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

Opinion

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

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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

4

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

5

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

6

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

9

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.

10

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

12

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

13

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

14

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

16

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

17

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.

18

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.

19

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

20

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

21

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

22

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.

23

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

24

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

25

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

EXHIBIT 1

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 s=-

§ SAN AUGUS!V1:TEXAS Defendant. § BY "/?=---- u

§ § 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 <mt1t;n JY

4.&k,il)~

8.~~ 9./~~ 10. /c ldttdd ~.

11.

. FILED Aft. D~'CLOgK 14 s--:i 20 · JEAN STEt'TOE Dlsii Clerk ~N AU'1!-~· TEXAS ...

CHARGE OF THE COURT 13 10/10

BILL OF COSTS

CV-12-9344

Charles Alford & Mary Lou Alford Vs. Robert Thomas McKeithen, EOG Resource Inc., & Central Texas Land Services

Costs to prepare transcript for the above case is $15.00 and has been paid.

I hereby certify that the above amounts are correct and true.

CLERK'S CERTIFICATE

The State of Texas {

County of San Augustine {

I, Jean Steptoe, Clerk of the District Courts in and for San Augustine County, State

of Texas do hereby certify that the above and foregoing, are true and correct copies of

all the proceedings directed by counsel to be included in the transcript in the case

of Charles Alford & Marv Lou Alford vs. Robert Thomas McKeithen, EOG Resources

Inc., & Central Texas Land Service in Cause No. CV-12-9344

as the same appear from the originals now on file and of record in this office.

Given under my hand and seal of said Court at office in the City of San Augustine,

on the_----'1_ _ day of JulY, 2015.

~e~ District Clerk San Augustine, Texas

Dupnik v. Hermis (Tex. App., 2013)

Cynthia DUPNIK Appellant v.

Hermina HERMIS, Appellee No. 04-12-00417-CV Fourth Court of Appeals San Antonio, Texas Delivered and Filed: March 13, 2013

MEMORANDUM OPINION On February 19, 1991, Hermis deeded to From the 81st Judicial District Court, Karnes Dupnik and her husband one acre out of County, TexasTrial Court No. 11-11- Hermis's partitioned 24.68 acres (the "1991 00269Honorable Donna S. Rayes, Judge deed"). Both parties agree the 1991 deed Presiding conveyed both the surface and Hermis's undivided one-fourth mineral interest in the acre.

Opinion by: Catherine Stone, Chief Justice On October 28, 1994, Hermis deeded to Sitting: Catherine Stone, Chief Justice Dupnik and her husband five acres out of Sandee Bryan Marion, Justice Hermis's partitioned 24.68 acres (the "1994 Rebeca C. Martinez, Justice deed"). The five acres conveyed in the 1994 deed included the one acre conveyed in the 1991 AFFIRMED AS MODIFIED deed, and, again, both parties agree the 1994 Cynthia Dupnik appeals the trial court's deed conveyed both the surface and Hermis's denial of her motion for summary judgment and undivided one-fourth mineral interest in all five the grant of Hermina Hermis's motion for acres. summary judgment, which declared that Hermis On August 27, 1998, Hermis and Dupnik owned title to the mineral interest in land again engaged in a conveyance of Hermis's conveyed by Hermis to Dupnik in 1998. property in Karnes County. The deed resulting Specifically, Dupnik asserts that the 1998 deed from this conveyance is the subject of this suit was ambiguous and the trial court erred by not and will be referred to as the "1998 deed." The considering the circumstances surrounding the relevant portion of the 1998 deed recites the conveyance in determining the intention of the following: parties. Hermis responds that the deed unambiguously grants Dupnik the surface estate PROPERTY (including any only, and that the suit is barred by the statute of improvements) frauds and the statute of limitations.

24.68 acres out of the E. Seguin Page 2 Survey, Karnes County, Texas, and fully described in Exhibit BACKGROUND A.

Marcine Dupnik, Hermina Hermis, Emma RESERVATIONS from and Dunaubauer, and M.E. Syring each owned an Exceptions to Conveyance and undivided one-fourth interest in both the surface Warranty: and the minerals of an approximately one- hundred acre tract in Karnes County, Texas. In None 1983, these individuals agreed to partition the surface estate into four equal parts (24.68 acres Exhibit A titles the property described as each), but each maintained an undivided one- "Tract No. Two: (the surface only)" and then fourth mineral interest in the entire one-hundred gives the metes and bounds description for acre tract. Hermis's tract from the 1983 partition deed. On

EXHIBIT 3 -1-

Dupnik v. Hermis (Tex. App., 2013)

November 2, 2011, over thirteen years after the asserts that Dupnik's claim is barred by the 1998 deed was signed, Dupnik filed suit against statute of frauds and the statute of limitations.

Page 3 Page 4

Hermis requesting the trial court to declare STANDARD OF REVIEW Dupnik the owner of the undivided one-fourth mineral interest in the entire one-hundred acre We review a trial court's summary tract. Hermis filed an answer, a counterclaim for judgment de novo. Provident Life & Accident trespass to try title, and a motion for summary Ins. Co. v. Knott, 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

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

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

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

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 --------