Affirmed as Modified in Part, Reversed and Remanded in Part, and Opinion filed
May 16, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00048-CV

                     ROBERT F. MEEKINS, JR., Appellant
                                         V.

          ROY WISNOSKI AND MARI KAY WISNOSKI, Appellees

                     On Appeal from the 12th District Court
                            Grimes County, Texas
                         Trial Court Cause No. 31846

                                  OPINION


      The parties dispute the nature of this lawsuit. Appellant Robert F. Meekins,
Jr. characterizes it as a trespass to try title suit, while appellees Roy and Mari Kay
Wisnoski contend it is “an impermissible collateral attack on a probate court’s final
appealable order related to the partition of . . . real property.” In three issues,
Meekins challenges the trial court’s entry of summary judgment (1) declaring the
Wisnoskis own 100% of the surface estate and 50% of the mineral estate of the
subject property, (2) ordering Meekins to take nothing, and (3) awarding attorney’s
fees to the Wisnoskis. We affirm as modified in part and reverse and remand in
part.

                                            Background

        This dispute revolves around the sale of real property. In 1958, Kathleen E.
Cox deeded the surface estate and a 1/32 nonparticipating royalty interest (NPRI)
in the mineral estate of certain land in Grimes County jointly to her daughter
Laverne Cox Meekins and Robert F. Meekins, Sr. Meekins, Sr. is Laverne’s
husband and Meekins’s father. Kathleen died in 1977 and devised the remainder
of the mineral estate to her other daughter, Elloise Cox. Elloise died in 1992 and
devised half her interest in the mineral estate to Laverne and half to Meekins.
When Laverne passed away on February 3, 2003, she left a will, written in 1998,
devising her share of the property to Meekins.1
        In August 2003, a guardian was appointed for the person and estate of
Meekins, Sr. On September 16, 2004, Meekins, Sr., acting through the guardian,
asked the probate court to appoint an appraiser for Meekins, Sr.’s property, as he
wished to sell so his estate could pay debts. The probate court appointed an
appraiser, who recommended selling the entire property, believing “it to be
incapable of partition [in kind].”2 On September 1, 2005, the probate court found
“the land is not capable of being partitioned [in kind]” and ordered the “entire
property” to be sold “as a whole” and the proceeds to be divided “between the co-
owners as appropriate, after the will of Laverne Meekins is admitted to probate.”
At the time, Meekins had not filed the 1998 will in the probate court proceeding.


        1
            Laverne’s 1998 will was not admitted into probate until April 5, 2006.
        2
         In January 2005, the probate court declared Meekins, Sr. was entitled to all of Laverne’s
property based on a 1980 will filed as a muniment of title.

                                                  2
Meekins, Sr. received and accepted an offer for the property, but the title company
could not find an underwriter for a title insurance policy because of uncertainty
regarding Laverne’s unprobated 1998 will, which devised Laverne’s one-half
interest in the surface estate and a 1/64 NPRI to Meekins.
       Meekins, Sr. filed an application for appointment of receiver in Laverne’s
estate on February 9, 2006, asserting “[t]he property [was] in danger of being lost,
damaged, or materially injured in that there exist[ed] an ad valorem tax suit against
the property for delinquent taxes” exceeding $12,000.                 Laverne’s 1998 will
devising her share of the property to Meekins was admitted into probate on April 5,
2006. On April 17, the probate court appointed a receiver to sell the property,
deduct “all necessary and proper expenses,” and distribute the proceeds equally
between Meekins, Sr. and Meekins. The receiver for Laverne’s estate and the
guardian for Meekins, Sr. executed a deed on September 15, conveying the
property, with no reservations, to the Wisnoskis. The probate court signed a
decree confirming the sale of the property on September 20. Meekins objected to
the confirmation of sale individually and as executor of Laverne’s estate on the
ground that the receiver had authority to sell only the surface estate. The probate
court “approved” the receiver’s actions.           Meekins did not appeal the probate
court’s orders confirming the sale and approving the receiver’s actions or file a bill
of review.3
       Meekins filed the underlying lawsuit on September 10, 2010, seeking a
judgment adjudicating his right to title in the mineral estate. He later amended his
petition, additionally claiming an interest in 50% of the surface estate, and seeking
a declaration of the status of his and the Wisnoskis’ title in the property and a

       3
         Any interested person may file a bill of review in probate court to “have any decision,
order, or judgment rendered by the court, or by the judge thereof, revised and corrected on
showing error therein.” Tex. Prob. Code § 31.

                                               3
judgment that his title in the property is superior to the Wisnoskis’ title. The
Wisnoskis answered and pleaded “not guilty.” The Wisnoskis subsequently filed a
traditional motion for summary judgment seeking (1) dismissal of Meekins’s
claims as “an impermissible collateral attack on the Probate Court’s confirmation
of sale,” (2) a declaration that the Wisnoskis own 100% of the surface estate and
an undivided 50% interest in the mineral estate, and (3) an award of attorney’s
fees. In response, Meekins argued that (1) the probate court did not adjudicate
title, (2) Laverne’s interest in the property vested in Meekins at the time of
Laverne’s death and thus her estate could not deed her interest in the property to
the Wisnoskis, and (3) attorney’s fees are not recoverable in a trespass to try title
action. The Wisnoskis replied that the lawsuit is not a title case and legal title to
the property was held in trust by Laverne’s estate subject to the debts of and claims
against the estate. The trial court entered final summary judgment in favor of the
Wisnoskis, (1) declaring the Wisnoskis own 100% of the surface estate and
divesting Meekins of all right, title, and interest in the surface estate; (2) declaring
the Wisnoskis own an undivided 50% interest in the mineral estate; (3) ordering
Meekins to take nothing by way of his claims against the Wisnoskis; and
(4) awarding the Wisnoskis attorney’s fees and costs.

                                      Discussion

      In three issues, Meekins argues the trial court erred in (1) declaring the
Wisnoskis own 100% of the surface estate and 50% of the mineral estate because
title to 50% of the surface estate, 50% of the mineral estate, and a 1/64 NPRI
vested in Meekins immediately upon Laverne’s death; (2) ordering Meekins to take
nothing because the effect of a take nothing judgment against a plaintiff in a
trespass to try title suit is to vest title in the defendants and it is undisputed that
Meekins owns 50% of the mineral estate; and (3) awarding attorney’s fees to the

                                           4
Wisnoskis because such fees are not available in a trespass to try title case.

      We review summary judgments de novo. Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 156 (Tex. 2004); Raynor v. Moores Mach. Shop, LLC,
359 S.W.3d 905, 907 (Tex. App.—Houston [14th Dist.] 2012, no pet.). When the
trial court grants summary judgment without specifying the grounds, we affirm if
any of the grounds presented in the motion is meritorious. Raynor, 359 S.W.3d at
907. The Wisnoskis filed a traditional motion for summary judgment. Thus, they
had the burden of showing there is no genuine issue of material fact and they are
entitled to judgment as a matter of law by conclusively negating at least one
essential element of each of Meekins’s causes of action or conclusively
establishing each element of an affirmative defense. Am. Tobacco Co. v. Grinnell,
951 S.W.2d 420, 425 (Tex. 1997); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d
910, 911 (Tex. 1997). We take as true all evidence favorable to Meekins, and we
indulge every reasonable inference and resolve any doubts in Meekins’s favor.
Joe, 145 S.W.3d at 157. We affirm the summary judgment if any of the theories
presented to the trial court is sufficient to sustain the judgment. Id.

      I.     This is a trespass to try title case.

      As an initial matter, we must determine the character of this lawsuit.
Meekins contends it is a trespass to try title suit, while the Wisnoskis contend it is a
collateral attack on the probate court’s decree confirming sale of the property in the
form of a declaratory judgment action. A trespass to try title action is a procedure
by which competing claims to title or the right to possession of real property may
be adjudicated. Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994);
see also Tex. Prop. Code § 22.001. To recover, a claimant must establish a prima
facie right of title by proving one of the following: (1) a regular chain of
conveyances from the sovereign; (2) a superior title out of a common source;

                                           5
(3) title by limitations; or (4) prior possession, which has not been abandoned.
Kennedy Con., Inc. v. Forman, 316 S.W.3d 129, 135 (Tex. App.—Houston [14th
Dist.] 2010, no pet.). Given the mandatory language in Property Code section
22.001 (“[a] trespass to try title action is the method of determining title”)
(emphasis added), a party may not artfully plead a title dispute as a declaratory
judgment action. I-10 Colony, Inc. v. Lee, 393 S.W.3d 467, 475 (Tex. App.—
Houston [14th Dist.], pet. filed). The Declaratory Judgment Act “provides an
efficient vehicle for parties to seek a declaration of rights under certain
instruments.” Id. (citing Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004),
superseded on other grounds by statute, Tex. Civ. Prac. & Rem. Code
§ 37.004(a)). If resolution of a dispute does not require a determination of which
party owned title at a particular time, the dispute may properly be raised in a
declaratory judgment action, if the requirements of the Texas Declaratory
Judgments Act are satisfied. Id.

      Not a collateral attack on probate court’s actions. The probate court
expressly stated that it would not determine title by approving the sale:

             “You want me to do a title opinion. I used to charge $200 an hour 15
             years ago doing a title opinion. I don’t do that anymore.”

             “So I can approve a sale by [the receiver] of whatever he had under a
             special warranty deed. And if he didn’t have anything, then
             [Meekins] still has it.”

             “I don’t think I have jurisdiction over what [Meekins] has. There’s a
             considerable dispute about that, as I understand.”

             “I want [Meekins] to go litigate in that county where that land is and
             not in my court. So I’m going to approve the sale, and I’m going to
             release the receiver.”

             “When you’re examining title, [a special warranty deed] doesn’t do
             anything.”
                                          6
               “[A]ll I approved the receiver selling is what the estate owned.”

Moreover, trespass to try title suits involve detailed pleading and proof
requirements that were not addressed in the probate court. See id.; see also Tex. R.
Civ. P. 783.

       Meekins argues he did not ask the trial court in this case to set aside any
“orders, findings, or judgments” of the probate court, but he asked the trial court to
adjudicate title, which the probate court did not do. In his first amended petition,
Meekins characterized the lawsuit as “a suit for declaratory judgment and to quiet
title and trespass to try title.” Meekins also asked the trial court for a judgment
“that he has superior title to [the Wisnoskis] in the [p]roperty.” The Wisnoskis
argue that Meekins is actually complaining of the probate court’s actions and, to do
so, he was required either to appeal the probate court’s order appointing a receiver
to partition the property or decree confirming sale or file a bill of review.4 We
agree that Meekins may not complain of the probate court’s actions in this case,
but we conclude Meekins was entitled to ask the trial court to adjudicate title. We
may not address whether the probate court erred in partitioning the property by sale
or confirming the sale.5 Thus, we may only address the effect of the sale.


       4
          The Wisnoskis argue Meekins could have appealed either the probate court’s order
appointing a receiver or decree confirming sale because both were final and appealable. See De
Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (acknowledging it is possible to have more
than one final, appealable order in probate cases). The Wisnoskis further argue Meekins
alternatively could have filed a bill of review to ask the probate court to revise and correct the
order or decree. See Tex. Prob. Code § 31 (entitling any interested party to “have any decision,
order, or judgment rendered by the [probate] court . . . revised and corrected on showing error
therein” by filing a bill of review in the probate court within two years “from the date of such
decision, order, or judgment”). Accordingly, Meekins was not entitled to attack the probate
court orders to the degree he may have been attempting to do so by filing the underlying lawsuit.
See Tex. Prob. Code § 31 (requiring bill of review to be filed within two years of entry of
erroneous decision, order, or judgment); Tex. R. App. P. 26.1 (outlining time to perfect appeal).
       5
        The Wisnoskis cite White v. White, 179 S.W.2d 503 (Tex. 1944) in support of their
argument that the underlying lawsuit was an “impermissible collateral attack” on the probate
                                                7
       Not a declaratory judgment action.6 In his original petition, Meekins
brought a claim only for trespass to try title, but he amended his petition to add a
claim entitled “declaratory judgment/suit to quiet title.” Texas courts consider the
substance and not the form of the pleadings to determine whether an action is
properly considered as a trespass to try title or a declaratory judgment action. Lee,
393 S.W.3d at 476; see also Kennedy Con., Inc., 316 S.W.3d at 135 (“Any suit
involving a dispute over the title to land is an action in trespass to try title,
whatever its form and regardless of whether legal or equitable relief is sought.”).
The fact that Meekins added a declaratory judgment claim does not mean that the


court’s decree confirming sale. That case involved an initial lawsuit filed in district court
seeking to partition land among eight sibling heirs. Id. at 501. Meanwhile, one of the siblings
filed an application to probate the will of the decedent mother in probate court wherein the
sibling alleged he was entitled to the land under the will. Id. The probate court admitted the will
into probate. Id. In the initial partition suit, the other siblings contested the will as being void.
Id. at 502. The first sibling objected, arguing the will contest was a collateral attack on a duly
probated will. Id. The district court in the initial partition suit sustained the objection to the will
contest. Id. The district court also decreed that 9/16 of the land should vest in the sibling
claiming entitlement under the will and ordered a partition of the remainder of the land among
the siblings. Id. A receiver was appointed and filed a report indicating that he had sold the land.
Id. The trial court entered judgment confirming the report, but the receiver died before the sale
was consummated. Id. The judgment was not appealed. Id. The other siblings filed a will
contest in probate court and successfully set aside the will. Id. They then filed a second lawsuit
in district court seeking again to partition the land. Id. They did not attempt to set aside the
former partition judgment. Id. at 503. The first sibling alleged the second partition suit was
“purely a collateral proceeding seeking to vacate the former judgment which had become final.”
Id. The supreme court agreed, because the other siblings permitted the first partition suit “to
proceed to judgment without filing a contest of the will in probate court or a plea in abatement in
the district court” and the judgment in the first partition suit “was a final adjudication of the
interests of the parties in the land.” Id. at 506.
        The facts of this case are distinguishable. Meekins does not seek to set aside the probate
court’s decree confirming sale. Rather, he asked the trial court to determine whether he has
superior title to the Wisnoskis’ title in the property, and as set forth above, the probate court
expressly stated that it did not determine Meekins’s interest in the property.
       6
           In support of their contention that they were entitled to attorney’s fees, the Wisnoskis
argue this is a declaratory judgment action. Attorney’s fees are not recoverable in a trespass to
try title action but are recoverable in some circumstances in a declaratory judgment action. Lee,
393 S.W.3d at 477. We address this issue below.

                                                  8
lawsuit is in the nature of a declaratory judgment action in lieu of a trespass to try
title action. See Lee, 393 S.W.3d at 476. His petition includes the pleading
requirements for a trespass to try title action. See Tex. R. Civ. P. 783 (requisites of
petition). Meekins’s claim requires a determination of whether, after the sale, he
or the Wisnoskis had title to the portion of the property formerly owned by
Laverne.    See Lee, 393 S.W.3d at 475.        We conclude that the substance of
Meekins’s claim was a trespass to try title action rather than a declaratory
judgment action. See id. at 476. With these principles in mind, we turn to
Meekins’s issues on appeal.

      II.    The receiver of Laverne’s estate conveyed to the Wisnoskis the
             interests in the property that Laverne owned on the date of her
             death.

      In his first issue, Meekins argues the trial court erred in declaring the
Wisnoskis own 100% of the surface estate and 50% of the mineral estate because
Laverne’s estate did not own any interest in the property when the receiver of the
estate signed the Receiver and Guardianship Deed, and thus the receiver could not
convey title to any interest in the property to the Wisnoskis. Meekins contends
Laverne’s estate did not have any interest in the property at the time of the sale
because all of Laverne’s interests terminated and vested in Meekins upon
Laverne’s death.

      In support of their summary judgment motion, the Wisnoskis presented the
following evidence relevant to our discussion:

             1958 deed in which Kathleen Cox transferred to Meekins, Sr. and
             Laverne the surface estate and 1/32 NPRI and expressly reserved the
             remainder of the mineral estate;

             Will of Kathleen Cox devising the mineral estate (less the 1/32 NPRI),
             to Elloise Cox;

                                          9
               Will of Elloise Cox devising half each to Meekins and Laverne of the
               mineral estate (less the 1/32 NPRI);

               1998 Will of Laverne devising her property to Meekins;

               Probate court’s order appointing the receiver to partition and sell the
               property;

               Probate court’s decree confirming sale of the property; and

               Receiver and Guardianship Deed conveying the property to the
               Wisnoskis.

       Meekins relied primarily on the same evidence in support of his response to
the motion for summary judgment.              Meekins proved without dispute that he
inherited 50% of the mineral estate (less the 1/32 NPRI) from Elloise Cox, and the
Wisnoskis do not dispute Meekins’s assertion that this portion of the mineral estate
was not part of the property sold in the probate proceeding.7 Thus, the main issue
is whether the Receiver and Guardianship Deed conveyed to the Wisnoskis the
interests in the property that Laverne owned on the date of her death.

       Meekins argues that the mineral estate and half the surface never belonged
to Laverne’s estate because it vested in him immediately when Laverne died. See
Tex. Prob. Code § 37 (“When a person dies, leaving a lawful will, all of his estate
devised or bequeathed by such will . . . shall vest immediately in the devisees or
legatees of such estate . . . ; subject, however, to the payment of the debts of the
testator.”).   Meekins asserts the deed did not transfer these interests to the
Wisnoskis because a deed may convey only the interest a grantor has in the land.
See Cockrell v. Tex. Gulf Sulphur Co., 299 S.W.2d 672, 675 (Tex. 1956). Meekins
is correct that a beneficiary under a will holds a vested interest in property upon the


       7
         The partition order does not specify whether the probate court intended to partition the
mineral estate or only the surface estate.

                                               10
testator’s death; however, the estate is subject to administration. See Woodward v.
Jaster, 933 S.W.2d 777, 781 (Tex. App.—Austin 1996, no writ).                     The
administrator of the estate holds legal title and a superior right to possess estate
property and to dispose of it as necessary to pay the debts of the estate. Tex. Prob.
Code § 37; see also Woodward, 933 S.W.2d at 781. If the administrator exercises
this dispositive power, the sale divests the beneficiary of his interest in the
property. Woodward, 933 S.W.2d at 781 (citing Freeman v. Banks, 91 S.W.2d
1078, 1079 (Tex. Civ. App.—Fort Worth 1936, writ ref’d); Blinn v. McDonald, 46
S.W. 787, 789 (Tex. 1898); Harper v. Swoveland, 591 S.W.2d 629, 630 (Tex. Civ.
App.—Dallas 1979, no writ); and Laas v. Seidel, 66 S.W. 871, 872 (Tex. Civ.
App.—Austin 1902, no writ)). Moreover, any person having a joint interest with
the estate of a decedent in any property may apply for a partition and sale of the
property. See Luke v. Ormond, 517 S.W.2d 647, 649 (Tex. Civ. App.—Houston
[14th Dist.] 1974, no writ). Similarly, a probate court may appoint a receiver to
partition and sell estate property for purposes of administration and settlement of
the estate. See In re Estate of Herring, 983 S.W.2d 61, 65 (Tex. App.—Corpus
Christi 1998, no pet.).

      Here, although Meekins held a vested interest in the property devised to him
by Laverne at the time of her death, his interest was subject to administration of the
estate. Meekins, Sr.’s guardian filed an application for appointment of a receiver
to sell the property to satisfy delinquent taxes. The probate court appointed a
receiver to administer the sale of the Estate’s interest in the property, pay the
delinquent taxes and administrative fees, and distribute the remaining proceeds
between Meekins and Meekins, Sr. Thus, the receiver, as the representative of the
estate, was entitled to convey the property devised to Meekins to pay the tax debt.
See Tex. Prob. Code § 37; see also Woodward, 933 S.W.2d at 781. Accordingly,


                                         11
the receiver had the authority to convey the Estate’s interest in the property to the
Wisnoskis.8

       The Wisnoskis assert that the deed unambiguously conveyed 100% of the
surface estate and 50% of the mineral estate to them.9                   The Receiver and
Guardianship Deed expressly states that there is no reservation from the
conveyance, and Meekins does not argue that the receiver or the guardian reserved
from the conveyance any interest in the property held by Meekins, Sr. or by
Laverne’s Estate. The summary judgment evidence conclusively proved that the
Receiver and Guardianship Deed conveyed to the Wisnoskis title to all interests in
the property held at the time of sale by Meekins, Sr. or by Laverne’s Estate.

       The construction of an unambiguous deed is a question of law for the court.
Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991); Philipello v. Nelson Family
Farming Trust, 349 S.W.3d 692, 694 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied). In construing deeds, our primary objective is to ascertain the intent of the
parties from the four corners of the deed.             See Luckel, 819 S.W.2d at 461;
Philipello, 349 S.W.3d at 694. To ascertain the parties’ true intention, we examine
the deed’s language in its entirety. Luckel, 819 S.W.2d at 461; Philipello, 349
S.W.3d at 694. That intention, when ascertained, prevails over arbitrary rules of
construction. Luckel, 819 S.W.2d at 462; Philipello, 349 S.W.3d at 694.

       Meekins acknowledges that the Receiver and Guardianship Deed does not
include a reservation of the mineral estate, but instead relies on his argument that
the mineral estate and half the surface estate never belonged to Laverne’s estate.

       8
         Meekins agrees that the guardian had the authority to convey Meekins, Sr.’s interest in
the property to the Wisnoskis.
       9
         A deed may convey only the interest a grantor has in the land. See Cockrell, 299
S.W.2d at 675. The parties agree that the deed did not convey to the Wisnoskis the 50%
minerals (less 1/32 NPRI) that Meekins inherited from Elloise Cox.

                                              12
As we have held that the receiver of Laverne’s estate had the authority to convey to
the Wisnoskis the 50% of the mineral estate owned by Laverne when she died, we
would have to find that the deed included an implied reservation of minerals to
hold that the deed did not convey the minerals to the Wisnoskis. A reservation by
implication in favor of the grantor is not favored by courts.       Farm & Ranch
Investors, Ltd. v. Titan Operating, L.L.C., 369 S.W.3d 679, 681 (Tex. App.—Fort
Worth 2012, pet. denied); see also Reeves v. Towery, 621 S.W.2d 209, 212 (Tex.
App.—Corpus Christi 1981, writ ref’d n.r.e.).

      Few Texas cases construe deeds to determine whether they include an
implied reservation of mineral interests, but we find the Farm & Ranch case to be
instructive. In that case, the Fort Worth Court of Appeals considered whether
references in a deed to certain recorded deed restrictions were sufficient to reserve
mineral interests. Farm & Ranch, 369 S.W.3d at 681. Caldwell’s Creek, Ltd. was
the owner of roughly sixty acres of land. Id. at 679. In 1994, Caldwell’s Creek
recorded a dedication and restrictions for that land in the county deed records,
including one restriction stating that “[a]ll mineral rights shall belong and shall
continue to belong to . . . Caldwell’s Creek.” Id. Subsequently, Caldwell’s Creek
divided the land into lots and sold those lots to individual owners. Id. Each of
those deeds stated that “[t]his conveyance is made subject to any and all
easements, restrictions, and mineral reservations” filed in the county deed records,
but did not specifically reserve Caldwell’s Creek’s mineral interest. Id. In October
2005, Caldwell’s Creek conveyed all of the mineral rights for the property to Farm
& Ranch Investors, Ltd., which then attempted to lease the land to Titan Operating.
Id. Titan ultimately refused to sign the lease and entered into leases with the
individual lot owners. Id. Titan then filed suit against Farm & Ranch, seeking a
declaratory judgment that it owned the mineral rights to the Caldwell’s Creek land.


                                         13
Id. The trial court granted Titan’s motion for summary judgment. Id. at 680-81.

      On appeal, Farm & Ranch argued that the original deed restrictions reserved
the mineral rights to Caldwell’s Creek and that the “subject to” language meant
that the individual lot owners had only received the surface estate. Id. at 681. The
court of appeals disagreed, holding, in relevant part, that the “subject to” language
was not “a clear intention to reserve or except an interest from the conveyance.”
Id. at 683. Since there was no effective reservation of the mineral interest in the
deeds to the lot owners, the court concluded Caldwell’s Creek had conveyed its
entire interest, including the minerals, to the lot owners. Id. at 684.

      The Receiver and Guardianship Deed does not mention the reservation of
minerals in the 1958 deed in which Kathleen Cox transferred the surface estate and
a 1/32 NPRI to Laverne and Meekins, Sr. In fact, the Receiver and Guardianship
Deed expressly states that it does not withhold any reservations: “Reservations
from Conveyance: None.” However, the deed does contain a reference in the
property description to the 1958 deed, as follows:

      All that certain tract or parcel of land containing 180.726 acres, more
      or less, lying and being situated in the Tandy Walker Survey, Abs.
      No. 57, Grimes County, Texas and being all of a called 146-1/3 acre
      tract and all of a 40 acre tract described in Deed dated January 30,
      1958 of record in Volume 228, Page 622, Deed Records, Grimes
      County, Texas and the 180.726 acres more fully described as set out
      on Exhibit “A” attached hereto and made a part hereof.

(Emphasis added.) Exhibit “A” contains “Field Notes” that further describe the
property and also state that it is “described in a Deed from Mrs. Kathleen E. Cox to
Robert Franklin Meekins and La Verne Cox Meekins, dated January 30, 1958, of
record in Volume 228, Page 622 of the Deed Records of Grimes County, Texas.”

      These references to the 1958 deed do not contain a “clear intention to
reserve or except an interest from the” Receiver and Guardianship Deed. Compare
                                          14
id. at 682-83 (holding provision in deed that made conveyance “subject to . . .
mineral reservations affecting said property” was not a clear intention to reserve an
interest from the conveyance), and Wright v. E.P. Operating L.P., 978 S.W.2d 684,
688 (Tex. App.—Eastland 1998, pet. denied) (same), with Hunsaker v. Brown
Distrib. Co., 373 S.W.3d 153, 157 (Tex. App.—San Antonio 2012, pet. denied)
(holding deed conveying property “more particularly described on Exhibit A,”
which stated grantor was conveying one-half of property “now owned” by grantor,
included reservations of mineral interests because deed also explained reservations
were “outstanding” when grantor made conveyance and described the
reservations). Because there was no language in the Receiver and Guardianship
Deed clearly showing a reservation of the mineral rights, the deed conveyed all of
the grantors’ interest to the Wisnoskis. See Farm & Ranch, 369 S.W.3d at 683.
We overrule Meekins’s first issue.

      III.   The take nothing judgment vests title in the Wisnoskis.
      In his second issue, Meekins complains of the trial court’s take nothing
judgment against him because the effect of a take nothing judgment against a
plaintiff in a trespass to try title suit is to vest title in the defendants. See Wells v.
Kan. Univ. Endowment Ass’n, 825 S.W.2d 483, 487 (Tex. App.—Houston [1st
Dist.] 1992, writ denied). Thus, Meekins asserts the effect of the judgment would
be to divest him of his right to the 50% of the mineral estate less the 1/32 NPRI
that the Wisnoskis do not dispute he owns. A defendant in a trespass to try title
action may file a plea of “not guilty,” which constitutes an admission by the
defendant “that he was in possession of the premises sued for, or that he claimed
title thereto at the time of commencing the action, unless he states distinctly in his
answer the extent of his admission or claim, in which case, it [is] an admission to
such extent only.” Tex. R. Civ. P. 788, 790. Although the Wisnoskis do not

                                           15
dispute that Meekins owns 50% of the mineral estate less the 1/32 NPRI, they did
not expressly limit their answer to exclude that portion of the property.10

      Nonetheless, in their summary judgment motion, the Wisnoskis only asked
the trial court to rule as a matter of law that they held title to 100% of the surface
estate of the property and 50% of the mineral estate. The Wisnoskis did not seek
summary judgment as to the other 50% of the mineral estate, and they did not ask
the trial court to render judgment that Meekins take nothing. As to the other 50%
of the mineral estate in the property, the Wisnoskis did not assert in their motion
that the summary judgment evidence conclusively proved that Meekins could not
succeed in his trespass to try title action. Even if the Wisnoskis had asserted such a
summary judgment ground, it would have lacked merit because the summary
judgment evidence did not conclusively prove that Meekins could not succeed in
his trespass to try title action as to the other 50% of the mineral estate. Thus, the
trial court erred in granting summary judgment as to the part of Meekins’s trespass
to try title action that addresses Meekins’s alleged title to the 50% of the mineral
estate that Meekins purportedly inherited from Elloise Cox and in ordering that
Meekins take nothing by his claims. See Stiles v. Resolution Trust Corp., 867
S.W.2d 24, 26 (Tex. 1993); Sec. Nat’l Ins. Co. v. Waloon Inv., Inc., 384 S.W.3d
901, 907 (Tex. App.—Houston [14th Dist.] 2012, no pet.).             Accordingly, we
sustain Meekins’s second issue.

      IV.    Attorney’s fees are not available.
      In his third issue, Meekins complains of the trial court’s award of attorney’s
fees to the Wisnoskis because attorney’s fees are not available in a trespass to try
title suit. See Lee, 393 S.W.3d at 477 (“One key distinction between a trespass to

      10
         However, in their answer, the Wisnoskis requested a judgment declaring they own
100% of the surface estate and 50% of the mineral estate.

                                          16
try title action and a declaratory judgment action is that attorney’s fees are not
recoverable in the former but are recoverable in the latter.”). The Wisnoskis argue
this is a declaratory judgment action for which attorney’s fees are available. See
id. Because we have concluded, as set forth above, that this is a trespass to try title
case, we hold the trial court erred in awarding attorney’s fees to the Wisnoskis.
We sustain Meekins’s third issue.

      To the extent that Meekins’ trespass to try title action addresses Meekins’s
alleged title to the 50% of the mineral estate that Meekins purportedly inherited
from Elloise Cox, we sever this portion of Meekins’s trespass to try title action,
reverse the trial court’s judgment, and remand to the trial court for further
proceedings consistent with this opinion. As to the remainder of the trial court’s
judgment, we modify the judgment to delete all awards of attorney’s fees in favor
of the Wisnoskis and to delete the order that Meekins take nothing by his claims.
As modified, we affirm the remainder of the judgment.


                                 /s/           Martha Hill Jamison
                                               Justice

Panel consists of Justices Frost, Christopher, and Jamison.




                                          17
