Charles Alford and Mary Lou Alford v. Robert Thomas McKeithen, EOG Resources, Inc. and Central Texas Land Services

ACCEPTED
12-14-00262
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/10/2015 4:55:37 PM
CATHY LUSK
CLERK
NO. 12-14-00262-CV
IN THE FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
TWELFTH COURT OF APPEALS 7/10/2015 4:55:37 PM
CATHY S. LUSK
SITTING AT TYLER, TEXAS Clerk
___________________________
CHARLES ALFORD AND MARY LOU ALFORD,
APPELLANTS
VS.
ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND
CENTRAL TEXAS LAND SERVICES,
APPELLEES.
___________________________
Appealed from the 1ST Judicial District Court of
San Augustine County, Texas
Trial Court No. CV-12-9344
BRIEF OF APPELLEE ROBERT THOMAS MCKEITHEN
Noel D. Cooper
Texas Bar No. 00796397
LAW OFFICES OF NOEL D. COOPER
117 North St., Suite 2
Nacogdoches, Texas 75961
Telephone: (936) 564-9000
Telecopier: (936) 715-6022
Email: noelcooper@noelcooper.com
ATTORNEY FOR APPELLEE,
ROBERT THOMAS MCKEITHEN
ORAL ARGUMENT REQUESTED
NO. 12-14-00262-CV
CHARLES ALFORD AND MARY LOU ALFORD,
APPELLANTS
VS.
ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND
CENTRAL TEXAS LAND SERVICES,
APPELLEES.
IDENTITY OF PARTIES & COUNSEL
Appellant certifies that the following is a complete list of the parties,
attorneys, and any other person who has any interest in the outcome of this
lawsuit:
Noel D. Cooper
Texas Bar No. 00796397
LAW OFFICES OF NOEL D. COOPER
117 North St., Suite 2
Nacogdoches, Texas 75961
Telephone: (936) 564-9000
Telecopier: (936) 715-6022
Email: noelcooper@noelcooper.com
ATTORNEY FOR APPELLEE,
ROBERT THOMAS MCKEITHEN
ROBERT THOMAS MCKEITHEN
APPELLEE
Tom Rorie
Attorney at Law
210 North Street
Nacogdoches, Texas 75961
TEL: (936) 559-1188
FAX: (936) 559-0099
Email: trorie@sbcglobal.net
ATTORNEY FOR APPELLANTS,
CHARLES ALFORD AND MARY LOU ALFORD
-2-
CHARLES ALFORD AND MARY LOU ALFORD
APPELLANTS
Jason R. Mills
FREEMAN MILLS PC
110 N. College, Suite 1400
Tyler, Texas 75702
TEL: (903) 592-7755
FAX: (903) 592-7787
Email: eservicejrm@freemanmillspc.com
ATTORNEY FOR APPELLEES,
EOG RESOURCES, INC. AND
CENTRAL TEXAS LAND SERVICES
EOG RESOURCES, INC.
APPELLEE
CENTRAL TEXAS LAND SERVICES
APPELLEE
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TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL .......................................................... 2
TABLE OF CONTENTS ................................................................................. 4
INDEX OF AUTHORITIES ........................................................................... 5
STATEMENT OF THE CASE ........................................................................ 7
ISSUES PRESENTED ................................................................................... 8
STATEMENT OF FACTS ............................................................................... 8
SUMMARY OF THE ARGUMENT............................................................... 11
ARGUMENT.................................................................................................12
Response to The trial court did not err in
Appellants’ Issue 1: holding that the mineral reservation
was incorporated into the Deed.....................12
PRAYER ...................................................................................................... 23
CERTIFICATE OF COMPLIANCE .............................................................. 23
CERTIFICATE OF SERVICE....................................................................... 24
APPENDIX .................................................................................................. 25
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INDEX OF AUTHORITIES
CASES
American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842
(Tex. 1994) .......................................................................................... 15
Duhig v. Peavy-Moore Lumber Co., Inc., 144 S.W.2d 878
(Tex. 1940) ..........................................................................................16
Dupnik v. Hermis, No. 04–12–00417–CV,
2013 Tex. App. Lexis 2461, 2013 WL 979199
(Tex. App.—San Antonio March 13, 2013, pet. denied)(mem. op.) ... 18
Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864
(Tex. 2007)..........................................................................................12
Gulf States Utils. Co. v. Low, 79 S.W.3d 561
(Tex. 2002) ......................................................................................... 15
Harmes v. Arkalatex Corp. 615 S.W.2d 177
(Tex. 1981)........................................................................................... 15
Harris v. Windsor, 294 S.W.2d 798
(Tex. 1956) ..........................................................................................16
Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323
(Tex. 2011)........................................................................................... 17
Klein v. Humble Oil & Refining Co., 67 S.W.2d 911
(Tex. Civ. App.—Beaumont 1934), aff'd,
Klein v. Humble Oil & Refining Co., 86 S.W.2d 1077 (1935) ..............16
Mitchell v. Castellaw, 246 S.W.2d 163
(Tex. 1952) .......................................................................................... 17
Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493
(Tex. 1991) ........................................................................................... 15
-5-
Smith v. Allison, 301 S.W.2d 608
(Tex. 1956) ..........................................................................................16
Spencer v. Eagle Star Ins. Co. of America, 876 S.W.2d 154
(Tex., 1994) .........................................................................................12
RULES
TEX. R. APP. P. 44 ..........................................................................................21
TEX. R. CIV. P. 272 ........................................................................................12
TEX. R. CIV. P. 273.........................................................................................12
TEX. R. CIV. P. 274 ........................................................................................12
Tex. R. Civ. P. 279.........................................................................................14
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NO. 12-14-00262-CV
CHARLES ALFORD AND MARY LOU ALFORD,
APPELLANTS
VS.
ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND
CENTRAL TEXAS LAND SERVICES,
APPELLEES.
BRIEF OF APPELLEE ROBERT THOMAS MCKEITHEN
COMES NOW, Noel D. Cooper, counsel for Appellee, Robert Thomas
McKeithen, hereinafter identified as “Robert” or “McKeithen,” in the above
numbered cause, and files this Appellee’s Brief and would show this
Honorable Court as follows:
STATEMENT OF THE CASE
Nature of the Case. McKeithen was the sole heir of Annie and Jack
Jessup, two long-time residents of San Augustine County, Texas. Appellants
were ranchers and farmers in San Augustine County, and they rented
property from the Jessups for their cattle. The purchased the Jessups’
property in 2003 to graze their cattle, and they never discussed the mineral
estate. A Special Warranty Deed With Vendor’s Lien (“the Deed”) and a
Deed Of Trust were was drawn up to reflect the agreements of the parties,
and a mineral reservation was included in one of the legal descriptions.
After the fracking boom began in San Augustine County, Appellants
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brought suit against Appellees seeking to reform the deeds between
Appellants and the Jessups to remove the mineral reservation.
Course of Proceedings. All parties moved for summary judgment, and
the trial court denied all motions for summary judgment. CR 2:93, 3:87. A
jury was selected, and evidence was heard on May 6 and 7, 2014.
Trial Court Disposition. A verdict was returned by the jury, and the
trial court entered a take-nothing judgment as to all of the Appellants’
claims. CR 3:133.
ISSUES PRESENTED FOR REVIEW
Response to Issue 1: Appellants erroneously contend that the trial
court erred in ruling that the mineral reservation in the Warranty Deed
With Vendor’s Lien was incorporated into the deed. At first review of the
record, Appellants’ waived this issue at the trial court. Appellants failed to
object to the jury charge which included an instruction to the jury regarding
mineral reservation, effectively conceding that this was a lost cause for
them. However, even had there not been a waiver, the Appellants are
incorrect regarding the law as it relates to the Deed.
STATEMENT OF FACTS
This is a case about a pasture, 117 acres out of 128 acres of pasture,
which the Appellants purchased from the Jessups in 2003. RR 3:18,26. For
-8-
five or six years, Appellants leased the pasture from Jack and Annie Jessup.
RR 3:16-17. In 2002, Annie asked Mary Lou if she knew of anyone who
would want to purchase the pasture. RR 3:18. Mary Lou was interested, but
the Appellants could not afford the pasture at that time. RR 3:18. The next
year, Mary Lou approached Annie about buying the pasture, and they
entered into an oral contract for the sale of the pasture for $80,000, or
about $684/acre. RR 3:18-20. Mary Lou and Annie never discussed the
mineral estate. RR 3:20. Appellants and the Jessups met at the office of a
local attorney, and paperwork was drawn up for the sale of the pasture plus
the Jessups’ house. RR 3:22. Appellants signed a Deed of Trust. RR 3:31-
32.
Mary Lou conceded that the mineral estate was not part of
Appellant’s contract with the Jessups to buy the pasture. RR 3:53. More
importantly, she and her husband would have purchased the pasture with
or without the mineral estate; they got a great deal on the pasture. RR 3:53.
Mary Lou agreed that the contract to purchase the pasture was a handshake
deal between people with an ongoing business relationship. RR 3:56. Mary
Lou did completely read neither the Deed or the Deed of Trust. RR 3:57.
Robert was the Jessups’ nephew and their sole heir. RR 3:59-60.
Before Mr. Jessup had passed, Robert was appointed his guardian. RR 3:74.
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After the pasture had been sold to the Jessups, Robert was approached
about leasing the mineral rights under the pasture, and he leased them. RR
3:68-69. The guardianship proceedings were initiated so that Robert could
lease the mineral rights to EOG. RR 3:78. At some point, Mary Lou’s
daughter-in-law, Brenda, called Mary Lou and told her that Robert had
made a deposit of funds that he received from EOG. RR 3:46. Mary Lou
called Robert and wanted him to sign a release of lien on the pasture she
and her husband bought, and when Robert reviewed the proposed release,
it did not release just the lien but also had sneaked in a line by which he
would release all of his mineral rights. RR 3:71. Appellants later sued
Robert. CR 1:4.
Connie Vaughn worked for Ken Muckleroy as a part-time real estate
closer. RR 4:16-17. According to her description of her duties, a real estate
closer would meet with the parties in conjunction with a real estate closing,
review all of the documentation with them, make sure everything was
correct, and the proceed with the parties’ signing the documents. RR 4:17.
Ms. Vaughn knows that she prepared documents for selling the pasture, but
she had no specific recollection of the closing. RR 4:24-25. She reviewed
the Exhibit A attached to the Deed. RR 4:29. The earlier instruments from
which she obtained the property description would have usually been
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brought to her by the property sellers, but she had no memory of whether
the Jessups had brought the particular legal description to her. RR 4:35.
She agreed that it was possible that the Jessups gave the legal description to
her knowing that the mineral reservation was in there. RR 4:36. Ms.
Vaughn agreed that the face of the Deed referenced a 1950 instrument with
the same mineral reservation, and that if the metes and bounds had not
been attached to the Deed, only the reference to the 1950 instrument, the
Deed still would have been valid. RR 4:40-41. The attorney who employed
Ms. Vaughn, Ken Muckleroy, could not recall meeting with the Jessups and
the Alfords, and he had no specific recollections about the transaction
which led to this litigation. RR 4:65-66.
SUMMARY OF THE ARGUMENT
Appellants were poured out of court by a jury of their peers because
the causes of action under which they chose to sue McKeithen had no
factual support. In their sole ground for appeal, they argue not about those
facts or the jury charge but about one ruling made by the trial court. That
one complaint boils down to their assertion that the mineral reservation
attached to the Deed was not actually incorporated into the Deed. However,
Appellants failed to preserve this issue as they did not object to an
instruction on this point included in the Charge of the Court. This really
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was a last-ditch effort as Appellants raised this issue with the trial court at
the 11th hour and after their motion for summary judgment had been heard.
However, even if they had not waived their sole complaint, Texas case law is
firmly against their position, and Appellants fail to address a recent
decision from another Texas appellate court which is exactly on point and
for which the Texas Supreme Court denied the petition for review. Finally,
their request for a remand on damages is frivolous and without merit.
ARGUMENT
Response to Appellants’ Issue 1: The trial court did not err
in ruling that the mineral reservation was incorporated into
the deed.
Argument & Authorities
This matter started out as a suit to reform the Deed to remove the
mineral reservation, CR 1:4, and evolved to include a claim for trespass to
try title. CR 3:88. Only the trespass to try title and reformation claims were
submitted to the jury, CRS 2:4,8,9, and the jury found against Appellants
on both of these issues. CRS 2:8,9. The jury also found that the Appellants
had not utilized due diligence in reviewing the deed. CRS 2:10. Well after all
of the parties had filed and had heard their motions for summary judgment
and six (6) days before jury selection, Appellants filed a Motion for Court to
Construe Document Prior to Evidence and Submission of Issues to Jury In
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Trial. CR 3:118-21. The trial court ruled that “under the rules of
construction of documents that the language stating a mineral reservation
found in the description of a 117 acre tract described as Tract 1 in Exhibit ‘A’
attached to that deed: Is Incorporated [sic] into the Deed.” CRS 4-5 (Ex. 1).
Appellants’ sole issue is that the trial court incorrectly ruled that the
mineral reservation was incorporated into the Deed.
Appellants Waived This Issue
Appellants waived this issue for purposes of appeal. “All objections
[to the charge] not so presented shall be considered as waived.” TEX. R. CIV.
P. 272. “Either party may present to the court and request written
questions, definitions, and instructions to be given to the jury . . . . A
request by either party for any questions, definitions, or instructions shall
be made separate and apart from such party’s objections to the court’s
charge.” TEX. R. CIV. P. 273. “A party objecting to a charge must point out
distinctly the objectionable matter and the grounds of the objection. Any
complaint as to a question, definition, or instruction on account of any
defect, omission, or fault in pleading, is waived unless specifically included
the objections.” TEX. R. CIV. P. 274. A party must object to an erroneous or
defective question, instruction, or definition. See Equistar Chems., L.P. v.
Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007)(holding that failure to
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object to an improper instruction waived that issue); Spencer v. Eagle Star
Ins. Co. of America, 876 S.W.2d 154, 157 (Tex., 1994)(holding an objection
is necessary to preserve error on improper instruction).
During the formal charge conference, Appellants’ only objections to
the Charge of the Court concerned Question No. 3, the Due Diligence issue.
RR 4:105-06. Appellants did no object to any other part of the Charge of the
Court. RR 4:passim. Thus, the following question was submitted to the jury
without objection from Appellants:
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CRS 2:8 (Ex. 2). Included in the instructions is the following: “You are
further instructed that Exhibit A was incorporated into the Deed.” Id. While
Appellants are not specifically complaining about the Charge of the Court,
they are complaining about a finding, and they waived this issue by not
complaining during the charge conference to an instruction which directly
addressed the issue about which they were complaining. There is a large
body of case law which has held that a party can waive an entire theory of
recovery or damage by not objecting with its omission from the charge. TEX.
R. CIV. P. 279; see Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 565 (Tex.
2002); Harmes v. Arkalatex Corp. 615 S.W.2d 177, 179 (Tex. 1981); see,
e.g., American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 n.12
(Tex. 1994)(holding that defendant waived estoppel defense);
Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex.
1991)(holding that plaintiff waived breach of contract claim). Appellants
cannot now come and complain of the trial court’s ruling when they did not
object to the jury being given this instruction.
The Mineral Reservation Was Incorporated Into the Deed
Irrespective of whether Appellants waived their one complaint on
appeal, they never address any of the litany of Texas court decisions
interpreting mineral reservations and instead rely totally on general
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contract cases. Texas courts “have long since relaxed the strictness of the
ancient rules for the construction of deeds, and have established the rule for
the construction of deeds as for the construction of all contracts,-that the
intention of the parties, when it can be ascertained from a consideration of
all parts of the instrument, will be given effect when possible. That
intention, when ascertained, prevails over arbitrary rules.” Harris v.
Windsor, 294 S.W.2d 798, 800 (Tex. 1956). “The ultimate purpose in
construing a deed is to ascertain the intention of the grantor, and when this
intention is ascertained, that construction which carries the intention into
effect, when such intention is lawful, governs and controls.” Smith v.
Allison, 301 S.W.2d 608, 614 (Tex. 1956). “The cardinal rule for the
construction of deeds is to ascertain the intention of the parties as
expressed in the deed.” Klein v. Humble Oil & Refining Co., 67 S.W.2d 911,
914 (Tex. Civ. App.—Beaumont 1934), aff'd, Klein v. Humble Oil & Refining
Co., 126 Tex. 450, 86 S.W.2d 1077, 1078 (1935). A reservation on the face of
the deed only serves to further identify what is included in the metes and
bounds. See Duhig v. Peavy-Moore Lumber Co., Inc., 144 S.W.2d 878, 879
(Tex. 1940). Further, the trial court ruled that the Deed was ambiguous.
CRS 4. When the court determines that the contract language is ambiguous,
the intended meaning of that language becomes a fact issue for the trier of
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fact and extraneous evidence may be admitted to help determine the
language’s meaning. Italian Cowboy Partners v. Prudential Ins., 341
S.W.3d 323, 333-34 (Tex. 2011).
The agreement of the parties was to purchase the pasture. RR 3:18-
20. Would anyone, reading the entire document which was filed with the
San Augustine County Clerk, have had any doubt of the mineral reservation
in Tract One? The short answer is “no.” Moreover, if the mineral
reservation was simply lifted from the metes and bounds to the first page of
the deed, it would be obvious that it would serve the effect of the
reservation. See Mitchell v. Castellaw, 246 S.W.2d 163, 164-65 (Tex. 1952).
Appellants signed a deed of trust with the exact same mineral reservation.
Mary Lou and her husband would have bought with pasture with or
without the mineral estate, RR 3:53, and she conceded that neither she nor
the Jessups ever uttered the word “minerals.” RR 3:56. Appellants were
running cattle on the pasture when they bought it, RR 3:34, and they were
still using the pasture for that purpose at the time of trial. RR 3:56. If we
are trying to determine the intent of the parties, the intent is clear:
Appellants did not intend to purchase the mineral estate. Nowhere in the
record does it say that Appellants intended to purchase the mineral estate
beneath the pasture.
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Appellants are aware of adverse case law directly on point which is
controlling to their single issue, though they never cite or contrast
that law to this appeal.
It is troubling that Appellants, though they have been aware of
adverse authority for over a year, CR 2:143-147, do not even make mention
of it in their brief. A recent case from San Antonio considered a deed like
the one in this case. Dupnik v. Hermis, No. 04–12–00417–CV, 2013 Tex.
App. Lexis 2461, 2013 WL 979199 (Tex. App.—San Antonio March 13, 2013,
pet. denied)(mem. op.)(Ex. 3). In that case, four co-tenants partitioned a
nearly 100-acre piece of land in 1983, but the minerals remained undivided.
Id. at *2. In 1991, Hermis, an original cotenant, conveyed Dupnik, another
original cotenant, one surface acre and her 114 mineral interest 1n the acre.
Id. Hermis did the same thing in 1994 with five acres (the five acres
included the previously conveyed one acre). Id. Then in 1998 Hermis
conveyed her entire 24.68-acre tract to Dupnik. Id. The 1998 deed
contained the same alleged problem as the deed in this case. The property
description in the deed contained an acreage amount and survey, but also
relied on a description in the attached Exhibit A. Id. at *3. But while the
reservation in the deed said "none," the description described tract two as
"the surface only." Id.
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Dupnik arose out of the same error as this case: the property
description in the 1998 deed was copied out of an older deed. Id at *4.
Dupnik sued in 2011 for a declaratory judgment on her mineral ownership
in the land. Id. at *3. The trial court found that the deed unambiguously
contained a binding mineral reservation. Id. at * 1. The court of appeals
affirmed, first because Dupnik's claim to the minerals was barred by
limitations, and second because the deed unambiguously contained a
binding mineral reservation. Id. at * 12, * 15.
Courts must interpret deeds harmoniously to give effect to all their
parts. Id. at *13-*14. The intent to be enforced is not the parties' subjective
intent, but rather the intent "from the language used within the
instrument's four comers[.]" Id. at * 15. Therefore, "the actual, subjective
intent of the parties will not always be given effect even if [the court] were
able to discern that subjective intent." Id. (internal quotations omitted).
Applying those interpretive rules, the court of appeals in Dupnik properly
found that the reservation of "none" simply meant that the grantor was not
retaining the rights "to any of the substances that belong to the surface
estate owner." Id. (citing Moser v. US. Steel Corp., 676 S.W.2d 99, 102
(Tex. 1984)).
The tract at issue in this case is Tract One of the deed, and the
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Jessups stated that the property being conveyed is more particularly
described in the exhibit to the Deed. The exhibit describes the location of
the tract and states that the conveyance does not include one half of all the
minerals beneath the tract. The Deed also contains the following provision
under the heading “Exemptions to Conveyance and Warranty:”
RR 5:PX-2. In addition, the Deed stated that it incorporated any prior
mineral reservations, and there was a prior reservation of one half of the
minerals. Accordingly, because one-half of the minerals had been
previously reserved and the Jessups were excluding from the description
the other half of the minerals, the exhibit was also providing a horizontal
boundary and not just vertical boundary lines. The conveyance of Tract One
was limited to the surface.
Because the conveyance of Tract One was for the surface only, the
part of the deed reserving a life estate in Tract Two does not create an
ambiguity. Like in Dupnik, where a reservation of "none" did not conflict
with a grant of the surface only, the Jessups did not need to reserve
anything from Tract One because they did not grant the minerals. Dupnik,
2013 Tex. App. Lexis, at *15. Accordingly, the warranty deed
unambiguously does not grant any of the minerals in Tract One to
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Appellants.
Appellants did not introduce any evidence of damages at trial, so
there is no basis to remand the case on the issue of damages.
Appellants’ request that the case be remanded to the trial court is
frivolous and without merit. “The court may not order a separate trial solely
on unliquidated damages if liability is contested.” TEX. R. APP. P. 44.1(b).
The jury did not make a determination of damages. CRS 2:12. While
Appellants introduced copies of two checks, RR 5:PX-12, PX-13, they did
not elicit any testimony about specifically what those monies related to so
that a jury could determine any damages. RR 3:passim, 4:passim. It is
telling that, despite their having sued both EOG and Central Texas Land
Services, they did not call any expert witnesses from either of those two
appellants or under their own control to testify regarding how monies paid
to the Jack Jessup Estate equated to harm to the Appellants. What was that
money for? Appellants never offered any testimony on that issue.
Conclusion
Appellants claims are easy to follow: they would like to have been
deeded the minerals. Of course, equitably this falls flat. They never
negotiated for the mineral estate, they never agreed to purchase the mineral
estate, and they would have purchased the pasture with or without the
mineral estate—for less than $700 per acre who would not? They bought
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the pasture for what they were paying to lease the pasture. The jury
understood Appellants’ motivations, and their findings reflect the facts: not
only did the Appellants not own the mineral estate, there was no mistake in
reducing the Jessups’ and Alfords’ agreement to writing.
Not being able to win on the facts, Appellants are left trying to find
some justification for stealing something which doesn’t belong to them—a
legal do over. Unfortunately for their arguments, they are were done in the
trial court. Appellants tried to get the trial court to rule that the mineral
reservation was not part of the deed, but when that was successful, they did
not bring it up again during the trial, and they waived the issue by not
objecting to the trial court’s instructions on the mineral reservation. Even
had Appellants preserved the issue, they are wrong on the law as the
mineral reservation, according to the courts which have addressed similar
facts, is incorporated into the Deed. EOG and Central Texas Land Services
obviously thought that the Jessups had retained the minerals, and the
Appellants attorney, Mr. Muckleroy, also knew that the Deed reserved the
minerals. Why else would he have sneaked in a line into the release of lien
about the minerals? Thus, Appellant’s single issue is wholly without merit,
and the judgment of the trial court should be affirmed.
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PRAYER
Wherefore, Appellee Robert Thomas McKeithen prays this Court to
affirm the decision of the trial court for the reasons stated herein and for all
other relief to which he is entitled.
Respectfully submitted,
/s/Noel D. Cooper
Noel D. Cooper
Texas Bar No. 00796397
LAW OFFICES OF NOEL D. COOPER
117 North St., Suite 2
Nacogdoches, Texas 75961
Telephone: (936) 564-9000
Telecopier: (936) 715-6022
Email: noelcooper@noelcooper.com
ATTORNEY FOR APPELLANT,
ROBERT THOMAS MCKEITHEN
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document is
computer generated and contains 2,962 words based on a computer word
count.
/s/Noel D. Cooper
NOEL D. COOPER
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CERTIFICATE OF SERVICE
I certify that I delivered a copy of this Brief of Appellee Robert
Thomas McKeithen to each attorney of record or party in accordance with
the Texas Rules of Appellate Procedure on July 10, 2015, at the addresses
and manners below.
Tom Rorie
Attorney for Charles Alford and Mary Lou Alford
Attorney at Law
210 North Street
Nacogdoches, Texas 75961
TEL: (936) 559-1188
FAX: (936) 559-0099
Email: trorie@sbcglobal.net
By Electronic Filing Manager
Jason R. Mills
Attorney for EOG Resources, Inc. and Central Texas Land Services
Freeman Mills PC
110 N. College, Suite 1400
Tyler, Texas 75702
TEL: (903) 592-7755
FAX: (903) 592-7787
Email: eservicejrm@freemanmillspc.com
By Electronic Filing Manager
/s/Noel D. Cooper
NOEL D. COOPER
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NO. 12-14-00262-CV
CHARLES ALFORD AND MARY LOU ALFORD,
APPELLANTS
VS.
ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND
CENTRAL TEXAS LAND SERVICES,
APPELLEES.
APPELLANT’S APPENDIX
LIST OF DOCUMENTS
1. Order on Construction by Court of Warranty
Deed from Jack P. Jessup and Annie Elizabeth
Jessup to Charles Alford and Mary Lou Alford
Dated April 25, 2003 ............................................................... Exhibit 1
2. Charge of the Court ................................................................. Exhibit 2
3. Dupnik v. Hermis, No. 04–12–00417–CV,
2013 Tex. App. Lexis 2461, 2013 WL 979199
(Tex. App.—San Antonio March 13, 2013,
pet. denied)(mem. op.) ........................................................... Exhibit 3
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EXHIBIT 1
4
5
CAUSE NO. CV-12-9344
CHARLES and MARY LOU ALFORD § IN THE DISTRICT COURT
§
Plaintiffs, §
§
vs. §
§ OF FILED
ROBERT THOMAS McKEITHEN; § rq J ·.1 S-0 CLOCK~ M
1
EOG RESOURCES, INC.; and §
CENTRAL TEXAS LAND SERVICES §
~ 20-1JJ...
JEAN s0TOE Dl~lerk
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§ SAN AUGUS!V1:TEXAS
Defendant. § BY "/?=---- u
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§ SAN AUGUSTINE COUNTY, TEXAS
CHARGE OF THE COURT
LADIES AND GENTLEMEN OF THE JURY:
After the closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
Remember my previous instructions: Do not discuss the case with anyone else, either in person
or by any other means. Do not do any independent investigation about the case or conduct any
research. Do not look up any words in dictionaries or on the Internet. Do not post information
about the case on the Internet. Do not share any special knowledge or experiences with the other
jurors. Do not use your phone or any other electronic device during your deliberations for any
reason. [The Court will give you a number where others may contact you in case of an
emergency.]
Any notes you have taken are for your own personal use. You may take your notes back into the
jury room and consult them during deliberations, but do not show or read your notes to your
fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on
your independent recollection of the evidence and not be influenced by the fact that another juror
has or has not taken notes.
You must leave your notes with the bailiff when you are not deliberating. The bailiff will give
your notes to me promptly after collecting them from you. I will make sure your notes are kept in
a safe, secure location and not disclosed to anyone. After you complete your deliberations, the
bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly
destroy your notes so that nobody can read what you wrote.
Here are the instructions for answering the questions.
1. Do not let bias, prejudice, or sympathy play any part in your decision. EXHIBIT 2
CHARGE OF THE COURT 4 1/10
2. Base your answers only on the evidence admitted in court and on the Ia:w that is in these
instructions and questions. Do not consider or discuss any evidence that was not admitted
in the courtroom.
3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters oflaw,
you must follow all of my instructions.
4. If my instructions use a word in a way that is different from its ordinary meaning, use the
meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question or
answer is not important.
6. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" answer must
be based on a preponderance of the evidence [unless you are told otherwise]. Whenever a
question requires an answer other than "yes" or "no," your answer must be based on a
preponderance of the evidence [unless you are told otherwise].
7. The term "preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a
"yes" answer, then answer "no." A preponderance of the evidence is not measured by the
number of witnesses or by the number of documents admitted in evidence. For a fact to
be proved by a preponderance of the evidence, you must find that the fact is more likely
true than not true.
8. Do not decide who you think should win before you answer the questions and then just
answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.
9. Do not answer questions by drawing straws or by any method of chance.
10. Some questions might ask you for a dollar amount. Do not agree in advance to decide on
a dollar amount by adding up each juror's amount and then figuring the average.
11. Do not trade your answers. For example, do not say, "I will answer this question your
way if you answer another question my way."
12. The answers to the questions must be based on the decision of at least 10 of the 12 jurors.
The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of
anything less than 10 jurors, even if it would be a majority.
As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties' money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.
CHARGE OF THE COURT 5 2/10
Presiding Juror:
1. When you go into the jury room to answer the questions, the first thing you will need to
do is choose a presiding juror.
2. The presiding juror has these duties:
a. have the complete charge read aloud if it will be helpful to your deliberations;
b. preside over your deliberations, meaning manage the discussions, and see.that you
follow these instructions;
c. give written questions or comments to the bailiff who will give them to the judge;
d. write down the answers you agree on;
e. get the signatures for the verdict certificate; and
f. notify the bailiff that you have reached a verdict.
Do you understand the duties of the presiding juror? If you do not, please tell me now.
Instructions for Signing the Verdict Certificate:
• You may answer the questions on a vote of 10 jurors. The same 10 jurors must agree on
every answer in the charge. This means you may not have one group of 10 jurors agree
on one answer and a different group of 10 jurors agree on another answer.
• If 10 jurors agree on every answer, those 10 jurors sign the verdict.
• If 11 jurors agree on every answer, those 11 jurors sign the verdict.
• If all 12 of you agree on every answer, you are unanimous and only the presiding juror
signs the verdict.
• All jurors should deliberate on every question. You may end up with all 12 of you
agreeing on some answers, while only 10 or 11 of you agree on other answers. But when
you sign the verdict, only those 10 who agree on every answer will sign the verdict.
Do you understand these instructions? If you do not, please tell me now.
CHARGE OF THE COURT 6 3/10
DEFINITIONS
Throughout this charge, the following terms shall have the meaning indicated:
1. "The Alfords" means the Plaintiffs Charles Alford and Mary Lou Alford.
2. "The Jessups" means Jack P. Jessup and Annie Elizabeth Jessup.
3. "McKeithen" means Defendant Robert Thomas McKeithen, in all his capacities.
4. "EOG" means Defendant EOG Resources, Inc.
5. "Central Texas Land Services" means Defendant Central Texas Land Services.
6. The "Deed" means the April 25, 2003 Warranty Deed with Vendor's Lien from
the Jessups to the Alfords.
7. "Tract One" means the 117.50 acre tract of land located about seven miles west
of San Augustine, Texas, and that is more particularly described as Tract One in
the Deed.
CHARGE OF THE COURT 7 4110
QUESTION NO. 1
Question:
Have the Alfords proved that they have title to an undivided one-half of the mineral estate
beneath Tract One?
Instruction:
To establish title, the Alfords must (1) prove a regular chain of conveyances from the sovereign,
(2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove
title by prior possession coupled with proof that possession was not abandoned.
The Alfords may prevail only on the superiority of their title, not on the weakness of
McKeithen's title.
You are instructed that it is undisputed that prior to executing the Deed, the Jessups owned an
undivided one-half of the minerals beneath Tract One. The question of fact for you to decide is
whether the Deed reserved or conveyed the mineral interest. If it reserved the mineral interest
answer "No," and if it conveyed the mineral interest answer "Yes."
You are further instructed that Exhibit A was incorporated into the Deed.
You are further instructed that a warranty deed will pass all of the estate owned by the granter at
the time of the conveyance unless there are reservations or exceptions which reduce the estate
conveyed.
Answer: o~
Answer "Yes" or ''No."--+--'--"V.___ _
CHARGE OF THE COURT 8 5/10
QUESTION NO. 2
If you answered "No" to Question No. 1, then answer this question. Otherwise do not answer this
question.
Question:
Have the Alfords proved that the Deed should be reformed such that the reservation of minerals
in Exhibit A of the Deed should be removed?
Instruction:
To be entitled to a reformation of the Deed, the Alfords must prove that (1) there was an
agreement before the Deed was written; and (2) there was a mutual mistake, made after the
original agreement, in reducing the agreement to writing that to does not reflect the agreement of
the parties to the Deed~ \c.,,;
You are instructed that to prove a "mutual mistake," the Alfords must prove (1) a mistake of fact,
(2) held mutually by the parties to the Deed, (3) and which materially affects the subject matter
of the Deed.
You are further instructed that a warranty deed will pass all of the estate owned by the grantor at
the time of the conveyance unless there are reservations or exceptions which reduce the estate
conveyed.
Answer: /)0
Answer "Yes" or ''No."__.__ _ __
CHARGE OF THE COURT 9 6/10
QUESTION NO. 3
If you answered "Yes" to Question No. 2, then answer this question. Otherwise do not answer
this question.
Question:
Have the Alfords proved that they exercised due diligence in reviewing the Deed?
Instruction:
You are instructed that the standard of diligence in reviewing the Deed is that diligence an
ordinary prudent person would have used under the same or similar circumstances.
Answer: I\
Answer "Yes" or ''No.;'_..._!1--=0___
CHARGE OF THE COURT 10 7/10
QUESTION NO. 4
If you answered "Yes" to Question No. 3, then answer this question. Otherwise do not answer
this question.
Question:
By what date did the Alfords discover, or should have discovered by exercising reasonable care
and diligence, the reservation of minerals for Tract One in Exhibit A to the Deed?
Instruction:
You are instructed that the standard of diligence in reviewing the Deed is that diligence an
ordinary prudent person would have used under the same or similar circumstances.
Answer:
Answer by inserting a specific, month, day and year. - - - - - - - - - - -
CHARGE OF THE COURT 11 8/10
REQUESTED QUESTION NO. 5
If you answered "Yes" to Question No. 1 or "Yes" to Question No. 2, then answer this question.
Otherwise do not answer this question.
Question:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate the
Alfords for the damages, if any, that resulted from the minerals beneath Tract One being leased?
Instruction:
You shall consider only the difference, if any, between the royalty the Alfords received and the
royalty the Alfords would have received had the Jessups or McKeithen not claimed title to one-
half of the minerals beneath Tract One.
Do not add any amount for interest on damages, if any.
Answer:
Answer in dollars and cents, if any. $_ _ _ _ _ _ _ _ __
CHARGE OF THE COURT 12 9/10
VERDICT CERTIFICATE
If the verdict is unanimous, the presiding juror should sign below.
Presiding Juror
If the verdict is not unanimous, then thedecidingjurors should sign below.
1/'L-JuJ IJ~ 2. (kk 128 S.W.3d 211, 215 (Tex.
judgment alleging that the suit was barred by the 2003); Longoria v. Lasater, 292 S.W.3d 156,
statute of frauds and the statute of limitations, 162 (Tex. App.—San Antonio 2009, pet.
and because the grant of the surface estate only denied). A party should be granted summary
reserved title to the mineral estate as a matter of judgment only if it proves all elements of its
law. Dupnik also filed a cross-motion for cause of action or affirmative defense. Holy
summary judgment essentially asserting that the Cross Church of God in Christ v. Wolf, 44
"surface only" language was erroneously entered S.W.3d 562, 566 (Tex. 2001); see also TIG Ins.
in the description because the property Co. v. San Antonio YMCA, 172 S.W.3d 652,
description was merely copied and pasted from 655-56 (Tex. App.—San Antonio 2005, no pet.).
the 1983 partition deed. Dupnik alleged the When both parties file motions for summary
parties' true intent could be ascertained from the judgment and the trial court grants one motion
previous conveyances (the 1991 and 1994 and denies the other, the reviewing court must
deeds) and contracts for sale between the parties. consider the evidence presented by both parties
Finding no genuine issue of material fact, the and determine all questions presented to the trial
trial court granted Hermis's motion for summary court. FM Props. Operating Co. v. City of
judgment, determining Hermis was entitled to Austin, 22 S.W.3d 868, 872-73 (Tex. 2000); TIG
judgment in her favor as a matter of law, and Ins. Co., 172 S.W.3d at 655-56. It is the duty of
denied Dupnik's motion for summary judgment. a reviewing court to "render the judgment that
the trial court should have rendered." Wolf, 44
On appeal, Dupnik claims the trial court S.W.3d at 566; see also FM Props. Operating
erred in granting Hermis's motion for summary Co., 22 S.W.3d at 872-73.
judgment because there is a patent internal
conflict within the 1998 deed, and the trial court STATUTE OF LIMITATIONS
erred in failing to consider the prior conveyances
between the parties and the contract for sale for Hermis contends Dupnik's suit is barred by
the 1998 deed. Specifically, Dupnik complains the four-year statute of limitations. In response,
the grant of the surface estate only and the Dupnik first argues that a court always "has an
reservation of "none" are irreconcilable because inherent right to properly interpret instruments."
a grantor must specifically reserve any rights Dupnik, however, cites no authority, and we can
associated with the mineral estate. Dupnik also find none, supporting the proposition that courts
asserts that because she filed a verified affidavit retain an inherent right to litigate title disputes
in support of her motion for summary judgment after the statute of limitations expires. Dupnik
and Hermis did not, the trial court erred in next argues that even if the statute of limitations
granting summary judgment in Hermis' favor applies, the discovery rule deferred the accrual
because Dupnik's verified pleading carried more of limitations in this case.
weight. Lastly, Dupnik complains that the A. Applicable Statute of Limitations
summary judgment entered by the trial court
does not conform to the pleadings and grants This is a trespass to try title suit where the
relief not requested by Hermis. Hermis, in parties are seeking interpretation of a deed. See
addition to contesting Dupnik's arguments, Longoria, 292 S.W.3d at 165 ("A suit to resolve
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Dupnik v. Hermis (Tex. App., 2013)
a dispute over title to land is, in effect, a trespass Page 6
to try title action regardless of the form the
action takes and whether legal or equitable may not attack a facially valid, and thus
voidable, deed merely by pleading in equity. Id.
Page 5 at 619. "When a deed is merely voidable, equity
will not intervene as the claimant has an
relief is sought."). To determine the applicable adequate legal remedy." Id. at 618.
statute of limitations in a trespass to try title suit
where parties dispute the title conveyed, we The 1998 deed at issue in this case was
must determine whether the deed is void or legally effective when signed because it validly
voidable.1 Slaughter v. Qualls, 162 S.W.2d 671, granted Dupnik the surface estate. The term
674 (Tex. 1942); Garcia v. Garza, 311 S.W.3d "none" used in the reservation clause does not in
28, 42 (Tex. App.—San Antonio 2010, pet. and of itself render the deed invalid because it
denied). can be read as simply reserving no rights to the
substances belonging to the surface estate
If the deed is void, the cause of action will owner. See Moser v. U.S. Steel Corp., 676
not be barred by the statute of limitations. Ford S.W.2d 99, 102 (Tex. 1984) (listing substances
v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 that belong to the surface estate as a matter of
(Tex. 2007); Garcia, 311 S.W.3d at 42. A deed law); Poag v. Flories, 317 S.W.3d 820, 827
is void if it is "without vitality or legal effect." (Tex. App.—Fort Worth 2010, pet. denied)
Slaughter, 162 S.W.2d at 674 (quoting Smith v. (indicating that a conveyance of the "surface
Thornhill, 25 S.W.2d 597, 600 (Tex. Comm'n estate only" provides the grantee notice that he
App. 1926)) (internal quotation marks omitted). owns only the surface estate). Therefore, the
Conversely, if a deed is merely voidable, the deed in this case is voidable because it is facially
four-year statute of limitations will apply to the effective and any ambiguity or error would be
suit. Ford, 235 S.W.3d at 618; Garcia, 311 found only after a court looked behind the
S.W.3d at 42. A deed is voidable if it "operates instrument to determine the intention of the
to accomplish the thing sought to be parties.
accomplished, until the fatal vice in the
transaction has been judicially ascertained or B. Discovery Rule
declared." Slaughter, 162 S.W.2d at 674
(quoting Smith, 25 S.W.2d at 600) (internal In response to Hermis's assertion that
quotation marks omitted). Dupnik's cause of action is barred by the statute
of limitations, Dupnik claims the discovery rule
If an instrument is legally effective when prevents limitations from barring this suit.
suit is brought and at least one party's claim to Dupnik has likely waived the ability to assert the
title requires the court to exercise its equitable discovery rule in avoidance of the statute of
powers before title can be determined, the limitations. If this rule is not pleaded in an
instrument is not in and of itself void. Pure Oil original, amended, or supplemental petition and
Co v. Ross, 111 S.W.2d 1076, 1078 (Tex. 1938); the party does not secure findings on its
Neill v. Pure Oil Co., 101 S.W.2d 402, 404 applicability, the claim is waived. Woods v.
(Tex. Civ. App.—Dallas 1937, writ ref'd). In William M. Mercer, Inc., 769 S.W.2d 515, 518
Ford v. Exxon Mobil Chemical Co., the Texas (Tex. 1988); Morriss v. Enron Oil & Gas Co.,
Supreme Court rejected the appellate court's 948 S.W.2d 858, 868 (Tex. App.—San Antonio
conclusion that an equitable action to quiet title 1997, no writ). Even if the claim was not
is not subject to the statute of limitations. 235 waived, it would fail on its merits.
S.W.3d at 618. The supreme court explained that
"an equitable action to remove cloud on title is As a general rule, a cause of action accrues
not subject to limitations if a deed is void or has when the legal injury occurs, regardless of when
expired by its own terms." Id. However, a party the legal injury is discovered or when all of the
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Dupnik v. Hermis (Tex. App., 2013)
resulting damages occur. S.V. v. R.V., 933 period despite due diligence." Id. at 7. In her
S.W.2d 1, 4 (Tex. 1996). Some cases, however, Responses to Request for Admissions, Dupnik
present an exception to this rule that defers denied that she read all parts of the 1998 deed
when it was delivered to her by Hermis. As
Page 7 such, there can be little doubt that due diligence
was
accrual of limitations until the plaintiff "knew or
through the exercise of diligence should have Page 8
known of the wrongful act and resulting injury."
Id. (citing Trinity River Auth. v. URS not exercised. Dupnik's claim fails for two
Consultants, Inc., 889 S.W.2d 259, 262 (Tex. reasons: (1) it was not an inherently
1994)). This exception is also known as the undiscoverable defect; and (2) due diligence was
"discovery rule." Id. at 6. The discovery rule not exercised. Thus, the discovery rule is
provides relief to wronged parties when "the inapplicable to prevent this case from being
nature of the injury incurred is inherently barred by limitations.
undiscoverable and the evidence of injury is
objectively verifiable." Id. (quoting Computer APPLYING RULES OF
Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, INTERPRETATION/CONSTRUCTION TO
456 (Tex. 1996)) (internal quotation marks 1998 DEED
omitted). Despite the equitable effect of the
discovery rule in some cases, "[t]he fact that a Even if this suit were not barred by the
meritorious claim might . . . be rendered statute of limitations, Dupnik's claim would fail
nonassertible is an unfortunate, occasional by- under the rules of interpretation/construction.
product of the operation of limitations." Id. Dupnik contends that the 1998 deed is
(quoting Robinson v. Weaver, 550 S.W.2d 18, ambiguous and that without looking to the
20 (Tex. 1990)) (internal quotation marks history of transactions between the parties, there
omitted). is a facially "irreconcilable internal conflict" in
the 1998 deed because it purports to convey only
First, Dupnik claims "[i]t was impossible to the surface estate without reserving the mineral
know the exact meaning of the contradictory estate. This court is urged to look to the 1991
terms in the 1998 deed [or] to know that she had and 1994 deeds, which conveyed the mineral
suffered a legal harm unless and until [Hermis] interests along with the surface estates, and the
attempted to assert claims adverse to [Dupnik]." contract for sale of the 1998 deed, which did not
This argument contradicts her claim that the include "surface only" language, to determine
ambiguity was patent and obvious on the face of the parties' intent to convey the mineral estate in
the instrument. Regardless, the fact that Dupnik the 1998 deed as well.
may not have understood the exact meaning of
the allegedly contradictory terms does not In Terrill v. Tuckness, this court set out a
negate that, by her very own admission, the three-step interpretation process: (1) "ascertain
terms of the instrument appear facially the grantor's intent by examining the plain
problematic to her. With due diligence, she language of the deed"; (2) apply the appropriate
would have learned of the alleged mistake. rules of construction; and then (3) allow
extrinsic evidence to aid in interpretation. 985
An instrument that describes the property S.W.2d 97, 102 (Tex. App.—San Antonio 1998,
as "surface only" in contravention of the parties' no pet.). Courts reach the third step of admitting
alleged intent is not the type of inherently extrinsic evidence only if the grantor's intent
undiscoverable injury contemplated by the remains unclear after the rules of construction
discovery rule. An inherently undiscoverable are applied. Longoria, 292 S.W.3d at 166 (citing
injury is one that is "by nature unlikely to be Terrill, 985 S.W.2d at 102). "An instrument is
discovered within the prescribed limitations ambiguous only when the application of the
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Dupnik v. Hermis (Tex. App., 2013)
rules of construction leaves it unclear which Moser, 676 S.W.2d at 102 (listing substances
meaning is the correct one." Id.; Terrill, 985 that belong to the surface estate as a matter of
S.W.2d at 102. When construing a deed, we try law). As the Supreme Court of Texas has
to determine the intent of the parties by recognized, because we are required to ascertain
considering the instrument as a whole, the parties' intent from the language used within
attempting "to harmonize and give effect to all the instrument's four corners, "the actual,
the provisions of the agreement, even if different subjective intent of the parties will not always be
parts of the deed appear inconsistent or given effect even if we were able to discern that
contradictory." Concord Oil Co. v. Pennzoil subjective intent." Concord Oil Co., 966 S.W.2d
Exploration & Prod. Co., 966 at 454. Because Dupnik's cause of action is
barred by the statute
Page 9
Page 10
S.W.2d 451, 454 (Tex. 1998); Hausser v.
Cuellar, 345 S.W.3d 462, 466 (Tex. App.—San of limitations, we need not address the parties'
Antonio 2011, pet. denied). remaining claims regarding the statute of frauds,
the attachment of a verified affidavit, and relief
A reservation of minerals must be by clear not requested.
language, and "[c]ourts do not favor reservations
by implication." Sharp v. Fowler, 252 S.W.2d CORRECTION OF JUDGMENT
153, 154 (Tex. 1952). At least one Texas court,
however, has considered a grant of only the Upon review of the judgment and relevant
surface estate to be a clear reservation of the deeds in the case, we noticed that the judgment
mineral estate. See Large v. T. Mayfield, Inc., mistakenly excepted Dupnik's mineral interest
646 S.W.2d 292, 294 (Tex. App.—Eastland from an improper tract of land, thereby
1983, writ ref'd n.r.e.) (holding that a grant of incorrectly awarding Hermis a mineral interest
"the Surface Rights" conveyed only the surface under all 24.58 acres of Dupnik's surface estate.
estate); see also Poag, 317 S.W.3d at 827 An appellate court has the authority to modify
(suggesting that the language "surface estate an incorrect judgment, even without a party's
only" conveys only the surface estate). request, when the record contains the necessary
Moreover, a reservation "is something to be information to do so. TEX. R. APP. P. 43.2(b);
deducted from the thing granted, narrowing and Hutton v. State, 313 S.W.3d 902, 909 (Tex.
limiting what would otherwise pass by the App.—Amarillo 2010, pet. ref'd); In re T.P., 251
general words of the grant." King v. First Nat'l S.W.3d 212, 215 (Tex. App.—Dallas 2008, no
Bank of Wichita Falls, 192 S.W.2d 260, 262 pet.).
(Tex. 1946); see also Hunsaker v. Brown
Distrib. Co., 373 S.W.3d 153, 158 (Tex. App.— The judgment purports to identify the
San Antonio 2012, pet. denied) (concluding that parties' respective mineral interests in the entire
even though Hunsaker did not specifically one-hundred acres partitioned in 1983. A review
reserve one-half of the mineral estate he owned, of the deeds in this case revealed that tracts one,
Brown only received one-half of Hunsaker's three, and six are the 24.68 acre tracts owned by
mineral estate because Hunsaker only conveyed the other three parties to the 1983 partition.
one-half of the mineral estate to Brown). Tract two in the judgment is the 24.68 acre tract
that was owned by Hermis after the 1983
Harmonizing the "surface only" language partition. Tracts four and five described in the
with the reservation of "none" leads to the judgment are the tracts conveyed to Dupnik by
conclusion that the intent reflected in the Hermis in the 1991 and 1994 deeds. In
document was to convey the surface estate accordance with the 1998 deed, the judgment
without retaining rights to any of the substances properly provides that Hermis has an undivided
that belong to the surface estate owner. See 25% interest in the minerals under tracts one and
-5-
Dupnik v. Hermis (Tex. App., 2013)
three. The judgment also correctly provides that We conclude the four-year statute of
Dupnik has an undivided 25% mineral interest in limitations applies and the discovery rule does
tracts four and five. not prevent its accrual in this case.
Consequently, we affirm the judgment of the
It appears, however, that the trial court's trial court as modified to reflect the parties'
judgment confused tracts two and six and actual interests in the one-hundred acres.
incorrectly excepted Dupnik's mineral interest in
tracts four and five from Hermis's mineral Catherine Stone, Chief Justice
interest in tract six instead of tract two. The
judgment should reflect that Hermis has an
undivided 25% mineral interest in tract six with --------
no exception. The judgment should also reflect Notes:
that Hermis has an undivided 25% mineral
interest in tract two, save and except Dupnik's 1.
This appears to be the correct approach in all
cases where the title dispute originates from a
Page 11 conveyance (as opposed to adverse possession),
despite its characterization as a suit for trespass to try
undivided 25% mineral interest in tracts four and title, a suit to quiet title, or a suit to remove cloud on
five (described as tracts A and B in the incorrect title. See Ford v. Exxon Mobil Chem. Co., 235
portion of the judgment excepting these tracts S.W.3d 615, 618 (Tex. 2007) (approving of this
from Hermis's undivided 25% mineral interest in approach for suits to quiet title/remove cloud on
tract six). Accordingly, we modify the judgment title); Slaughter v. Qualls, 162 S.W.2d 671, 674 (Tex.
to reflect these changes. 1942) (applying this standard in a trespass to try title
suit).
CONCLUSION
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