                             NUMBER 13-09-184-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

YOLANDA HERNANDEZ, INDIVIDUALLY
AND ON BEHALF OF THE ESTATE OF
PEDRO FLORES, ET AL.,                                                     Appellants,


                                           v.

EL PASO PRODUCTION COMPANY N/K/A
EL PASO E&P COMPANY, L.P.,                                                  Appellee.


                   On appeal from the 139th District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
              Before Justices Rodriguez, Benavides, and Vela
                  Memorandum Opinion by Justice Vela
      This appeal is from a trial court order granting summary judgment for appellee, El

Paso Production Company n/k/a El Paso E&P Company, L.P., and against appellants,

Yolanda Hernandez, individually and on behalf of the Estate of Pedro Flores, Juan Flores,
Sigifredo Flores, Desiderio Flores and David Flores (collectively, Athe Hernandezes@), in a

suit brought to quiet title with respect to a mineral estate. The Hernandezes urge that the

trial court erred by: (1) construing the deed at issue to convey more than a one-sixteenth

mineral interest in the subject property, (2) construing the deed at issue based on the

Aestate misconception@ theory, (3) granting El Paso=s motion for summary judgment

based on subsequent extrinsic evidence, (4) granting El Paso=s summary judgment

motion based on a title opinion, (5) granting summary judgment that the Hernandezes

take nothing on their trespass cause of action; and (6) denying their motion for partial

summary judgment because they are the title owners to a seven-sixteenth interest in the

mineral estate in and under the property at issue. The Hernandezes also argue that

there was an issue of fact precluding summary judgment on the claim of surface damage

and that the award of attorney=s fees was improper. We affirm, in part, and reverse and

remand, in part.

                               I. PROCEDURAL BACKGROUND

       The Hernandezes filed suit to quiet title asserting, at the time the pleadings initially

were filed, that they Aare the owners of the surface and one-half of the mineral estate of a

certain tract of land located in Hidalgo and Starr Counties, Texas. . . .@ In their second

amended pleadings, the Hernandezes allege that they owned Aat least 1/2 of the mineral

estate.@ But, in their fourth amended petition they claim they own 7/8 of the mineral

interests. The Hernandezes also added causes of action for breach of fiduciary duty,

fraud, constructive fraud, breach of the duty of good faith and fair dealing, conversion,

negligence, gross negligence, trespass, and damage to the surface estate. El Paso filed



                                              2
a plea in abatement and answered the lawsuit. Later, J.F. Ewers, Jr., J.F. Ewers, III.,

Michelle Craig, David A. Ewers, Alan D. Ewers, and William B. Ewers, (collectively, the

“Ewers”) filed a plea in intervention, alleging that they own mineral interests in the tract of

property set forth in the Hernandezes’ petition. The Hernandezes counterclaimed to

quiet title and sought a declaration that they were the owners of the surface and mineral

interests.

       The Hernandezes sought summary judgment on the title claim. Thereafter, El

Paso also sought summary judgment, alleging that the Hernandezes had no interest in

the mineral estate and El Paso moved for summary judgment on the remaining claims.

El Paso filed a no-evidence motion for summary judgment on most of the remaining

claims. The trial court=s order granted El Paso=s no-evidence and traditional motions and

awarded it attorney=s fees pursuant to chapter 37 of the Texas Civil Practice & Remedies

Code. TEX. CIV. PRAC. & REM. CODE ANN. ' 37.009 (Vernon 2008).

       This Court abated the case on October 20, 2010 to clarify whether the trial court

intended to dispose of all parties and claims on its judgment of January 16, 2008. The

Court noted that the intervention and counterclaim were not specifically disposed of in the

judgment. The judgment is entitled “Final Judgment” and orders that the Hernandezes

take nothing by their suit. Upon remand, the trial court issued an order stating that it

intended the judgment to be final because the intervention and counterclaim were made

moot by the order granting summary judgment. After reviewing the motion for summary

judgment and pleadings, we agree that the trial court’s order of January 16, 2008 made

the intervention and counterclaim moot and is final.



                                              3
                               II. THE MINERAL INTERESTS

      The parties in this case primarily dispute the interpretation of a mineral deed that

was recorded in 1932 from Romulo Salinas and his wife, Nicanora Rodriguez, (ASalinas@)

to C. J. Bolleter (the ABolleter deed@).   The parties agree that the Bolleter deed is

unambiguous, but urge alternate interpretations. The Hernandezes claim that the deed

conveyed a one-sixteenth mineral interest to Bolleter and that the Hernandezes, as the

heirs of Salinas, own an undivided seven-sixteenth=s of the mineral interest in and under

the subject property. El Paso was the assignee of mineral interests in the subject land.

It claims that Romulo and Nicanora Salinas conveyed all of their mineral interest in the

subject land during their lifetime and, while the Hernandezes own the surface estate, they

do not own any of the mineral interests. The original deed, which is the source of the

controversy, granted a:

                    One sixteenth interest in and to all of the oil, gas and
             other minerals in and under and that may be produced from
             the following described lands situated in Hidalgo County,
             Texas. . . .

                    And said above described lands being now under an
             oil and gas lease originally executed in favor of La Joya Oil
             and Gas Co. and now held by La Joya Oil and Gas Co., it is
             understood and agreed that this sale is made subject to said
             lease, but covers and includes one half (1/2) of all the oil
             royalty and gas rental or royalty due and to be paid under the
             term of said lease.

                     It is agreed and understood that None of the money
             rentals which may be paid to extend the term within which a
             well may be begun under the terms of said lease is to be paid
             to the said C. J. Bolleter, and in the event that the said above
             described lease for any reason becomes cancelled or
             forfeited, then and in that event, the lease interests and all
             future rentals on said land, for oil, gas and mineral privileges
             shall be owned jointly by C. J. Bolleter and Grantors herein,

                                            4
             Romulo Salinas & Nicanor (sic) Rodriguez each owning one
             half 1/2 of Royalty same being 1/2 of 1/8 or 1/16 interest in all
             oil, gas and other minerals in and upon said land under the
             present lease or any future lease on said land together with
             1/2 one half interest in all future rents.

      There are also additional deeds and information in the chain of title that are

necessary to discuss in our disposition of this case. One deed, dated May 26, 1932,

from C. J. Bolleter et. ux. to J. E. Wilkins, conveyed 1/4 of his mineral interest in the

subject land to Wilkins. Another, dated September 17, 1932, conveyed a 1/4 interest

from C. J. Bolleter and Annie C. Bolleter to Theresa C. Gallucci. A third deed, dated

March 10, 1934, conveyed an undivided 1/2 mineral interest in the subject land to R. H.

Woods.

      In 1934, Romulo and Nicanora Salinas executed an affidavit averring that they had

conveyed, sold, assigned or transferred:

             all their right, title and interest in an to all minerals. . ., and all rights
      accruing by virtue thereof on top and underneath the surface of the
      hereinafter described property, one-half of such mineral rights being sold to
      R. H. Woods, for a valuable consideration, of Hidalgo County, Texas; and
      one-fourth to Ed Wilkins, of Hidalgo County, Texas; and one-fourth to
      Theresa Galluci, of Hidalgo County, Texas. . . .

      In 2001, an oil, gas and mineral lease from Pedro Flores to Thorp Petroleum

Corporation was recorded purporting to cover mineral interests with respect to the same

land. Flores and his estate acquired his interest in the land from the heirs of Romulo and

Nicanora Salinas by warranty deed dated January 22, 1953.

                                 III. STANDARD OF REVIEW

            Whether the motion for summary judgment was brought pursuant to

no-evidence or traditional grounds determines our standard of review. See TEX. R. CIV.

                                               5
P. 166a(c), (i); see also Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.–Corpus

Christi 2003, no pet.). A no-evidence summary judgment equates to a pre-trial directed

verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Ortega, 97

S.W.3d at 772. We review the evidence presented by the motion and the response in

the light most favorable to the party against whom the summary judgment was rendered,

crediting evidence favorable to a party if reasonable jurors could, and disregarding

contrary evidence unless reasonable jurors could not. Mack Trucks Inc., 206 S.W.3d at

582.   We utilize a de novo standard in reviewing the trial court's granting of a traditional

motion for summary judgment. See Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.–Corpus

Christi 2003, no pet.).   We must determine whether the movant met its burden to

establish that no genuine issue of material fact exists and that the movant is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); see Sw. Elec. Power Co. v. Grant,

73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671, 678 (Tex. 1979). In a traditional summary judgment, the movant bears the burden

of proof, and all doubts about the existence of a genuine issue of material fact are

resolved against the movant. See Sw. Elec. Power Co., 73 S.W.3d at 215. We take as

true all evidence favorable to the non-movant, and we indulge every reasonable inference

and resolve any doubts in the non-movant's favor.          See Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

       We affirm a traditional summary judgment only if the record establishes that the

movant has negated at least one essential element of the plaintiff's causes of action or

has conclusively proved its defense as a matter of law. IHS Cedars Treatment Ctr. of

                                             6
DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); see Am. Tobacco Co. v.

Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Clear Creek Basin Auth., 589 S.W.2d at 678.

When reasonable people could not differ as to the conclusion to be drawn from the

evidence, the matter is conclusively established. City of Keller v. Wilson, 168 S.W.3d

802, 816 (Tex. 2005). Once the movant has produced sufficient evidence to establish its

right to summary judgment, the burden to produce competent controverting evidence

raising a fact issue with regard to the challenged element shifts to the non-movant.

Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see Centeq Realty, Inc.

v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). When the trial court's judgment does not

specify which of several proposed grounds was dispositive, we affirm on any ground

offered that has merit and was preserved for review. See Joe v. Two Thirty Nine J.V.,

145 S.W.3d 150, 157 (Tex. 2004).

                                     IV. ANALYSIS

      We first address the Hernandezes= issue that the trial court erred in granting

summary judgment because the trial court erred in construing the Bolleter Deed to convey

more than a one-sixteenth mineral interest. The Hernandezes primarily argue that the

only applicable clause we should consider is the granting clause. El Paso argues that

we need to harmonize the language in the entire deed. We agree that the law clearly

requires us to go beyond the granting clause in our review and we must examine all three

clauses of the deed.

      In construing the meaning of a deed, our duty is to ascertain the intent of the

parties as set forth within the four corners of the document. Luckel v. White, 819 S.W.2d

459, 461 (Tex. 1991). The court, in Luckel, rejected the notion that the granting clause

                                           7
prevails.   Id. at 461. We examine the entire writing in an effort to harmonize and

effectuate all provisions in the agreement, even if different parts appear inconsistent or

contradictory. Id. at 462. Each word and phrase should be given its plain, grammatical

meaning unless doing so would defeat the parties= intent. Moon Royalty, LLC v. Boldrick

Partners, 244 S.W.3d 391, 394 (Tex. App.–Eastland 2007, no pet.). A deed may be

either ambiguous or unambiguous; such determination is a question of law.

Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996). Neither

party here claims that the deed at issue is ambiguous.

       The deed at issue in this case has different fractions appearing within the same

instrument. This common occurrence in older oil and gas deeds has been a source of

problems over the years. See Concord Oil Co. v. Pennzoil Exploration & Prod. Co., 966

S.W.2d 451, 452 (Tex. 1998). The form of the deed at issue here was a three-paragraph

deed, apparently commonly used in the 1930s, that included: (1) a Agranting@ clause; (2)

a Asubject to@ clause; and (3) a Afuture lease@ clause. See Richard F. Brown, Oil, Gas

and Mineral Law, 60 SMU L. REV. 1189, 1191 (2007). In the 1930s, when the Athree

grant@ clauses were commonly used, Aroyalties were almost always one-eighth, and it

would be a very unusual and very creative grantor who actually intended two separate

grants of differing interest.@ See id. at 1194. The granting clause is similar to other real

property conveyances; the subject-to clause explains that the conveyance is subject to an

existing lease; and the future lease clause provides for ownership rights after the existing

lease expires. Laura H. Burney, The Regrettable Rebirth of the Two-Grant Doctrine in

Texas Deed Construction, 34 S. TEX. L. REV. 73, 86 (1993).           This deed form was

developed to make a single conveyance of a fractional mineral interest and appurtenant

                                             8
rights. Id. According to Burney, most leases provided for a 1/8 royalty, but drafters

incorrectly perceived the estate to be a fee simple determinable with 7/8 of the mineral

interest lying with the lessee. Id. at 88. AAlthough the lessor only retains a 1/8 royalty

interest, the lessor still has the possibility of a reverter in the entire mineral estate.@ Id.

AFor example, a lessor who has leased the entire mineral estate, but desires to lease-one

half of the minerals, would assume that he owned 1/8 of the minerals due to the existing

lease. Therefore, the lessor would use the fraction 1/16, or a double fraction, 1/2 of 1/8,

to convey 1/2 of what he perceived he owned.@ Id. at 89. The Texas Supreme Court

has taken judicial notice that the Aprevailing royalty in private oil and gas leases in the

1930s was a 1/8 royalty.@ Concord, 966 S.W.2d at 459-60.

       In their text on Texas oil and gas law, Ernest E. Smith and Jacqueline Lane

Weaver explain these types of 1930s deeds, stating: Aa person purchasing an undivided

1/2 interest in lessor=s land should receive a deed conveying 1/16 of the oil and gas

beneath the tract but covering and including 1/2 of all rents and royalties payable under

the outstanding oil and gas lease to which the grant was made subject.@ Ernest E. Smith

& Jacqueline Lane Weaver, Texas Law of Oil and Gas, ' 3.8 A.2 (2d edition Rev. 2007).

       In Concord Oil, the Texas Supreme Court considered a deed similar to the one at

issue in this case, with differing fractions in the various clauses of the deed. 966 S.W.2d

at 453. The court reaffirmed that the primary objective in construing mineral deeds was

to determine the intent of the parties. Id. at 454. The court noted that when it had

considered cases in the past with inconsistencies between the fraction in the granting

clause and those in other clauses, it was evident that the grantor had conveyed a larger



                                              9
interest than the granting clause indicated. Id. at 455. The court noted that in Tipps v.

Bodine, 101 S.W.2d 1076 (Tex. App.–Texarkana 1937, writ ref=d), the granting clause

granted a 1/16 interest in the minerals. Yet, the other clauses effectively conveyed a

larger fraction. Id. The Tipps court held that the conveyance was actually a 1/2 interest

in the minerals even though the granting clause contained the fraction A1/16.@ Id. The

Concord court also noted that the facts in Garrett v. Dils Co., 299 S.W.2d 904 (Tex. 1957),

were similar to Tipps and resulted in a 1/8 interest in the minerals, rather than a 1/64

interest, as stated in the granting clause. Id.

       Here, the Hernandezes want us to rely upon only the granting clause, granting

AOne sixteenth interest in and to all of the oil, gas and other minerals.@ But, the law

requires us to look at all three clauses to reach the correct interpretation. Luckel, 819

S.W.2d at 461.     The deed at issue here provides guidance as to what the parties

intended. While the granting clause grants a 1/16 interest in the minerals, the Asubject

to@ clause covers and includes one half (1/2) of all the oil royalty and gas rental or royalty

due and to be paid under the term of said lease. The Asubject to@ clause shows the intent

to convey a full 1/2 of all royalty and gas rental due under the terms of the lease. This

indicates that the grantors understood that a 1/8 royalty was what they owned and they

were giving 1/2 of that to the grantees.

       It is also clear that the future lease clause under the Bolleter deed provided that the

oil, gas and mineral privileges would be owned by the grantors, Romulo Salinas and

Nicanora Rodriguez Salinas, as well as Bolleter. The future lease provision expresses

the parties= intent that they jointly own the minerals, 1/2 each. And the language in the



                                             10
future lease provision describing A1/2 of 1/8 or 1/16" further confirms that the grantors

thought that the 1/8 royalty interest was all that they owned. Thus, by granting a 1/16th

interest, the grantors were conveying 1/2 of what they owned on the existing as well as

any potential future leases.

       By construing the deed pursuant to the rules relevant to the construction of these

types of deeds, as outlined by the Texas Supreme Court, we conclude that the Salinases

conveyed 1/2 of their interest through the Bolleter deed. The parties agree and concede

that Salinas and Rodriguez conveyed a 1/2 mineral interest to Woods two years later.

Salinas then had no mineral interest remaining when the heirs executed the deed to

Pedro Flores in 1953.     Thus, the 1953 conveyance included only surface interest.

Therefore, we hold that Salinas and Rodriguez had previously conveyed all of their

mineral interests before they executed the deed to Pedro Flores in 1953. We overrule

issue one.

       By issue two, the Hernandezes argue that we should construe the document

against the scrivener because Romulo Salinas and Nicanora Rodriguez were unable to

sign their names to the deed and signed with an AX.@ We first note that we have no idea

who the scrivener of the deed was. Deeds are usually prepared by the grantor or by a

scrivener or under his direction. McMahon v. Christmann, 303 S.W.2d 341,346 (Tex.

1957). In this case, the grantors were Romulo Salinas and his wife, Nicanora Rodriguez

De Salinas. And we also note that only Nicanora R. De Salinas signed with an AX.@ Her

husband did not. Further, we will not apply this secondary canon of construction to this

deed because we have not found the deed ambiguous. We look within the four corners

of the deed. We overrule issue two.

                                           11
       The Hernandezes argue by their third issue that the summary judgment should be

reversed because the trial court considered extrinsic evidence in interpreting the Bolleter

Deed. An appellate court presumes that, in a matter tried without a jury, a trial court

disregards any incompetent evidence and considers only competent evidence. Garza v.

Prolithic Energy Co. L.P., 195 S.W.3d 137, 147 (Tex. App.–San Antonio, pet. denied).

Further, some of the evidence that the Hernandezes suggest was extrinsic was ultimately

necessary for the trial court to conclude whether any interest in the minerals remained.

For instance, at various points, the Hernandezes claimed that they owned between 1/2

and 7/8 of the minerals in and under the subject land. Thus, in order to obtain summary

judgment on its claim that the Hernandezes owned nothing, it was necessary for El Paso

to introduce evidence in the chain of title to establish that the Salinases did not retain any

mineral interest at the time the surface was conveyed to the Pedro Flores. This evidence

was outside the Bolleter deed. For both reasons, we overrule issue three.

       By issue four, the Hernandezes argue that the trial court erred in granting summary

judgment in favor of El Paso based on the expert opinion of Lee S. Gill. Gill=s title

opinions were included as summary judgment evidence with respect to El Paso=s

traditional motion for summary judgment. A title opinion, issued in 2002, concluded that

Flores acquired his interest in the land from the heirs of Romulo and Nicanora Salinas.

Gill opined that Romulo and Nicanora Salinas sold all of their mineral interest in the

subject land during their lifetime. Thus, the opinion suggests that Pedro Flores could not

have acquired a mineral interest in the land from the Salinas heirs. The Hernandezes

argue that expert testimony regarding the construction of an unambiguous deed is a pure

question of law for the court and the experts are not permitted to testify regarding their

                                             12
opinions as to pure questions of law. See Upjohn Co. v. Rylander, 38 S.W.3d 600, 611

(Tex. App.–Austin 2000, pet. denied). As previously stated, we presume in a matter tried

without a jury, a trial court disregards any incompetent evidence and considers only

competent evidence.     Garza v. Prolithic Energy Co. L.P., 195 S.W.3d at 147.          To

reverse a judgment for error in either the admission or exclusion of evidence, a party must

show that the error probably resulted in an improper judgment. TEX. R. APP. P. 44.1.

We do not know if the trial court considered the Gill affidavit or not in granting summary

judgment in favor of El Paso. We will presume, without deciding the issue of whether the

Hernandezes objections were properly overruled, that the trial court considered only

admissible evidence. We overrule issue four.

       The Hernandezes argue in issue five that they have shown that the Bolleter deed

is unambiguous, but if we determined that there was an ambiguity then there is a fact

issue for the jury. We agree with both parties that the Bolleter deed is not ambiguous.

Therefore, we overrule issue five.

       By their sixth issue, the Hernandezes claim that El Paso failed to meet its burden

as there is a genuine issue of material fact regarding their claims pertaining to damage to

the surface estate.   In their pleadings, the Hernandezes alleged that El Paso had

trespassed on the surface of the property and had committed waste and surface damage,

entitling them to damages. In our review of El Paso=s no-evidence motion for summary

judgment, it does not appear that El Paso moved for a noBevidence motion for summary

judgment with respect to damages to the surface estate. Therefore, we look only to the

traditional motion for summary judgment, the evidence supporting it and any

controverting evidence filed by the Hernandezes to determine whether El Paso has

                                            13
proven its right to summary judgment as a matter of law with respect to the claim of

trespass and damage to the surface estate.

        El Paso contends that when the mineral leases were assigned to it, the

conveyance was separate from the surface land. According to El Paso, the mineral

leases gave El Paso the dominant estate, providing it the right to use as much of the

premises and in a manner reasonably necessary to effectuate the purpose of the lease.

Additionally, El Paso argues that the Hernandezes signed surface damage waivers,

expressly allowing for the use of the surface.

        As proof, El Paso submitted the affidavit of James F. Cohn. The Hernandezes

objected to his affidavit as conclusory. Cohn averred that he observed the surface

based on visits to the location and saw no instances where ordinary care had not been

used.   He said that there had been no use of the surface beyond that which was

reasonable and necessary to operate the three wells that were being operated on the

property. He stated that the property had been improved by the installation of a road

providing access to the property. The record also contains three surface use settlement

agreements where, in consideration of $6,000, the Hernandezes released El Paso from

all claims of loss, damage, or injury to the property arising out of the installation, operation

or removal of all facilities related to the principal facility. The waiver did not, however,

apply to future loss caused by negligence or willful misconduct.

        The Hernandezes point to the affidavit of Yolanda Hernandez as controverting

evidence that would create a fact issue. Moreover, they argue that El Paso has not

established its right to summary judgment as a matter of law because the Cohn affidavit is

conclusory and the releases expressly disclaim Acoverage of future negligence.@

                                              14
       Summary judgment based on the uncontroverted affidavit of an interested witness

is proper if the evidence is clear, positive, direct, otherwise credible, free from

contradictions and inconsistencies and could have been readily controverted. TEX. R.

CIV. P. 166a(c). The mere fact that an affidavit is self serving does not necessarily make

it improper summary judgment evidence. Trico Techs. Corp. v. Montiel, 949 S.W.2d

308, 310 (Tex. 1997).

       Here, Cohn was on site and testified that he observed no use upon the property

that was unreasonable or unnecessary. Yolanda Hernandez however, filed an affidavit

and attached a letter from Cohn to her father as controverting evidence. In her affidavit,

she avers that Cohn=s factual representation is untrue and conflicts with a letter he had

previously written to her father wherein he discusses Athe damages associated with the

recent installation of a gas lift pipeline@ and El Paso offered to pay A$1.00 per linear foot

for that section of pipe between pads for a total settlement of $1,414.00.@             The

Hernandezes=s affidavit explains that they did not accept El Paso=s offer.

        El Paso argues in its brief that the letter does not describe any negligent act and

that the installation of gas pipeline is within the scope of surface use agreements and

consideration was already paid for all such facilities. El Paso also argues that the

surface lease agreements unambiguously cover all activities from installation to

abandonment.       However, the summary judgment evidence presented by the

Hernandezes does indicate that El Paso was willing to pay some amount beyond what

the surface agreement allowed. The requisites to prove negligence of a mineral lessee

are the same as for any other tortfeasor. See Keeton & Jones, Tort Liability and the Oil

and Gas Industry, 35 TEXAS L. REV. 1, 12 (1956). But it was El Paso=s burden, as the

                                             15
movant, to establish as a matter of law that it was not negligent with respect to damages

to the surface estate. Regardless of whether or not Cohn=s affidavit was clear, positive

and direct, the Hernandezes=s summary judgment evidence raised a fact issue with

respect to the surface damage claim. We sustain issue six.

      By appellant=s seventh issue, the Hernandezes argue that the trial court erred in

awarding attorney=s fees. El Paso urges it is entitled to attorney=s fees pursuant to

section 37.009 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. &

REM. CODE ANN. ' 37.009. The Hernandezes contend that title disputes are governed by

chapter 22 of the property code and attorney=s fees are not available. See EOG Res. v.

Killam Oil Co., 239 S.W.3d 293, 304 (Tex. App.–San Antonio 2007, pet. denied).

Because we are reversing and remanding a portion of the case for a factual

determination, we likewise reverse and remand to the trial court to reconsider what

award, if any, is appropriate. See Neely v. West Orange-Cove Consol. Ind. School Dist.,

176 S.W.3d 746, 799 (Tex. 2005). The Hernandezes= seventh issue is sustained.

                                    V. CONCLUSION

      We affirm the trial court=s judgment that the Hernandezes own no right to the

mineral interests at issue; and the trial court correctly granted summary judgment on this

ground. We reverse and remand the grant of summary judgment with respect to the

surface damage claim and the award of attorney=s fees.



                                                   ROSE VELA
                                                   Justice
Delivered and filed the
14th day of April, 2011.


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