                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-019-CV


ALVIE MAX WINEGAR                                                   APPELLANTS
AND ALICE WINEGAR
                                        V.

NOEL DAVID MARTIN,                                                    APPELLEES
ROBERTA SUE MARTIN,
TRAVIS RYAN MARTIN,
AND ANGELA R. MARTIN

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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                                   OPINION

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                                 I. INTRODUCTION

      The primary issue in this appeal is whether a royalty reservation in a deed

reserved the grantor’s entire 1/3 royalty interest or only a 1/3 of his 1/3 royalty

interest, or a 1/9 royalty interest. The trial court granted summary judgment

in favor of Appellees Noel David Martin, Roberta Sue Martin, and Travis Ryan
Martin (the Martins) 1 and against Appellants Alvie Max Winegar and Alice

Winegar, judicially declaring that Appellants own an undivided 1/9 (1/3 of the

grantor’s 1/3) nonparticipating royalty interest. In seven issues, the Winegars

appeal the trial court’s summary judgment in favor of the Martins. We will

affirm.

                            II. F ACTUAL B ACKGROUND

      Alvie Winegar, Noel David Martin, and Travis Martin purchased 107.123

acres of property in Hood County as 1/3 cotenants. The purchase included the

surface estate and 100% of the mineral estate. In 2003, Alvie agreed to sell

his 1/3 interest in the land to the Martins and Angela and reserve to himself a

nonparticipating royalty interest.

      The first paragraph of the deed from Alvie to the Martins and Angela

conveyed to the Martins and Angela “all of Grantor’s undivided ONE-THIRD

(1/3) interest on the real property more particularly described in Exhibit ‘A’

attached hereto.” The second paragraph provides in part,

      Included in this Deed and conveyed from Grantor to Grantee is the
      right to receive all royalty (except as limited by the reservation
      below), bonus, delay rentals, and the right to enter into or make oil,



      1
        Appellee Angela R. Martin was married to Travis Ryan Martin, but they
divorced before this suit was filed. Angela did not contest the relief sought by
the Winegars at trial, she did not join in the Martins’ motions for summary
judgment, and she has not filed a brief in this appeal.

                                        2
      gas, and/or mineral leases. Out of the undivided mineral interest
      conveyed, Grantor reserves to himself, and his heirs, successors,
      personal representatives, and assigns, an undivided ONE-THIRD
      (1/3) of royalty (“non-participating royalty interest”), which
      reserved non-participating royalty interest shall only be payable out
      of oil, gas, or other minerals that may be produced from the Lands.
      By this reservation, Grantor shall not participate in the making of
      any leases on the undivided mineral interest conveyed to Grantee,
      or be entitled to receive or own any bonus or delay rentals for the
      granting of any lease on the Lands by Grantee.

      In April 2004, the Martins and Angela executed a mineral lease with

Quicksilver Resources, covering the entire 107.023-acre property. In December

2007, Quicksilver sent Alvie a division order showing that he owned a 1/9

royalty interest in the property. 2

      The Winegars filed suit against the Martins and Angela in February 2008,

seeking a declaration that they own a 1/3, rather than a 1/9, royalty interest,

reformation of the deed based on mutual mistake, and economic damages. The

Martins filed a counterclaim seeking a declaration that the Winegars own a 1/9

royalty interest. The Winegars and the Martins filed cross-motions for summary

judgment on their requests for declaratory judgment. The Martins also moved

for summary judgment on statute of limitations grounds and moved for no-




      2
        Earlier that year, Alvie had conveyed 1/2 of his royalty interest to his
wife, Alice. Thus, any royalty interest reserved to Alvie is now owned by him
and Alice.

                                       3
evidence summary judgment on the Winegars’ remaining claims. 3              After a

hearing, the trial court entered a final judgment granting the Martins’ motions

for traditional and no-evidence summary judgment and denying the Winegars’

motion for partial summary judgment.        In its order, the trial court judicially

declared that the deed from Alvie to the Martins and Angela reserved to Alvie

“an undivided 1/9th (1/3rd of [Alvie’s] 1/3rd) nonparticipating royalty interest.”

The trial court denied all other relief requested. The Winegars filed this appeal.

                            III. S TANDARDS OF R EVIEW

                      A. Traditional Summary Judgment

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing 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); Mann Frankfort Stein & Lipp Advisors, Inc. v.

Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment

de novo. Mann Frankfort, 289 S.W.3d at 848.

      We take as true all evidence favorable to the nonmovant, and we indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor.

20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Sw. Elec. Power Co.



      3
        The Winegars later filed a supplemental petition pleading the discovery
rule and quasi-estoppel to avoid the Martins’ statute of limitations defense.

                                        4
v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).             We consider the evidence

presented in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could and disregarding evidence

contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort,

289 S.W.3d at 848. We must consider whether reasonable and fair-minded

jurors could differ in their conclusions in light of all of the evidence presented.

See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City

of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).

      The summary judgment will be affirmed only if the record establishes that

the movant has conclusively proved all essential elements of the movant’s

cause of action or defense as a matter of law. City of Houston v. Clear Creek

Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

      When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both

parties’ summary judgment evidence and determine all questions presented.

Mann Frankfort, 289 S.W.3d at 848. The reviewing court should render the

judgment that the trial court should have rendered. Id.

                      B. No-Evidence Summary Judgment

      After an adequate time for discovery, the party without the burden of

proof may, without presenting evidence, move for summary judgment on the

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ground that there is no evidence to support an essential element of the

nonmovant’s claim or defense.      Tex. R. Civ. P. 166a(i).   The motion must

specifically state the elements for which there is no evidence.      Id.; Timpte

Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must

grant the motion unless the nonmovant produces summary judgment evidence

that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.;

Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment

for evidence that would enable reasonable and fair-minded jurors to differ in

their conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller, 168

S.W.3d at 822). We credit evidence favorable to the nonmovant if reasonable

jurors could, and we disregard evidence contrary to the nonmovant unless

reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant

brings forward more than a scintilla of probative evidence that raises a genuine

issue of material fact, then a no-evidence summary judgment is not proper.

Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).

                                       6
                            IV. Deed Construction

      In the Winegars’ fourth, fifth, and sixth issues, they argue that the trial

court erred by declaring that the deed from Alvie to the Martins and Angela

reserved an undivided 1/9 royalty interest because it unambiguously reserved

a 1/3 royalty interest and because, alternatively, the reservation language in the

deed is ambiguous, making summary judgment improper.

                    A. General Rules of Deed Construction

      The primary duty of the court in interpreting what estate a deed conveys

is to ascertain the intent of the parties. Alford v. Krum, 671 S.W.2d 870, 872

(Tex. 1984), overruled on other grounds by Luckel v. White, 819 S.W.2d 459

(Tex. 1991). We look to the intent that is expressed by the instrument, not the

intent that the parties may have had but failed to express in the instrument.

Alford, 671 S.W.2d at 872; Pierson v. Sanger, 93 Tex. 160, 163, 53 S.W.

1012, 1013 (1899).

      In seeking to ascertain the intention of the parties, the court must attempt

to harmonize all parts of a deed because the parties to an instrument intend

every clause to have some effect. Woods v. Sims, 154 Tex. 59, 64, 273

S.W.2d 617, 620 (1954); see Plainsman Trading Co. v. Crews, 898 S.W.2d

786, 789 (Tex. 1995). In determining the legal effect of a deed, whether as

to grant, exception, reservation, consideration, or other feature, the inquiry is

                                        7
not to be determined alone from a single word, clause, or part but from every

word, clause, and part that is pertinent. Zephyr Oil Co. v. Cunningham, 265

S.W.2d 169, 174 (Tex. Civ. App.—Fort Worth 1954, writ ref’d n.r.e.).

      The question of ambiguity in a deed is a question of law. Cherokee Water

Co. v. Freeman, 33 S.W.3d 349, 353 (Tex. App.—Texarkana 2000, no pet.)

(citing Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex. 1987)). An

instrument is not ambiguous if it can be given a definite or certain meaning as

a matter of law.   Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983).           If,

however, a deed is subject to two or more reasonable interpretations, it is

ambiguous. See Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940

S.W.2d 587, 589 (Tex. 1996). An ambiguity does not arise simply because the

parties advance conflicting interpretations; instead, both interpretations must

be reasonable. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861

(Tex. 2000).

      If the language in a deed is ambiguous, a fact question exists for the jury

to resolve, making summary judgment improper. Corine, Inc. v. Harris, 252

S.W.3d 657, 659 (Tex. App.—Texarkana 2008, no pet.) (citing J. Hiram

Moore, Ltd. v. Greer, 172 S.W.3d 609, 614 (Tex. 2005)). If a court finds the

language in a deed to be unambiguous, the court may construe the deed as a




                                       8
matter of law. Id. (citing Westwind Exploration, Inc. v. Homestate Sav. Ass’n,

696 S.W.2d 378, 381 (Tex. 1985)).

                  B. Legal Distinction Between Reservations
                from Land “Conveyed” and Land “Described”

      Specific rules of construction apply to cases in which a grantor owns an

undivided mineral interest and reserves a fraction of that interest. See Averyt

v. Grande, Inc., 717 S.W.2d 891, 893 (Tex. 1986). Courts have drawn a

distinction between reservations from the land “conveyed” and reservations

from the land “described.” See Middleton v. Broussard, 504 S.W.2d 839, 842

(Tex. 1974). If the deed reserves a fraction of the minerals under the land

conveyed, then the deed reserves a fraction of the part of the mineral interest

actually owned by the grantor and conveyed by the deed. Averyt, 717 S.W.2d

at 893; Hooks v. Neill, 21 S.W.2d 532, 538 (Tex. Civ. App.—Galveston 1929,

writ ref’d). In Hooks, the grantor owned and conveyed all of his undivided 1/2

interest in a tract of land. 21 S.W.2d at 538. The grantor reserved a 1/32

interest in oil under the “said land and premises herein described and

conveyed.” Id. The court focused on the words “and conveyed” and held that

the deed unambiguously reserved 1/32 of the 1/2 minerals that the grantor

conveyed, or a 1/64 mineral interest. Id.




                                      9
      On the other hand, when the deed reserves a fraction of the minerals

under the land described, then the deed reserves a fraction of the minerals

under the entire tract of land, regardless of the part of the mineral estate

actually conveyed. Averyt, 717 S.W.2d at 893; King v. First Nat’l Bank of

Wichita Falls, 144 Tex. 583, 586, 192 S.W.2d 260, 262 (1946). In King, the

deed conveyed a 1/2 interest “in and to the following described land” and

reserved “from the ‘hereinabove described land’ an undivided one-eighth of the

‘usual and customary one-eighth royalty reserved by the landowner.’” 144 Tex.

at 586, 192 S.W.2d at 262. The court focused on the words “described land”

and held that the grantor reserved an undivided 1/8 “of the royalty from the

entire land,” rather than 1/8 of the grantor’s undivided 1/2 interest that he

conveyed. Id. at 586–87, 192 S.W.2d at 262–63.

      The rules from Hooks and King have been consistently applied by the

Texas Supreme Court and our sister courts. Compare Averyt, 717 S.W.2d at

894 (holding that reservation of royalty from minerals “that may be produced

from all of the described land” reserved royalty from minerals produced from

whole of tracts described in deed), and Middleton, 504 S.W.2d at 841, 843

(holding that a conveyance of 1/64 royalty interest in minerals under “all of the

above described land and premises” operated to convey 1/64 royalty interest

from all lands described, not just the fractional interest conveyed), with Clack

                                       10
v. Garcia, 323 S.W.2d 468, 468–69 (Tex. Civ. App.—San Antonio 1959, no

writ) (holding that reservation of undivided 1/16 interest in minerals under and

that may be produced from “the interest of said grantors in said land” was

reservation of 1/16 of grantor’s interest, or 1/256 mineral interest), and Dowda

v. Hayman, 221 S.W.2d 1016, 1018 (Tex. Civ. App.—Fort Worth 1949, writ

ref’d) (holding that reservation of 1/2 of all the minerals “on and under the land

and premises herein conveyed” reserved 1/2 of the grantor’s mineral interest

in the land being conveyed).

                 C. Deed Reserved One-Ninth Royalty Interest

      Here, the deed provides, “Out of the undivided mineral interest conveyed,

Grantor     reserves   .   .   .   an    undivided   ONE-THIRD   (1/3)   of   royalty

(“non-participating royalty interest”) . . . .” [Emphasis added.] This reservation

is similar to that in Hooks; it reserved a fraction (1/3) of royalty interest out of

the mineral interest conveyed. See Clack, 323 S.W.2d at 468–69; Dowda,

221 S.W.2d at 1018; Hooks, 21 S.W.2d at 538. The deed conveyed a 1/3

mineral interest, which included a 1/3 royalty interest. The deed reserved to

Alvie 1/3 of royalty out of the 1/3 mineral interest conveyed, or a 1/9 royalty

interest.

      The Winegars attempt to distinguish the reservation in this case from that

in Hooks, Clack, and Dowda.             They argue that in those cases, the grantor

                                            11
conveyed a mineral interest and then reserved a percentage of the mineral

interest conveyed, whereas here, Alvie conveyed his mineral interest and then

reserved a royalty interest out of the mineral interest conveyed. In other words,

Alvie conveyed all of his 1/3 interest in the minerals—including the rights to

develop, to lease, to receive bonus payments, to receive delay rentals, to

receive royalty payments (the bundle of sticks)—and then reserved one of those

sticks out of the bundle (i.e. royalty interest). See Luckel, 819 S.W.2d at 463

(“A royalty interest is an interest in land that is a part of the total mineral

estate.”); Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986) (stating the five

essential attributes of mineral estates are the rights to develop (right of ingress

and egress), to lease (executive right), to receive bonus payments, to receive

delay rentals, and to receive royalty payments).       This distinction does not

change our holding. The deed carved an undivided 1/3 of royalty “out of the

undivided [1/3] mineral interest conveyed.” In other words, Alvie reserved a

fraction—1/3—out of the entire 1/3 interest in royalty that he owned. See

Clack, 323 S.W.2d at 468–69; Dowda, 221 S.W.2d at 1018; Hooks, 21

S.W.2d at 538.

      Taking as true all evidence favorable to the Winegars as the nonmovants

and indulging every reasonable inference and resolving any doubts in their

favor, we hold that the Martins met their summary judgment burden by

                                        12
establishing that no genuine issue of material fact exists and that they are

entitled to judgment as a matter of law that the deed unambiguously reserved

an undivided 1/9 nonparticipating royalty interest. See Tex. R. Civ. P. 166a(c);

Mann Frankfort, 289 S.W.3d at 848; Parker, 249 S.W.3d at 399; Sw. Elec.

Power Co., 73 S.W.3d at 215. We overrule the Winegars’ fourth, fifth, and

sixth issues.

                            V. No Mutual Mistake

      In the Winegars’ seventh issue, they argue that the trial court erred by

granting the Martins’ no-evidence summary judgment because the Winegars

presented some evidence on the issue of mutual mistake. 4

      Under the doctrine of mutual mistake, when parties to an agreement have

contracted under a misconception or ignorance of a material fact, the

agreement will be avoided. Williams v. Glash, 789 S.W.2d 261, 264 (Tex.

1990). When a party alleges that, by reason of mutual mistake, an agreement

does not express the real intentions of the parties, extrinsic evidence is




      4
        The Winegars also argue in their seventh issue that a fact issue exists
regarding their “counter-defense” of quasi-estoppel. They pleaded quasi-
estoppel to avoid the Martins’ limitations defense, and because we uphold the
trial court’s summary judgment on grounds other than limitations, we need not
address this issue. See Tex. R. App. P. 47.1; Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe,
915 S.W.2d 471, 473 (Tex. 1995).

                                      13
admissible to show the real agreement. See Johnson v. Conner, 260 S.W.3d

575, 581 (Tex. App.—Tyler 2008, no pet.). When a party seeks reformation

due to mutual mistake, the party must show what the parties’ true agreement

was and that the instrument incorrectly reflects that agreement due to a mutual

mistake. See id. (citing Estes v. Republic Nat’l Bank of Dallas, 462 S.W.2d

273, 275 (Tex. 1970)).

      To prove a mutual mistake, the evidence must show that both parties

were acting under the same misunderstanding of the same material fact.

Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 326 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied); see also City of The Colony v.

N. Tex. Mun. Water Dist., 272 S.W.3d 699, 735 (Tex. App.—Fort Worth 2008,

pet. filed) (holding appellant produced no evidence to support mutual mistake

element requiring that both parties be mistaken about a common intention).

      Here, the Winegars argue that the Martins “judicially admitted that there

was a mistake” when they stated in their motion for summary judgment, “The

Martins did not understand that [Alvie was] reserving a 1/3 royalty.”     This

statement is not a judicial admission of mutual mistake; if anything, it shows

that the parties had opposite understandings of the deed’s effect—the Martins

did not know Alvie thought he was reserving a 1/3 royalty interest while Alvie

thought he was reserving a 1/3 royalty interest. See Walden, 97 S.W.3d at

                                      14
326; Johnson, 260 S.W.3d at 581–82. Likewise, no evidence exists that the

Martins knew of Alvie’s purported misunderstanding that he thought he was

reserving a 1/3 royalty interest. See Seymour v. Am. Engine & Grinding Co.,

956 S.W.2d 49, 58 (Tex. App.—Houston [14th Dist.] 1996, writ denied)

(“Knowledge by one party that the other is acting under a mistake of fact is

equivalent to a mutual mistake.”).

      The Winegars further assert that the Martins’ statement that they did not

understand that Alvie was reserving a 1/3 royalty interest directly conflicts with

an email exchange between David Martin and Mark Kalpakis, an attorney who

was David Martin’s neighbor. In the email exchange, David Martin requested

that Kalpakis provide “language for the title company that would allow me to

retain the executive rights and provide only 1/3 interest in future royalties.”

[Emphasis added.] One could infer from this email that, by using the phrase

“provide only 1/3 interest in future royalties,” David Martin meant a 1/3 interest

in future royalties either out of the mineral interest conveyed or out of the entire

mineral interest. 5 Any plausible inference would be a guess; consequently,




      5
        Furthermore, Kalpakis responded to David Martin’s email by providing
the reservation language that was later used in the deed from Alvie to the
Martins and Angela, reserving a 1/3 royalty interest out of the mineral interest
conveyed. We have already explained that this reservation unambiguously
reserved a 1/9 royalty interest.

                                        15
“neither fact may be inferred.” See City of Keller, 168 S.W.3d at 813 (quoting

Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805

(Tex. 1991)). Considering the record as a whole, we cannot say that David

Martin’s email to Kalpakis created conflicting evidence of probative value such

that reasonable and fair-minded jurors would differ in their conclusion that the

Martins believed Alvie was reserving 1/3 of his 1/3 royalty interest, rather than

his entire 1/3 royalty interest. See Hamilton, 249 S.W.3d at 426 (citing City

of Keller, 168 S.W.3d at 822); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63

(Tex. 1983).

      Examining the entire record in the light most favorable to the Winegars,

as the nonmovants, indulging every reasonable inference and resolving any

doubts against the Martins’ motion, we hold that the Winegars have not

produced a scintilla of probative evidence raising a genuine issue of material

fact on mutual mistake. See Smith, 288 S.W.3d at 424; Sudan, 199 S.W.3d

at 292. We overrule the Winegars’ seventh issue.

                                VI. C ONCLUSION

      The Winegars’ remaining three issues dispute whether the trial court

granted the Martins’ summary judgment motion at least in part on limitations.

Having overruled the Winegars’ fourth through seventh issues and having held

that the trial court did not err by granting summary judgment in favor of the

                                       16
Martins and by judicially declaring that the deed reserved an undivided 1/9

nonparticipating royalty interest, we need not address the Winegars’ remaining

issues. See Tex. R. App. P. 47.1; Provident Life & Accident Ins. Co., 128

S.W.3d at 216; Star-Telegram, 915 S.W.2d at 473. We affirm the trial court’s

judgment.




                                                SUE WALKER
                                                JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: January 21, 2010




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