Opinion filed January 22, 2009




                                              In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-07-00034-CV
                                         __________

       VETERANS LAND BOARD OF THE STATE OF TEXAS ET AL,
                         Appellants

                                                 V.

                      BETTY YVON LESLEY ET AL, Appellees


                           On Appeal from the 266th District Court
                                    Erath County, Texas
                              Trial Court Cause No. CV-28,679


                                          OPINION
       Appellees own non-executive mineral interests in lands underlying the Mountain Lakes
Development, a residential subdivision in Erath County, Texas. They brought this suit against the
developer of the subdivision, the property owners’ association for the development, and the lot
owners in the subdivision. Appellees sought declaratory judgment on a number of issues, and they
also alleged various claims for affirmative relief against appellants. This case involves two primary
issues: (1) who owned the executive rights and (2) did the owner or owners of the executive rights
breach a duty to the non-executives. On these issues, the trial court granted summary judgment in
favor of appellees on their claims that the developer owned the executive rights, that it owed
appellees a duty to lease the minerals, and that it breached its duty to lease. In this appeal, appellants
challenge the trial court’s order granting and denying summary judgment and order denying plea to
the jurisdiction. We reverse the judgment of the trial court.
                                                       The Parties
        Appellants are (1) Bluegreen Southwest One, L.P. (Bluegreen), the developer of the
Mountain Lakes Development; (2) approximately 460 lot owners in the Mountain Lakes
Development (Landowner Appellants); and (3) the Veterans Land Board of the State of Texas
(VLB). The VLB purchased lots in the development and then sold them to veterans as part of a
program that was designed to assist veterans in obtaining property with low interest loans. Appellees
sued the VLB as a lot owner defendant.
        Appellees are (1) Betty Yvon Lesley and her husband, Kenneth Lesley; (2) Kenneth Lesley and
Perry Elliott, Independent Executors of the Estate of Bobby John Foster, Deceased;1 (3) Richard H.
Coffey, Sr.; (4) Singin’ Hills Minerals, Ltd.; and (5) JPMorgan Chase Bank, N.A., as trustee of
eighteen trusts. Some of the claims in this case are common to all appellees. In addition to these
common claims, the Lesley Appellees (groups (1) and (2) above) brought claims for reformation of
deeds and for breach of contract. We will refer to “appellees” when addressing the common claims.
We will refer to the “Lesley Appellees” when addressing claims that are unique to them.
                                                       Introduction
        The Mountain Lakes Development contains about 4,100 acres of land. The development is
located on land that was, at one time, owned by Wyatt C. Hedrick and his wife, Mildred Sterling
Hedrick. The Hedricks owned the surface estate and the mineral estate in the subject property. On
November 6, 1952, the Hedricks executed a deed to H.S. Foster. Under the deed, “[the Hedricks]
granted, sold and conveyed to [H.S. Foster] a full interest in the surface estate and an undivided one-
half (½) interest in the oil, gas and other minerals, except that [H.S. Foster] shall have full, complete
and sole right to execute oil, gas and mineral leases covering all the oil, gas and other minerals in the
following described land.”



        1
            Bobby John Foster died on September 27, 2005.

                                                            2
       H.S. Foster had two children, Betty Yvon Lesley and Bobby John Foster. In 1966, Betty
Yvon Lesley and her husband, Kenneth Lesley, acquired from H.S. Foster the surface estate and one-
half of the mineral estate in 174.35 acres of the subject property. When H.S. Foster died, Betty Yvon
Lesley and Bobby John Foster inherited the entire surface estate and one-half mineral interest in
3,923.58 acres of the subject property.
       In 1998, Bobby John Foster, Betty Yvon Lesley, and Kenneth Lesley sold the surface estate
of the subject property to Bluff Dale Development Corporation for about $2,000,000. Bluff Dale
intended to develop the property as a residential subdivision or to sell it to another residential
developer. On February 17, 1998, Bobby John Foster and Betty Yvon Lesley, joined by her husband
Kenneth Lesley, executed a deed to Bluff Dale covering 3,923.58 acres of the subject property. On
September 30, 1998, Betty Yvon Lesley and Kenneth Lesley executed a deed to Bluff Dale covering
an additional 174.35 acres of the subject property. Both deeds provided:
               Grantors will be reserving unto themselves, their heirs, and assigns, one-
       fourth (1/4) of the oil, gas, sulphur and other minerals to which Grantors are now
       entitled to in all of the lands covered by this conveyance. It is understood and agreed,
       however, that Grantee, his heirs, successors and assigns, shall have full rights to
       execute all future oil, gas, sulphur and other mineral leases for such bonuses, such
       delay rentals and for such terms as Buyers may think proper, but Grantors shall not
       be required to execute any such leases, but shall be entitled to receive one-fourth
       (1/4) of all bonuses and delay rentals, whether the same be paid in cash, by overriding
       royalties, production payments or in any other manner.

       By deeds dated September 25, 1998, and December 30, 1998, Bluff Dale conveyed its
interests in the subject property to Properties of the Southwest, L.P., subject to “[a]ny prior
reservations or conveyance[s] of oil, gas and other minerals, restrictions, covenants, conditions,
rights-of-way and easements of record.” On March 15, 1999, Properties of the Southwest changed
its name to Bluegreen.
       Bluegreen developed the property as the Mountain Lakes Development in a series of five
sections. In connection with developing each section, Bluegreen filed and recorded declarations of
covenants, conditions, and restrictions. The declarations contained the following use restriction,
among others:
              Section 3.12 Mineral Development. No commercial oil drilling, oil
       development operations, oil refining, quarrying or mining operation of any kind shall

                                                  3
        be permitted. No derrick or other structures designed for the use of boring for oil or
        natural gas shall be erected, maintained or permitted upon any Tract.

Section 9.02 of the declarations provided that “[t]his Declaration may be amended or changed, in
whole or in part, at any time by the written agreement or signed ballot of two-thirds (2/3rds) of the
Owners (including the Developer) entitled to vote.”
        Bluegreen sold home sites to about 1,700 purchasers. Although Bluegreen did not use
identical deeds in connection with all the sales, one type of deed that Bluegreen commonly used
provided as follows:
        Reservation from conveyance: None.

        Exceptions to Conveyance and Warranty:

        1. Any and all restrictions, covenants, and easements, if any, relating to the
        hereinabove described property, but only to the extent they are still in effect, shown
        of record in Erath County, Texas, and to all zoning laws, regulations or ordinances
        of municipal and other governmental authorities, if any, but only to the extent they
        are still in effect, relating to the hereinabove described property.

        2. Undivided one-half of all oil, gas and other minerals of every character in and
        under the herein described property reserved by Wyatt Hedrick, et ux, in instrument
        recorded in Volume 339, Page 172, Deed Records, Erath County, Texas.

         3. Undivided one-fourth of all oil, gas and other minerals of every character in and
        under the herein described property reserved by Bobby John Foster, et al in
        instrument recorded in Volume 948, Page 639, Deed Records, Erath County, Texas.

                                      Proceedings in Trial Court
        On October 12, 2005, appellees sued Bluff Dale, Bluegreen, the Property Owners’
Association of Mountain Lakes Ranch (POA), and about 1,700 individual lot owners. In their
petition, appellees alleged, among other things, (1) that they owned undivided mineral interests in
the subject property; (2) that, as a result of the transactions described above, Bluegreen had acquired
the executive rights and had later transferred “all the executive rights to the lot owners of all minerals
underlying each of said lots”; (3) that the defendants as their mineral co-tenants and as owners of the
executive rights owed a duty of utmost good faith to them as non-executive mineral interest owners;
and (4) that “[s]uch duty [was] fiduciary in nature and include[d] the duty to lease all of the minerals
for exploration and development of oil and gas.” Appellees alleged that all defendants had breached

                                                    4
this fiduciary duty and, specifically, that Bluegreen and the POA had breached this duty by creating
the restriction that prohibited mineral development. Appellees also alleged claims for breach of
contract and sought a declaratory judgment on a number of issues, including declarations as to their
rights as non-executive mineral interest owners and as to the defendants’ duties as owners of the
surface, the executive rights, and the remaining minerals.
       In an amended pleading filed in October 2006, appellees changed their position as to who
owned the executive rights. They no longer alleged that Bluegreen had transferred the executive
rights to the lot owners. Instead, they alleged that, because Bluegreen had listed the restrictive
covenants as an exception “to the conveyance” in its deeds to the lot owners and because the
restrictions prohibited mineral development, Bluegreen had not effectively transferred the executive
rights to the lot owners. In their live pleadings, appellees sought declarations, among others,
concerning (1) ownership of mineral interests, (2) ownership of the executive rights, (3) breach of
duty owed by the owner of the executive rights, and (4) applicability of the covenants and
subdivision plats to the mineral estate. Appellees alleged breach of fiduciary duty claims and breach
of contract claims against the defendants. Appellees also alleged tortious interference claims and
intentional invasion or interference with property rights claims against Bluegreen. The Lesley
Appellees alleged an additional breach of contract claim. They also sought to reform the mineral
reservation clauses in their deeds to Bluff Dale on the ground of mutual mistake.
       Many of the parties filed traditional and no-evidence motions for summary judgment. The
appellate record contains twenty-six motions for summary judgment, including supplemental
motions, a clerk’s record, eleven supplemental clerk’s records, and eight reporter’s records. The
VLB filed a plea to the jurisdiction based on sovereign immunity. On November 7 and 8, 2006, and
on January 16 and 17, 2007, the trial court heard the motions for summary judgment and the plea to
the jurisdiction. On January 17, 2007, the trial court entered its order granting and denying summary
judgment and order denying plea to the jurisdiction.         In the order, the trial court granted
(1) appellees’ November 3, 2006 request for summary judgment and December 26, 2006
supplemental motion for partial summary judgment asserting that Bluegreen owned the executive
rights; (2) appellees’ July 18, 2006 motion for partial summary judgment, October 10, 2006
supplemental motion for partial summary judgment, and December 26, 2006 second supplemental



                                                 5
motion for summary judgment asserting that the restrictive covenants were not enforceable;2
(3) appellees’ December 26, 2006 motion for partial summary judgment against Bluegreen asserting
that it breached its duty to lease and breached its contract; and (4) the Lesley Appellees’
December 20, 2006 motion for partial summary judgment on the deed reformation claims asserted
in their second supplemental original petition and on the POA’s and Bluegreen’s counterclaims for
declaratory judgment relating to the deed reformation claims.
         In the order, the trial court denied Bluegreen’s October 23, 2006 traditional motion for
summary judgment on appellees’ tortious interference claims and no-evidence motion for summary
judgment on appellees’ breach of contract, breach of fiduciary duty, and tortious interference claims.
The trial court granted the POA’s July 26, 2006 no-evidence motion for summary judgment and
October 24, 2006 motion for partial summary judgment on appellees’ breach of contract and breach
of fiduciary duty claims to the extent that the trial court declared that the POA was not liable to
appellees for breach of any duty associated with ownership of the executive rights because the POA
did not own, and had not owned, the executive rights. Otherwise, the trial court denied these
motions. The trial court also denied the POA’s December 21, 2006 supplemental traditional and no-
evidence motions for summary judgment. The trial court granted the landowner defendants’
October 20, 2006 traditional and no-evidence motions for summary judgment on appellees’ damages
claims to the extent that the trial court declared that the landowner defendants were not liable to
appellees for breach of any duty associated with ownership of the executive rights because the
landowner defendants did not own, and had not owned, the executive rights. Otherwise, the trial
court denied the landowner defendants’ motions. The trial court also denied the SWM clients’ (some
of the lot owner defendants) December 26, 2006 motion for summary judgment, the landowner
defendants’ December 26, 2006 motion for summary judgment, and Bluegreen’s December 28, 2006
motion for summary on the Lesley Appellees’ deed reformation claims. The trial court granted other
lot owner defendants’ motions for summary judgment to the extent that the trial court declared that
they were not liable to appellees for breach of any duty associated with ownership of the executive
rights because the lot owner defendants did not own, and had not owned, the executive rights.



         2
            Thus, although appellees now contend that Bluegreen in effect kept the executive rights because Bluegreen had imposed
the restrictive covenants, appellees also sought to have the restrictive covenants declared unenforceable.

                                                               6
Otherwise, the trial court denied the other lot owner defendants’ motions for summary judgment.
The trial court denied the VLB’s plea to the jurisdiction.
       The trial court also ordered that any motions that were not expressly granted in the order were
denied and that all defendants were permanently enjoined from attempting to enforce the declarations
of covenants. In the order, the trial court stated that the order did not dispose of the following
claims: (1) any remaining claims by appellees for damages against Bluegreen; (2) any remaining
claims by the POA and any lot owner defendants against Bluegreen; and (3) any counterclaims
against plaintiffs. The trial court entered an order severing the claims disposed of in its order
granting and denying summary judgment and order denying plea to the jurisdiction from the
remainder of the claims in the suit. This appeal involves the claims that were disposed of in the trial
court’s order granting and denying summary judgment and order denying plea to the jurisdiction.
                             The Trial Court’s Declaratory Judgment
       Ownership of Leasing Rights.
       The trial court determined that Bluegreen owned the executive rights. The trial court made
the following declaration in Section IV:
               The Court DECLARES that the Bluff Dale to Bluegreen Deeds conveyed to
       Bluegreen the Leasing Rights. Subsequent to its acceptance of the Leasing Rights
       under the Bluff Dale to Bluegreen Deeds, Bluegreen did not effectively convey, or
       assign, all, or any portion of, the Leasing Rights to any Lot Owner Defendant, to the
       POA, or to any other third party. Therefore, Bluegreen is, and remains, the owner of
       the Leasing Rights it acquired under the Bluff Dale to Bluegreen Deeds.
       Accordingly, Bluegreen is the sole and exclusive owner of the Leasing Rights.

       Breach of Executive Duty Owed by Owner of Leasing Rights.
       The trial court determined that Bluegreen, as the owner of the executive rights, breached the
duty it owed to appellees, as non-executive mineral owners. The trial court made the following
declarations in Section V:
               The Court DECLARES that the Owner of the Leasing Rights owes to the
       non-executive mineral owners the same degree of diligence and discretion in
       exercising the rights and powers granted under Leasing Rights as would be expected
       of the average landowner who because of self-interest is normally willing to take
       affirmative steps to seek or to cooperate with prospective lessees (hereinafter the
       “Duty to Lease”).


                                                  7
             The Court DECLARES that because neither the Lot Owner Defendants nor
       the POA own, or have owned, the Leasing Rights, no Lot Owner Defendant or the
       POA has breached the Duty to Lease owed to the Plaintiffs.

               The Court DECLARES that Bluegreen, as owner of the Leasing Rights,
       breached the Duty to Lease by: entering into a Deed of Trust burdening the Leasing
       Rights; creating and recording the Declarations of Covenants and the Plats; failing
       to provide notice of the filing of the Declarations of Covenants as is required under
       the Lesley/Foster to Bluff Dale Deed and the Lesley to Bluff Dale Deed; and failing
       to lease the Plaintiffs’ minerals pertaining to the Subject Land when there was
       opportunity to do so.

               The Court DECLARES that Bluegreen breached the contractual requirement
       of the Lesley/Foster to Bluff Dale Deed and the Lesley to Bluff Dale Deed by failing
       to give the requisite notice of the filing of the Declarations of Covenants.

       Applicability of the Declarations of Covenants and Plats Upon the Mineral Estate.
       The trial court determined that the declarations of covenants and plats were unenforceable.
The trial court made the following declarations in Section VI:
              The Court DECLARES that the Declarations of Covenants and Plats
       expressly purport to prohibit and restrict the exploration for, development, production
       and marketing of oil, gas and other minerals which may be located in, on, or under
       the Subject Land.

               The Court DECLARES that neither the Declarations of Covenants, nor the
       Plats, are enforceable, and cannot be used, to prohibit or restrict in any way, the
       exploration for, development of, production of, and/or marketing of oil, gas and/or
       other minerals which may be located in, on, or under the Subject Land.

               The Court DECLARES that neither the Declarations of Covenants, nor the
       Plats, are enforceable, and cannot be used, to prohibit or restrict in any way, the
       execution of a lease or leases covering the oil, gas, or other minerals which may be
       located in, on, or under the Subject Land.

               The Court DECLARES that neither the Declarations of Covenants, nor the
       Plats, are enforceable, and cannot be used, to prohibit or restrict in any way, the
       Plaintiffs’ rights as mineral co-tenants to self-exploration or self-development of
       Plaintiffs’ mineral interests in the Subject Land.

              The Court DECLARES that Plaintiffs’ minerals in, on, or under the Subject
       Land are not bound, burdened, or encumbered by any covenants entered post-
       severance of the Plaintiffs’ minerals from the surface estate.

                                                 8
                The Court DECLARES that the Plaintiffs’ minerals in, on, or under the
        Subject Land were severed from the surface estate on November 5, 1952 (pursuant
        to the Hedrick to Foster Deed), on February 17, 1998 (pursuant to the Lesley/Foster
        to Bluff Dale Deed), and September 30, 1998 (pursuant to the Lesley to Bluff Dale
        Deed).

                The Court DECLARES that the remaining one-fourth mineral interest not
        owned by the Plaintiffs pertaining to the Subject Land was severed from the surface
        estate because of the partitioning of the surface estate by virtue of the recording of
        the Declarations of Covenants and the recording of the Plats.

        Ownership of Mineral Interests.
        The trial court’s declarations related to the Lesley Appellees’ claims for reformation of the
February 17, 1998 deed from Bobby John Foster and Betty Yvon Lesley to Bluff Dale and the
September 30, 1998 deed from Betty Yvon Lesley and Kenneth Lesley to Bluff Dale. In Section II,
the trial court declared, in relevant part, as follows: (1) that the parties to the deeds intended for the
Lesley Appellees to reserve an undivided one-fourth mineral interest, without leasing rights, in the
subject lands; (2) that scrivener’s errors in the deeds by the Lesley Appellees’s attorney resulted in
a mutual mistake regarding the mineral interest to be reserved; (3) that, as a result of the scrivener’s
errors, the deeds contained “an ambiguity that could be interpreted as reserving one-eighth of the oil,
gas and other minerals”; (4) that the deeds should be, and were, reformed to reserve a one-fourth
mineral interest; (5) that reformation of the deeds would not affect the reasonable expectations of
subsequent purchasers of the property who took with notice of the ambiguities in the deeds and who
did not bargain to receive more than a one-fourth mineral interest; (6) that reformation of the deeds
resulted in such subsequent purchasers receiving the mineral interest that they bargained to receive
when they purchased their lots; and (7) that each lot owner defendant was conveyed a one-fourth
mineral interest, without executive rights, in their respective lots.
                                           Issues on Appeal
        The Landowner Appellants present six issues for review. In their first five issues, they
contend that the trial court erred in granting summary judgment to appellees and in denying summary
judgment to them for the following reasons: (1) that the owner of the executive rights does not have
an affirmative duty to lease the minerals; (2) that appellees failed to present evidence showing that
they breached the alleged duty to lease; (3) that appellees do not have a right to self-develop the

                                                    9
minerals; (4) that Bluegreen did not retain the executive rights and that the trial court’s conclusion
that Bluegreen retained the executive rights was irreconcilable and void because it was based on a
finding that the restrictive covenants were both valid and invalid; and (5) that a deed may not be
reformed under the doctrine of mutual mistake when subsequent purchasers have acquired the
property without knowledge of the mutual mistake. In their sixth issue, the Landowner Appellants
contend that, if this court determines that a duty to lease exists or that appellees have a right to self-
develop the minerals, we should extend the accommodation doctrine to protect against condemnation
of the surface estate.
        Bluegreen presents six issues for review. In its first issue, Bluegreen contends that the trial
court erred in rendering summary judgment declaring that the owner of the executive rights owes a
fiduciary duty to lease. In its second issue, Bluegreen contends that the trial court erred in rendering
summary judgment to appellees that Bluegreen breached a duty to lease appellees’ minerals. In its
third and fourth issues, Bluegreen contends that the trial court erred in rendering summary judgment
to the Lesley Appellees (1) on their claim that Bluegreen breached the contractual notice
requirements in their deeds to Bluff Dale and (2) on their reformation claims. In its fifth issue,
Bluegreen contends that the trial court erred in failing to render summary judgment to it with respect
to the issues raised in Issues Nos. 1 through 4 above. In its sixth issue, Bluegreen contends that, if
it owns the executive rights, the trial court erred in denying its motion for summary judgment on
appellees’ tortious interference claims.
        The VLB presents one issue for review. In its issue, the VLB contends that the trial court
erred in denying its plea to the jurisdiction based on sovereign immunity.
                              Summary Judgment Standards of Review
        We review the trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003). The parties filed traditional and no-evidence motions for summary judgment. A trial
court must grant a traditional motion for summary judgment if the moving party establishes that no
genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.
TEX . R. CIV . P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). In order for
a defendant to be entitled to summary judgment, it must either disprove an element of each cause


                                                   10
of action or establish an affirmative defense as a matter of law. 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).
Once the movant establishes a right to summary judgment, the nonmovant must come forward with
evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678-79 (Tex. 1979). When reviewing a traditional summary judgment, the appellate
court considers all the evidence and takes as true evidence favorable to the nonmovant. Am. Tobacco
Co., 951 S.W.2d at 425; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The
appellate court “must consider whether reasonable and fair-minded jurors could differ in their
conclusions in light of all of the evidence presented” and may not ignore “undisputed evidence in
the record that cannot be disregarded.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,
755, 757 (Tex. 2007).
       When a no-evidence motion for summary judgment is filed, the burden shifts to the
nonmoving party to present evidence raising an issue of material fact as to the elements specified in
the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A trial court must grant
a proper no-evidence motion for summary judgment unless the nonmovant produces more than a
scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements
of the claim. TEX . R. CIV . P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). We review a no-
evidence summary judgment under the same standard as a directed verdict. King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). We review the evidence in the light most favorable
to the party against whom the summary judgment was rendered, crediting evidence favorable to that
party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could
not. Tamez, 206 S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
       Competing motions for summary judgment were filed on some of the issues. When
competing motions are filed and one is granted and the other is denied, the reviewing court must
review the summary judgment evidence presented by both sides and determine all questions
presented. Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). The reviewing
court should render such judgment as the trial court should have rendered. Id.
                                Ownership of the Executive Rights
       As part of Bluegreen’s second issue, it asserts that the trial court erred in concluding that it
was the sole owner of the executive rights. As part of the Landowner Appellants’ fourth issue, they

                                                 11
assert that the trial court erred in concluding that Bluegreen reserved the executive rights in its deeds
to the lot owners. A mineral estate consists of five attributes: (1) the right to develop (the right of
ingress and egress); (2) the right to lease (the executive right); (3) the right to receive bonus
payments; (4) the right to receive delay rentals; and (5) the right to receive royalty payments.
French v. Chevron U.S.A., Inc., 896 S.W.2d 795, 797 (Tex. 1995); Altman v. Blake, 712 S.W.2d
117, 118 (Tex. 1986); Reagan v. Marathon Oil Co., 50 S.W.3d 70, 82 (Tex. App.—Waco 2001, no
pet.); Bank One, Tex., Nat’l Ass’n v. Alexander, 910 S.W.2d 530, 532 (Tex. App.—Austin 1995,
writ denied). Each attribute is an independent property right, may be severed into a separate interest,
and may be separately conveyed or reserved by the owner. French v. Chevron U.S.A., Inc., 871
S.W.2d 276, 277-78 (Tex. App.—El Paso 1994), aff’d, 896 S.W.2d 795 (Tex. 1995); Extraction
Res., Inc. v. Freeman, 555 S.W.2d 156, 158-59 (Tex. Civ. App.—El Paso 1977, writ ref’d n.r.e.).
When an owner conveys a mineral estate, all attributes are impliedly transferred as well unless they
are specifically reserved to the grantor. French, 871 S.W.2d at 278; Prairie Producing Co. v.
Schlachter, 786 S.W.2d 409, 412 (Tex. App.—Texarkana 1990, writ denied). Thus, when a mineral
interest is conveyed, the executive right incident to that interest passes to the grantee unless
specifically reserved. Day & Co. v. Texland Petroleum, Inc., 786 S.W.2d 667, 669 n.1 (Tex. 1990);
Schlittler v. Smith, 101 S.W.2d 543, 544 (Tex. 1937).
        In this case, the Hedricks conveyed the executive rights to H.S. Foster in the 1952 deed. That
deed specifically provided that “[H.S. Foster] shall have full, complete and sole right to execute oil,
gas and mineral leases covering all the oil, gas and other minerals in the following described land.”
In 1966, Betty Yvon Lesley and her husband, Kenneth Lesley, acquired from H.S. Foster the surface
estate and one-half of the mineral estate in 174.35 acres of the subject property. When H.S. Foster
died, Betty Yvon Lesley and Bobby John Foster inherited the surface estate and one-half mineral
interest in 3,923.58 acres of the subject property. In the 1998 deeds from (1) Betty Yvon Lesley and
Bobby John Foster to Bluff Dale and (2) Betty Yvon Lesley and Kenneth Lesley to Bluff Dale, the
Lesleys and Foster conveyed the executive rights to Bluff Dale. Specifically, the deeds provided that
“[Bluff Dale] shall have full rights to execute all future oil, gas, sulphur, and other mineral leases.”
The parties do not dispute that the Lesleys and Foster conveyed the executive rights to Bluff Dale,
that Bluff Dale conveyed the executive rights to Properties of the Southwest, that Properties of the


                                                   12
Southwest later changed its name to Bluegreen, and that, therefore, Bluegreen became the owner of
the executive rights.
          Bluegreen’s deeds to the lot owners typically provided that there were no reservations from
conveyance. The deeds also typically provided that “all restrictions, covenants, and easements” were
exceptions to the conveyance and warranty. One such restriction was the prohibition against mineral
development set forth in Section 3.12 of the declarations of covenants, uses, and restrictions.
Section 3.12 provided that “[n]o commercial oil drilling, oil development operations, oil refining,
quarrying or mining operation of any kind shall be permitted.” Appellees state in one of their
appellate briefs that, “[w]hile none of the Bluegreen deeds make any specific mention of the right
of ingress and egress for development of the minerals or the right to execute a lease, by stripping the
grantee of any right to drill, quarry, or mine, by definition, the grantee is without the ability to convey
those rights to a subsequent lessee.” Appellees assert that, because Section 3.12 prohibited the lot
owners from leasing the minerals, the deeds expressed an intent on the part of Bluegreen to reserve
the executive rights. Therefore, appellees contend that Bluegreen retained the executive rights. The
trial court declared that Bluegreen had not effectively conveyed the executive rights to the lot
owners, to the POA, or to any other party.
          As acknowledged by appellees, Bluegreen’s deeds to the lot owners did not specifically
mention the right to execute a lease. Bluegreen did not specifically reserve the executive rights in
its deeds to the lot owners. In essence, appellees assert that Bluegreen impliedly reserved the
executive rights by including the restriction against mineral development in the deeds. However,
a grantor may not reserve the executive rights by implication. Because Bluegreen did not specifically
reserve the executive rights in its deeds to the lot owners, the executive rights passed to the lot
owners. Day & Co., 786 S.W.2d at 669 n.1.3
          The trial court erred in granting summary judgment declaring that Bluegreen did not
effectively convey the executive rights to the lot owners or any of its other grantees.4 We sustain the


           3
             By accepting the restrictive covenants, the lot owners agreed not to allow mineral development on their tracts unless two-
thirds of the owners agreed to change the restriction.

          4
            The record does not demonstrate whether Bluegreen currently owns any lots in the Mountain Lakes Development.
Bluegreen may own the executive rights with respect to lots, if any, that it owns. Appellees alleged that “[b]y deed dated January 16,
2006 . . . Bluegreen purported to specifically convey all executive leasing rights it owned in Mountain Lakes to the Property Owners
Association.”

                                                                 13
Landowner Appellants’ fourth issue and Bluegreen’s second issue to the extent the Landowner
Appellants and Bluegreen complain that the trial court erred in concluding that Bluegreen reserved
the executive rights.5 We reverse Section IV of the trial court’s order. Because neither the
Landowner Appellants nor Bluegreen moved for summary judgment that Bluegreen conveyed the
executive rights to the lot owners, we do not render judgment declaring that Bluegreen conveyed the
executive rights to the lot owners. Instead, we remand the ownership of the executive rights issue
to the trial court for further proceedings consistent with this opinion.
                     Duty of Executive Rights Owner to Non-Executive Mineral Owners
          In its declarations, the trial court defined the duty owed by the executive to the non-executive
mineral owners as follows:
          [T]he Owner of the Leasing Rights owes to the non-executive mineral owners the same
          degree of diligence and discretion in exercising the rights and powers granted under Leasing
          Rights as would be expected of the average landowner who because of self-interest is
          normally willing to take affirmative steps to seek or to cooperate with prospective lessees
          (hereinafter the “Duty to Lease”).6

The trial court’s declaration is identical in material respects to a jury instruction that was given in
Manges v. Guerra, 673 S.W.2d 180, 183 (Tex. 1984). In Manges, neither party objected to the
instruction, and the Texas Supreme Court did not approve the instruction as properly defining the
duty owed by the owner of the executive right. 673 S.W.2d at 183.
          In Manges, the executive engaged in acts of self-dealing, including leasing the minerals to
himself on terms that were unfair to the non-executive mineral owners. Id. at 184. The executive also


            5
              Appellees contend that the Landowner Appellants did not preserve for appeal the issue of ownership of the executive rights
and that the trial court’s judgment must be affirmed as to lot owners who do not appeal. The Landowner Appellants preserved the
issue for review by raising it in their response to appellees’ motion for summary judgment on the ownership of the executive rights.
The respective rights of Bluegreen, the POA, the Landowner Appellants, and the lot owners who did not appeal as to the ownership
of the executive rights are interwoven. The executive rights issue is the same for all of these parties: Bluegreen either conveyed the
executive rights or did not convey them. Therefore, we reverse the trial court’s declaration that Bluegreen owned the executive rights
as to all parties. Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex. 1982) (A reversal as to an appealing
party justifies a reversal as to nonappealing parties “where the respective rights of the appealing and nonappealing parties are so
interwoven or dependent on each other as to require a reversal of the entire judgment.”); Belz v. Belz, 667 S.W.2d 240, 244 (Tex.
App.—Dallas 1984, writ ref’d n.r.e.) (“The applicable standard is that reversal is required when the rights of appealing and
nonappealing parties are so interwoven or dependent on each other as to require reversal of the whole judgment when a part thereof
is reversed.”).

          6
           The issue of the duty owed by the owner of the executive rights to non-executive mineral owners does not appear to be
a proper subject matter of relief under the Uniform Declaratory Judgments Act. TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a)
(Vernon 2008).

                                                                   14
executed a deed of trust covering “all of the oil, gas and other mineral interests . . . including . . .
executive rights and powers.” Id. at 182. The Manges court recognized that an executive owes the
non-executive mineral owners the duty of utmost good faith and that the duty is fiduciary in nature.
Id. at 183. The fiduciary duty arises from the relationship of the parties and not from the terms of a
contract. Id. The court explained that “[the] duty requires the holder of the executive right . . . to
acquire for the non-executive every benefit that he exacts for himself.” Id. The court held that the
executive had breached his fiduciary duty in making the lease to himself, in agreeing to accept a
nominal bonus as a term of the lease, and “in dealing with the entire mineral interest so that he
received benefits that the non-executives did not receive.” Id. at 184.
       In In re Bass, 113 S.W.3d 735 (Tex. 2003) (orig. proceeding), the supreme court explained its
holding in, and distinguished, Manges:
       Manges involved a dispute between mineral estate co-tenants. Manges purchased
       one-half of the mineral estate and executive leasing rights from the Guerra family
       with the Guerras retaining the other 50% ownership interest in the mineral estate.
       The Guerras sued Manges for self-dealing in leasing a portion of the estate to himself
       at unfair terms. We stated that “[a] fiduciary duty arises from the relationship of the
       parties . . . [t]hat duty requires the holder of the executive right, Manges in this case,
       to acquire for the non-executive every benefit that he exacts for himself.”
       Accordingly, we held that Manges breached his fiduciary duty to the Guerras by
       making a lease to himself under numerous unfair terms.

               ....

               What differentiates this case from Manges, however, is that no evidence of
       self-dealing exists here. Bass has not leased his land to himself or anyone else. Bass
       has yet to exercise his rights as the executive. Because Bass has not acquired any
       benefits for himself, through executing a lease, no duty has been breached. Thus, the
       present facts are distinguishable from Manges.

113 S.W.3d at 744-45 (citation omitted).
       The court’s analysis in Bass establishes that no breach of fiduciary duty can occur until the
executive exercises the executive rights. Under Manges and Bass, a breach of fiduciary duty occurs
if (1) the executive exercises the executive rights, (2) the executive acquires benefits from the minerals
for himself by exercising the executive rights, and (3) the executive fails to acquire every benefit for
the non-executive mineral owners that he acquired for himself. Bass, 113 S.W.3d at 744-45. The


                                                   15
owner of the executive rights does not have an affirmative duty to lease the minerals.7 See Hlavinka v.
Hancock, 116 S.W.3d 412, 420 (Tex. App.—Corpus Christi 2003, pet. denied) (“[A]ppellees
misconstrue Manges in seeking to impose a fiduciary duty to lease upon the executive interest
owner.”). The trial court erred in defining the duty owed by the executive to the non-executive mineral
owners. We sustain Bluegreen’s first issue.
          The trial court also declared that Bluegreen, as the executive rights owner, breached the “Duty
to Lease” in four respects: (1) by entering into a deed of trust burdening the executive rights; (2) by
creating and recording the declarations of covenants and the plats for the subdivision; (3) by failing
to provide notice of the filing of the declarations of covenants as is required under the Lesley
Appellees’ deeds to Bluff Dale; and (4) by failing to lease appellees’ minerals when there was
opportunity to do so. In Manges, the executive’s deed of trust covered all mineral interests, including
the executive right. Manges, 673 S.W.2d at 182. Appellees contend that Bluegreen executed two
similar deeds of trust.8 However, the deeds of trust that Bluegreen executed did not purport to cover
any mineral interests. Even if Bluegreen’s deeds of trust had covered the executive rights, we would
find, under the reasoning in Bass, that Bluegreen did not exercise the executive rights to obtain
benefits from the minerals by executing the deeds of trust. In contrast, this court in Comanche Land &
Cattle Co. v. Adams, 688 S.W.2d 914, 915-16 (Tex. App.—Eastland 1985, no writ), cited by appellees,
found that the holder of the executive rights had obtained a benefit from the minerals that the non-
executive royalty owners had not. Bluegreen did not exercise the executive rights by creating and
recording the declarations of covenants and the plats for the subdivision. Rather, the declarations,
which included the restriction against mineral development, showed that Bluegreen would not be
exercising the executive rights. Similarly, Bluegreen did not exercise the executive rights by failing
to provide notice of the filing of the declarations of covenants to the Lesley Appellees. We have held
that the owner of the executive rights does not have a duty to lease the minerals. Therefore, Bluegreen
did not breach a duty by failing to lease appellees’ minerals.



          7
            In addition to addressing the fiduciary duty issue, the Bass court considered whether an implied covenant to develop the
mineral estate existed. Bass, 113 S.W.3d at 743. The court refused to imply a covenant to develop. Id. at 744.

        8
          Properties of the Southwest executed the deeds of trust before changing its name to Bluegreen. Because Properties of the
Southwest and Bluegreen were the same entity, we treat Bluegreen as having executed the deeds of trust.

                                                                 16
       The Landowner Appellants moved for a no-evidence summary judgment on the ground that
they did not breach the alleged fiduciary duty to lease appellees’ minerals. There is no evidence in
the record that the Landowner Appellants exercised the executive rights.9 Because the record lacks
such evidence, the trial court erred in denying summary judgment to the Landowner Appellants on
appellees’ breach of fiduciary duty claims.
       We note that the facts in this case are nothing like the facts in Manges. This case involves
an arms-length transaction between the Lesley Appellees and Bluff Dale. Bluff Dale wanted to
obtain property for the purpose of developing a residential subdivision or selling it to another
residential developer. Bluff Dale bought about 4,100 acres of land from the Lesley Appellees for
that purpose; Bluff Dale did not buy the land for the purpose of mineral development. The Lesley
Appellees certainly knew that a residential developer would not want drilling or other similar
activities to take place on the surface area in the subdivision. With that knowledge, the Lesley
Appellees sold the property to Bluff Dale for about $2,000,000. The Lesley Appellees could have
negotiated to retain the executive rights. They could have refused to sell the property if Bluff Dale
did not agree to let them retain the executive rights. Instead, the Lesley Appellees willingly
conveyed the executive rights to Bluff Dale. Bluegreen, which later obtained the executive rights,
developed the property as a residential subdivision. Bluegreen created the declarations of covenants,
conditions, and restrictions for the purpose of maintaining the integrity of the subdivision. Based
on the facts in this case, even if the declarations or the agreement to comply with them could be
construed as an exercise of the executive rights, Bluegreen, the POA, and the lot owners did not
breach a fiduciary duty to appellees.10
       Because Bluegreen, as the executive rights owner, did not breach a fiduciary duty to
appellees, the trial court erred in granting summary judgment to appellees on their breach of
fiduciary claims against Bluegreen, and we reverse Section V of the trial court’s order. For the same
reason, the trial court erred in denying summary judgment to Bluegreen on appellees’ breach of
fiduciary duty claims. We sustain Bluegreen’s second issue, and we also sustain its fifth issue to the



       9
           Likewise, there is no evidence that any other lot owner or the POA exercised the executive rights.

       10
            As stated earlier, we do not construe such declarations or complying with them as an exercise of the executive rights.

                                                                17
extent it asserts that the trial court erred in denying summary judgment to it on appellees’ breach of
fiduciary duty claims. The trial court also erred in denying summary judgment to the Landowner
Appellants on appellees’ breach of fiduciary duty claims. Therefore, we sustain the Landowner
Appellants’ second issue. We render judgment that appellees take nothing on their breach of
fiduciary duty claims against Bluegreen and the Landowner Appellants.
                                                        Right to Develop
          Appellees contend that, as non-executive mineral owners, they have a common-law right to
self-develop their minerals. The trial court declared that the declarations of covenants were
unenforceable and could not be used to prohibit “the [appellees’] rights as mineral co-tenants to self-
exploration or self-development of [their] mineral interests in the Subject Land.” As set forth above,
the right to develop is one of the five attributes of the mineral estate. French, 896 S.W.2d at 797.
“[T]he right to develop is a correlative right and passes with the executive rights.” Id. at 797 n.1;
see also Day & Co., 786 S.W.2d at 669 n.1; Reagan v. Marathon Oil Co., 50 S.W.3d 70, 82 n.11
(Tex. App.—Waco 2001, no pet.); Alexander, 910 S.W.2d at 532-33. When the Lesley Appellees
conveyed the executive rights to Bluff Dale, the right to develop passed with the executive rights to
Bluff Dale. Therefore, appellees did not retain a right to develop their minerals.11 The trial court
erred in declaring that appellees had the right to self-develop the land.12 We sustain the Landowner
Appellants’ third issue. Because appellees do not have the right to self-develop their minerals, we
must reverse Section VI of the trial court’s order.13
                       Lesley Appellees’ Breach of Contract Claims Against Bluegreen
          The 1998 deeds from Bobby John Foster and Betty Yvon Lesley to Bluff Dale and Betty
Yvon Lesley and Kenneth Lesley to Bluff Dale contained the following notice provision:
          Copies of any instruments dealing with the leasing of the mineral rights on the
          property above described shall either be furnished to Grantors direct or furnished to


          11
             Appellees rely on Cone v. Fagadau Energy Corp., 68 S.W.3d 147 (Tex. App.—Eastland 2001, pet. denied), in arguing
that, as mineral co-tenants, they have a right to develop their minerals. Appellees have correctly stated the common-law rule;
however, the Lesley Appellees relinquished the right to self-develop the minerals when they conveyed the executive rights to
Bluegreen.

          12
             Had the Lesley Appellees retained the executive rights and the correlative right to develop, the restriction against mineral
development would not prohibit them from exercising the rights. Prop. Owners of Leisure Land, Inc. v. Woolf & Magee, Inc., 786
S.W.2d 757, 760 (Tex. App.—Tyler 1990, no writ) (“The mineral owner, having the dominant estate, cannot be limited by subdivision
restrictions imposed by surface owners after the estate is severed.”).

          13
         Based on our rulings on the Landowner Appellants’ first and third issues, we need not address their sixth issue
(accommodation doctrine issue).

                                                                  18
        the depository bank designated by them for transmission to them, including, but not
        necessarily limited to, oil and gas leases, agreements for payment of bonuses, delay
        rentals, overriding royalties, production payments or other matters affecting the
        minerals or royalty interests.

The Lesley Appellees alleged that Bluegreen breached the notice provisions in the deeds by failing
to provide them with notice of the filing of the declarations of covenants. The trial court granted
summary judgment to the Lesley Appellees on their claim. The trial court declared that “Bluegreen
breached the contractual requirement of the Lesley/Foster to Bluff Dale Deed and the Lesley to Bluff
Dale Deed by failing to give the requisite notice of the filing of the Declarations of Covenants.”
        Bluegreen was not a party to the Lesley Appellees’ deeds to Bluff Dale. Bluegreen asserts
that it has no contractual liability to the Lesley Appellees because (1) privity of contract did not exist
between it and the Lesley Appellees and (2) the notice provisions in the deeds were personal
covenants that did not run with the land. In Texas, covenants that run with the land bind the heirs
and assigns of the covenanting parties, while personal covenants do not. Montfort v. Trek Res., Inc.,
198 S.W.3d 344, 355 (Tex. App.—Eastland 2006, no pet.); Tarrant Appraisal Dist. v. Colonial
Country Club, 767 S.W.2d 230, 235 (Tex. App.—Fort Worth 1989, writ denied). A covenant runs
with the land if (1) it touches and concerns the land, (2) it relates to a thing in existence or
specifically binds the parties or their assigns, (3) it is intended by the original parties to run with the
land, and (4) the successor to the burden has notice. Inwood N. Homeowners’ Ass’n v. Harris, 736
S.W.2d 632, 635 (Tex. 1987); Montfort, 198 S.W.3d at 355. Therefore, Bluegreen could be liable
to the Lesley Appellees for breach of contract only if the notice provisions in the Lesley Appellees’
deeds to Bluff Dale run with the land.
        Covenants that run with the land generally burden or restrict the use of the land. Montfort,
198 S.W.3d at 354-56 (Grantor agreed to furnish fresh water from the land to the house and to the
grantee for the purpose of watering the grantee’s livestock.); Voice of Cornerstone Church Corp. v.
Pizza Prop. Partners, 160 S.W.3d 657, 666 (Tex. App.—Austin 2005, no pet.) (A restrictive
covenant providing that property would be used only for commercial and light industrial purposes
“burdened the property itself.”); Rolling Lands Invs., L.C. v. Nw. Airport Mgmt., L.P., 111 S.W.3d
187, 200 (Tex. App.—Texarkana 2003, pet. denied) (A restriction concerning fueling rights touched
and concerned the land because it limited the use to which the land could be put.). Bluff Dale’s

                                                    19
covenants in the deeds to provide copies of instruments dealing with leasing of mineral rights were
mere notice requirements. The covenants did not burden or restrict Bluff Dale’s exercise of the
executive rights in any fashion. As such, the contractual notice requirements did not run with the
land and did not bind Bluegreen.14
       The trial court erred in granting summary judgment to the Lesley Appellees on their breach
of contract claims against Bluegreen and in denying summary judgment to Bluegreen on those
claims. We sustain Bluegreen’s third issue and Bluegreen’s fifth issue to the extent that Bluegreen
asserts the trial court erred in denying its motion for summary judgment on the Lesley Appellees’
breach of contract claims, and we render judgment that the Lesley Appellees take nothing on their
breach of contract claims against Bluegreen.
                         Appellees’ Tortious Interference Claims Against Bluegreen
       Appellees alleged various tortious interference claims against Bluegreen. Bluegreen moved
for traditional and no-evidence summary judgments on those claims, and the trial court denied the
motions. The trial court’s summary judgment order in this cause did not dispose of the tortious
interference claims, and those claims are not part of this severed cause. Instead, the tortious
interference claims remained in the original cause. Because appellees’ tortious interference claims
are not part of this cause, we will not address Bluegreen’s sixth issue or Bluegreen’s contention that
the trial court erred in denying its traditional and no-evidence motions for summary judgment on
appellees’ tortious interference claims.
                                   Lesley Appellees’ Deed Reformation Claims
       The Lesley Appellees’ reformation claims involve the February 17, 1998 deed from Bobby
John Foster and Betty Yvon Lesley to Bluff Dale and the September 30, 1998 deed from Betty Yvon
Lesley and Kenneth Lesley to Bluff Dale. Before their conveyances to Bluff Dale, the Lesley
Appellees owned the entire surface estate and a one-half mineral interest in the subject property. The
Lesley Appellees’ deeds to Bluff Dale contained identical mineral reservation clauses: “Grantors will
be reserving unto themselves, their heirs and assigns, one-fourth (1/4) of the oil, gas, sulphur and
other minerals to which Grantors are now entitled to in all of the lands covered by this conveyance.”



       14
            For the same reason, the contractual notice requirements did not bind Bluegreen’s grantees.

                                                               20
       The Lesley Appellees asserted that, under their deeds to Bluff Dale, they reserved a one-
fourth mineral interest and conveyed a one-fourth mineral interest to Bluff Dale. In July 2006,
Bluegreen and the POA filed counterclaims for declaratory judgment in which they alleged that the
Lesley Appellees reserved a one-eighth mineral interest and conveyed a three-eighths mineral interest
to Bluff Dale. In August 2006, the Lesley Appellees filed their second supplemental petition in
which they sought reformation of the mineral reservation clauses in their deeds to Bluff Dale on the
ground of mutual mistake.
       To support a claim for reformation, the Lesley Appellees alleged that they intended to reserve
a one-fourth mineral interest in their deeds to Bluff Dale but that, “by reason of a scrivener’s error
and/or a mutual mistake,” their deeds to Bluff Dale “may not have accurately reflected the quantum
of mineral interest that [they] intended to reserve.” They further alleged that, if any question existed
as to the amount of the mineral interest that they reserved in the deeds, the question had resulted
from “a mutual mistake between the Lesley Plaintiffs and their grantee.” The Lesley Appellees
requested the trial court to reform the mineral reservations in the deeds to read as follows: “Grantors
will be reserving unto themselves, their heirs and assigns, one-half of the oil, gas, sulphur and other
minerals to which Grantors are now entitled to in all of the lands covered by this conveyance.”
       The Lesley Appellees filed a motion for summary judgment on their reformation claims and
on the claims asserted by Bluegreen and the POA in their counterclaims for declaratory judgment.
Bluegreen and various lot owners filed motions for summary judgment in which they sought a
declaration that the Lesley Appellees reserved a one-eighth mineral interest in their deeds to Bluff
Dale. The trial court granted the Lesley Appellees’ motion and denied the other motions. The trial
court declared that the mineral reservation clauses in the deeds were ambiguous and reformed the
deeds on the ground of mutual mistake.
       The underlying objective of reformation is to correct a mutual mistake made in preparing
a written instrument so that the instrument truly reflects the original agreement of the parties.
Cherokee Water Co. v. Forderhause, 741 S.W.2d 377, 379 (Tex. 1987). Reformation requires proof
of two elements: (1) an original agreement and (2) a mutual mistake, made after the original
agreement, in reducing the original agreement to writing. Id. If a mistake has been made by a
scrivener or typist, an instrument may be reformed and modified by a court to reflect the true


                                                  21
agreement of the parties if the mistake was a mutual mistake. Henderson v. Henderson, 694 S.W.2d
31, 34 (Tex. App.—Corpus Christi 1985, writ ref’d n.r.e.); Louviere v. Power, 389 S.W.2d 333, 335
(Tex. Civ. App.—Waco 1965, writ ref’d n.r.e.). Bluegreen argues that the trial court erred in
reforming the deeds because they were unambiguous. However, the fact that a written instrument
is couched in unambiguous language, that the parties knew what words were used and were aware
of their ordinary meaning, or that they were negligent in failing to discover the mistake before
signing the instrument will not preclude relief by reformation. Marcuz v. Marcuz, 857 S.W.2d 623,
627 (Tex. App.—Houston [1st Dist.] 1993, no writ); Brinker v. Wobaco Trust Ltd., 610 S.W.2d 160,
164 (Tex. Civ. App.—Texarkana 1980, writ ref’d n.r.e.).
       The Lesley Appellees executed the deeds to Bluff Dale in 1998. They filed their reformation
claim in this cause on August 10, 2006. The four-year statute of limitations governs a suit for
reformation of a deed. Brown v. Havard, 593 S.W.2d 939, 943 (Tex. 1980); Cullins v. Foster, 171
S.W.3d 521, 531 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). The Lesley Appellees
acknowledged in their motion for summary judgment that their suit for reformation was timely filed
only if the statute of limitations was tolled for an appropriate period of time. Bluegreen and the POA
asserted in their responses to the Lesley Appellees’ motion that the statute of limitations barred the
Lesley Appellees’ reformation claims.
       Texas courts apply the discovery rule to reformation claims based on mutual mistake. Under
the discovery rule, the statute of limitations does not begin to run until the party seeking reformation
knew or, in the exercise of reasonable diligence, should have known of the mistake in the deed.
Brown, 593 S.W.2d at 944; Cullins, 171 S.W.3d at 531; Broyles v. Lawrence, 632 S.W.2d 184, 187-
88 (Tex. App.—Austin 1982, no writ).
       The Lesley Appellees presented an affidavit of Betty Yvon Lesley in support of their motion
for summary judgment. In the affidavit, Betty Yvon Lesley stated that, after closing the transactions
with Bluegreen in 1998, she and her husband, Kenneth Lesley, believed that they had reserved a one-
fourth mineral interest in the deeds. She also stated that she and Kenneth were informed by their
attorneys in June 2006 “that an adverse claim to 1/8th of our minerals would be forthcoming.” The
Lesley Appellees assert that they did not have notice of the mutual mistake in the deeds until they




                                                  22
learned about the adverse claim in June 2006 and that, therefore, the discovery rule tolled the statute
of limitations until that time.
        In Brown, the Texas Supreme Court considered the ambiguous nature of the language used
in a mineral reservation clause in a deed in determining whether the party seeking reformation in the
exercise of reasonable diligence should have known of the mistake in the deed. Brown, 593 S.W.2d
at 944. The court explained that the mistake was not “so plainly evident as to charge [the grantee]
with the legal effect of the words used.” Id. Therefore, the court concluded that the grantee could
not be charged as a matter of law with knowledge of the mistake. Id.
        In this case, the trial court found that the Lesley Appellees’ deeds to Bluff Dale contained
ambiguous mineral reservation clauses that could be interpreted as reserving one-eighth mineral
interests. Whether a deed is ambiguous is a question of law for the court, which we review de novo.
Johnson v. Conner, 260 S.W.3d 575, 579 (Tex. App.—Tyler 2008, no pet.); Gore Oil Co. v. Roosth,
158 S.W.3d 596, 599 (Tex. App.—Eastland 2005, no pet.). A court’s primary goal when construing
a deed is to ascertain the true intention of the parties as expressed in the “four corners” of the
instrument. Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). If a written instrument, such as a
deed, is worded in such a way that a court may properly give it a certain or definite legal meaning
or interpretation, it is not ambiguous. R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d
517, 519 (Tex. 1980); Gore Oil Co., 158 S.W.3d at 599. However, if a written instrument remains
reasonably susceptible to more than one meaning after the rules of interpretation have been applied,
then the instrument is ambiguous. R & P Enters., 596 S.W.2d at 519; Gore Oil Co., 158 S.W.3d at
599.
        Before the Lesley Appellees executed the deeds to Bluff Dale, they owned a one-half mineral
interest in the subject property. Thus, they were “entitled to” one-half of the minerals. In their deeds
to Bluff Dale, they “reserv[ed] unto themselves, their heirs, and assigns, one-fourth (1/4) of the oil,
gas, sulphur and other minerals to which Grantors are now entitled to in all of the lands covered by
this conveyance.” Under the clear language in the deeds, the Lesley Appellees reserved one-fourth
of their one-half mineral interest. Therefore, the Lesley Appellees reserved a one-eighth mineral
interest. Because the deeds can be given a definite legal meaning and are not reasonably susceptible
to more than one meaning, they are unambiguous. R & P Enters., 596 S.W.2d at 519.


                                                  23
        The Lesley Appellees knew that they owned a one-half mineral interest before their
conveyances to Bluff Dale. By reading the clear language in their deeds to Bluff Dale, they would
have known that they were reserving one-fourth of their one-half mineral interest. Based on the
reasoning in Brown, the mistakes, if any, in the Bluff Dale deeds were “so plainly evident as to
charge [the Lesley Appellees] with the legal effect of the words used.” See Brown, 593 S.W.2d at
944. As a matter of law, the Lesley Appellees in the exercise of reasonable diligence should have
known of the mistakes in the deeds when they executed the deeds. Their reformation claims are
barred by the four-year statute of limitations.
        The trial court erred in granting summary judgment to the Lesley Appellees on their
reformation claims. We sustain Bluegreen’s fourth issue. Based on our ruling that limitations barred
the Lesley Appellees’ reformation claims, we need not address (1) whether the Lesley Appellees met
their summary judgment burden of establishing the elements of their reformation claims or (2) the
matters raised by the Landowner Appellants in their fifth issue. We reverse the trial court’s
judgment on the Lesley Appellees’ reformation claims, including Section II of the trial court’s order.
Because Bluegreen and the Landowner Appellants did not affirmatively move for summary judgment
on the statute of limitations issue, we do not render judgment in their favor on the Lesley Appellees’
reformation claims. Instead, we remand the Lesley Appellees’ reformation claims to the trial court
for further proceedings consistent with this opinion.
                                      VLB’s Sovereign Immunity
        Appellees named the VLB as a lot owner defendant in their pleadings. The VLB filed a plea
to the jurisdiction based on sovereign immunity. The trial court denied the VLB’s plea to the
jurisdiction. In its sole appellate issue, the VLB contends that the trial court erred in denying its plea
to the jurisdiction.
        A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter
of a specific cause of action. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999).
Sovereign immunity from suit defeats a trial court’s subject-matter jurisdiction. Id. Whether a trial
court has subject-matter jurisdiction is a question of law subject to de novo review. Tex. Natural
Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Accordingly, we review
a trial court’s order denying a jurisdictional plea based on sovereign immunity de novo. Id.


                                                   24
       The VLB is a state agency. Sovereign immunity, unless waived, protects the State and
various divisions of state government, such as agencies, from lawsuits for damages. Wichita Falls
State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003); Gen. Servs. Comm’n v. Little-Tex
Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). Immunity from suit bars a suit against the State
unless the legislature expressly consents to the suit by statute or resolution granting express
legislative permission. Little-Tex, 39 S.W.3d at 594. Legislative consent to sue the State must be
expressed in “clear and unambiguous language.” IT-Davy, 74 S.W.3d at 854.
       Certain types of declaratory judgment actions do not implicate the State’s sovereign
immunity. IT-Davy, 74 S.W.3d at 855. In such actions, a party need not obtain consent to sue the
State. For example, “[p]rivate parties may seek declaratory relief against state officials who
allegedly act without legal or statutory authority.” Id. Such suits do not constitute “suits against the
State” because suits to compel state officers to act within their official capacity do not attempt to
subject the State to liability. Id. In this case, appellees did not seek declaratory relief against any
official of the VLB. Appellees only sued the VLB. In addition, a party may bring a declaratory
judgment action against the State seeking a declaration as to the party’s rights and status under a
statute or an ordinance. IT-Davy, 74 S.W.3d at 859-60; Tex. Educ. Agency v. Leeper, 893 S.W.2d
432, 446 (Tex. 1994). In this case, appellees did not seek a declaration as to their rights and status
under any statute or ordinance.
       A private party cannot circumvent the State’s sovereign immunity from suit by characterizing
a suit for money damages, such as a contract dispute, as a declaratory judgment claim. City of
Houston v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007); IT-Davy, 74 S.W.3d at 856. Therefore,
a suit for monetary damages against a sovereign is not transformed into a viable suit by a request for
a declaratory judgment. Williams, 216 S.W.3d at 829.
       In their appellate brief, appellees assert that, in their declaratory judgment action, they “asked
for construction of the parties’ respective rights under a deed in their chain of title.” The Texas
Declaratory Judgments Act authorizes a person interested under a deed to have determined any
question of construction arising under the deed and to obtain a declaration of rights, status, or other
legal relations thereunder. TEX . CIV . PRAC. & REM . CODE ANN . § 37.004(a) (Vernon 2008); City
of Anson v. Harper, 216 S.W.3d 384, 394 (Tex. App.—Eastland 2006, no pet.). In their brief,


                                                  25
appellees focus on two aspects of their claims for declaratory relief: (1) their request for a
declaration as to the holder of the executive rights and (2) their request that the covenants prohibiting
mineral development were unenforceable. Appellees assert that these requests did not implicate
sovereign immunity and that they “have not sought liability or monetary damages from the VLB.”
        A review of appellees’ pleadings shows that they sought to recover money damages from the
VLB, whether or not the VLB owned the executive rights. Appellees initially alleged that the VLB
and the other lot owners owned the executive rights in the minerals underlying their lots. Later,
appellees amended their pleadings and alleged that Bluegreen had retained the executive rights. In
their live pleading, appellees alleged that “Defendants Bluegreen, the POA, or the Lot Owners . . .
may be owners of executive rights to lease the minerals underlying the Development.” Appellees
further alleged that “[s]uch ownership rights shall be determined by the Court.” Appellees alleged
breach of contract and breach of fiduciary duty claims against “[t]he Defendants holding the
executive rights as such holders shall be determined by the Court.” They also alleged that “all
Defendants, whether owners of the executive leasing rights or not, have aided and abetted the
Defendants holding executive rights in breaching their duties by accepting deeds purporting to
incorporate mineral development restrictions and by their own continued adherence to the Non-
Development Covenants” and that, by engaging in such conduct, the defendants had breached
contractual obligations to them. Appellees sought to recover damages from defendants for the
alleged breaches of fiduciary duty and contract. Sovereign immunity bars appellees’ claims for
money damages against the VLB; therefore, the trial court erred in denying the VLB’s plea to the
jurisdiction with respect to these claims.
        Appellees sought a declaratory judgment that Bluegreen owned the executive rights. In their
brief, appellees acknowledge that their request for declaratory relief involved title to the executive
rights. However, they assert that, because they did not seek to obtain title to the executive rights in
a trespass to try title action, their request for declaratory judgment did not implicate sovereign
immunity. In ruling on appellees’ request, the trial court had to determine whether Bluegreen
retained the executive rights or conveyed the executive rights to the lot owners.
        A declaratory judgment action may be brought “when the sole issue concerning title to real
property is the determination of the proper boundary line between adjoining properties.” TEX . CIV .
PRAC . & REM . CODE ANN . § 37.004(c) (Vernon 2008). This case does not involve a boundary
dispute. Instead, this case involves rival claims to the executive rights. A trespass to try title action,

                                                   26
and not a declaratory judgment action, is the proper method of adjudicating rival claims to the
executive rights. See Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004); Ely v. Briley, 959
S.W.2d 723, 727 (Tex. App.—Austin 1998, no pet.) (A trespass to try title action is the exclusive
remedy by which to resolve competing claims to property.); Bell v. State Dep’t of Highways and
Pub. Transp., 945 S.W.2d 292, 294 (Tex. App.—Houston [1st Dist.] 1997, writ denied), abrogated
by Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004). In a trespass to try title action, the
prevailing party’s remedy is title to, and possession of, the real property interest at issue in the suit.
Porretto v. Patterson, 251 S.W.3d 701, 708 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
        Although appellees did not assert a trespass to try title claim, their request for declaratory
relief was similar to a trespass to try title claim. Appellees requested the trial court to determine
competing claims to ownership of the property: appellees’ claim that Bluegreen had retained the
executive rights versus the lot owners’ claim that Bluegreen had conveyed the executive rights to
them. By making their claim for declaratory relief, appellees squarely placed the VLB’s title to the
executive rights in issue. Appellees sought a determination against the VLB on that issue. A
trespass to try title action against the State requires legislative consent. State v. Lain, 349 S.W.2d
579, 582 (Tex. 1961) (“When in this state the sovereign is made a party defendant to a suit for land,
without legislative consent, its plea to the jurisdiction of the court based on sovereign immunity
should be sustained.”); Porretto, 251 S.W.3d at 707-08; State v. Beeson, 232 S.W.3d 265, 271 n.5
(Tex. App.—Eastland 2007, pet. abated). We find that, by placing title to the executive rights in
issue, appellees’ request for declaratory relief implicated the VLB’s sovereign immunity. Therefore,
based on the reasoning in Lain and its progeny, sovereign immunity bars appellees’ claim for
declaratory relief on the ownership of the executive rights’ issue.
        Appellees assert that their request for a declaratory judgment that the covenants prohibiting
mineral development were unenforceable did not implicate sovereign immunity. Appellees also
requested declarations that the covenants could not be used (1) to prohibit mineral leases covering
the subject property or (2) to prohibit appellees’ rights of self-exploration and self-development of
their mineral interests on the subject property. By requesting these declarations, appellees sought
to affect the use of the VLB’s surface estate. Appellees assert that, as owners of the dominant
mineral estate, they have the right to “make reasonable use of the entirety of the surface of the
Mountain Lakes Development” to extract their minerals.



                                                   27
       While a mineral interest owner has no possessory interest in the surface estate, the surface
is burdened in the mineral interest owner’s or his lessee’s favor with certain necessarily implied
easements of ingress and egress and for the use of such portions of the surface for drilling, storing,
pumping, and transporting as are incidental to the full enjoyment of the mineral interest owner’s or
his lessee’s exclusive privilege to drill for, produce, and market the oil and gas. Mobil Pipe Line
Co. v. Smith, 860 S.W.2d 157, 159 (Tex. App.—El Paso 1993, writ dism’d w.o.j.); see also Sun Oil
Co. v. Whitaker, 483 S.W.2d 808, 810-11 (Tex. 1972). Appellees’ requests for declaratory relief
sought to burden the VLB’s property with these implied easements. In Beeson, landowners filed a
declaratory judgment action against the State in which they sought to establish an easement on the
State’s property. Beeson, 232 S.W.3d at 270-71. We held that the landowners’ easement claims
implicated sovereign immunity and that, therefore, sovereign immunity barred their suit. Id. at 271-
72. Likewise, in this case, sovereign immunity bars appellees’ claims for declaratory relief
concerning the covenants against mineral development as they relate to the VLB’s property.
       The Lesley Appellees asserted their deed reformation claims against the VLB. The Lesley
Appellees alleged that they intended to reserve a one-fourth mineral interest, and they sought to
reform the deeds on the ground of mutual mistake. We have held that the Lesley Appellees
unambiguously reserved a one-eighth mineral interest in their deeds to Bluff Dale. Thus, by their
mutual mistake claim, the Lesley Appellees effectively sought to increase their one-eighth mineral
interest to a one-fourth mineral interest and to decrease the VLB’s three-eighths mineral interest to
a one-fourth mineral interest. As such, the Lesley Appellees attempted to adjudicate the State’s title
to its mineral interest. Therefore, the Lesley Appellees’ deed reformation claims against the State
are barred by sovereign immunity. Lain, 349 S.W.2d at 582.
       Appellees contend that the VLB waived sovereign immunity by seeking affirmative relief.
In Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 373 (Tex. 2006), the City of Dallas sued
a private party for negligence. In Reata, the supreme court held that, when a governmental entity
asserts affirmative claims for monetary relief, the entity leaves “its sphere of immunity” and that,
therefore, the adverse party may assert, as an offset, claims germane to, connected with, and properly
defensive to those asserted by the governmental entity. 197 S.W.3d at 376-77. In such a situation,
the trial court acquires subject-matter jurisdiction over the adverse party’s claims to the extent they
offset the sovereign’s claims. Id. at 377.

                                                  28
          The VLB did not assert an affirmative claim for monetary damages in this case. In its
original answer, the VLB prayed for recovery of “its attorney fees and costs of court; and for such
other and further relief to which [it] may be justly entitled.” In an amended answer, the VLB
abandoned its request for attorneys’ fees. Appellees assert that the VLB’s request for attorneys’ fees,
costs, and such other and further relief for which it may be justly entitled constituted a waiver of
sovereign immunity. The VLB sought to recover its attorneys’ fees and costs in response to
appellees’ claims against it. The VLB’s defensive claims for attorneys’ fees and costs did not
constitute affirmative claims for monetary relief under Reata. Lamesa Indep. Sch. Dist. v. Booe, 251
S.W.3d 831, 833 (Tex. App.—Eastland 2008, no pet.) (“[T]he court’s opinion in Reata cannot be
construed to encompass LISD’s request for attorney’s fees as an affirmative claim for relief.”); Bexar
Metro. Water Dist. v. Educ. & Econ. Dev. Joint Venture, 220 S.W.3d 25, 32 (Tex.
App.—San Antonio 2006, pet. dism’d ) (Governmental entity’s general pleadings for judgment and
costs were not “the types of affirmative claims for monetary relief contemplated in Reata.”). The
VLB did not waive its immunity by its conduct in this case.
          For the above reasons, sovereign immunity bars appellees’ claims against the VLB. The trial
court erred in denying the VLB’s plea to the jurisdiction. We sustain the VLB’s issue.
                                                       This Court’s Ruling
          We reverse the judgment of the trial court in its entirety. We render judgment that appellees
take nothing on their breach of fiduciary duty claims against Bluegreen and the Landowner
Appellants and on their breach of contract claims against Bluegreen.15 We dismiss appellees’ claims
against the VLB for lack of jurisdiction. We remand the remainder of the claims to the trial court
for further proceedings consistent with this opinion.




                                                                                   TERRY McCALL
                                                                                   JUSTICE
January 22, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Boyd, S.J.16


         15
            In this opinion, we have sustained, in part, Bluegreen’s fifth issue with respect to appellees’ breach of fiduciary duty
claims and breach of contract claims. For the reasons stated above, we overrule the remainder of Bluegreen’s fifth issue.

          16
               John T. Boyd, Retired Chief Justice, Court of Appeals, 7th District of Texas at Amarillo sitting by assignment.

                                                                  29
