                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00214-CV


MATTHEW LYKKEN AND                                             APPELLANTS
SUZANNE LYKKEN

                                     V.

JON K. KINDSVATER AND JAN G.                                    APPELLEES
KINDSVATER


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         FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 096-262837-12
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                       MEMORANDUM OPINION 1

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     Appellants Matthew Lykken and Suzanne Lykken appeal the trial court’s

orders granting summary judgment in favor of appellees Jon K. Kindsvater and

Jan G. Kindsvater and awarding attorneys’ fees to the Kindsvaters. We reverse




     1
      See Tex. R. App. P. 47.4.
the summary judgment on the Lykkens’ warranty of seizen claim and the award

of attorney’s fees.

                                Background Facts

      The Kindsvaters owned property in Colleyville in Tarrant County.           In

September 2008, the Kindsvaters entered into an oil and gas lease with Titan

Operating, LLC.       Under the lease, the Kindsvaters were entitled to a bonus

payment.    Titan recorded a memorandum of the lease in the real property

records of Tarrant County in 2009.

      On February 12, 2012, the Kindsvaters entered into a sales agreement

with the Lykkens for the Kindsvaters’ property. The sales contract required the

Kindsvaters to convey a general warranty deed. Paragraph 6(D) states that the

Lykkens could object to any defects, exceptions, or encumbrances to title. If they

objected, the contract states that the Kindsvaters

      shall cure the timely objections . . . within 15 days after Seller
      receives the objections and the Closing Date will be extended as
      necessary. If objections are not cured within such 15 day period,
      this contract will terminate and the earnest money will be refunded to
      Buyer unless Buyer waives the objections.

      On February 21, 2012, the Lykkens received a title commitment from the

title insurance company that contained an exception from the title because of the

notice of the oil and gas lease in the property records. They told the Kindsvaters’

agent that they had been unaware of the lease, requested a copy of the lease,

and demanded that the Kindsvaters “turn over any proceeds received [under the

lease] and . . . convey the rights to any future proceeds.” On February 22, 2012,

                                         2
the Kindsvaters’ agent confirmed that the Kindsvaters would transfer the mineral

rights to the Lykkens.

      The Lykkens received a copy of the lease on February 28, 2012. The next

day, they sent a demand letter to the Kindsvaters, arguing that the Kindsvaters

had received a $9,325 signing bonus and although the Kindsvaters could convey

their future rights under the lease, the Lykkens were “still damaged to the extent

of the signing bonus” that the Kindsvaters had already received. The Lykkens

demanded “cash compensation or a price discount in compensation for that

determent.”

      On March 5, 2012, the Lykkens submitted a formal objection to the title

defect represented by the gas lease. 2 The day before closing, on March 7, 2012,

Matthew Lykken sent an email to the Kindsvaters stating,

             [T]omorrow afternoon at close, unless we have beforehand
      reached an agreed settlement with the sellers, we will tender the
      purchase price, renew our objection to the defective title, claim an
      abatement of purchase price in the amount of $9,325, and object to
      the escrow agent's release of $9,325 of the purchase price to sellers
      on the grounds that sellers will not be tendering that which they are
      required to tender to the escrow agent in order to trigger the release
      of funds, i.e. good title and a warranty deed to the property inclusive
      of the mineral rights or, at least, warranty deed for the rights
      possessed by the sellers, including an assignment of their interest in
      the gas lease and financial compensation in the full amount of the
      bonus previously received. . . . If the escrow agent does not initiate
      legal action to determine the appropriate disposition of the funds in
      interpleader, we will promptly initiate action against the sellers to


      2
       No copy of the objection is in the record. However, the Kindsvaters do not
dispute the Lykkens’ claim that they filed a formal objection.

                                        3
      obtain a judgment confirming our $9,325 abatement and to have
      those funds released back to us.

      At closing on March 8, 2012, the Lykkens tendered the full purchase price,

but told the escrow agent to withhold $9,325 for the “presumed bonus payment”

under the gas lease. The escrow agent told the Lykkens that he could not do

that under Texas law. The Lykkens agreed to disburse the full purchase price

from the escrow account. They signed a printed copy of the above email from

March 7, 2012, and wrote,

      For the reasons stated above, the undersigned purchasers formally
      object to the release of the purchase money funds to the extent of
      $9,325 plus estimated costs of determination due to the failure of
      sellers to tender full performance as required by the contract and
      demand that said funds be retained in escrow pending performance
      of satisfactory resolution of the dispute.

The Kindsvaters executed and delivered a general warranty deed and transferred

the gas lease.

      In November 2012, the Lykkens sued the Kindsvaters for fraudulent

inducement, breach of warranties of seizen and right to convey, and in the

alternative, breach of warranty against encumbrances, “enforcement of

conveyance,” and breach of contract. The Lykkens filed their petition pro se but

requested that they be awarded attorneys’ fees.

      In December 2012, the Kindsvaters filed an answer and special

exceptions.      They then filed a motion for summary judgment on all of the

Lykkens’ claims against them, arguing that they conveyed all of their title to the

Lykkens via the deed and assignment. In January 2013, the Kindsvaters filed a

                                        4
motion for a protective order against the Lykkens’ requests for admissions and

disclosures. They argued that the requests were numerous, overly burdensome,

and premature, and they requested that the trial court abate the response

deadline until after the hearing on their motion for summary judgment. The trial

court granted the motion and ordered that the deadline to respond to the

requests be extended until thirty days after the trial court’s order on the special

exceptions and motion for summary judgment.

      The Lykkens filed a response to the special exceptions and to the motion

for summary judgment. They also filed a supplemental petition and an amended

response to the Kindsvaters’ special exceptions and motion for summary

judgment.    They made no new claims and sought no new relief in their

supplemental petition, but they clarified that their “enforcement of conveyance”

claim “should be understood to encompass” a request for specific performance or

a claim for money had and received. They also noted that “Matthew Lykken has

been required to make substantial out-of-pocket expenditures for admission fees,

dues, and taxes in order to become a licensed Texas attorney for this

proceeding.” 3 In their amended response to the motion for summary judgment,

the Lykkens requested partial summary judgment be granted “determining that

[the Kindsvaters] are liable for breach of the warranties of seisen and right to

convey.”


      3
       Matthew Lykken entered an appearance for the Lykkens in January, 2013.

                                        5
      At the hearing on the Kindsvaters’ motions, the Kindsvaters elected to

“hold the special exceptions until after disposition of the motion for summary

judgment.” After the hearing, the trial court granted the Kindsvaters’ motion for

summary judgment and dismissed all of the Lykkens’ claims. Both parties then

filed motions regarding attorneys’ fees and requesting a final order. In June

2013, after a hearing, the trial court granted the Kindsvaters’ request for

attorney’s fees. The Lykkens then filed this appeal. 4

                               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

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 defendant who conclusively

negates at least one essential element of a cause of action is entitled to




      4
       The Lykkens state in their appellate brief that they are not challenging the
summary judgment order on their fraudulent inducement claim. They also state
that their “claims for breach of contract and money had and received fell away
when [the Kindsvaters] admitted, at the summary judgment hearing, that they
delivered a valid warranty deed in execution of the earnest money contract.”

                                         6
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).

                                    Discussion

      I. Summary judgment

      In their first issue, the Lykkens argue that the trial court erred by granting

summary judgment on their breach of warranty claim because the property was

subject to an active oil and gas lease.

             A. The Covenant of Seizen

      The Lykkens sued the Kindsvaters for breach of the warranties of seizen

and right to convey. Seizen (also spelled seisen, seizin, and seisin) is a relatively

uncommon term in breach of covenants of warranty cases in recent history. 5 The

covenant of seizen is “a guaranty against any title existing in a third person [that]

might defeat the estate granted.” Langford v. Newsom, 220 S.W. 544, 545 (Tex.

Comm’n App. 1920, holding approved). The covenant of seizen is synonymous

with the covenant of good right to convey and covenant of ownership “and in the

absence of any qualifying expressions, [is] read into every conveyance of land or

an interest in land, except in quitclaim deeds.” Fender v. Farr, 262 S.W.2d 539,

542–43 (Tex. App.—Texarkana 1953, no writ). If a grantor does not own the

estate in land that he undertakes to convey, he breaches the covenant at the

      5
        Our search found only about sixteen cases in Texas in the past fifty years
that used the word. This court has employed the term only once, in 1915. See
Anderson v. Menefee, 174 S.W. 904, 908 (Tex. Civ. App.—Fort Worth 1915, writ
ref’d).

                                          7
very moment the deed is made. See Westrope v. Chambers’ Estate, 51 Tex.

178, 187 (1879) (“[T]he covenant for right to convey is one in presenti, and if

broken, the breach occurs at the moment of its creation; the covenant, in effect,

being that a particular state of things exists at that time, and this not being true,

the delivery of the deed which contains such a covenant causes an

instantaneous breach.”); Fender, 262 S.W.2d at 542–43.

      The Kindsvaters delivered a general warranty deed that contained no

reservations or exceptions despite the existence of a mineral lease that had

granted to Titan an interest in the mineral estate.         A mineral lease “is a

conveyance of the title to the minerals in place subject to certain special

limitations which render, what would otherwise have been an absolute fee

simple, a determinable fee.”     A. W. Walker, Jr., The Nature of the Property

Interests Created by an Oil and Gas Lease in Texas, 7 Tex. L. Rev. 539, 554

(1929); see also Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 192

(Tex. 2003) (“When an oil and gas lease reserves only a royalty interest, the

lessee acquires title to all of the oil and gas in place, and the lessor owns only a

possibility of reverter and has the right to receive royalties.”).        Thus, the

Kindsvaters did not have title to the entire mineral estate at the time they

executed and delivered the deed. Because they purported, through the clear

language of the deed, to convey the entire mineral estate to the Lykkens when a




                                         8
third party had title to part of that estate, the Kindsvaters were in immediate

breach of the covenant of seizen. 6

      We are discomforted by the idea that a party may close on a contract when

he knows at the time of agreement that the other party is in breach and he

intends to sue on the contract for that breach.       However, we are limited to

evaluating only the issues that are properly before us.       See Tex. R. Civ. P.

166a(c) (“Issues not expressly presented to the trial court by written motion,

answer[,] or other response shall not be considered on appeal as grounds for

reversal.”). The Kindsvaters sought summary judgment on the Lykkens’ breach

of warranties claim on the sole ground that they did not breach the warranty

because they conveyed what title they possessed at the time. This ground does

nothing to negate an element of the Lykkens’ breach of warranties claim. See

Frost Nat’l Bank, 315 S.W.3d at 508. Neither does the fact that the Lykkens

were aware of the lease at the time they accepted the deed.            See City of

Beaumont v. Moore, 146 Tex. 46, 57, 202 S.W.2d 448, 455 (1947) (“In so far as

the warranty is concerned it is not material that Moore possessed or was charged

with knowledge of the servitude or the limitations of the city. His rights under the

warranties arise not from any independent knowledge he possessed, or with

which he was charged, but solely from the language of the deed and the

warranties included and read into it.”); Shield v. Donald, 253 S.W.2d 710, 712

      6
       This is not to say that the Kindsvaters cannot establish some defense to
the Lykkens’ claim. That issue is not before us, and we do not address it.

                                         9
(Tex. Civ. App.—Fort Worth 1952, writ ref’d n.r.e.) (“Since Shield, in the

mortgage given by him, purported to convey and warrant title to the whole tract,

notice, either actual or constructive, had nothing to do with the right of appel[l]ee

to recover for the breach of the covenant of general warranty so contained in

such mortgage.”). The Kindsvaters’ argument that the Lykkens did not pursue

their contractual remedy (that is, cancelling the contract after the Kindsvaters had

the opportunity to cure the defect in title) likewise fails to negate the Lykkens

claim. See Ryan Mortg. Investors v. Fleming-Wood, 650 S.W.2d 928, 933–34

(Tex. App.—Fort Worth 1983, writ ref’d n.r.e.) (holding that wording of sales

contract “did not exclude his common-law remedies so that he can pursue any

remedy which the law affords in addition to the remedy provided in the contract”

and that although purchaser “may have been conclusively deemed to have

accepted Seller’s title, . . . that does not mean he cannot pursue his remedies for

the defects”); see also Bifano v. Young, 665 S.W.2d 536, 539 (Tex. App.—

Corpus Christi 1983, writ ref’d n.r.e.) (“The mere fact that the contract provides a

party with a particular remedy does not necessarily mean that such remedy is

exclusive. A construction which renders the specified remedy exclusive should

not be made unless the intent of the parties that it be exclusive is clearly

indicated or declared.”) (citations omitted).        We therefore find ourselves

constrained to sustain this portion of the Lykkens’ first issue.




                                         10
      B. The Lykkens’ cross-motion for summary judgment

      The Lykkens request that we grant summary judgment determining that

the Kindsvaters breached the deed warranties and are liable for damages equal

to the bonus amount.     The Kindsvaters argue that no motion for summary

judgment was before the trial court. The Lykkens contend that their request for

partial summary judgment, buried in their amended, forty-eight-page, single-

spaced response to the Kindsvaters’ motion for summary judgment, 7 satisfies all

the requirements of a motion for summary judgment. See Tex. R. Civ. P. 21(a)

(stating that a motion must be filed in writing and state the grounds and relief

sought), 166a(c) (stating that a motion for summary judgment must state the

specific grounds on which judgment is sought). However, it was not timely filed.

A nonmovant is entitled to twenty-one days’ notice prior to the hearing on a

motion for summary judgment. Id. 166a(c) (“Except on leave of court, with notice

to opposing counsel, the motion and any supporting affidavits shall be filed and

served at least twenty-one days before the time specified for hearing.”). The

hearing on the Kindsvaters’ motion was held on January 24, 2013. The Lykkens

filed their original response on January 4, 2013, and their amended response on

January 18, 2013.     Thus, neither response was a timely cross-motion for

summary judgment. See Jones v. Ill. Emp’rs Ins. of Wausau, 136 S.W.3d 728,

735 (Tex. App.—Texarkana 2004, no pet.) (holding that plaintiff’s response to


      7
      The Lykkens’ original response was twenty pages, single-spaced.

                                      11
defendant’s motion for summary judgment containing his cross-motion was

timely as a response but not a cross-motion).          The twenty-one-day notice

requirement is strictly enforced by the courts. Lewis v. Blake, 876 S.W.2d 314,

316 (Tex. 1994). The Lykkens did not obtain leave of court to file the motion late,

and we will not consider their motion now. 8 See Jones, 136 S.W.3d at 735 (“We

will therefore consider [the plaintiff’s] motion as a response to the motion for

summary judgment and nothing more.”).          We overrule the remainder of the

Lykkens’ first issue.

II. The Lykkens’ remaining issues

      In their second issue, the Lykkens argue that the trial court erred by finding

that they failed to raise a viable claim for damages. Because we are reversing

the summary judgment on the Lykkens’ cause of action for breach of the

covenant of seizen, we need not reach this issue. See Tex. R. App. P. 47.1.

      In their third issue, the Lykkens argue that the trial court erred by granting

summary judgment on their claims without giving them the opportunity to amend

their pleadings. Because we hold that summary judgment was improper on other

grounds, we also do not need to reach this issue. See id.

      In their fourth issue, the Lykkens argue that the trial court erred by

awarding the Kindsvaters their attorney’s fees. Because we are reversing the

      8
       The Lykkens argue that the Kindsvaters waived any complaint regarding
the timeliness of their cross-motion by not objecting at the January 24, 2013
hearing. There is no indication in the record that the Kindsvaters or the trial court
agreed to hear the Lykkens’ motion at the hearing on the Kindvaters’ motion.

                                         12
summary judgment in favor of the Kindsvaters on the Lykkens’ cause of action

for breach of the covenant of seizen, we sustain their complaint of the award of

attorney’s fees. As we have not granted summary judgment to the Lykkens, we

decline their request to award them their attorney’s fees.

                                   Conclusion

      Having sustained the Lykkens’ first issue as to their cause of action for

breach of the warranty of seizen, we reverse that part of the summary judgment.

Having sustained the Lykkens’ fourth issue, we also reverse the award of

attorney’s fees to the Kindsvaters, and we remand the case for further

proceedings consistent with this opinion.     See Tony Gullo Motors I, L.P. v.

Chapa, 212 S.W.3d 299, 314 (Tex. 2006) (concluding that because evidence of

unsegregated fees constitutes some evidence of an entitlement to segregated

fees, remand was required).



                                                   PER CURIAM

PANEL: GABRIEL, MCCOY, and MEIER, JJ.

MEIER, J., dissents without opinion.

DELIVERED: November 6, 2014




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