                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH


                            NO. 2-07-263-CV


RANGE RESOURCES CORPORATION                                 APPELLANTS
AND RANGE PRODUCTION I, L.P. AND
STEADFAST FINANCIAL, LLC,
R.J. SIKES, KATHY SIKES,
CHRISTY ROME, GREG LOUVIER,
PAM LOUVIER, AND DACOTA
INVESTMENT HOLDINGS, LLP
AND R. CRIST VIAL

                                    V.

BETTY LOU BRADSHAW                                              APPELLEE

                                ------------

         FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                ------------

                      OPINION ON REHEARING

                                ------------

     We deny Appellants’ motion for rehearing, but we withdraw our opinion

and judgment of May 8, 2008 and substitute the following. We affirm.
                                 I. Introduction

      In three issues, Appellants Range Resources Corporation, Range

Production I, LP, Steadfast Financial, LLC, R.J. Sikes, Roger Sikes, Kathy Sikes,

Christy Rome, Greg Louvier, Pam Louvier, Dacota Investment Holdings, LLP,

and R. Crist Vial (collectively “Range”) appeal the trial court’s partial summary

judgment in favor of Appellee, Betty Lou Bradshaw. While the underlying suit

brought by Bradshaw involves claims for breach of fiduciary duty and

conspiracy, the overarching issue in this interlocutory appeal by agreed order

is whether the trial court correctly decided that the reservation in two 1960

deeds was a “fraction of royalty” interest rather than a “fractional royalty”

interest. We conclude that the trial court was correct and that the reservation

was a “fraction of royalty.”

                       II. Factual and Procedural History

      Bradshaw is the holder of a non-participating royalty interest (“NPRI”)1 in

approximately 1,800 acres in Hood County that she inherited from her parents,




      1
       … A non-participating royalty is non-possessory in that it does not entitle
its owner to produce the minerals himself. It merely entitles its owner to a
share of the production proceeds, free of the expenses of exploration and
production. See Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 789
(Tex. 1995); Luckel v. White, 819 S.W.2d 459, 463 (Tex. 1991); Hamilton v.
Morris Res., Ltd., 225 S.W.3d 336, 344 (Tex. App.—San Antonio 2007, pet.
denied).

                                        2
J.A. and Lota Fay Driskill. The Driskills reserved the royalty interest in two

deeds that they executed in 1960 (the “1960 Deeds”). 2

      By 2006, Appellant Steadfast owned the surface and mineral estates in

approximately 1,994 acres in Hood County, of which the Driskills’ reserved

royalty interests covered 1,800 acres. Steadfast conveyed the surface estate

to Appellant Range Resources Corporation but reserved to itself all of the oil,

gas, and other hydrocarbons in the 1,994 acres. At the same time, Steadfast

entered into an oil and gas lease covering the 1,994 acres with Appellant Range

Production I, L.P.; the lease provided for a 1/8 royalty. Steadfast assigned

portions of its royalty interest to the following additional Appellants: R.J. and

Kathy Sikes, R. Crist Vial, the Louviers, and Dacota Investment Holdings, LLP. 3

      In January 2007, Bradshaw filed suit, alleging that Steadfast breached its

fiduciary duty to her by entering into the one-eighth royalty lease with Range

Production I, L.P., when Steadfast owed her a duty to secure a one-fourth

royalty in the lease. Bradshaw argued that she was entitled to a one-eighth

royalty (1/2 of 1/4 lease royalty), rather than a one-sixteenth royalty (1/2 of 1/8



      2
      … In one deed, the Driskills conveyed approximately 600 acres to
Mitchell & Son, a partnership. In the other deed, the Driskills conveyed
approximately 1,173 acres to The Wheatland Retreat, Inc.
      3
      … Steadfast also assigned portions of its royalty interest to Peter G.
Bennis and Roger Sikes.

                                        3
lease royalty) because, at the time Steadfast executed the lease to Range, the

“going royalty rate in Hood County, Texas, was one-fourth.”

      The parties filed competing motions for summary judgment on whether

the 1960 Deeds reserved a “fraction of royalty” or a “fractional royalty”

interest.   Range argued that Bradshaw’s NPRI was a fixed one-sixteenth

“fractional royalty” (1/2 x 1/8) and, therefore, no fiduciary duty was owed or

breached. Bradshaw contended that the 1960 Deeds provided for a “fraction

of royalty,” such that her share of royalty could never drop below one-sixteenth

but could be greater than one-sixteenth. Thus, if a future lease provided for a

one-eighth royalty, she would get a one-sixteenth (1/2 x 1/8) share of

production; if it provided for a one-sixth royalty, she would be entitled to a one-

twelfth (1/2 x 1/6) share of production.

      The trial court agreed with Bradshaw, holding that the royalty interest

reserved in the 1960 Deeds was a “fraction of royalty” interest.              This

interlocutory appeal by agreed order followed. See T EX. C IV. P RAC. & R EM. C ODE

A NN. § 51.014(d) (Vernon 2008). The trial court stayed the proceedings below

pending our review.

                             III. Standard of Review

      Neither Bradshaw nor Range contends that the 1960 Deeds are

ambiguous. The interpretation of an unambiguous deed is a question of law.

                                        4
Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986). Accordingly, we review

de novo the trial court’s construction. EOG Res., Inc. v. Hanson Prod. Co., 94

S.W.3d 697, 701 (Tex. App.—San Antonio 2002, no pet.). When conducting

a de novo review, the reviewing court exercises its own judgment and

redetermines each issue, according no deference to the trial court’s decision.

Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).

            IV. “Fraction of Royalty” versus “Fractional Royalty”

      The sole issue in this appeal is one of deed interpretation: whether the

royalty reservations in the 1960 Deeds constitute a “fractional royalty” or a

“fraction of royalty.”

      A “fractional royalty” interest entitles the owner to the specified fractional

amount stated in the deed of oil, gas, or other minerals produced from the land

and remains constant regardless of the amount of royalty contained in a

subsequently-negotiated oil and gas lease. See Tiller v. Tiller, 685 S.W.2d 456,

458 (Tex. App.—Austin 1985, no writ); Phillip E. Norvell, Pitfalls in Developing

Lands Burdened by Non-Participating Royalty: Calculating the Royalty Share and

Coexisting with the Duty owed to the Non-Participating Royalty Owner by the

Executive Interest, 48 A RK. L. R EV. 933, 935 (1995).

      A “fraction of royalty” conveys a fractional share of the royalty that is

contained in an oil and gas lease—it is not fixed, but rather “floats” in

                                         5
accordance with the size of the landowner’s royalty contained in the lease and,

in addition to the landowner’s royalty, the fraction of non-participating royalty

also shares proportionally in any overriding royalty interest reserved in the oil

and gas lease, and the holder of the executive right owes a duty to the NPRI

owner in establishing the landowner’s royalty in an oil and gas lease. Norvell,

48 A RK. L. R EV . at 935–36.      The amount to be paid to the owner is

determinable upon the execution of some future lease and is calculated by

multiplying the fraction in the royalty reservation by the royalty provided in a

lease. See Winslow v. Acker, 781 S.W.2d 322, 327 (Tex. App.—San Antonio

1989, writ denied); Tiller, 685 S.W.2d at 458.

A. Rules of Deed Interpretation

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

parties by a fundamental rule of construction known as the “four corners” rule.

Luckel, 819 S.W.2d at 461; Bennett v. Tarrant County Water Control & Imp.

Dist. No. One, 894 S.W.2d 441, 446–47 (Tex. App.—Fort Worth 1995, writ

denied). We do not look for the subjective intent of the parties, which may be

conflicting; instead, it is the objective intent, the intent expressed or apparent

in the writing, that is sought. Cherokee Water Co. v. Forderhause, 641 S.W.2d

522, 525 (Tex. 1982). In seeking to ascertain the intention of the parties, we

must attempt to harmonize all parts of the deed. Altman v. Blake, 712 S.W.2d

                                        6
117, 118 (Tex. 1986). Even if different parts of the deed appear contradictory

or inconsistent, the court must strive to construe the instrument to give effect

to all of its provisions. Luckel, 819 S.W.2d at 462.

B. 1960 Deeds’ Royalty Reservations

      The reservation at issue is contained within three unnumbered paragraphs

in each deed, with the controversial portions in italics:

      [1] The Grantors herein reserve unto themselves, their heirs and
      assigns, and except from this conveyance an undivided one-half
      (1/2) Royalty (Being equal to not less than an undivided one-
      sixteent[h] (1/16)[)] of all the oil, gas and/or other minerals in, to,
      and under or that may be produced from said . . . land aforesaid,
      to be paid or delivered to said Grantors, as their own property, free
      of cost Forever; together with the right of ingress and egress at all
      times for the purpose of storing, treating, marketing and removing
      the same therefrom.

      [2] Said interest hereby reserved is a Non-Participating Royalty and
      shall not participate in the Bonuses paid for any oil, gas or other
      mineral[s] lease covering said land, nor shall it participate in the
      money rentals which may be paid to extend the time within which
      a well may be begun under the terms of any lease covering said
      land. It shall not be necessary for the Grantors, their heirs, and
      assigns, to join in the execution of any lease covering said Royalty
      interest herein reserved, and the Grantee herein, his heirs and
      assigns, shall have the right to lease said land for oil, gas and other
      minerals provided, however, that all such leases shall provide for
      Royalty of not less than one-eighth (1/8):

            (a) on oil, gas and other minerals, liquid or solid;

            (b) Of the net proceeds from the sale of liquid
            hydrocarbons such as gasoline, butane, protane or
            from the sale of any other manufactured or processed

                                        7
              by-products extracted or recovered from said natural
              gas or casinghead gas;

              (c) Of the net proceeds derived from the sale of all
              residue gas or its by-products.

      [3] In the event oil, gas or other minerals are produced from said
      land, then said Grantors, their heirs and assigns, shall receive not
      less than one-sixteenth (1/16) portion (being equal to one-half (1/2)
      of the customary one-eighth (1/8) Royalty) of the entire gross
      production and/or such net proceeds as hereinabove provided as
      their own property to be paid or delivered to said Grantors free of
      all cost from royalty oil, gas and/or other minerals, by-products
      manufactured or processed therefrom. [Emphasis added.]

C. Analysis

      The Texas Supreme Court interpreted a similar clause in Brown v. Havard.

593 S.W.2d 939 (Tex. 1980). In that case, a clause in a 1963 warranty deed

reserved “in perpetuity an undivided one-half non-participating royalty (Being

equal to, not less than an undivided 1/16th) of all the oil, gas and other

minerals.” Id. at 940. After a lease with a 3/8 royalty was executed, the

Browns claimed a 3/16 royalty interest. Id. at 941. The court concluded that

the clause was ambiguous and upheld the jury’s finding that the parties’ intent

was to reserve a royalty equal to 1/16 based on extrinsic evidence. See id. at

942; Havard v. Brown, 577 S.W.2d 757, 759–60 (Tex. Civ. App.—San

Antonio 1979), aff’d, 593 S.W.2d 939 (Tex. 1980).




                                       8
      The court reasoned that, “[w]ithout the parenthesis, the reservation is

either a 1/2 royalty or 1/2 of royalties,” that is, a fractional royalty or a fraction

of royalty, although it did conclude that the language without the parenthetical

would reserve 1/2 of all oil, gas, and other minerals produced, i.e., a fractional

interest, and not 1/2 of any outstanding or future royalty. Brown, 593 S.W.2d

at 942. The parenthetical presented further ambiguity: either (1) the parties

intended to reserve 1/2 of the conventional 1/8 royalty, “being equal to” a

1/16, with the “not less than” insuring that the reservation was 1/2 of the

conventional 1/8 and that, if the royalty were reduced, the Browns would still

receive their 1/16; or (2) the parties intended to reserve 1/2 of the royalties

contained in future leases, providing further that such share must not be less

than 1/16. Id. The majority discounted the second interpretation because it

“must ignore the presence of the ‘comma’ between the phrase ‘Being equal to’

and the phrase ‘not less than an undivided 1/16th.’” Id.

      Justice McGee, dissenting, stated that the provision was not ambiguous

and interpreted the parenthetical as an indication that the Browns had

contemplated future leases and had attempted to make sure that their royalty

interest would never be less than the 1/16 interest under the current lease, an

unambiguous minimum. Id. at 946 (McGee, J., dissenting); see also Sharon

Callaway Dittfurth, Common Problems in Conveying Oil and Gas Interests, 13

                                          9
S T. M ARY’S L.J. 825, 830 (1982) (describing the difficulty for the drafter

post-Havard). Justice McGee hinged this analysis on the words “heirs and

assigns in perpetuity” to indicate that the parties intended to reserve a

perpetual royalty and not one coincident only with the duration of the existing

lease on the property and “not less than an undivided 1/16th” to indicate that

the Browns contemplated future leases on the property after the expiration of

the current lease.   Brown, 593 S.W.2d at 946 (McGee, J., dissenting).

Furthermore, Justice McGee observed the absence of any language to indicate

that the royalty was to be limited to a maximum of, or not more than, 1/16, but

also the presence of specific language that the royalty was to be not less than

1/16. Id. (McGee, J., dissenting). He noted, “Describing a variable amount as

being equal to not less than 1/16 has the same result as describing it as equal

to or greater than 1/16,” and the absence of a comma between “equal to” and

“not less than” did not change that meaning. Id. (McGee, J., dissenting).

      There are some differences between the facts in Brown and the facts in

this case: (1) the property in Brown was under lease at the time that the

reservation was made, (2) there was a comma in the Brown reservation

between “Being equal to” and “not less than,” and (3) the grant included the

words “in perpetuity.” See id. at 940, 942. Here, the property had not been

leased at the time Bradshaw’s parents made the reservation, there is no

                                      10
separating comma between the “being equal to” and “not less than” clauses,

and, instead of just the words “in perpetuity,” the 1960 Deeds contain two

additional paragraphs that explain what was granted and indicate what was

intended.

      Paragraph One sets out that the grantors reserved an “undivided one-half

(1/2) Royalty . . . of all the oil, gas and/or other minerals in, to, and under or

that may be produced” from the land. Without the addition of the parenthetical

this first sentence probably reserved only a fractional royalty interest. 4 See id.

at 942. Paragraph Two clarifies that the interest reserved in Paragraph One is

a nonparticipating royalty interest.

      Although no lease existed at the time the reservation was created, the

reservation clearly indicates that leasing was anticipated: in Paragraph Two, the

reservation states that it is unnecessary for the grantors, heirs, or assigns to

join in the execution of any leases and excludes them from participating in

bonuses or rentals “which may be paid to extend the time within which a well

may be begun under the terms of any lease covering said land.” Paragraph

Three also indicates that leasing was contemplated, stating, “[i]n the event oil,




      4
       … However, the Brown majority did recognize that this language could
create either a fractional royalty or a fraction-of-royalty. 593 S.W.2d at 942.

                                        11
gas or other minerals are produced . . . then said Grantors . . . shall receive . . . .”

      If the absence of the comma renders only one possible interpretation of

the parenthetical under Brown, i.e., to reserve 1/2 of the royalties contained in

future leases, providing further that such share must not be less than 1/16, the

floor being set by the parenthetical in Paragraph One, then the reservation is a

fraction of royalty. Brown, 593 S.W.2d at 942. This conclusion is supported

by the dissent’s reasoning in Brown as well, i.e., the language indicating the

anticipation of leasing in Paragraph Two and the inclusion of the parenthetical

itself in Paragraph One as contemplating future leases. Id. at 946 (McGee, J.,

dissenting). Paragraph Two also sets out that all leases shall provide for a

royalty of not less than 1/8—a floor that would guarantee that the royalty

provided (a fraction of royalty) would not be less than 1/16.              Finally, the

language in Paragraph Three again includes a parenthetical to explain the

calculation of the not-less-than-1/16 portion of the royalty received by the

grantors, “(being equal to one-half (1/2) of the customary one-eighth (1/8)

Royalty) of the entire gross production and/or such net proceeds as hereinabove

provided . . . .” [Emphasis added.] This language establishes that what was

reserved was a floating fraction of royalty and not a fixed fractional royalty.

      Construing the deeds as a whole, and harmonizing all parts to give effect

to the parties’ intent, we determine that a “fraction of royalty” was conveyed.

                                          12
See Luckel, 819 S.W.2d at 462. Paragraph One reserves an undivided one-half

of royalty for Bradshaw, based on the language reserving “an undivided one-half

royalty,” interpreted with the parenthetical that immediately follows it, which

sets out that the undivided one-half royalty is “equal to not less than an

undivided one-sixteent[h] (1/16) of all the oil, gas and/or other minerals in, to

and under or that may be produced,” and the clarifying language in Paragraph

Three, which states that the grantor shall receive not less than one-sixteenth

portion “(being equal to one-half (1/2) of the customary one-eighth (1/8)

Royalty of the entire gross production and/or such net proceeds as hereinabove

provided . . . .” We read this language, en toto, as expressing the intent to

establish an interest of a minimum one-sixteenth royalty, rather than a fixed

one-sixteenth “fractional royalty.”

      In its motion for rehearing, Range cites the following Texas statutes that

use “equal to not less than” to support its argument that the phrase can denote

a fixed amount: section 51.302(a)(4) of the government code and section

61.0591(a) of the education code. Range also refers the court to 42 U.S.C.A.

§ 608(a)(2)(A) (West 2003), and Neel v. Oliver’s Estate, 44 A.2d 561, 563 (Pa.

1945), to support its argument that the 1960 Deeds’ use of “not less than”

indicates a fixed amount.




                                       13
      However, each of these provisions establishes a baseline and a method

of calculation based on different variables, not a specific fixed amount. Section

51.302(a)(4) of the government code, which involves the bond a district clerk

is required to provide before beginning the duties of office, merely states that

the bond must

      be in an amount equal to not less than 20 percent of the maximum
      amount of fees collected in any year during the term of office
      immediately preceding the term of office for which the bond is
      given, except that the bond may not be in an amount less than
      $5,000 nor more than $100,000.

T EX. G OV’T C ODE A NN. § 51.302(a)(4) (Vernon 2005) (emphasis added). The

statute itself expressly sets out the bond’s floor ($5,000) and the ceiling

($100,000), and provides for the calculation of a fixed amount based on the

amount collected by a particular district—this amount, needless to say, would

vary by county. Similarly, Paragraphs One, Two, and Three of the 1960 Deeds

establish a floor for the royalty (one-sixteenth) and provide for the calculation

of the royalty based on a potentially varying amount of production or lease-

royalty size.5 The other statutory provisions which Range cites operate in a


      5
       … That is, the Grantors reserved “an undivided one-half (1/2) royalty
(Being equal to not less than an undivided one-sixteent[h]” of
production—Paragraph One; all leases shall provide for royalty of not less than
one-eighth—Paragraph Two; and the Grantors shall receive not less than one-
sixteenth portion “(being equal to one-half (1/2) of the customary one-eighth
(1/8) Royalty) of the entire gross production and/or such net proceeds as

                                       14
similar fashion.6 And the case to which Range cites is inapposite. 7 See Brown,


hereinabove provided”—Paragraph Three.
      6
       … Section 61.0591(a) of the education code is part of the chapter
addressing the powers and duties of the Texas Higher Education Coordinating
Board and states that “[t]he legislature shall appropriate to the board an amount
equal to not less than 10 percent of the total appropriations for base funding
of general academic teaching institutions for the purpose of providing incentive
and special initiative funding under this section.” T EX. E DUC. C ODE A NN.
§ 61.0591(a) (Vernon 2006) (emphasis added). 42 U.S.C.A. § 608(a)(2)(A)
states, with regard to reduction or elimination of Temporary Assistance to
Needy Families for noncooperation in establishing paternity or obtaining child
support, if the State makes the appropriate findings with regard to
noncooperation and the individual does not qualify for good cause or other
exceptions, then the State

      (A) shall deduct from the assistance that would otherwise be
      provided to the family of the individual under the State program
      funded under this part an amount equal to not less than 25 percent
      of the amount of such assistance; and

      (B) may deny the family any assistance under the State program.

42 U.S.C.A. § 608(a)(2)(A) & (B) (emphasis added). Contrary to Range’s
argument that these provisions set out fixed amounts, they too merely establish
a floor and provide a method of calculating a fixed amount that is dependent on
the variables set out in the statutes.
      7
        … In Neel, the Pennsylvania court had to construe an insurance code
provision that contemplated an assessment liability of an insurance subscriber
as “equal to not less than one additional annual premium or deposit charged.”
44 A.2d at 563–64 (emphasis added). The court concluded that the provision
prescribed the ceiling of a subscriber’s liability for assessment, and not a floor,
based on its “very evident purpose” of making certain that subscribers could
not limit the extent of their respective liabilities to anything less than one
additional annual premium or deposit charged. Id. at 563. However, this
reasoning does not apply here because the issue is not the limitation of liability
(i.e., the amount a subscriber would have to pay), but rather the amount of

                                        15
593 S.W.2d at 946 (McGee, J., dissenting) (“A prudent grantor who reserves

a fraction of royalties may wish to ensure that his interest will not fall below a

certain minimum. Careful drafting of royalty reservations requires that he

recognize that future leases may be executed by his grantee that call for a

different royalty than a lease existing at the time of the deed.”).

      Based on the foregoing, we hold that the reservations in the 1960 Deeds

provided for a “fraction of royalty” rather than a “fractional royalty.” Therefore,

we agree with Bradshaw’s interpretation that the language of the 1960 Deeds

permits her to share in one-half of whatever royalties may be contracted for,

and that her resulting share of production must not be less than one-sixteenth.

This interpretation is consistent with the plain language of the 1960 Deeds and

gives effect to all of the operative language in the 1960 Deeds so that all of the

terms are in harmony. See Brown, 593 S.W.2d at 942; see also Luckel, 819

S.W.2d at 462; Altman, 712 S.W.2d at 118.




payment the grantors intended to receive from their reservation.

                                        16
                                 V. Conclusion

      Having determined that the trial court properly found that the 1960 Deeds

provided for a “fraction of royalty,” we overrule Range’s three issues and affirm

the trial court’s partial summary judgment in favor of Bradshaw.




                                            BOB MCCOY
                                            JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and MCCOY, JJ.

CAYCE, C.J. filed a dissenting opinion.

DELIVERED: August 14, 2008




                                       17
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                             NO. 2-07-263-CV


RANGE RESOURCES CORPORATION                                    APPELLANTS
AND RANGE PRODUCTION, I, L.P. AND
STEADFAST FINANCIAL, LLC,
R. J. SIKES, KATHY SIKES,
CHRISTY ROME, GREG LOUVIER,
PAM LOUVIER, AND DACOTA
INVESTMENT HOLDINGS, LLP
AND R. CRIST VIAL

                                      V.

BETTY LOU BRADSHAW                                                APPELLEE

                                  ------------

         FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                  ------------

                         DISSENTING OPINION

                                  ------------

     I respectfully dissent. As a matter of law, the two 1960 deeds at issue

reserved a fixed fractional 1/16th non-participating royalty interest.   The

appellee’s contention to the contrary requires us to ignore numerous rules of
contract construction, to give no effect to the “being equal to” language in the

deeds, and to imply from the “not less than” phrase in the deeds a reservation

of interest in favor of the grantor that is more than the plain language of the

deeds allows.   I would, therefore, grant appellants’ motions for rehearing,

reverse the trial court’s partial summary judgment, and render judgment that

appellee take nothing on her claims against appellants.




                                                 JOHN CAYCE
                                                 CHIEF JUSTICE

DELIVERED: August 14, 2008




                                       2
