      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00221-CV



  Teri Road Partners, Ltd.; Beinhorn Partners Limited Partnership; Teri Road Housing,
 Ltd.; Blazer Realty, L.L.C.; Blazer Residential Inc.; and Blazer Land, L.L.C., Appellants

                                                  v.

                              4800 Freidrich Lane L.L.C., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
      NO. D-1-GN-08-003489, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               4800 Freidrich Lane, L.L.C. (“the Purchaser”) sued Teri Road Partners, Ltd.;

Beinhorn Partners Limited Partnership; Teri Road Housing, Ltd.; Blazer Realty, L.L.C.; Blazer

Residential Inc.; and Blazer Land, L.L.C. (collectively, “Teri Road”) for trespass and trespass to try

title, and also sought a declaration regarding ownership of a portion of a 2.72-acre tract of land.

After a bench trial, the trial court ruled that the Purchaser owned the property, that Teri Road had

no license or easement over the property, and that the Purchaser should recover attorneys’ fees. On

appeal, Teri Road asserts in three issues that: (1) the Purchaser’s deed did not convey to the

Purchaser the land in dispute, (2) the Purchaser failed to defeat a presumption, arising out of prior

possession, that Teri Road owned the disputed land, and (3) the form of the trial court’s judgment

was improper. We will affirm.
                       FACTUAL AND PROCEDURAL BACKGROUND

               In 2007 the Board of Regents of the University of Texas executed a Special Warranty

Deed conveying approximately 8.3 acres of land to the Purchaser. The deed included the following

description of the property conveyed: “Being 8.377 acres of land, more or less, out of the Santiago

Del Valle Grant, Austin, Travis County, Texas, being more particularly described on the attached

Exhibit A incorporated herein by reference.” Exhibit A to the deed contained a legal description

identifying the property by field notes followed by a metes and bounds description. The field notes

described the 8.3-acre tract as consisting of a “2.726 acre tract being all of Lot 2 Block A,

Woodway Square Subdivision” and “5.65 acres of land out of the Santiago Del Valle Grant,

Abstract No. 24.” The metes and bounds description identified the location of the southern border

of Lot 2, Block A of the Woodway Square Subdivision (hereafter “Lot 2”) by stating the bearings

and distances of a series of magnetic nails set between an iron rod marking the southeast corner of

the Lot 2 and a magnetic nail marking the southwest corner of Lot 2.

               The deed also contained the following provision:


       Reservations from and Exceptions to Conveyance and Warranty

       There is reserved from this conveyance all the oil, gas and other minerals in and
       under the Property owned by the Grantor, if any, which are expressly reserved to
       Grantor. This conveyance is further subject to all easements, rights-of-way and
       prescriptive rights, whether of record or not, all presently recorded matters that affect
       the Property, and those items listed on the attached Exhibit B.


Exhibit B to the deed, the heading for which is “Permitted Exceptions,” is a list identifying the

following ten items:



                                                  2
       1.     Plat and Restrictive Covenants, as recorded in Document #20030081, Official
              Public Records of Travis County, Texas.

       2.     Restrictive Covenant Regarding Unified Development, as recorded in
              Document #2003035097, Official Public Records of Travis County, Texas.

       3.     Title to all the coal, lignite, oil, gas and other minerals in, under and that may
              be produced from the land together with all rights, privileges and immunities
              relating thereto.

       4.     One-sixteenth (1/16th) of all the oil, gas and other minerals, the royalties,
              bonuses, rentals, and all other rights in connection with the same are excepted
              herefrom, as set forth in instrument recorded in [the Official Public Records
              of Travis County; Texas]; subject to 50% conveyance deed recorded in [the
              Official Public Records of Travis County, Texas].

       5.     Pipeline easement granted to United Gas Pipeline as recorded in [the Travis
              County Deed Records].

       6.     A 5’ wide electric and telephone easement granted to the City of Austin as
              recorded in [the Travis County Deed Records].

       7.     Notice to Buyers, Lessees, and Occupants as recorded in [the Official
              Records of Travis County].

       8.     The following matter(s) disclosed by survey of subject property dated
              July 12, 2007, updated August 29, 2007, prepared by All Star Surveying,
              Survey Company Job No. A0700307: inset of metal fence along southerly
              and easterly lot lines and asphalt parking area along the southerly portion of
              Lot 2 of the Property.

       9.     Drainage easement granted to City of Austin as recorded in [the Official
              Records of Travis County].

       10.    Restrictive Covenant Regarding Unified Development and Maintenance of
              Drainage Facilities for Woodway Square Apartment dated April 14, 2003,
              recorded in [the Official Public Records of Travis County].


Item number 8 on this list refers to a fenced-in parking area with improvements built on

approximately 0.653 acres located along and within the southern boundary of Lot 2 (the “Disputed

                                                  3
Property”). The fence and parking area were built by Teri Road in connection with an apartment

complex it constructed on Lot 1, Block A, Woodway Square Subdivision, a 10.122-acre tract of land

lying directly south of and contiguous with Lot 2 that it had purchased from the University of Texas

in 2002.

                In its suit, the Purchaser initially alleged causes of action for trespass and nuisance

and sought a declaration of the parties’ rights to the Disputed Property. The Purchaser alleged that

the fence, parking lot, and improvements thereon were built without consent on Lot 2, now owned

by the Purchaser, and constituted an unauthorized encroachment onto that property. Teri Road filed

a general denial and further responded that it had a right to maintain the fence and parking lot on the

Disputed Property by virtue of an easement or license to use the property granted by the University

of Texas, the parties’ common grantor. Teri Road also alleged that the issues before the court

presented a question of title to the Disputed Property that could not properly be the subject of a suit

for declaratory relief, but had to be brought in a trespass-to-try-title action.1 Thereafter, the

Purchaser amended its petition to add a trespass-to-try-title action to determine title to Lot 2.

                The case was tried to the court, and the focus of the trial was whether the University

of Texas had granted Teri Road a license or easement permitting it to construct and maintain the




       1
           This Court has previously held that claims regarding the existence of an easement, a
nonpossessory right, can properly be brought under the Uniform Declaratory Judgments Act. See
Roberson v. City of Austin, 157 S.W.3d 130, 137 (Tex. App.—Austin 2005, pet. denied). On the
other hand, disputed claims of title to real property, unless the sole issue concerning the title is the
determination of the proper boundary line between adjoining properties, may only be adjudicated in
a trespass-to-try-title action. See Tex. Prop. Code § 22.001(a); Martin v. Amerman, 133 S.W.3d 262,
267 (Tex. 2004); State v. BP Am. Prod. Co., 290 S.W.3d 345, 360 (Tex. App.—Austin 2009,
pet. denied).

                                                   4
improvements that encroached onto Lot 2, which was still owned by the University at the time the

improvements were constructed. Teri Road never asserted at trial that it owned the Disputed

Property, nor did it allege or argue that the Purchaser did not own the Disputed Property.2 At trial

both parties agreed that they were seeking a declaration as to whether or not Teri Road had a license,

easement, or other right to maintain the improvements on Lot 2 despite the fact that Teri Road did

not own the property on which the improvements were constructed. At the conclusion of the trial,

the court rendered judgment that: (1) the Purchaser owns Lot 2, and (2) Teri Road does not have a

license or easement on Lot 2. The court also ordered that the Purchaser recover from Teri Road

$80,000 in attorneys’ fees and, in addition, conditional attorneys’ fees in the event of unsuccessful

appeals to this Court and to the Texas Supreme Court. Teri Road perfected this appeal.


                                            DISCUSSION

               In its first issue on appeal, Teri Road asserts for the first time that, as a matter of law,

the Purchaser does not own the Disputed Property because the deed from the University of Texas

to the Purchaser did not actually convey it to the Purchaser. Teri Road contends that, as a

consequence, the Purchaser had no justiciable interest in the Disputed Property and the trial court

therefore lacked subject-matter jurisdiction to adjudicate any of the Purchaser’s claims. The trial

court’s judgment recites: “[The Purchaser] owns the real property known as 4800 Freidrich Lane,

Austin, Travis County, Texas and more particularly described as Lot 2, Block A, Woodway Square




       2
         In its brief on appeal, Teri Road concedes that the parking area improvements on the
Disputed Property are an encroachment on Lot 2. The issue, therefore, was whether the
encroachment was authorized.

                                                   5
 Subdivision, Austin, Travis County, Texas (‘Lot 2’).” The court also filed findings of fact and

 conclusions of law, which include the following:


         FOF 1: [The Purchaser] owns the real property known as Freidrich Lane, Austin,
         Travis County, Texas and more particularly described as Lot 2, Block A, Woodway
         Square Subdivision, Austin, Travis County, Texas (“Lot 2”).


While Teri Road describes its first issue as a challenge to the trial court’s subject-matter jurisdiction,

which it could bring for the first time on appeal, the complaint effectively challenges the trial court’s

express finding regarding ownership of the Disputed Property.3 In a nonjury case, complaints

regarding the legal or factual sufficiency of the evidence supporting a finding may be made for the

first time on appeal. See Tex. R. App. P. 33.1(d).4

                In the present case, whether the Purchaser owns the Disputed Property turns on

whether the deed conveyed the Disputed Property to the Purchaser or, as Teri Road maintains, the

Disputed Property was expressly reserved from the conveyance. Both parties agree the deed is

unambiguous. An unambiguous deed is one that can be given a definite or certain legal meaning.

Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 74 (Tex. 1997); see Columbia Gas Transmission



         3
           We express no opinion as to whether a successful challenge on appeal to the trial court’s
 ruling that the Purchaser owned Lot 2 in its entirety would, as Teri Road urges, mean that the trial
 court did not have subject-matter jurisdiction over any of the Purchaser’s claims and that
 consequently its order should be vacated.
         4
           As we explain below, this ruling should have been labeled a conclusion of law rather than
 a finding of fact. Conclusions of law are always reviewable, and when, as here, the record contains
 specific findings of fact and conclusions of law as well as a reporter’s record, the reviewing court
 may review the legal conclusions drawn from those facts in order to determine their correctness. See
 Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 & n.1 (Tex.
 App.—Austin 1992, no writ).

                                                    6
Co. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996) (“[A]mbiguity does not arise simply

because the parties advance conflicting interpretations of the contract.”). The construction of an

unambiguous deed presents a question of law. Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991).

Although the trial court labeled its ruling regarding ownership a finding of fact, it is more properly

identified as a conclusion of law, and we will therefore treat the court’s ruling on ownership of Lot

2, including the Disputed Property, as a legal conclusion. See Seasha Pools, Inc. v. Hardister,

391 S.W.3d 635, 640 (Tex. App.—Austin 2012, no pet.) (trial court’s designation of items as findings

of fact or conclusions of law is not controlling on appeal, and appellate court may treat court’s ruling

as factual finding or legal conclusion regardless of label used).5 We review conclusions of law de

novo to determine whether they are legally correct. BMC Software Belgium, N.V. v. Marchand,

83 S.W.3d 789, 794 (Tex. 2002).

                A deed is subject to the same general rules of interpretation and construction as a

contract. See Luckel, 819 S.W.3d at 461-62. Our primary duty when construing an unambiguous

deed is to ascertain the parties’ true intent as expressed within the deed’s four corners. Id. at 461-63;

Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). We apply the “four corners” rule

and look not at isolated terms but consider the instrument as a whole, attempting to harmonize and

give effect to all its provisions. Luckel, 819 S.W.2d at 462; Plainsman Trading Co. v. Crews,

898 S.W.2d 786, 789 (Tex. 1995). A deed must not only be construed as a whole, harmonizing all

its parts if possible, but also to confer on the grantee the greatest estate that the terms of the deed will


         5
           We presume this ruling was characterized as a finding of fact because neither party
 asserted at trial that the Purchaser did not hold fee title to the entirety of Lot 2, including the
 Disputed Property.

                                                     7
permit. Lott v. Lott, 370 S.W.2d 463, 465 (Tex. 1963); Thomason v. Badgett, No. 02-12-00303-CV,

2013 WL 3488254, at *3 (Tex. App.—Fort Worth July 11, 2013, pet. denied) (mem. op.).

               Teri Road argues that the deed conveys “no fee or other estate in the parking area

improvements.” We understand Teri Road to mean that the University of Texas intended to carve

the Disputed Property out of the conveyance of Lot 2 and retain ownership of it. In support of this

argument, Teri Road points to the second sentence of the two-sentence paragraph in the deed, quoted

above, entitled “Reservations from and Exceptions to Conveyance and Warranty”:


       There is reserved from this conveyance all the oil, gas and other minerals in and under
       the Property owned by Grantor, if any, which are expressly reserved to Grantor. This
       conveyance is further subject to all easements, rights-of-way and prescriptive rights,
       whether of record or not, all presently recorded matters that affect the Property, and
       those items listed on the attached Exhibit B.


(Emphasis added.) According to Teri Road, the second sentence of the paragraph reflects the

University of Texas’s intent to reserve from the conveyance each of the items listed on Exhibit B.

We disagree. As an initial matter, the paragraph is within a section of the deed titled “Reservations

from and Exceptions to Conveyance and Warranty.” Thus, the paragraph describes not only what the

University of Texas intended to reserve from the conveyance but also what it was excepting from its

warranty of title. The first sentence in the paragraph is a specific reservation from the conveyance

of all oil, gas, and mineral rights in and under the property conveyed. The second sentence, however,

does not purport to reserve anything further from the conveyance, but merely states that the

conveyance is “subject to” certain matters, including those items listed on Exhibit B. It is apparent

from reading that list of items that, as the exhibit’s heading (“Permitted Exceptions”) suggests, they



                                                  8
primarily identify the exceptions to warranty referred to in the deed. These include certain easements

and restrictive covenants, as well as the encroaching improvements located on the Disputed Property.

The fact that the list also includes a reference to the oil, gas, and mineral rights, which the language

of the deed itself expressly reserved from the conveyance, does not transform the remaining items on

the list into additional reservations from the conveyance. The deed’s description of the property

conveyed includes the entirety of Lot 2, and nowhere does the deed purport to reserve from the

conveyance any portion of the surface thereof.

                Teri Road relies on Fricks v. Hancock, in which the court of appeals construed a deed

that recited:


        This grant and conveyance is expressly made subject to the following:

        ....

        3.      Title to any portion of the property within the bounds of Bayside Colony, as
                such subdivision is shown on the map and plat thereof in Volume 1, Page 5,
                of the Map and Plat Records of Refugio County, Texas.


45 S.W.3d 322, 327-28 (Tex. App.—Corpus Christi 2001, no pet.). There, the court of appeals held

that this language expressed the grantor’s intent to limit the property granted and exclude from the

conveyance any property located within the bounds of the Bayside Colony. Id. at 328. Our holding

is not inconsistent with Fricks. The paragraph of the deed construed by the court in Fricks made no

reference to exceptions to the warranty but did expressly refer to “title” to a portion of the property.

Id. at 327. Here, in contrast, there is nothing in the deed or the Exhibit B list that purports to exclude




                                                    9
title to the Disputed Property. Unlike the Fricks deed, item number 8 on Exhibit B in the present case

merely states:


        The following matter(s) disclosed by survey of subject property dated July 12, 2007,
        updated August 29, 2007, prepared by All Star Surveying, Survey Company Job No.
        A0700307: inset of metal fence along southerly and easterly lot lines and asphalt
        parking area along the southerly portion of Lot 2 of the Property.


Teri Road argues that this language expresses the grantor’s intent to reserve for itself fee-simple title

to the Disputed Property. But this description of an encroachment revealed by a survey done in

connection with the sale of Lot 2 cannot reasonably be construed as a reservation of part of the tract

described in the deed. There is no reference to “title” to any part of Lot 2.

                 Moreover, the Fricks court relied for its holding on Bass v. Harper, in which the Texas

Supreme Court concluded that language in a deed stating that the “grant is subject to the Mineral

Reservation contained in” nine other deeds unambiguously excluded from the grant the mineral rights

described and was not simply an exception to warranty of title. 441 S.W.2d 825, 827 (Tex. 1985).

The supreme court held that “[i]t is also clear that the grant itself ‘is subject to the mineral

reservations’” contained in the referenced deeds. Id. Unlike the Bass deed, none of the items that

the conveyance in the present case was “subject to”—the items listed on Exhibit B—are actual

reservations except for the mineral rights, which are expressly reserved elsewhere in the deed. There

is no reservation language indicating the grantor’s intent to exclude the Disputed Property from the

conveyance or to retain fee title to the Disputed Property. See State v. Dunn, 574 S.W.2d 821, 824

(Tex. Civ. App.—Amarillo 1978, writ ref’d n.r.e.) (as general rule, exceptions are strictly construed

against grantor).

                                                   10
               Our holding is consistent with cases interpreting the effect of a deed that excepts from

a conveyance a right of way, road, or easement. In Lewis v. East Texas Finance Co., the Texas

Supreme Court considered the effect of such exceptions to conveyances and held:


       An instrument of conveyance which conveys land definitely described in such
       instrument, and then excepts from such conveyance a road, railroad right of way, canal
       right of way, etc., as such, occupying a mere easement on, over, or across the land
       conveyed, conveys the fee to the entire tract, and the exception only operates to render
       the conveyance or grant subject to the easement.


146 S.W.2d 977, 980 (Tex. 1941) (citations omitted); see also Moore v. Rotello, 719 S.W.2d 372,

375-76 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.). Similarly, an exception that merely

refers to an encroachment on the property, as opposed to specifically reserving the conveyance of title

to the property underlying the encroachment, does no more than say that the property conveyed is

burdened by the encroachment. Just as the Purchaser here obtained fee simple title to the land under

the pipeline easement (item number 5 on Exhibit B) and the drainage easement (item number 9 on

Exhibit B), it also obtained fee simple title to the land under the encroachment.

               For the foregoing reasons, we conclude that the conveyance from the University of

Texas to the Purchaser included the Disputed Property; the trial court’s ruling was therefore not

erroneous. We overrule Teri Road’s first appellate issue.

               In its second appellate issue, Teri Road claims that it was entitled to a presumption of

title arising out of its “prior possession” of the Disputed Property. Teri Road also correctly states in

its brief, however, that a deed unambiguously granting title to the Disputed Property would “surely

overcome a presumption of title.” See Reiter v. Coastal States Gas Producing Co., 382 SW.2d 243,



                                                  11
250 (Tex. 1964) (“Assuming that the plaintiff is relying upon prior possession, proof of title in the

defendant unquestionably operates to rebut the inference of ownership arising from plaintiff’s

possession.”). Because we have concluded that the deed conveyed the entirety of Lot 2 to the

Purchaser, any presumption that Teri Road has title to the Disputed Property by virtue of its prior

possession has been rebutted. We overrule the second appellate issue.

               In its third appellate issue, Teri Road raises for the first time complaints about the form

of the trial court’s judgment, specifically the recitation that the Purchaser “owns” Lot 2. This

complaint was not preserved in the trial court by timely request, objection, or motion and may not,

therefore, be raised for the first time on appeal. See Tex. R. App. P. 33.1 (as prerequisite to

presenting complaint for appellate review, record must show that complaint was made to trial court

by timely request, objection, or motion). Accordingly, any complaints about the form of the judgment

have been waived. In any event, we do not read the trial court’s judgment as adjudicating anything

other than the issue of disputed ownership as between the Purchaser and Teri Road. We overrule

Teri Road’s third issue.


                                           CONCLUSION

               Having overruled Teri Road’s three appellate issues, we affirm the trial

court’s judgment.




                                                  12
                                           _____________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: June 4, 2014




                                              13
