COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00303-CV
JAMES C. THOMASON AND APPELLANTS
DOROTHY L. LUPTON
V.
JAMES E. BADGETT AND DARRYL APPELLEES
G. POU; LARRY BRADSHAW AND
WIFE, SHARON BRADSHAW;
TYLER J. CHILD AND WIFE,
BETTINA CHILD; GARY W.
ELLIOTT AND WIFE, LAVADA
ELLIOTT; BRYAN G. FEILLE AND
WIFE, LAURIE P. FEILLE; BRUCE
FOWLER AND WIFE, ANNETTE
FOWLER; DONALD M. GUMMELT
AND WIFE, CONSTANCE
GUMMELT; FRED HAFFNER AND
WIFE, LINDA HAFFNER; MICHAEL
R. HALE AND WIFE, LORI HALE;
RAY HALL, JR. AND WIFE,
KIMBERLY HALL; DONALD
MAHANAY AND WIFE, CHRISTY
MAHANAY; MICHAEL R. NOAH
AND WIFE, PEGGY NOAH;
VINCENT C. SANCHEZ AND WIFE,
GLORIA M. SANCHEZ; LARRY J.
SHARP AND WIFE, JACQUELINE
SHARP
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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Background Facts
In August 1996, Kenneth Hopkins purchased land from Dan Reese and his
family. In the warranty deed (the Reese deed), the Reeses reserved one half of
the mineral rights (the Reese reservation). The Reese deed was recorded in
volume 1684, page 335 of the real property records of Parker County, Texas.
Hopkins then sold the land to Thomason and Lupton via warranty deed (the
Hopkins deed), “save and except” the Reeses’ one-half mineral interest as
reserved in the Reese deed. The Hopkins deed contained no other reservations
or exceptions to the conveyance. The Hopkins deed was recorded in volume
1686, page 122 of the real property records of Parker County.
Thomason and Lupton eventually divided the land into lots and sold one lot
to E.L. Ford and the rest of the lots to Reata Properties, Ltd. 2 Nineteen of the
twenty-three warranty deeds described the property to be conveyed as the
respective lots “SAVE & EXCEPT: ALL OIL, GAS[,] AND OTHER MINERALS AS
1
See Tex. R. App. P. 47.4.
2
The lots were eventually sold to the appellees.
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RECORDED IN [the Reese deed] AND [the Hopkins deed].” Two of the warranty
deeds stated, “SAVE & EXCEPT: OIL, GAS[,] AND OTHER MINERALS AS
RECORDED IN [the Reese deed] AND [the Hopkins deed].” The last two of the
warranty deeds stated, “SAVE & EXCEPT: ALL OIL, GAS[,] AND OTHER
MINERALS AS RECORDED IN [the Reese deed] AND OTHER OIL, GAS[,] AND
MINERALS AS RECORDED IN [the Hopkins deed].” The deeds contained no
other reservations or exceptions to the conveyances.
In 2007, Thomason and Lupton executed an oil, gas, and mineral lease
with Devon Energy Production Company, L.P. purporting to lease the mineral
interest that they had reserved. After execution of the lease, however, Devon
became concerned that Thomason and Lupton did not own the undivided one-
half interest. Thomason and Lupton filed a trespass to try title action against the
current owners of the lots, seeking to determine title to the one-half mineral
interest not reserved by the Reeses. Both the appellants and the appellees filed
motions for summary judgment. 3 The trial court granted the appellees’ motion
and denied the appellants’ motion. Thomason and Lupton then filed this appeal.
Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
3
Not all of the defendants joined appellees’ motion for summary judgment.
The trial court severed the action against the non-moving defendants from this
case.
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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 Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). 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). A plaintiff is entitled to
summary judgment on a cause of action if it conclusively proves all essential
elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710
S.W.2d 59, 60 (Tex. 1986). A defendant who conclusively negates at least one
essential element of a cause of action is entitled to summary judgment on that
claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see
Tex. R. Civ. P. 166a(b), (c).
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; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,
300 S.W.3d 746, 753 (Tex. 2009). The reviewing court should render the
judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d
at 848.
Deed Construction
Deeds are construed to convey to the grantee the greatest estate possible.
Reeves v. Towery, 621 S.W.2d 209, 212 (Tex. App.—Corpus Christi 1981, writ
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ref’d n.r.e.) (citing Waters v. Ellis, 158 Tex. 342, 347, 312 S.W.2d 231, 234
(1958)). A general warranty deed conveys all of the grantor’s interest unless
there is language in the instrument that clearly shows an intention to convey a
lesser interest. Id. (citing Cockrell v. Gulf Sulphur Co., 157 Tex. 10, 15, 299
S.W.2d 672, 675 (1957)). Courts do not favor reservations by implication in favor
of the grantor. Sharp v. Fowler, 151 Tex. 490, 494, 252 S.W.2d 153, 154 (1952);
Reeves, 621 S.W.2d at 212.
Discussion
In their sole issue on appeal, Thomason and Lupton argue that the proper
interpretation of the deed shows that they retained ownership of one half of the
mineral estate.
Thomason and Lupton argue that although they did not “reserve” the
mineral interest, they did “except” it from the conveyance, which functioned as a
reservation. Exceptions and reservations “are not strictly synonymous.” Pich v.
Lankford, 157 Tex. 335, 342, 302 S.W.2d 645, 650 (1957). But an exception has
the same legal effect as a reservation when the excepted interest remains with
the grantor. See id. Thus, if the exceptions in the warranty deeds were effective,
Thomason and Lupton properly excepted a half interest in the mineral estate,
leaving it in themselves.
The majority of the deeds except “ALL OIL, GAS[,] AND OTHER
MINERALS AS RECORDED IN [the Reese deed] AND [the Hopkins deed].” The
exception does not describe what minerals are excepted but only directs the
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reader to the two previously recorded deeds. The Reese deed contains an
explicit reservation of one half of the mineral estate. Thus, the reference to the
Reese deed in the exception here at bar serves to alert the reader to the Reese
reservation. The Hopkins deed, however, contains no separate reservation. It
excepts the minerals previously reserved by the Reeses and conveys “all
remaining oil, gas[,] and other minerals.” So, the minerals “as recorded” in the
Hopkins deed belong 50% to the Reeses and 50% to Thomason and Lupton.
Neither the reference to the Reese deed nor the reference to the Hopkins deed
created a new reservation or exception of the 50% interest conveyed to
Thomason and Lupton. They conveyed the mineral and surface estates subject
to any previously recorded reservations, namely the Reese reservation. See
Farm & Ranch Investors, Ltd. v. Titan Operating, L.L.C., 369 S.W.3d 679, 684
(Tex. App.—Fort Worth 2012, pet. denied) (holding that grantor conveyed the
mineral estate along with the surface estate when the deeds conveyed the
property “subject to” previous deeds and when those deeds did not include an
express reservation of mineral rights in the grantor); Wright v. E.P. Operating
Ltd., 978 S.W.2d 684, 688 (Tex. App.—Eastland 1998, pet. denied) (“The
language stating that the conveyances were made subject to any and all
reservations . . . does not reserve any mineral interest in Oregon’s predecessors
in title, but rather recognizes that reservations have been made in the past and
are in the chain of title.”). The language in the other four warranty deeds also do
not effectively except the 50% mineral interest as they all contain the same
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troublesome references to the previous deeds and make no explicit separate
exception.
The main thrust of Thomason and Lupton’s argument is that the word “all”
is an express exception of the mineral interest. Setting aside the fact that two of
the deeds do not even use the word “all,” thus defeating their own argument
regarding those two deeds, the word “all” in the warranty deeds still refers to the
minerals “as recorded” in the previous deeds. Looking to the Hopkins deed, all
the minerals are accounted for—half previously reserved by the Reeses plus half
conveyed to Thomason and Lupton. The meaning of the phrase “all oil, gas[,]
and other minerals as recorded” is simply not a clear exception of the 50%
mineral interest owned by Thomason and Lupton. See Johnson v. Conner, 260
S.W.3d 575, 578 (Tex. App.—Tyler 2008, no pet.) (holding that deed conveyed
all mineral interests, despite any intent not to do so, when it stated that “[n]one of
the [mineral, water, royalty, timber, or other interests] are available to be
conveyed” because that language was not an explicit reservation); Miller v.
Melde, 730 S.W.2d 12, 13 (Tex. App.—Corpus Christi 1987, no writ) (holding that
deed that only excepted interests in minerals as “reserved and excepted in prior
conveyances” conveyed the entire mineral estate when there were no prior
reservations or exceptions because the clause “[did] not reserve or except any
mineral interest in clear and unambiguous language”). And when the language is
unclear, it is construed against the grantor to confer upon the grantee the
greatest estate that the terms of the instrument will permit. Lott v. Lott, 370
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S.W.2d 463, 465 (Tex. 1963). Although Thomason and Lupton may have meant
something by the use of the phrase “all oil, gas[,] and other minerals as
recorded,” we cannot say that that something is an effective exception of the
mineral estate. See Reeves, 621 S.W.2d at 211 (“The question to be answered
in this case is not what the grantors may have intended to say in the deed, but
the meaning of what they did, in fact, say.”); see also Large v. T. Mayfield, Inc.,
646 S.W.2d 292, 293 (Tex. App.—Eastland 1983, writ ref’d n.r.e.) (noting that the
rights of the parties are governed by the language used and that the choice of
words is of controlling importance). The trial court therefore did not err by
granting the lot owners’ motion for summary judgment and by denying Thomason
and Lupton’s motion for summary judgment. We overrule Thomason and
Lupton’s issue.
Conclusion
Having overruled Thomason and Lupton’s sole issue on appeal, we affirm
the trial court’s judgment.
LEE GABRIEL
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DELIVERED: July 11, 2013
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