                                NO. 12-11-00008-CV

                     IN THE COURT OF APPEALS

             TWELFTH COURT OF APPEALS DISTRICT

                                  TYLER, TEXAS

GUY C. FISHER, JOE FISHER, JR.,           §              APPEAL FROM THE 273RD
ANNE WINSLOW, ROBERT DIES,
JOHN FISHER AND
KATHLEEN MUNGER,
APPELLANTS

V.

LEILA CLARK DOWNS WYNN, MARIE
CLARK CRAWFORD, EXA BELLE
CLARK MCDANIEL, HELEN BUTTS
TIPPS, SUE BUTTS MCEACHERN,
CATHERINE CREWS DEL VECCIO,      §                       JUDICIAL DISTRICT COURT
JANET CREWS BARROW,
MARGARET JOE SEWELL LANGLEY,
ELINOR CREWS, TRUSTEE, SUSAN
FRY BRACKEN, ROBERT A. FRY, JR.,
SIM CREWS FRY, ANNE CROW
CROCKETT, JACQUELINE CROW
RUTTER, JAMES WILBURN
RAGSDALE, ROBERT E. SMITH,
MOLLY PATRICIA MCKINNEY,
POLLY A. WRIGHT AND RICHARD
WATKINS,
APPELLEES                        §                       SAN AUGUSTINE, TEXAS



                               MEMORANDUM OPINION
       This is a suit for declaratory judgment regarding construction of a warranty deed. The
trial court granted Appellees’ motion for summary judgment and denied Appellants’ motion for
summary judgment. Appellants urge one issue on appeal contending the trial court erred in
granting Appellees’ motion and in denying Appellants’ motion. We affirm.
                                                   BACKGROUND
        Robert Cade Downs, Jr., owned an undivided one-half interest in the surface and minerals
in 1316.2 acres located in the Burditt, Bruce, Hereford, Sublett, and Williams Surveys in San
Augustine County. The other undivided one-half interest in the 1316.2 acres belonged to James
Cade Downs and five other residuary legatees under the will of their father, Robert Cade Downs,
Sr.
The Partition
        On June 15, 1977, the owners executed a partition agreement and deed dividing only the
surface estate of the 1316.2 acres. In the division, Robert Cade Downs received a separate
interest in the surface of five tracts totaling 657 acres in the Bruce, Hereford, Sublett, and
Williams Surveys. James Cade Downs and the five other residuary legatees of Robert Cade
Downs, Sr. received undivided interests in the surface of the remaining 659.2 acres situated in
seven tracts in the Burditt Survey. The mineral estate in the 1316.2 acres was expressly left
undivided.
        Under the partition deed, James Cade Downs received an undivided one-fifth interest in
the surface of the 659.2 acres in the Burditt Survey. Because the minerals were not partitioned,
he owned an undivided one-tenth interest in the minerals under the entire 1316.2 acres located in
five surveys.
The 1979 Warranty Deed
        In 1979, James Cade Downs signed and delivered a warranty deed to his cousin Kathleen
Clark Fisher, another legatee of Robert Cade Downs Sr. The granting clause (first paragraph)
reads, in part, as follows:


        . . . I, James Cade Downs, . . . do grant, sell and convey unto the said Kathleen Clark Fisher . . .
        my undivided one-fifth (1/5th) interest in and to all those certain tracts . . . of land, situated in San
        Augustine County, Texas, out of and a part of the JESSE BURDITT SURVEY . . . [legal
        description and reference to attached Exhibit A follow].


The “subject to” clause (second paragraph) contains two sentences qualifying or elaborating on
the grant by reference to the partition deed. It also contains the “said minerals” phrase in
controversy here, and reads as follows:
       This conveyance is subject to the mineral reservations and exceptions made in the partition deed
       between Robert Cade Downs, Jr., et al., dated June 15, 1977 . . . , HOWEVER, out of this grant
       there is saved, excepted and reserved, one-half of my undivided interest in the oil, gas and other
       minerals in, to and that may be produced from the said lands for and during my natural life. . . . It
       is understood that in said partition deed so mentioned herein the surface estate was divided and the
       minerals were left undivided, and by this instrument I am conveying my undivided interest in said
       minerals unto the grantee herein . . . , subject to the above reserved life estate. . . .


(emphasis added). The habendum and warranty clause (third paragraph) contains no specific
reference either to the grant in the first paragraph or to the “said lands” but refers to the premises
that are “above described” and again to “the said premises.” It reads in part:


       TO HAVE AND TO HOLD the above described premises, except as above stated, together with
       all and singular the rights and appurtenances thereto in anywise belonging unto the said Kathleen
       Clark Fisher . . . , and I do hereby bind myself . . . to warrant and forever defend . . . the said
       premises unto the said Kathleen Clark Fisher . . . against every person whomsoever lawfully
       claiming or to claim the same or any part thereof.

Procedural History
       Appellants filed suit seeking a declaratory judgment that, based on its reference to the
partition deed in the “subject to” clause, the warranty deed from James Cade Downs to Kathleen
Clark Fisher conveyed all of James Cade Downs’s undivided mineral interest that he received in
the partition of the 1316.2 acres and not just his undivided interest in the surface and minerals in
the Burditt Survey tract.
       Appellees filed answers to Appellants’ petition. Appellees Marie Clark Crawford and
Exa Belle Clark McDaniel also filed a counterpetition seeking a declaratory judgment that the
deed unambiguously conveyed James Cade Downs’s interest in the Burditt Survey only.
Alternatively, they alleged that if the reference to “said minerals” in the “subject to” or limiting
clause rendered the warranty deed ambiguous, extrinsic evidence consisting of letters and
inventories should be admitted to aid in the deed’s construction.                     Extrinsic evidence, they
contended, would show that, after the execution of the deed, Joe J. Fisher, husband of and agent
for Kathleen Clark Fisher, attempted to buy James Cade Downs’s mineral interest in the four
other surveys, the same interest Appellants now claim they own.
       Appellants moved for summary judgment on the ground that they are the owners of
James Cade Downs’s mineral interest in all of the tracts covered by the partition deed. Appellees
Marie Clark Crawford and Exa Belle Clark McDaniel filed their motion for summary judgment
requesting a declaration that the warranty deed conveyed James Cade Downs’s mineral interest
in the Burditt Survey tract only. Appellees Anne Crow Crockett and Jacqueline Crow Rutter
joined in this motion, as did Appellees Richard F. Watkins, Helen Butts Tipps, Sue Butts
McEachern, James Wilburn Ragsdale, Robert E. Smith, Molly Patricia McKinney, and Polly A.
Wright (the Watkins Appellees).       All of the movants maintained the warranty deed was
unambiguous. The Watkins Appellees, in their response to Appellants’ motion, alternatively
alleged that the warranty deed was ambiguous. They also submitted letters and an inventory of
James Cade Downs’s mineral interests made after the execution of the warranty deed showing
that Kathleen Clark Fisher, through her husband, attempted to buy James Cade Downs’s
undivided mineral interest in the four other surveys. Therefore, they argue, a fact question
existed and summary judgment for Appellants was improper.
       The trial court found the warranty deed to be unambiguous and declared that it conveyed
only James Cade Downs’s interest in the Jesse Burditt Survey.


                                      SUMMARY JUDGMENT
       In their sole issue, Appellants argue that the trial court erred in denying their summary
judgment motion and granting Appellees’ summary judgment motion. The resolution of this
issue turns on whether the warranty deed dated May 24, 1979, from James Cade Downs to
Kathleen Clark Fisher conveyed only the grantor’s undivided interest in the surface and minerals
in 659.2 acres in the Jesse Burditt Survey in San Augustine County described in the deed’s
granting clause and particularly described in Exhibit “A” attached thereto. Appellants contend
that the “subject to” clause of the deed effected a conveyance of all of James Cade Downs’s
mineral interest in four other surveys by reference to the partition deed between James Cade
Downs and others who were the joint owners of 1316.2 acres situated in five surveys of San
Augustine County. Appellants interpret the phrase “said minerals” in the “subject to” clause to
refer to all of James Cade Downs’s undivided interest in the other minerals set out and left
undivided in the partition deed (Burditt, Bruce, Hereford, Sublett, and Williams Surveys), and
not simply to the minerals in the Burditt Survey described in the granting clause as Exhibit “A.”
Other than the reference to “said minerals,” the warranty deed contains no description of the
minerals Appellants claim were conveyed in the warranty deed from James Cade Downs to their
predecessor in title, Kathleen Clark Fisher.
Standard of Review
       A trial court’s decision granting summary judgment is reviewed de novo. Provident Life
& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The trial court may grant a
traditional motion for summary judgment if the movant establishes that there is no genuine issue
of material fact and that the movant is entitled to judgment as a matter of law.     Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When, as here, both sides move for
summary judgment on the same issue and the trial court grants one motion and denies the other,
we review the summary judgment evidence presented by both sides and determine all questions
presented.   Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).              If we
determine that the trial court erred, we render the judgment the trial court should have rendered.
Id.
       When an instrument is unambiguous and the dispositive facts are not in dispute, a court
may grant summary judgment and render a declaratory judgment regarding the parties’ rights
under the instrument. See Barrand, Inc. v. Whataburger, Inc., 214 S.W.3d 122, 131-32 (Tex.
App.–Corpus Christi 2006, pet. denied); TC Dallas #1, LP v. Republic Underwriters Ins. Co.,
316 S.W.3d 832, 837 (Tex. App.–Dallas 2010, no pet.).
Applicable Law
       The question of whether an instrument is ambiguous is a question of law. Heritage Res.,
Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). “If the written instrument is so worded
that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous
and the court will construe the contract as a matter of law.” SAS Inst., Inc. v. Breitenfeld, 167
S.W.3d 840, 841 (Tex. 2005). An ambiguity does not arise simply because the parties advance
conflicting interpretations of the contract. Columbia Gas Trans. Corp. v. New Ulm Gas, 940
SW.2d 587, 589 (Tex. 1996). If the contract is subject to two or more reasonable interpretations
after applying the pertinent rules of construction, the contract is ambiguous. Id. But if after we
apply the relevant rules of construction, a contract can be given a definite legal meaning, the
contract is unambiguous, and we construe it as a matter of law. Frost Nat’l Bank v. L & F
Distributors, Ltd., 165 S.W.3d 310, 312 (Tex. 2005).
       The first rule of construction is to ascertain and give effect to the parties’ intentions as
expressed in the document. Id. at 311-12. “The intention is to be ascertained as expressed by
the language used, and not the intention which may have existed in the [makers’] minds . . . , but
is not expressed by their language.” Slavens v. James, 229 S.W.317, 318 (Tex. Comm’n App.
1921, judgm’t adopted). In construing a deed to ascertain the parties’ intention, the whole
instrument must be looked to and all of its parts and all of its language given effect if possible.
Holloway’s Unknown Heirs v. Whatley, 133 Tex. 608, 614, 131 S.W.2d 89, 92 (1939). “The
parties to an instrument intend every clause to have some effect and in some measure to evidence
their agreement. Even if different 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 its
provisions.” Luckel v. White, 819 S.W.2d 459, 462 (Tex. 1991) (citations omitted). “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 thereof.” Id.
       No single provision should be given controlling effect. J. M. Davidson, Inc. v. Webster,
128 S.W.3d 223, 229 (Tex. 2003). However, the effort to harmonize all parts of an instrument
does not require that every part of the deed be treated as of equal weight in the solution of every
question. Fleming v. Ashcroft, 142 Tex. 41, 49, 175 S.W.2d 401, 406 (1943). Labels given the
clauses of “granting,” “warranty,” “habendum” and “future lease” are not controlling, and the
substance of unambiguous provisions should be given effect.” Luckel, 819 S.W.2d at 463. “The
relative positions of the different parts of the instrument are not necessarily controlling; the
modern and sounder [view] being to ignore the technical distinctions between the various parts
of the deed, and to seek the grantor’s intention from them all without undue preference to any
. . . .” Reynolds v. McMan Oil & Gas Co., 11 S.W.2d 778, 781 (Tex. Comm’n App. 1928,
holding approved).
       Clauses that grant different interests in property do not create irreconcilable conflicts.
Benge v. Scharbauer, 152 Tex. 447, 451-56, 259 S.W.2d 166, 168-70 (Tex. 1953).                  The
intention of the parties, when ascertained, prevails over arbitrary rules. Luckel, 819 S.W.2d at
462.
Discussion
       Appellants claim the warranty deed makes two grants, a grant of James Cade Downs’s
interest in the lands and minerals in Jesse Burditt Survey (subject to a life estate reserved in an
undivided one-half of his minerals conveyed in the Jesse Burditt Survey), but also an entirely
separate grant in the “subject to” clause of all his undivided interest in the minerals (with no
reservation of a life estate) in the other four surveys left undivided in the partition deed. They
insist that the term “said minerals” in the second sentence of the “subject to” clause refers to and
conveys all of Downs’s undivided mineral interest in the other four surveys mentioned in the
partition deed. Appellants invoke the doctrine of “last antecedent,” a rule of grammar that a
qualifying phrase “must be confined to the words and phrases immediately preceding it to which
it may, without impairing the meaning of the sentence, be applied.” Spradlin v. Jim Walter
Homes, 34 S.W.3d 578, 581 (Tex. 2000). Under this doctrine, they argue that “said minerals”
must refer to the use of “minerals” immediately preceding it–the minerals mentioned in the
partition deed.
           Appellants argue that the purported second grant of all the minerals mentioned in the
partition deed is equally effective, although it is not in the granting clause but in the “subject to”
clause. They stress that a conveyance may occur in any of a number of clauses in a deed, and
that, since Luckel, the granting clause is not necessarily controlling, and unambiguous provisions
must be give effect. Luckel, 819 S.W.2d at 463. Appellants point out that clauses which grant
separate interests in property do not create irreconcilable conflicts. Benge, 152 Tex. at 451-56,
259 S.W.2d at 168-70. They assert that the claimed subsequent grant of all the minerals in the
other four sections does not conflict with or negate the initial grant of the Jesse Burditt land and
minerals described at length in the granting clause. Appellants contend that, in failing to give
effect to the second sentence of the “subject to” clause as a conveyance, the trial court ignored a
cardinal canon of construction –that each and every provision of a deed must be given effect.
           Finally, Appellants invoke two subsidiary canons of construction: (1) that a deed’s
language should be construed against the grantor, and (2) deeds should be read to convey the
greatest estate possible to the grantee. See Waters v. Ellis, 158 Tex. 342, 346, 312 S.W.2d 231,
234 (1958); Davis v. Andrews, 361 S.W.2d 419, 423 (Tex. Civ. App.–Dallas 1962, writ ref’d
n.r.e.).
           Both sides contend the warranty deed is unambiguous. Appellees, however, alternatively
maintain that the warranty deed is ambiguous and the court should resort to extrinsic evidence in
construing the instrument. Appellees point to correspondence in the record that they say shows
that, after the execution of the warranty deed from James Cade Downs to Kathleen Clark Fisher,
Appellants’ precedessor, Kathleen Clark Fisher, through her husband, negotiated to purchase
from James Cade Downs his minerals in the other four surveys, minerals Appellants now claim
had already been conveyed to her in the warranty deed.
       We conclude, after an inquiry limited to its four corners, that the warranty deed is so
worded that it can be given a definite legal meaning and hence, is not ambiguous. Therefore, we
will construe the deed as a matter of law and without recourse to extrinsic evidence.
       We are required to consider the entire instrument in order to ascertain the intention of the
parties as expressed in the language of the document. Frost, 165 S.W.3d at 311-12. It is our
duty, in construing the instrument, to strive to harmonize all of its parts in order to give each part
effect consistent with the meaning intended by the parties. Luckel, 819 S.W.2d at 462.
       Although not necessarily controlling, it is difficult to overlook that the lands in the Jesse
Burditt Survey are the only lands specifically described in the warranty deed. They are described
with great particularity in the granting clause as Exhibit “A.” The warranty deed nowhere
contains such a description of any of James Cade Downs’s undivided interest in the minerals
within the other four surveys mentioned in the partition deed, the mineral interests Appellants
now contend Downs conveyed by the deed.
       Appellants’ claim to all of James Cade Downs’s undivided interest in all of the other
minerals set aside to him in the partition rests solely on their interpretation of “said minerals” in
the second sentence of the “subject to” clause.        Their interpretation depends upon a rigid
application of the doctrine of “last antecedent.” But the rule is not meant to be so strictly
applied. In Spradlin, the case cited by Appellants for the doctrine, the court acknowledged that
the doctrine of “last antecedent” was “neither inflexible nor controlling.” Spradlin, 34 S.W.3d at
580. In the case cited for the doctrine in Spradlin, the supreme court rejected the application of
the doctrine, cautioning that “[i]t should not be applied without regard to the language read as a
whole.” See City of Corsicana v. Willman, 147 Tex. 377, 379, 216 S.W.2d 175, 176 (1949). “It
is not applicable when a further extension is clearly required by the intent and meaning of the
context.” Id. Read in context and in conjunction with the entire instrument, we believe that the
phrase “said minerals” is an ordinary abbreviated reference to the minerals laboriously described
in the granting clause. The sentence containing the phrase “said minerals” has an ordinary
explanatory and limiting purpose, functions appropriate to a “subject to” clause. It clarifies that
the partition deed addressed the surface only and that therefore Downs owned only an undivided
one-tenth interest in the Burditt Survey minerals. This construction does not ignore that part of
the deed containing the phrase “said minerals,” but gives it the clarifying and limiting purpose
the parties intended. Reading “said minerals” to refer to the minerals in the Burditt Survey,
described at length in the granting clause, gives the phrase a meaning consistent with and in
harmony with the entirety of the warranty deed.
         The two canons of construction relied upon by Appellants, the greatest estate canon and
the construe against the grantee canon, are inapplicable in this case. Both are subordinate to the
rule that every part of the deed should be harmonized and given effect to effectuate the intent of
the parties. See, e.g., Hancock v. Butler, 21 Tex. 804, 816 (1858); Arnold v. Ashbel Smith
Land Co., 307 S.W.2d 818, 824 (Tex. Civ. App.–Houston 1957, writ ref’d n.r.e.). They should
only be employed if, after harmonization has been attempted, the language remains in doubt.
Arnold, 307 S.W.2d at 824. In this case, harmonization of all the parts of the instrument resolves
any reasonable doubt as to the meaning intended by the parties; therefore, neither canon is
applicable.
         We conclude the trial court correctly found that the warranty deed from James Cade
Downs to Kathleen Clark Fisher conveyed only the land and minerals in the Jesse Burditt
Survey. The trial court did not err in denying Appellants’ summary judgment motion and
granting Appellees’ summary judgment motion.
         We overrule Appellants’ sole issue.


                                                   DISPOSITION
         The trial court’s judgment is affirmed.


                                                                         BILL BASS
                                                                            Justice




Opinion delivered August 3, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals
sitting by assignment.




                                                    (PUBLISH)
