deed reserved an undivided 1/9
nonparticipating royalty interest, we need not address the Winegars’ remaining
issues. See Tex. R. App. P. 47.1; Provident Life & Accident Ins. Co., 128
S.W.3d at 216; Star-Telegram, 915 S.W.2d at 473. We affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: January 21, 2010
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