                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-17-00310-CV

  YATES ENERGY CORPORATION, EOG Resources, Inc., Jalapeno Corporation, ACG3
     Mineral Interests, Ltd., Glassell Non-Operated Interests, Ltd., and Curry Glassell,
                                         Appellants

                                                 v.

            BROADWAY NATIONAL BANK, Trustee of the Mary Frances Evers Trust,
                                 Appellee

                         From the Probate Court No. 2, Bexar County, Texas
                                    Trial Court No. 2015PC2618
                             Honorable Tom Rickhoff, Judge Presiding

Opinion by: Marialyn Barnard, Justice
Concurring Opinion by: Patricia O. Alvarez, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Irene Rios, Justice

Delivered and Filed: December 19, 2018

REVERSED, RENDERED AND REMANDED

           Appellee Broadway National Bank, Trustee of the Mary Frances Evers Trust (hereinafter,

“Broadway Bank”), brought suit against appellants, Yates Energy Corporation, EOG Resources,

Inc., Jalapeno Corporation, ACG3 Mineral Interests, Ltd., Glassell Non-Operated Interests, Ltd.,

and Curry Glassell, seeking a declaration as to the validity of an amended correction deed covering

real property interests in DeWitt County and Gonzales County. After the parties filed competing

motions for summary judgment, the probate court granted summary judgment in favor of
                                                                                      04-17-00310-CV


Broadway Bank and declared, among other things, the amended correction deed to be a valid deed

that conveyed only a life estate to Eben John Evers (“John”). On appeal, appellants argue the

probate court erred in: (1) granting summary judgment in favor of Broadway Bank because the

suit was barred by limitations as a matter of law; (2) finding that the 2003 Trust Amendment

authorized the trustee to convey only a life estate to John; and (3) concluding the amended

correction deed complied with the requirements of the material corrections statute as set out in

section 5.029 of the Texas Property Code (“the Code”). Appellants further contend that in the

event we determine the amended correction deed to be a valid deed, any rights claimed under it

are subject to appellants’ interests pursuant to section 5.030 of the Code. Finally, appellants argue

the probate court erred in denying their breach of express warranty claim against Broadway Bank

and denying their request for attorney’s fees. After consideration, we reverse judgment of the

probate court and render judgment that the amended correction deed did not comply with the

requirements of the material corrections statute as set out in section 5.029 of the Code. With

respect to appellants’ breach of express warranty counterclaim, we reverse the probate court’s

judgment denying the counterclaim and remand the counterclaim and the issue of attorney’s fees

to the probate court for further proceedings consistent with this court’s opinion.

                                          BACKGROUND

       This case concerns the ramifications of an amended correction deed executed in 2013 (“the

2013 Amended Correction Deed”) by Broadway Bank, as trustee of an intervivos trust created by

Mary Frances Evers. During her lifetime, Mary executed several amendments to the trust. The

final amendment was dated February 28, 2003 (“the 2003 Trust Amendment”) and, among other

things, set out how the trust property would be allocated upon her death. On September 3, 2003,

Mary died, and at the time of her death, the trust estate included mineral interests in DeWitt County

and Gonzales County.
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                                                                                         04-17-00310-CV


        According to the terms of the 2003 Trust Amendment, upon Mary’s death, Broadway

Bank, as trustee, was responsible for allocating the trust property to Mary’s descendants who

survived her in per stirpes shares. It is undisputed that Mary’s surviving descendants included her

four children: Mariellen Evers Dyal, Sandra Evers Pierce, Jamie Evers Drago, and John. The 2003

Trust Amendment further provided that Broadway Bank “shall distribute each share allocated for

a descendant of settlor (other than Mariellen Evers Dyal, Eben John Evers or any descendant of

William Harry Evers) to such descendant, per stirpes.” With regard to any share of trust property

allocated for a child of settlor but not distributed, that share should be distributed to Broadway

Bank to hold as trustee in a separate trust for that descendant. The 2003 Trust Amendment also

provided that with regard to the trust estate allocated to John, in the event his separate trust did not

terminate during his lifetime, then it should terminate upon his death with the remaining trust estate

to be divided into two equal shares: (1) one share being distributed to Jamie, if she survives John,

and if she does not survive him, then her surviving descendants, per stirpes and (2) the other share

being distributed to Mike E. Dyal, if he survives John, and if he does not survive him, then his

surviving descendants per stirpes.

        In addition to these provisions, the 2003 Trust Amendment included a section outlining the

powers of the trustee. Specifically, Mary granted the trustee all the powers conferred on trustees

by Texas trust law. Mary also granted the trustee additional enumerated powers, including the

power “to sell, exchange, encumber, lease for any period, or otherwise dispose of any asset of a

trust estate, publicly or privately, with or without notice, wholly or partly for cash or credit, without

appraisal, and to give options for those purposes.”




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                                                                                                  04-17-00310-CV


        In 2005, Broadway Bank, acting as trustee of the trust, executed a Mineral Deed (“the 2005

Mineral Deed”), which conveyed, among other interests, 1 an undivided 25% interest in the trust’s

mineral interests in DeWitt County and Gonzales County to John. It is undisputed that the

conveyance was in fee simple. Thereafter, in 2006, Broadway Bank executed a Correction Mineral

Deed (“the 2006 Correction Mineral Deed”), changing the fee mineral interest conveyed to John

to a life estate. The 2006 Correction Mineral Deed further conveyed the remainder mineral interest

in the following amounts to Jamie’s descendants 2 – Benjamin Drago (1/4) and Mary Drago

Strebeck (1/4) – and to Mike E. Dyal (1/2). It is undisputed John did not sign the 2006 Correction

Mineral Deed.

        In 2012, John executed a Royalty Deed (the “2012 Royalty Deed”), conveying all of his

“right, title and interest in and to any and all royalty interests in oil, gas, and other minerals

produced, saved, and marketed from the lands covered by those certain oil and gas leases described

on Exhibit ‘A’” to Yates Energy Corporation. The leases listed in Exhibit A included multiple

leases covering the mineral interests in DeWitt County and Gonzales County that were conveyed

to John by Broadway Bank. The 2012 Royalty Deed was dated effective February 1, 2012 and

thereafter filed and recorded in the DeWitt County and Gonzales County deed records. John also

executed an Assignment of Overriding Royalty Interest, assigning all of his right, title, and interest

in any and all the overriding royalty interests in the oil, gas, and other minerals produced from

certain leases, including those leases covering the subject interests, to the Yates Energy

Corporation. The assignment was also dated effective February 1, 2012 and filed and recorded in



1
  In addition to the conveyance to John, the 2005 Mineral Deed also conveyed the trust’s mineral interests in DeWitt
County and Gonzales County to the following individuals in the following portions: (1) an undivided 25% interest to
Sandra Evers Pierce; (2) an undivided 12.5% interest to Benjamin F. Drago; (3) an undivided 12.5% interest to Mary
Drago Strebeck; (4) an undivided 8.33% interest to Traci L. Cole; (5) an undivided 8.34% interest to Mike E. Dyal;
and (6) an undivided 8.33% interest to Patrick T. Dyal.
2
  The record reflects Jamie died on October 13, 2004.

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                                                                                    04-17-00310-CV


the DeWitt County and Gonzales County deed records. Yates Energy Corporation then, pursuant

to a farmout agreement with EOG Resources, assigned 70% of its rights in the royalty interests to

EOG Resources. Ultimately, Yates assigned its remaining rights in the royalty interests to

Jalapeno Corporation, EnerQuest Oil & Gas, LLC, ACG3 Mineral Interests, Ltd., Glassell Non-

Operated Interests, Ltd., Curry Glassel, DKE Dyersdale, Inc., Cathy Dohnalek, Walter Mengden,

Jr., WHMIII Dubose, LLC, Joseph Mengden, Carl C. Mengden, Susan Mengden, Michel C.

Mengden, and Pati-Dubose, Inc. These instruments were also dated effective February 1, 2012,

and filed and recorded in the DeWitt County and Gonzales County deed records.

       In August of 2013, a title attorney informed EOG Resources that the 2006 Correction

Mineral Deed raised a number of concerns, first of which that it could be considered to be invalid

because it was not executed by the grantees of the 2005 Mineral Deed. To further complicate

matters, the title attorney indicated the 2003 Trust Amendment could be interpreted as only

authorizing Broadway Bank to convey a life estate in the trust property to John, and in the event

of such interpretation, then Broadway Bank could only convey what it was authorized to convey

to John as opposed to the fee simple estate in minerals it conveyed in the 2005 Mineral Deed. The

title attorney concluded that for the 2006 Correction Mineral Deed to be valid, an amended

correction deed should be executed by “all of the parties to show that [John] and all of the

[g]rantees to said [2005 Mineral Deed] accept the change of ownership in the [2006 Correction

Mineral Deed].” The title attorney further concluded that if an amended correction deed was

executed, it would affect the type of interest – life estate or fee – John conveyed to Yates Energy

Corporation in the 2012 Royalty Deed and Assignment of Overriding Royalty Interest, and

subsequently, the type of interest Yates Energy Corporation assigned to EOG Resources. The title

attorney advised that if EOG Resources wanted to secure a full fee estate interest, it needed to



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                                                                                  04-17-00310-CV


obtain John’s life estate interest from Yates Energy Corporation and assignments of overriding

royalty from the remaindermen identified in the 2006 Correction Deed.

         On November 4, 2013, Broadway Bank ultimately executed an amended correction deed

(“the 2013 Amended Correction Deed”), which was signed by Broadway Bank, John, and all of

the original grantees of the 2005 Mineral Deed. The 2013 Amended Correction Deed, however,

was not signed by Yates Energy Corporation or any of the assignees in the subsequent assignments

executed by Yates Energy Corporation. The 2013 Amended Correction Deed provided that the

2005 Mineral Deed made an incorrect conveyance of fee to John and stated it replaced the 2005

Mineral Deed. Under the 2013 Amended Correction Deed, Broadway Bank conveyed a life estate

in an undivided 25% of trust’s mineral interests in DeWitt County and Gonzales County to John,

with a remainder interest to Benjamin Drago (1/4), Mary Drago Strebeck (1/4), and Mike E. Dyal

(1/2).

         On February 10, 2014, John died, and the parties disputed whether the royalty interests

John conveyed to Yates Energy Corporation and that Yates subsequently assigned to others vested

in Benjamin Drago, Mary Drago Strebeck, and Mike E. Dyal – the remaindermen identified in the

2013 Amended Correction Deed. On July 31, 2015, Broadway Bank filed a request for declaratory

relief against Yates Energy Corporation, EOG Resources, Jalapeno Corporation, EnerQuest Oil &

Gas, LLC, ACG3 Mineral Interests, Ltd., Glassell Non-Operated Interests, Ltd., Curry Glassel,

DKE Dyersdale, Inc., Cathy Dohnalek, Walter Mengden, Jr., WHMIII Dubose, LLC, Joseph

Mengden, Carl C. Mengden, Susan Mengden, Michel C. Mengden, and Pati-Dubose, Inc. In its

request for declaratory relief, Broadway Bank sought a declaration that: (1) Yates Energy

Corporation acquired only a life estate under the 2012 Royalty Deed, and (2) Mike E. Dyal and




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Westco Family Limited Partnership 3 currently own the remainder interests. In its petition,

Broadway Bank also alleged Dyal and Westco Family Limited Partnership were necessary parties;

subsequently, Dyal and Westco Family Limited Partnership answered and filed cross-claims

against Yates Energy Corporation, EOG Resources, Jalapeno Corporation, EnerQuest Oil & Gas,

LLC, ACG3 Mineral Interests, Ltd., Glassell Non-Operated Interests, Ltd., Curry Glassel, DKE

Dyersdale, Inc., Cathy Dohnalek, Walter Mengden, Jr., WHMIII Dubose, LLC, Joseph Mengden,

Carl C. Mengden, Susan Mengden, Michel C. Mengden, and Pati-Dubose, Inc. also seeking the

same declarations as Broadway Bank.

        In response, the defendants filed multiple answers, raising several affirmative defenses,

including limitations, statute of frauds, laches, and estoppel by deed. The defendants also filed

counterclaims for breach of express warranty and declaratory relief, requesting declarations that:

(1) the 2005 Mineral Deed was binding and enforceable; (2) the 2006 Correction Mineral Deed

and 2013 Amended Correction Deed were ineffective; (3) Yates Energy Corporation’s status as a

bonafide purchaser is irrelevant because the 2006 Correction Mineral Deed and 2013 Amended

Correction Deed were ineffective; and (4) Broadway Bank’s express warranty of title and duty to

defend extends to EOG Resources as John’s successor and assign under the 2005 Mineral Deed.

Broadway Bank then moved for summary judgment on its declaratory judgment action, and in

response, the defendants filed multiple responses and cross-motions for summary judgment on

their counterclaim for declaratory relief and affirmative defenses.

        The probate court ultimately granted summary judgment in favor of Broadway Bank,

declaring: (1) the 2013 Amended Correction Deed to be a valid deed that granted John only a life



3
 It is undisputed that by February 4, 2014, Westco Family Limited Partnership acquired all interests of Benjamin
Drago and Mary Drago Strebeck, including any mineral and royalty interests conveyed to them in the 2006 Correction
Mineral Deed.

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                                                                                      04-17-00310-CV


estate in the mineral interests; (2) Yates Energy Corporation only received a life estate in the

interests it obtained from John; and (3) Dyal and Westco Family Partnership own the remainder

interests which vested in them upon John’s death. Thereafter, the probate court rendered a final

judgment, incorporating the probate court’s order granting summary judgment in favor of

Broadway Bank as well as an order awarding attorney’s fees to Dyal and Westco Family

Partnership. The final judgment also dismissed all the claims and causes of action asserted by or

against the following defendants: DKE Dyersdale, Inc., Cathy Dohnalek, Walter Mengden, Jr.,

WHMIII Dubose, LLC, Joseph Mengden, Carl C. Mengden, Susan Mengden, Michel C. Mengden,

and Pati-Dubose, Inc. Appellants then perfected this appeal.

                                               ANALYSIS

       On appeal, appellants raise several issues, arguing the probate court erred in: (1) granting

summary judgment in favor of Broadway Bank because the suit was barred by limitations as a

matter of law; (2) finding that the 2003 Trust Amendment authorized the trustee to convey only a

life estate to John; and (3) concluding the 2013 Amended Correction Deed complied with the

requirements of the material corrections statute as set out in section 5.029 of the Code and thus,

effectively replaced the 2005 Mineral Deed. Appellants further contend that in the event we

determine the 2013 Amended Correction Deed to be a valid deed, any rights claimed under it are

subject to appellants’ interests pursuant to section 5.030 of the Code. Finally, appellants argue the

probate court erred in denying its breach of express warranty claim against Broadway Bank and

denying its request for attorney’s fees.

                                           Standard of Review

       We review a trial court’s grant of summary judgment de novo. Nassar v. Liberty Mut. Fire

Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017); Jarzombek v. Ramsey, 534 S.W.3d 534, 535-36 (Tex.

App.—San Antonio 2017, pet. denied). To prevail on a traditional motion for summary judgment,
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                                                                                     04-17-00310-CV


the movant must show “there is no genuine issue as to any material fact and the [movant] is entitled

to judgment as a matter of law.” TEX. R. CIV. P. 166a(c); Nassar, 508 S.W.3d at 257; Jarzombek,

534 S.W.3d at 536; Webb v. Martinez, No. 04-16-00042-CV, 2016 WL 7234044, at *1 (Tex.

App.—San Antonio 2016, no pet.) (mem. op.). “When a party moves for a no-evidence summary

judgment, the nonmovant must produce some evidence raising a genuine issue of material fact.”

Webb, 2016 WL 7234044, at *1 (quoting Romo v. Tex. Dep’t of Transp., 48 S.W.3d 265, 269 (Tex.

App.—San Antonio 2001, no pet.)). “In reviewing the granting of a traditional summary judgment,

we consider all the evidence in the light most favorable to the non-movant, indulging all reasonable

inferences in favor of the non-movant.” Whitfield v. Ondrej, No. 04-15-00052-CV, 2016 WL

7383823, at *3 (Tex. App.—San Antonio 2016, no pet.) (mem. op.). When, as is the case here, all

parties move for summary judgment and the trial court grants one but denies the others, we review

all the summary judgment evidence, determine all the issues presented, and render the judgment

the trial court should have rendered. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520

S.W.3d 39, 45 (Tex. 2017).

                                  Material Corrections Statute

       Because it is dispositive, we begin by addressing appellants’ argument that the 2013

Amended Correction Deed is invalid because it failed to comply with the material corrections

statute. According to appellants, the statute requires the 2013 Amended Correction Deed to be

executed by John’s successors and assigns – in this case, Yates Energy Corporation, EOG

Resources, Jalapeno Corporation, EnerQuest Oil & Gas, LLC, ACG3 Mineral Interests, Ltd.,

Glassell Non-Operated Interests, Ltd., Curry Glassel, DKE Dyersdale, Inc., Cathy Dohnalek,

Walter Mengden, Jr., WHMIII Dubose, LLC, Joseph Mengden, Carl C. Mengden, Susan

Mengden, Michel C. Mengden, and Pati-Dubose, Inc. Appellants contend that because John’s

successors and assigns owned a portion of the disputed interests when the 2013 Amended
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                                                                                        04-17-00310-CV


Correction Deed was executed, the “if applicable” clause of the material corrections statute was

triggered, requiring the successors and assigns to execute the deed. Appellants further contend

that requiring only the original parties of the deed rather than the current interest holders to execute

a correction deed would harm subsequent purchasers and cause title instability by divesting

subsequent purchasers of property for which they paid consideration. Appellants therefore

conclude that because the 2013 Amended Correction Deed was not signed by John’s successors

and assigns, it did not comply with the material corrections statute as a matter of law, and as a

result, John was conveyed a fee simple estate in the mineral interests under the 2005 Mineral Deed.

        In response, Broadway Bank contends appellants’ interpretation of the material corrections

statute ignores the plain language of the statute. Pointing to the word “or,” Broadway Bank

contends the material corrections statute requires a correction deed to be executed by either the

original parties to the deed, or in the event an original party is unavailable, then that party’s heirs,

successors, or assigns. According to Broadway Bank, appellants’ concern that its interpretation

would harm subsequent purchasers ignores the protection section 5.030(b) provides to subsequent

purchasers who qualify as bonafide purchasers. Broadway Bank therefore concludes that because

the 2013 Amended Correction Deed was properly executed by the parties to the original instrument

– Broadway Bank and John – the deed replaced the 2005 Mineral Deed.

                                           Applicable Law

       The Code authorizes the correction of a recorded instrument of conveyance of real

property. See TEX. PROP. CODE ANN. §§ 5.028 & 5.029. These statutes – commonly known as the

correction-instrument statutes – were added by the Legislature in 2011 in response to the Texas

Supreme Court’s decision in Myrad Properties, Inc. v. La Salle Bank National Ass’n, 300 S.W.3d

746 (Tex. 2009), which held a correction deed could not convey additional property. Tanya L.

McCabe Trust v. Ranger Energy LLC, 531 S.W.3d 783, 794 (Tex. App.–Houston [1st Dist.] 2016,
                                                 - 10 -
                                                                                     04-17-00310-CV


pet. denied). The specific requirements a party must comply with depends on whether the

correction being made to the original instrument is nonmaterial or material. See TEX. PROP. CODE

ANN. §§ 5.028 & 5.029. Under section 5.028 of the Code, a person with personal knowledge of

the facts relevant to the correction of an original instrument may execute a correction instrument

that makes a nonmaterial change. See TEX. PROP. CODE ANN. § 5.028.

       Here, however, it is undisputed that the 2013 Amended Correction Deed made a material

correction to the 2005 Mineral Deed by changing the conveyance to John from fee simple to a life

estate. In cases in which a material correction is made, we turn to section 5.029 for guidance. See

id. § 5.029. Section 5.029(a) begins by identifying who may execute a correction instrument that

makes a material correction. Id. § 5.029(a). It states:

              In addition to nonmaterial corrections, including the corrections described
       by Section 5.028, the parties to the original transaction or the parties’ heirs,
       successors, or assigns, as applicable may execute a correction instrument to make
       a material correction to the recorded original instrument of conveyance. . . .

Id. Section 5.029(b) then identifies who must execute the correction instrument, providing that:

       A correction instrument under this section must be:

       (1)    executed by each party to the recorded original instrument of conveyance
       the correction instrument is executed to correct or, if applicable, a party’s heirs,
       successors, or assigns; and

       (2)     recorded in each county in which the original instrument of conveyance that
       is being corrected is recorded.

Id. § 5.029(b) (emphasis added). A correction instrument that complies with either the nonmaterial

or material correction statutes is deemed to be “effective as of the date of the recorded original

instrument of conveyance.” Id. § 5.030(a)(1) (emphasis added). In other words, it “replaces and

is a substitute for the original instrument.” Id. § 5.030(b).

       Whether the material corrections statute requires the 2013 Amended Correction Deed to

be signed by John’s successors and assigns is an issue of statutory interpretation. We review issues
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involving statutory interpretation de novo. Tex. Lottery Com’n v. First State Bank of DeQueen,

325 S.W.3d 628, 635 (Tex. 2010); Tanya L. McCabe Trust, 531 S.W.3d at 794. When determining

the meaning of a statute, our primary objective is to give effect to the intent of the Legislature.

Laredo Merchs. Ass’n v. City of Laredo, No. 04-15-00610-CV, 2016 WL 4376627, at *4 (Tex.

App. Aug. 17, 2016), aff’d, 550 S.W.3d 586 (Tex. 2018). To determine the Legislature’s intent,

we start with the plain language of the statute before resorting to rules of construction. McIntyre

v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). We view the statute as a whole rather than in

isolated provisions and apply ordinary meanings to any undefined words unless a different

meaning is supplied by legislative definition, is apparent from the context, or the plain meaning

leads to absurd results. Laredo Merchs Ass’n, 2016 WL 4376627, at *4; Tanya L. McCabe Trust,

531 S.W.3d at 794.

                                            Application

       Viewing the statute as a whole, we hold section 5.029 sets forth two ways in which a

correction instrument making a material change must be executed in order to replace an original

recorded instrument. See Laredo Merchs Ass’n, 2016 WL 4376627, at *4. The statute provides

that the correction instrument must be “executed by each party to the recorded original instrument”

– in other words, the original parties – or, if applicable, “a party’s heirs, successors, or assigns.”

These ways are linked by the phrase, “or, if applicable” to which we must apply an ordinary

meaning. See id.; Tanya L. McCabe Trust, 531 S.W.3d at 794. It is understood that the word “or”

is a disjunctive conjunction “used to link alternatives.”            WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 1232 (2002).                     “The term separates words or phrases,

indicating that ‘either of the separated words or phrases may be employed without the other.’” In

re B.N.S., 247 S.W.3d 807, 809 (Tex. App.—Dallas 2008, no pet.) (citing Jones v. State, 175

S.W.3d 927, 932 (Tex. App.—Dallas 2005, no pet.)). The phrase “if applicable” is a conditional
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                                                                                     04-17-00310-CV


clause meant to apply when appropriate or relevant.                WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 76, 865, & 1232 (2002). Therefore, when read together,

which of the two separate ways a correction instrument making a material change must be executed

depends on whether the condition outlined by the “if applicable” provision is triggered.

       We hold the provision is triggered and a correction instrument making a material change

must be executed by a party’s heirs, successors, or assigns, as opposed to the original parties of

the recorded instrument, if the property interest conveyed in the original instrument has been

assigned or conveyed by an original party to that party’s heirs, successors, or assigns. And

although Broadway Bank argues against this interpretation, emphasizing the statute provides a

choice in alternatives connected by the conjunction “or,” we disagree because such an

interpretation would render the conditional clause, “if applicable,” meaningless. Here, contrary to

Broadway Bank’s assertion, the “if applicable” clause was triggered because John’s successors

and assigns were current interest holders at the time the 2013 Amended Correction Deed was

executed; in other words, they were relevant parties who were required to sign the new deed.

       Accordingly, to comply with section 5.029, the 2013 Amended Correction Deed was

required to be signed by the original parties’ heirs, successors or assigns. Stated differently, the

2013 Amended Correction Deed was required to be signed by the successors in interest to

Broadway Bank, who were John and his siblings, as well as the successors and assigns to John,

which was anyone who currently held an interest in the royalty at the time the 2013 Amended

Correction Deed was signed.

       Thus, based on the foregoing analysis, we hold that by including only the signatures of the

original parties to the 2005 Mineral Deed and not the signatures of the parties’ heirs, successors,

or assigns, the 2013 Amended Correction Deed did not comply with the requirements of section

5.029 of the Code, and as a result, it did not replace the 2005 Mineral Deed. See TEX. PROP. CODE
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                                                                                      04-17-00310-CV


ANN. § 5.030(a)(1). Accordingly, John received a fee simple mineral interest in the trust property

under the 2005 Mineral Deed and subsequently conveyed a fee simple royalty interest to Yates

Energy Corporation, which then assigned its rights in the royalty interests in the trust property

pursuant to a farmout agreement and series of assignments dated effective February 1, 2012. We

therefore hold the probate court erred in granting summary judgment in favor of Broadway Bank

and declare the 2013 Amended Correction Deed to be invalid.

                                   Breach of Express Warranty

       Turning to appellants’ breach of express warranty counterclaim, appellants argue the

probate court erred in denying its counterclaim against Broadway Bank. According to appellants,

Broadway Bank breached the general warranty outlined in the 2005 Mineral Deed by attempting

to change the fee mineral interest conveyed to John to a life estate. For support, appellants rely on

the “hereby warrant said title . . . and do hereby agree to defend” language in the 2005 Mineral

Deed. In response, Broadway Bank argues it did not breach any express warranty granted in the

2005 Mineral Deed because the 2005 Mineral Deed is ineffective and replaced by the 2013

Amended Correction Deed. From the probate court’s judgment, it appears the probate court denied

the relief the appellants sought in their breach of express warranty counterclaim based on its

conclusion that the 2013 Amended Correction Deed is valid. Because we hold the 2013 Amended

Correction Deed is not valid and therefore does not replace the 2005 Mineral Deed, we further

hold the probate court erred in denying appellants’ breach of express warranty counterclaim on

that basis. Accordingly, because the trial court did not otherwise address the merits of this claim,

we reverse the portion of the judgment denying appellants’ breach of express warranty

counterclaim and remand that counterclaim to the probate court for further proceedings.




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                                         Attorney’s Fees

       In their final argument, appellants argue the probate court erred in denying their request

for attorney’s fees. According to appellants, they are entitled to attorney’s fees under either

Chapter 37 of the Texas Civil Practice and Remedies Code based on their breach of express

warranty counterclaim against Broadway Bank or Chapter 38 of the Texas Civil Practice and

Remedies Code based on their counterclaim for declaratory relief.

       Section 37.009 of the Texas Civil Practice and Remedies Code provides that “[i]n any

proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s

fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. Moreover, section

38.001 of the Texas Civil Practice and Remedies Code permits an award of attorney’s fees for

breach of express warranty claims. Id. § 38.001; Medical City Dal., Ltd. v. Carlisle Corp., 251

S.W.3d 55, 63 (Tex. 2008) (holding breach of express warranty claim constitutes suit based on

written contract for purposes of section 38.001 of Texas Civil Practice and Remedies). In light of

our disposition above, we also remand the cause to the probate court for reconsideration of the

issue of attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009; North Tex. Mun. Water

Dist. v. Ball, 466 S.W.3d 314, 323-24 (Tex. App.–Dallas 2015, no pet.) (remanding appeal

involving cross motions for summary judgment to trial court for determination of attorney’s fees).

                                          CONCLUSION

       Based on the foregoing, we hold the 2013 Amended Correction Deed did not comply with

the requirements of section 5.029 of the Code, and as a result, it did not replace the 2005 Mineral

Deed. We therefore reverse the probate court’s judgment in favor of Broadway Bank and render

judgment in favor of appellants that the 2013 Amended Correction Deed is invalid as a matter of

law. We further reverse the portion of the probate court’s judgment denying appellants’ breach of

express warranty counterclaim and remand the claim to the probate court for further proceedings.
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Finally, based on our reversal and rendition relating to the validity of the 2013 Amended

Correction Deed and our remand of appellants’ breach of express warranty counterclaim, we

remand the issue of attorney’s fees to the probate court for reconsideration in light of our decision.


                                                   Marialyn Barnard, Justice




                                                - 16 -
