                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00223-CV

FRANK WOLFE, JR. AND LLANO
ROYALTY, LTD,
                                                           Appellants
v.

DEVON ENERGY PRODUCTION COMPANY,
LP, BARBARA JEAN GIESER POYNTER 2004
REVOCABLE MANAGEMENT TRUST, GRAYSON
MATTHEW GIESER AND LAURA LEIGH GIESER,
                                     Appellees


                          From the 413th District Court
                             Johnson County, Texas
                           Trial Court No. C200600230


                             CONCURRING NOTE

      At its core, this is a trespass to try title suit. Devon and Gieser have asserted a

claim to certain mineral interest, as have Wolfe and Llano. This appeal is a veritable

minefield of procedural problems and issues that, if not properly reconciled, can

potentially lead to internally inconsistent results and, thus, cause major problems for

the trial court and parties on remand.
       While the Court has systematically resolved the issues raised, my fear is that we

have not fully addressed and resolved the core issue. This issue is, according to Wolfe,

and as stated on page 37 of the opinion: ―We must decide whether the TAB Deed of

Trust is ambiguous.‖ The remaining issues cascade down from the answer to this

question – depending on the answer.

       If it is ambiguous, does the summary judgment procedure allow for its

interpretation by the trial court? This will depend upon the aids to interpretation and

evidence of the related transactions. If it is not ambiguous, or if subsequent transactions

can be construed to properly have renewed and extended the original note and security

for that note, especially the Vendors Lien and Newman Deed of Trust, the next question

will be whether the Newman Deed of Trust was foreclosed upon, and if not, can it be

now.

       There is no need for me to fully resolve these issues, if I could, in this note

because the Court has approached and resolved the appeal in a different manner; thus, I

am left to concur or dissent. But in this instance, I felt it necessary to add a few

comments rather than an opinion in full or simply noting overall agreement or

disagreement with the Court’s opinion and judgment.

                                  STANDING AND CAPACITY

       In a trespass to try title case there will frequently be a question of whether a

party owns any interest in the property. If the evidence establishes that the party has

no interest in the property, it could be said that they have no standing. That is one

reason why, I believe, judgments in trespass to try title cases must make determinations

Wolfe v. Devon Energy Production Co., LP                                             Page 2
of who owns the property interest in dispute. See TEX. R. CIV. P. 804. In this proceeding,

there really does not seem to be a question, from a purely legal point-of-view, that

Wolfe has standing to assert his claim of title, and derivatively, so also would Llano

have standing, at least for a damages claim, if Wolfe has title. See TEX. R. CIV. P. 805.

This is the merits of the case — the trespass-to-try-title case. I will come back to this in a

moment.

       I believe, however, that in this proceeding part of the difficulty is that there is a

serious question about whether Wolfe has the right to recover in the capacity in which

he has brought suit. Capacity is frequently confused with standing. See, e.g. Austin

Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005); Mariner Health Care of Nashville,

Inc. v. Robins, 321 S.W.3d 193, 199-201 (Tex. App.—Houston [1st Dist.] 2010, no pet.)

When I boil this part of the proceeding down to the issues as presented, I would find

Wolfe, and via Wolfe’s interest also Llano, has standing to litigate the trespass to try

title suit. Because no one has properly raised by sworn denial the question of whether

Wolfe can recover in the capacity in which he has brought the claim, I will not address

that issue. But I will note the question is whether he can recover in his capacity as an

unnamed beneficiary of an unwritten trust.

       I must also note that I believe there may be a question of standing that is

collateral to the capacity issue.      That question is whether Devon and Gieser have

standing to challenge Wolfe’s capacity as a beneficiary, or whether that is only a

question that can be raised in an action between the alleged trustee and the alleged

beneficiary, or their respective assignees.

Wolfe v. Devon Energy Production Co., LP                                                Page 3
       And, finally, I have some concerns about how Llano could have standing to

assert a claim of an interest which is dependent on Wolfe’s claim, but which Wolfe

cannot assert. In this regard I believe the objection to the summary judgment evidence

that was sustained, and which evidence was not available for Wolfe to use against

Devon, was thus also not available for Wolfe to use against the Giesers because the

evidence was excluded as a result of Devon’s objection. There was nothing else for

Gieser to preserve or do to keep Wolfe, and, more importantly, the judgment, from

being dependent on the evidence to which an objection had been sustained. This is not

like a party that makes an objection to evidence, the objection is overruled, and thus the

evidence is admitted. The party that made the objection has preserved a complaint. A

co-party that did not object has not preserved a complaint because the evidence remains

before the fact finder. Here, however, because the objection was sustained, there is no

evidence available upon which Wolfe can rely. It was then not Gieser’s duty to further

preserve a complaint. As the complaining party, it was Llano’s burden to preserve the

complaint.

       Most of the foregoing discussion relates to part III of the opinion.

                                    TRESPASS TO TRY TITLE

       I now return to the trespass to try title suit. See TEX. R. CIV. P. ―SECTION 8.

TRESPASS TO TRY TITLE.‖ As previously stated, this suit, at its core, is a trespass to try

title. To prevail on a trespass to try title claim, the party must prove and thus prevail on

the strength of its own title and not by establishing a weakness in the opponent’s claim.




Wolfe v. Devon Energy Production Co., LP                                              Page 4
Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004).           In this regard, Wolfe has

endeavored to identify a common source of title: F.W. and Eva Smith.

       Wolfe then endeavors to prove his title through various conveyances and then an

undocumented trust. In the process he must establish that the alleged trustee of the

unrecorded trust, Morfeld, did not transfer all the interest Morfeld held as trustee to

ABC Utilities. This is where the fact that this is a trespass to try title suit rather than

simply a declaratory judgment suit to construe the note, collateral, and foreclosure

documents is critical.

       As presented by Wolfe, all we need to do is determine whether Summit could

foreclose on the Smith deed of trust and, if so, did Summit properly foreclose on that

interest. Wolfe’s presentation misses two critical aspects of a trespass to try title suit.

First, Hedrick and Little executed an oil and gas lease to Richman Petroleum

Corporation and its assigns, none of which are parties to this suit. If Summit properly

foreclosed on the original note, it wipes out not only Wolfe’s interest, but also the

interest conveyed to Hedrick and Little, and therefore their lease and assigns as well.

       The majority refers to this problem, the absence of necessary parties, in footnote 2

in their opinion. Respectfully, I believe this issue could be one of those rare instances in

which the absence of a necessary party may prohibit the prosecution of the suit. But see

TEX. R. CIV. P. 801. I would request full briefing on that issue and await the time with

patience until we receive an answer from the parties.

       I will make one further observation about the no evidence summary judgment

motion as utilized in this proceeding. The motion asserted Wolfe had no standing to

Wolfe v. Devon Energy Production Co., LP                                              Page 5
assert an interest to the oil and gas interests in controversy. Standing is not an element

of a claim. It is a jurisdictional underpinning of a suit and can be challenged at any

time. Thus, I question whether a no evidence motion for summary judgment, and the

resulting procedural requirements, provides a proper procedural vehicle to raise and

resolve this issue. See TEX. R. CIV. P. 166a(i) (―… may move for summary judgment on

the ground that there is no evidence of one or more essential elements of a claim or

defense ….‖).

       There is one other issue regarding Wolfe’s title, the resolution of which rests in

the interest that Morfeld conveyed to ABC Utilities. It is uncontroverted that Summit

properly foreclosed on whatever interest Morfeld conveyed to ABC Utilities. Thus, a

closer examination of that deed is warranted in this trespass to try title proceeding.

       The deed from Morfeld to ABC Utilities, on its face, is clear as to the interest

conveyed. It conveys the surface estate and one-half of the minerals. It purports to

reserve only one-half of the minerals. There is no other reservation or exception to the

conveyance that would impact the mineral interest. There is, in the habendum clause,

an insert that purports to make the conveyance ―subject to‖ various interests, including

―restrictions, reservations, covenants, conditions, rights of way, easements, …. if any,

affecting the herein described property.‖

       Only if this ―subject to‖ language is adequate to carve out the previous

reservation of one-half of the mineral interest in the deed from Hedrick and Little to

Morfeld from the ―herein described property‖ does the effort to reserve one-half the



Wolfe v. Devon Energy Production Co., LP                                             Page 6
minerals not fail under the Duhig Doctrine for interpreting oil and gas conveyances.

Duhig v. Peevey, 144 S.W.2d 878 (Tex. 1940).

       With these comments, I respectfully concur in the decision to remand this

proceeding to the trial court without joining the opinion or judgment of the Court.



                                           TOM GRAY
                                           Chief Justice

Concurring note issued and filed March 14, 2012




Wolfe v. Devon Energy Production Co., LP                                              Page 7
