                            NUMBER 13-16-00336-CV

                               COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


KENNETH HAHN,                                                              Appellant,

                                           v.

WIILLIAM PAUL GIPS, LUCILLE FAY GIPS
AND CONOCO PHILLIPS COMPANY,                                               Appellees.


                   On appeal from the 267th District Court
                         of DeWitt County, Texas.


                        MEMORANDUM OPINION
          Before Justices Rodriguez, Contreras, and Benavides
              Memorandum Opinion by Justice Benavides

      This appeal arises out of the trial court’s granting of summary judgment regarding

a legal dispute over the ownership of mineral interests in certain land located in DeWitt

County. By nine issues, which we construe as two central issues with various sub-issues,

appellant Kenneth Hahn asserts the trial court erred by: (1) making certain rulings on

Kenneth’s summary judgment evidence; and (2) granting appellee William Paul Gips and
Lucille Fay Gips’s (the Gipses) motion for summary judgment and denying his cross

motion for partial summary judgment. We reverse and render in part and remand in part.

                                    I.     BACKGROUND

      A.       Pre-Partition Ownership Interests

      This case concerns an approximately 74.15-acre tract of land (the Parent Property)

located in DeWitt County. Various interests in the Parent Property were conveyed at

different times by George T. Hahn and Louise Hahn. The parties relevant to this appeal

are as follows: appellant Kenneth Hahn (Kenneth); his siblings George N. Hahn (George),

Charles Hahn (Charles), and Doris Steubing (Doris); appellees the Gipses; and appellee

ConocoPhillips Company (Conoco).

      Prior to August 23, 2002, ownership of the Parent Property was divided as follows:

              Kenneth owned an undivided one-half interest of the Parent Property’s
               surface estate, with an undivided one-fourth interest in the mineral estate of
               the Parent Property;

              George owned an undivided one-half interest of the Parent Property’s
               surface estate, with an undivided one-fourth interest in the mineral estate of
               the Parent Property;

              Charles owned an undivided one-fourth interest in the mineral estate of the
               Parent Property; and



              Doris owned an undivided one-fourth interest in the mineral estate of the
               Parent Property.

      B.       The Partition Deeds

      In August 2002, Kenneth and George executed two separate partition deeds. The

first partition deed recited that George and Kenneth were tenants in common of the surface

estate of the Parent Property and desired to partition their interests. The first partition


                                                 2
deed granted “all of that certain real estate lying and being situated” in George’s 37.07-

acre interest of land (Tract A) to Kenneth,

       SUBJECT TO Reservation of one-half (1/2) of the minerals as stated in deed
       dated July 26, 2000, from Louise Hahn to Kenneth Hahn and George N.
       Hahn . . . .

       SUBJECT TO Louise Hahn’s reservation of her undivided one-half (1/2) of
       the minerals as stated in deed dated July 26, 2000 from Louise Hahn to
       Kenneth Hahn and George N. Hahn . . . .

       SUBJECT TO Gift Mineral Deed dated March 7, 2002 from Louise Hahn to
       Kenneth Hahn et al. . . .

       SUBJECT TO all reservations, restrictions, oil, gas and mineral leases,
       covenant and charges, if any, affecting the above described property, which
       are valid and existing in the Office of the County Clerk of DeWitt County,
       Texas.

The second partition deed recited that George and Kenneth were tenants in common of

the Parent Property and desired to partition off their interests. The second partition deed

granted “all of that certain real estate lying and being situated” in Kenneth’s 37.07-acre

interest of land (Tract B) to George,

       SUBJECT TO Reservation of one-half (1/2) of the minerals as stated in [a]
       deed dated July 26, 2000, from Louise Hahn to Kenneth Hahn and George
       N. Hahn . . . .

       SUBJECT TO Louise Hahn’s reservation of her undivided one-half (1/2) of
       the minerals as stated in deed dated July 26, 2000 from Louise Hahn to
       Kenneth Hahn and George N. Hahn . . . .

       SUBJECT TO Gift Mineral Deed dated March 7, 2002 from Louise Hahn to
       Kenneth Hahn et al. . . .

       SUBJECT TO all reservations, restrictions, oil, gas and mineral leases,
       covenant and charges, if any, affecting the above described property, which
       are valid and existing in the Office of the County Clerk of DeWitt County,
       Texas.




                                                3
       A month later, Kenneth and George filed correction partition deeds replacing the

August 23, 2002 partition deeds, both of which contain essentially the same recitals and

conveyances, and stated that the correction partition deeds were effective “as of August

23, 2002.”

       C.      Sale to the Gipses and Subsequent Oil and Gas Lease

       In late September 2002, Kenneth entered into an earnest money contract with the

Gipses to sell Tract A. The contract recites the following in relevant part:

       A. Minerals, Royalties, and Timber Interests:

            (1) Presently outstanding in third parties:

               [M]ineral interest is owned in equal, undivided shares by George N.
               Hahn, Charles Hahn, Doris Steubing, and Kenneth Hahn[.]

            (2) To be additionally retained by Seller:

               Seller will include his undivided one-fourth (1/4th) mineral interest in
               the sale, but will retain one-half (1/2) of the royalty interest in that
               undivided one-fourth (1/4th) mineral interest (i.e. Seller will retain a
               one-eighth (1/8th) royalty interest).

       In the time between entering into the contract and the closing of the sale on Tract

A, attorneys for the Gipses and Kenneth exchanged correspondence seeking modification

to the commitment for title insurance form regarding the parties’ respective mineral

interests. On December 3, 2002, Kenneth executed the general warranty deed for Tract

A to the Gipses (the Gips deed), which contained the following reservation:

       SAVE AND EXCEPT and there is hereby reserved unto [Kenneth] herein,
       his heirs and assigns, an undivided one-half (1/2) non-participating interest
       in and to all of the royalty [Kenneth] now owns, (same being an undivided
       one-half (1/2) of [Kenneth’s] one-fourth (1/4) or an undivided one-eighth (1/8)
       royalty) in and to all of the oil royalty, gas royalty and royalty in other minerals
       in and under and that may be produced from the herein described property.
       [Kenneth] . . . shall not participate in the making of any oil, gas or mineral
       lease covering said property, nor shall they participate in any rental or shut-

                                                    4
       in gas well royalty to be paid under any such lease. However, such
       reservation is subject to reversionary interest to surface owner 15 years from
       the date of the death of George T. Hahn, Deceased, by virtue of the Last Will
       and Testament of George T. Hahn, Deceased . . . .

       In July 2010, the Gipses entered into an oil and gas lease with Burlington

Resources Oil & Gas, a subsidiary of Conoco. In 2011, Conoco requested that Kenneth

and the Gipses “stipulate as to their ownership” in Tract A. Pursuant to this request,

Kenneth and the Gipses stipulated that:

       . . . . [I]t was the intent of the parties in the deed from [Kenneth] to [the
       Gipses] . . . that the interest reserved was a one-eighth (1/8) “of royalty” for
       a term of 15 years from June 9, 2002.

       To effectuate the purposes of this Stipulation of Interest, each of the parties
       hereto does hereby grant, bargain, sell, convey, quitclaim and deliver unto
       each of the other respective parties any interest in [Tract A] necessary to
       vest in each of said respective parties the interest set opposite their name
       above, together with all rights incident thereto, to have and to hold the same
       to each of said parties and their respective successors, heirs and assigns
       forever.


       In August 2010, Kenneth entered into an oil and gas lease with Conoco for Tract B

which he purportedly deeded to George by partition deed in August 2002, for a primary

term of three years. In May 2012, Conoco issued a division order to Kenneth pursuant to

Conoco’s lease to Tract B, which certified the ownership of mineral interests in oil and gas

production payable by Conoco.

       D.     Underlying Litigation

              1.     Kenneth’s Lawsuit

       Kenneth subsequently sued the Gipses and Conoco, and he named Charles and

Doris necessary parties to the lawsuit. In his lawsuit, Kenneth alleged that pursuant to the

above-mentioned transfers, he owned a one-eighth royalty interest in Tract A and a one-



                                                 5
fourth mineral interest in Tract B. Kenneth further alleged that prior to filing suit, Conoco

notified him that it believed that Kenneth had no interest in Tract B by virtue of Kenneth’s

conveyance to George as a result of the 2002 partition deeds.

       Kenneth alleged that the interests in the mineral estates of Tract A and Tract B,

pursuant to the 2002 partition deeds, were illustrated by the following chart:

                                 SEVERED MINERAL ESTATE
          Owner                           Mineral Interest in 74.15-acre tract
                                          Tract A                             Tract B
        Doris                              1/4th mineral interest in the whole
        Charles                            1/4th mineral interest in the whole
        George                             1/4th mineral interest in the whole
        Kenneth                    1/8 royalty for a term         1/4th mineral interest
        The Gipses     1/4th mineral interest, less a term              0 percent mineral
                       1/8 royalty                                        interest

       Kenneth asserted a trespass to try title cause of action and sought to confirm that

he is a one-fourth mineral interest owner in Tract B, and that Conoco and the Gipses have

wrongfully withheld his possession, rights, and benefits to Tract B. Additionally, Kenneth

asserted a cause of action for breach of lease agreement against Conoco for failing to

make royalty payments to him with respect to his ownership interest of Tract B, and he

sought delinquent royalty payments, or in the alternative, reformation of the stipulation of

interest. Kenneth also asserted causes of action for: (1) foreclosure of his lien on the oil

and gas lease against Conoco; (2) money had and received against the Gipses for money

instead owed to Kenneth; (3) unjust enrichment against the Gipses for being wrongfully

overpaid money instead owed to Kenneth; and (4) trespass against Conoco with regard to

Kenneth’s “vested mineral interest in Tract A”; and (5) fraud and negligent

misrepresentation against Conoco which caused Kenneth to sign the stipulation of interest,




                                                 6
when such action was unnecessary. Aside from seeking declaratory relief, Kenneth also

sought actual and exemplary damages.

              2.     The Gipses’ Motion for Summary Judgment

       After Conoco and the Gipses filed their respective answers, the Gipses filed a

traditional motion for summary judgment. In their motion, the Gipses alleged that the

deeds between Kenneth and George contained no reference or reservation of the mineral

estate, and, therefore, the deeds conveyed both the surface and mineral estates. As a

result, the Gipses alleged that Kenneth’s deed to them conveyed a one-half mineral

interest in the entire Parent Property, less a one-eighth (1/8th) term royalty interest owned

by Kenneth. In their motion, the Gipses further argue that the 2002 deeds between

Kenneth and George acted more as “traditional deeds of conveyance” rather than partition

deeds, as Kenneth asserts.

       The Gipses prayed that the trial court conclude as a matter of law that: (1) the 2002

deeds between George and Kenneth are unambiguous; (2) George conveyed all of his

interests in the oil, gas, and minerals in, on, and under Tract A to Kenneth; (3) Kenneth

conveyed all of his interests in the oil, gas, and minerals in, on, and under Tract B to

George; (4) the deed from Kenneth to the Gipses, coupled with the stipulation of interest,

unambiguously conveyed to Gipses all of Kenneth’s interest in the oil, gas, and minerals

in, on, and under Tract A, less and except a one-eighth of royalty interest for a term of

fifteen years from June 9, 2002; (5) the Gipses own one-half of the oil, gas, and minerals

in, on, and under Tract A, subject to Kenneth’s one-eighth royalty interest for a term of

fifteen years from June 9, 2002; (6) Kenneth is estopped from claiming that the partition

deeds between Kenneth and George did not convey oil, gas, and minerals to the



                                                 7
respective grantees; (7) Kenneth’s claims to reform the partition deeds and the deed to

Gipses are barred by limitations; (8) Kenneth is estopped from claiming reformation of the

partition deeds, and the Gipses deeds, and the stipulation of interest; and (9) Kenneth take

nothing by his lawsuit.1

        The Gipses’ position regarding the mineral estate, post-2002 deeds, can be

illustrated by the following chart:

                                   SEVERED MINERAL ESTATE
             Owner                          Mineral Interest in 74.15-acre tract
                                           Tract A                              Tract B
           Doris                             1/4th mineral interest in the whole
           Charles                           1/4th mineral interest in the whole
           George                0 percent mineral interest              1/2 mineral interest
           Kenneth                1/8th of the royalty for a              0 percent mineral
                                   term in Tract A                          interest
           The Gipses    1/2 mineral interest in Tract A, less            0 percent mineral
                         a term 1/8 of the royalty                          interest

               3.       Kenneth’s Counter Motion for Partial Summary Judgment

       Kenneth filed a motion for partial summary judgment asserting that: (1) the 2002

partition deeds did not have the effect of partitioning the respective undivided mineral

interests because it only affected the surface estate; (2) Kenneth conveyed to the Gipses

only a one-fourth mineral interest, less the reserved term one-eighth royalty in Tract A; (3)

the Gipses are estopped from claiming that they own one-half of the mineral interest in

Tract A; and (4) the stipulation of interest is unenforceable or revocable at any time, but if

it is enforceable, it only concerns the royalty interest that was reserved in the deed to Hahn

and does not address the three-fourths mineral interest that was excepted by Kenneth.




       1The record shows that Doris Steubing filed a response opposing the Gipses’ motion for summary
judgment, and she asked the trial court to deny the Gipses’ motion.

                                                     8
             4.     The Trial Court’s Judgment

      After holding a hearing on the motions for summary judgment and on objections

and motions to strike summary judgment evidence, the trial court concluded that the 2002

partition deeds were not ambiguous and that Kenneth and George both conveyed all of

their interests, including their mineral ownership, to one another, through those 2002

partition deeds. The trial court further concluded that Kenneth’s deed to the Gipses

conveyed all of his mineral interests in Tract A, less and except one-eighth “of royalty”

interest for a term of fifteen years beginning from June 9, 2002.

      Based on these conclusions, the trial court:

      (1) granted the Gipses’ motion for summary judgment in its entirety;

      (2) granted Conoco’s objections and motion to strike exhibits attached to Kenneth’s
          response to the Gipses’ first amended motion for summary judgment in its
          entirety;

      (3) denied all defendants’ respective special exceptions to Kenneth’s counter
          motion for partial summary judgment;

      (4) denied Kenneth’s counter motion for partial summary judgment in its entirety;

      (5) granted Conoco’s objections and motion to strike the affidavits attached to
          Kenneth’s counter motion for partial summary judgment;

      (6) sustained the Gipses’ objections to Kenneth’s summary judgment evidence; and

      (7) declared that:
             (a) Kenneth’s partition deed conveyed all of the grantor’s interest in the oil,
                 gas, and minerals in and under the southwest half of the 74.15-acre tract
                 (Tract A);

             (b) George’s partition deed conveyed all of the grantor’s interest in the oil,
                 gas, and minerals in and under the “northwest” [sic] half of the 74.15-
                 acre tract (Tract B);

             (c) the Gipses’ deed conveyed all of Kenneth’s interest in the oil, gas, and
                 minerals in and under the 37.07-acre tract of land (Tract B), only
                 reserving to Kenneth, a fraction of royalty and not a fixed fractional

                                                9
                   royalty and thus entitled Kenneth a fraction of royalty that floats in
                   accordance with the size of the landowner’s royalty contained in any
                   present or future oil and gas lease and is equal to one-eighth of the
                   landowner’s royalty contained under present or future leases for a term
                   of 15 years beginning June 9, 2002.

      This appeal followed.

             II.     EVIDENTIARY RULINGS ON SUMMARY JUDGMENT EVIDENCE

      By his seventh issue, which we examine first, Kenneth asserts that the trial court

erred by excluding certain pieces of Kenneth’s summary judgment evidence.

      A.     Standard of Review

      An appellate court reviews a trial court's ruling that sustains an objection to

summary judgment evidence for an abuse of discretion. See Cruikshank v. Consumer

Direct Mortg., Inc., 138 S.W.3d 497, 499 (Tex. App.—Houston [14th Dist.] 2004, pet.

denied) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). An

appellant has the burden to bring forth a record that is sufficient to show the trial court

abused its discretion when it sustained the appellee's objections to the summary judgment

evidence. See id.; see also Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas

2006, no pet.) (holding the same).

      B.     Discussion

      The Gipses objected to the following evidence attached to Kenneth’s counter

motion for partial summary judgment, which were all sustained by the trial court: (1)

paragraphs 7 and 8 to Exhibit 1 (Affidavit of Kenneth Hahn), Exhibit 1-A (Sales Contract

between Kenneth and the Gipses), and Exhibit 1-B (Kenneth’s Business Records from the

Gips Conveyance), each on hearsay, authentication, and parol evidence grounds; (2)

paragraph two of Exhibit 6 (Second Affidavit of Kenneth Hahn) on grounds that it is



                                               10
conclusory, improper opinion, and that “the document speaks for itself”; and (3) paragraph

three of Exhibit 6 on grounds that it is immaterial and irrelevant because Kenneth did not

plead failure of consideration. The trial court sustained the Gipses’ objections.

        As noted above, “an appellant has the burden to bring forth a record that is sufficient

to show the trial court abused its discretion when it sustained the appellee's objections to

the summary judgment evidence.” See Cruikshank, 138 S.W.3d at 499. Here, the record

is devoid of Kenneth’s proffered summary judgment evidence; therefore, we are unable to

conduct a proper review of whether the trial court abused its discretion in excluding that

evidence.2 As a result, we overrule Kenneth’s seventh issue.

                        III.     CROSS-MOTIONS FOR SUMMARY JUDGMENT

        By his first through fifth issues, Kenneth challenges the trial court’s granting of the

Gipses’ motion for summary judgment and denial of his motion for partial summary

judgment.

        A. Standard of Review

        Although a denial of summary judgment is generally not reviewable, we may review

such a denial when both parties moved for summary judgment and the trial court granted

one motion and denied the other. Dallas Nat'l Ins. Co. v. Calitex Corp., 458 S.W.3d 210,

221 (Tex. App.—Dallas 2015, no pet.). In our review of such cross-motions, we review

the summary judgment evidence presented by both sides and determine all questions




        2 We note that Kenneth’s brief includes purported excerpts of the excluded summary judgment

evidence. However, documents or excerpts solely appearing in an appellate brief are generally not part of
the record and not considered on appeal. See, e.g., Jarvis v. Field, 327 S.W.3d 918, 923 n.4 (Tex. App.—
Corpus Christi 2010, no pet.) (holding that documents solely appearing in the appendix of an appellate brief
are not part of the record and are generally not considered on appeal).

                                                        11
presented. Id. If we conclude the trial court committed reversible error, we render the

judgment the trial court should have rendered. Id.

       B. Discussion

       1. The Partition Deeds

       By his first two issues, Kenneth first argues that the trial court erred in concluding

that the 2002 partition deeds executed by George and himself were conveyances.

       Generally, a partition deed does not operate as a conveyance or transfer of title.

Hamilton v. Hamilton, 154 Tex. 511, 520, 280 S.W.2d 588, 593 (1955); see also Janssen

v. Janssen, No. 13-13-00523-CV, 2015 WL 4116671 at *3 (Tex. App.—Corpus Christi

2015, no pet.) (mem. op.). Instead, the effect of a partition deed is to divide the Parent

Property and to give to each the share which he already owned by virtue of some prior

deed or other conveyance. Hamilton, 280 S.W.2d at 593. The reasoning behind this

proposition is that the parties to the partition deed already owned their respective interests;

thus, a partition deed from one to another is not the conveyance of title but merely the

division of the Parent Property so that each may have exclusive use and occupancy and

the right to dispose of as he sees fit his own land, to make it in a form certain instead of

an undivided interest in the whole. Id.

       Partition deeds are binding contracts and subject to the usual rules of construction

to determine their scope and application. Garza v. De Montalvo, 147 Tex. 525, 534, 217

S.W.2d 988, 993 (1949); see also Jannsen, 2015 WL 4116671 at *3. The primary duty of

a court when construing an unambiguous deed, as in this case, is to ascertain the intent

of the parties from all of the language in the deed by a fundamental rule of construction

known as the “four corners” rule. Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). The



                                                 12
longstanding four-corners rule of construction established that when seeking to ascertain

the intention of the parties, we harmonize all parts of the deed and construe every clause

in the instrument to have some effect and in some measure to evidence their agreement.

Id. at 462. Furthermore, even if parts of the deed appear contradictory or inconsistent, the

court must strive to harmonize all of the parts construing the instrument to give effect to all

of its provisions. Id. Lastly, the court should not strike down any part of the deed, unless

there is an irreconcilable conflict wherein one part of the instrument destroys in effect

another part thererof. Id.

       It is undisputed that prior to the 2002 partition deeds, Kenneth and George owned

an undivided one-half of the surface estate of the Parent Property. The mineral estate of

the Parent Property, however, was held by Kenneth, George, Charles, and Doris in equal,

undivided shares. Each partition deed recites that Kenneth and George are tenants in

common to the Parent Property and desired to make a partition so “each of them shall

have and hold his or her respective portions of the said land in severalty.” Kenneth granted

George “all of that certain real estate lying and being situated” on the 37.07-acre tract of

land known as Tract B. Likewise, George granted Kenneth “all of that certain real estate

lying and being situated” on the 37.07-acre tract of land known as Tract A.

       Looking within the four corners of the deeds, we agree that both partition deeds

purported to convey each grantor’s one-half undivided interests in the surface and a one-

fourth undivided interest in the mineral estate. However, we disagree that the partition

deeds at issue affected the mineral estate. As a general rule, cotenants may voluntarily

partition land by written agreement, but all cotenants must participate in the voluntary

partition. See Dierschke v. Cent. Nat’l Branch of First Nat’l Bank at Lubbock, 876 S.W.2d



                                                 13
377, 380 (Tex. App.—Austin 1994, no writ); Bingham v. Kimbrell, 285 S.W.2d 312, 313

(Tex. Civ. App.—Austin 1955, writ ref’d n.r.e.) (“An agreement to partition land must bind

all the owners or none is bound.”); Ellis v. Patrick, 93 S.W.2d 1201, 1202 (Tex. Civ. App.—

Waco 1936, no writ) (holding that since a partition agreement was not binding on some of

the joint owners, it was not binding on any of them). Here, the record conclusively shows

that the partition deeds were not executed by Charles or Doris, who were cotenants in the

mineral estate. As a result, because not all of the cotenants were a party to the partition

of the mineral estate, none of the cotenants are bound by this purported partition of the

mineral estate. See Dierschke, 876 S.W.2d at 380. We conclude that the trial court erred

in ruling that the partition deeds transferred to Kenneth and George transferred anything

more than the surface estate of Tract A and Tract B to each respective grantee. Stated

another way, the partition deeds resulted in the following ownership interests:

        (1) Kenneth held a one-hundred percent ownership interest in the surface estate of
            Tract A and retained an undivided one-fourth interest to the Parent Property’s
            mineral estate;

        (2) George held a one-hundred percent ownership interest in the surface estate of
            Tract B and retained an undivided one-fourth interest to the Parent Property’s
            mineral estate;

        (3) Doris held an undivided one-fourth interest to the Parent Property’s mineral
            estate; and;

        (4) Charles held an undivided one-fourth interest to the Parent Property’s mineral
            estate.

        We sustain Kenneth’s first two issues.3



        3 To the extent that the Gipses argue that Kenneth is estopped from denying that the mineral estate

was partitioned, such arguments are unsupported by the law in this case. The principle of estoppel was
applied in a situation in which the non-joining cotenants to a partition acquiesced to the purported effect of
the void partition and were later estopped from asserting any interest to the common estate. See Joyner v.
Christian, 131 Tex. 274, 280, 113 S.W.2d 1229, 1233 (1938). The facts of this case are inapposite to those
in Joyner, as no evidence shows any acquiescence on the part of the non-joining cotenants in this case.

                                                         14
       2. The Gips Deed

       Because we conclude that the partition deeds did not affect Kenneth’s ownership

interest in the Parent Property’s mineral estate, we now examine the trial court’s

conclusions with regard to the Gips deed.

       The trial court concluded that Kenneth conveyed all of his interest in the oil, gas,

and minerals under Tract A, less a fraction royalty equal to one-eighth of the landowner’s

royalty, which “floats in accordance with the size of the landowner’s royalty.” We disagree

with this construction of the Gips deed.

       Stated again, in construing a deed, we utilize the four-corners rule in order to

ascertain the intent of the parties from all of the language of the deed. See Luckel, 819

S.W.2d at 461. The relevant portions of the Gipses’ deed deal with a reservation and

exceptions to conveyance clauses. First, we note that the deed reserves to Kenneth:

       an undivided one-half (1/2) non-participating interest in and to all of the
       royalty Grantor now owns, (same being an undivided one-half (1/2) of
       Grantor’s one-fourth (1/4) or an undivided one-eighth (1/8) royalty) in and to
       all of the oil royalty, gas royalty and royalty in other minerals in and under
       and that may be produced from the herein described property.

Furthermore, the exceptions clause to the deed further recognizes that the conveyance to

the Gipses was also subject to two undivided 3/8 interests in the mineral estate of the

Parent Property still belonging to Charles, George, and Doris, or an undivided three-

fourths (3/4) interest.

       First, we note that if a deed reserves a fraction of the minerals under the land

conveyed, then the deed reserves a fraction of the part of the mineral estate actually

owned by the grantor and conveyed in the deed. Avery v. Grande, Inc., 717 S.W.2d 891,

893 (Tex. 1986). However, if the deed reserves a fraction of the minerals under the land



                                                15
described, the deed reserves a fraction of the minerals under the entire physical tract,

regardless of the part of the mineral estate actually conveyed. Id. We conclude that the

former principle in Avery applies to the facts of this case because the deed reserves a

fraction of the mineral interest of the land “described.” Therefore, Kenneth conveyed to

the Gipses one-hundred percent of the surface interest in Tract A, but Kenneth reserved

a one-half interest of the one-fourth undivided mineral estate interest that he owned in the

Parent Property, or an undivided one-eighth interest to the entire tract of the Parent

Property’s mineral estate. See id.

       Second, the use of the phrase “subject to” indicates a grantor’s intent to exclude

the interest described under that particular clause. See Angell v. Bailey, 225 S.W.3d 834,

840 (Tex. App.—El Paso 2007, no pet.). Simply stated, use of the “subject to” phrase

creates exceptions in the deed to favor those excepted interests listed. See id. Applying

that principle to the facts of this case, the Gips deed recognizes and excludes the

undivided and combined three-fourths mineral estate interest owned by George, Doris,

and Charles.

       Therefore, under the four corners rule, we conclude that the Gips deed resulted in

the following ownership interests:

       (1) Kenneth owns an undivided one-half interest of his original undivided one-fourth
           interest in the Parent Property’s mineral estate;

       (2) The Gipses own a one-hundred percent interest in the surface estate of Tract A
           and the remaining undivided interest in Kenneth’s original undivided one-fourth
           mineral interest in the Parent Property;

       (3) George owns a one-hundred percent interest in the surface estate of Tract B,
           and an undivided one-fourth mineral interest in the Parent Property;

       (4) Doris owns an undivided one-fourth mineral interest in the Parent Property; and



                                                16
        (5) Charles owns an undivided one-fourth mineral interest in the Parent Property.

We sustain Kenneth’s third, fourth, and fifth issues.

        3. Other Issues4

        By his eighth issue, Kenneth argues that the trial court erred by granting the Gipses

relief that was not supported by their live pleading. See TEX. R. CIV. P. 301; Cunningham

v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983) (“[A] party may not be granted relief

in the absence of pleadings to support that relief.”). By his ninth issue, Kenneth asserts

that the trial court’s judgment incorrectly identified Tract A as the “northwest half” of the

74.15-acre property at issue rather than the “northeast half.” However, because we are

reversing the trial court’s judgment we need not address these issues. See TEX. R. APP.

P. 47.1.

                                          IV.      CONCLUSION

        We (1) reverse the trial court’s judgment granting the Gipses’ motion for summary

judgment and denying Kenneth’s motion for partial summary judgment; and (2) render

judgment in part declaring that: (a) the 2002 partition deeds failed to convey, partition, or

in any way affect title possession, or ownership in and to the oil, gas, and other minerals

underlying the 74.15-acre tract of land at issue in this case located in DeWitt County; and

as a result, Kenneth owned a one-fourth undivided interest in and to the oil, gas, and other

minerals underlying this 74.15-acre tract of land at the time the Gips deed was executed;

(b) the Gips deed conveyed, among other things, Kenneth’s one-fourth undivided interest



        4 We further conclude that in construing the Gips deed, the trial court improperly considered the

2011 Stipulation because it violated the four corners rule. As stated throughout this opinion, we construe an
unambiguous deed by examining only what is stated within the four corners of the instrument. See Luckel
v. White, 819 S.W.2d 459, 461 (Tex. 1991). The trial court concluded that the Gips deed was unambiguous,
and so do we. Thus, the trial court erred in considering the stipulation because it was outside of the four
corners of the Gips deed. See id. We sustain Kenneth’s sixth issue.

                                                         17
in the oil, gas and other minerals to the 74.15-acre tract of land, reserving a fixed one-

eighth non-participating royalty interest in and to all of the oil royalty, gas royalty, and

royalty in other minerals in and under and that may be produced from the 74.15-acre tract

of land for a term of fifteen years, beginning June 9, 2002.

       We remand for any further proceedings consistent with this opinion.



                                                               GINA M. BENAVIDES,
                                                               Justice



Delivered and filed the
26th day of October, 2017.




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