                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-14-00167-CV


                             DAVID V. GOSS, APPELLANT

                                            V.

        ADDAX MINERALS FUND, LP AND AG ROYALTIES, LLC, APPELLEES

                           On Appeal from the 97th District Court
                                 Montague County, Texas
         Trial Court No. 2013-0135 M-CV, Honorable Jack A. McGaughey, Presiding

                                      April 21, 2016

                            MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant David V. Goss brought suit against appellees Addax Minerals Fund, LP

and AG Royalties, LLC (collectively “Addax”) to establish his title to the mineral estate in

land in Montague County. Addax answered, asserted affirmative defenses and brought

a counterclaim. On Addax’s motion for summary judgment, the trial court rendered

judgment that Goss take nothing by his suit and that Addax owns the minerals. Goss

appeals. We will affirm.
                                      Background


      In October 1994 W.L. Bell and his wife Alma Bell signed an earnest money

contract for the sale of acreage they owned to Kestrel Properties, Inc. Among other

things, the contract provided the Bells would retain no mineral rights and Kestrel was “to

receive 100% of minerals, royalties and timber interest.”       At the time, Goss was

president and sole shareholder of Kestrel. He was present when the contract was

signed. Kestrel then employed Montague County Abstract and Title Company, Inc. to

prepare a warranty deed conveying the property to Kestrel. The Bells signed the deed

in December 1994 and it was recorded that month. It is undisputed that Goss saw a

copy of the deed during 1994.


      The Bells’ deed1 to Kestrel contained the following paragraph:


      RESERVATIONS FROM AND EXCEPTIONS TO CONVEYANCE AND
      WARRANTY: Reservations, restrictions and easements of record, and
      current year ad valorem taxes. LESS, SAVE AND EXCEPT HEREFROM
      ALL OIL, GAS AND OTHER MINERALS, IN, UNDER AND PRODUCED
      FROM THE ABOVE DESCRIBED PROPERTY.


      The deed’s granting and warranty language read as follows:

      GRANTOR, for the consideration and subject to the reservations from and
      exceptions to conveyance and warranty, GRANTS, SELLS, AND
      CONVEYS to Grantee the property, together with all and singular the
      rights and appurtenances thereto in anywise belonging, to have and to
      hold it to Grantee, and to Grantee’s heirs, executors, administrators,
      successors, and assigns, forever. Grantor hereby binds Grantor and
      Grantor’s heirs, executors, administrators, and successors to warrant and
      forever defend all and singular the property to Grantee and Grantee’s

      1
        The format of the warranty deed generally follows the form contained in the
1986 version of the Texas Real Estate Forms Manual published by the State Bar of
Texas. See Real Estate Forms Comm., State Bar of Tex., Texas Real Estate Forms
Manual, Warranty Deed, at 302-c, 302-7 (1986).

                                            2
       heirs, executors, administrators, successors, and assigns, against every
       person whomsoever lawfully claiming or to claim the same or any part
       thereof, except as to the reservations from and exceptions to warranty. 2


       The Bells died and their estates passed to their grandson Nicholas Bell.             In

November 2005 Carolyn Guilliams, president of the title company, signed an affidavit

stating her “scrivener’s error in preparing the deed . . . erroneously reserved the mineral

estate unto [Mr. and Mrs. Bell].” The affidavit was recorded on November 30, 2005. It

is undisputed Goss knew Guilliams was preparing an affidavit relating to the property

and had read the Bell-Kestrel deed before the affidavit was recorded.               It also is

undisputed that in 2005 and 2006 Goss communicated with the title company

concerning ownership of the minerals.          Kestrel dissolved in March 2006 and Goss

received its assets.


       By an oil and gas lease signed by Goss as its president, Kestrel leased the

disputed mineral interest to an oil company in February 2006, and Goss individually

signed a lease with another oil company in May 2010. Nicholas Bell signed a lease of

the minerals in March 2012, and in December 2012 he conveyed any interest he owned

in the minerals to Addax by a “mineral deed.”


       Alleging Nicholas Bell’s lease and subsequent mineral deed were a cloud on his

title to the minerals, Goss filed suit to quiet title in April 2013. In the suit he alleged the

Bells’ 1994 deed unambiguously conveyed the minerals to Kestrel and asserted the

“reservation from conveyance and warranty” language merely removed the mineral

interest from the deed’s general warranty.           In a paragraph seeking reformation, he


       2
           Bolding and capitalization in original.

                                                3
asserted a cause of action accrued with the signing or recording of Nicholas Bell’s 2012

mineral lease. The discovery rule also was alleged. Addax filed a counterclaim seeking

clarification of title to the minerals in its favor. After some discovery, Addax filed a

traditional motion for summary judgment. Among its grounds, Addax asserted Goss’s

suit was barred by limitations.


       The trial court signed a judgment decreeing that Goss take nothing by his suit,

and declaring Addax’s ownership of the disputed mineral interest. The judgment did not

state a basis for the court’s findings.


                                           Analysis


Finality of the Judgment and Adequacy of Summary Judgment Motion


       By his second issue, Goss points out he filed a supplemental petition alleging a

claim of adverse possession and seeking declaratory relief after Addax filed its

summary judgment motion, and asserts the judgment may not be final. Because the

issue implicates our jurisdiction, we address it first.


       A judgment issued following a summary proceeding enjoys no presumption of

finality and is final for appellate purposes only if it actually disposes of all claims and

parties then before the court, regardless of its language, or with unmistakable clarity it

states its finality as to all claims and all parties. Southern Mgmt. Servs. v. SM Energy

Co., 398 S.W.3d 350, 358 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001)). The trial court’s

judgment orders that Goss take nothing by his suit, declares the rights of Addax to the

disputed mineral estate, and concludes with the statement, “This judgment finally

                                               4
disposes of all parties and claims and is appealable.” We find the judgment is final for

purposes of appeal. Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002) (per curiam);

Lehmann, 39 S.W.3d at 206 (“an order that expressly disposes of the entire case is not

interlocutory merely because the record fails to show an adequate motion or other legal

basis for the disposition”).


       By his third issue, Goss also argues Addax’s summary judgment motion is

facially defective because, he contends, it fails to comply with Texas Rule of Civil

Procedure 166a in several respects. He contends it fails to state the specific grounds

for summary judgment, does not properly constitute a no-evidence motion stating the

elements of Goss’s claims for which Addax claims there was no evidence, and fails to

state whether it is a no-evidence or traditional motion. We are not directed to, nor do

we find, in the summary judgment record any indication that Goss brought these

complaints to the trial court as special exceptions and obtained a ruling. McConnell v.

Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) (“An exception is

required should a non-movant wish to complain on appeal that the grounds relied on by

the movant were unclear or ambiguous”). Accordingly, issue three presents nothing for

our review. TEX. R. APP. P. 33.1(a); McConnell, 858 S.W.2d at 343 n.7 (preservation of

the error for appeal requires the excepting party obtain a ruling at or prior to the

summary judgment hearing). Because the judgment is final and appealable and Goss’s

objections to Addax’s motion were not preserved, we overrule issues two and three.




                                           5
Summary Judgment for Addax


      We turn to Goss’s issues addressing Addax’s entitlement to summary judgment it

owns the disputed mineral estate.


      An appellate court reviews a trial court’s grant of summary judgment de novo.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The movant for

summary judgment has the burden of showing there is no genuine issue of material fact

and it is entitled to summary judgment as a matter of law. TEX. R. CIV. P. 166a(c).

Reviewing a summary judgment, we take evidence favorable to the nonmovant as true,

and indulge every inference and resolve every doubt in the nonmovant’s favor. Nixon v.

Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).


      Addax contends the deed unambiguously reserved the mineral estate to the

Bells. Goss argues the deed, as a matter of law, contains no reservation of the mineral

estate. Alternatively, Goss contends the deed is ambiguous.


      Our primary objective in construing a deed is to determine the intent of the

parties from the four corners of the deed. Luckel v. White, 819 S.W.2d 459, 461 (Tex.

1991). “[W]e must examine and consider the entire writing in an effort to harmonize and

give effect to all the provisions of the contract so that none will be rendered

meaningless.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). No

single provision taken alone will be given controlling effect; rather, all the deed

provisions must be considered with reference to the whole instrument. See Seagull

Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006) (quoting

Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). The controlling intent is not what


                                           6
the parties meant but failed to express but the intent expressed in the deed. Griswold v.

EOG Res., Inc., 459 S.W.3d 713, 717 (Tex. App.—Fort Worth 2015, no pet.).


       Whether a deed is ambiguous is a question of law the court determines.

Webster, 128 S.W.3d at 229; Coker, 650 S.W.2d at 394. Determining ambiguity may

require consideration of rules of contract interpretation. See, e.g., Brown v. Havard, 593

S.W.2d 939, 942 (Tex. 1980) (relying on general contract interpretation precedents to

analyze whether a deed was ambiguous). Language is not ambiguous merely because

it lacks clarity. DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex.

1999); Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157

(1951). Nor is an instrument ambiguous merely because the parties disagree on its

meaning.    Seagull Energy, 207 S.W.3d at 345; DeWitt County, 1 S.W.3d at 100.

Rather, a deed is ambiguous only if application of established rules of construction

leaves the instrument susceptible to more than one meaning. Havard, 593 S.W.2d at

942; DeWitt County, 1 S.W.3d at 100. And the two meanings must each be reasonable.

Lopez v. Munoz, Hockema & Reed, 22 S.W.3d 857, 861 (Tex. 2000) (“Ambiguity does

not arise simply because the parties advance conflicting interpretations of the contract;

rather, for an ambiguity to exist, both interpretations must be reasonable”); Columbia

Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). Said

differently, a deed is not ambiguous if it can be given a definite or certain legal meaning.

Coker, 650 S.W.2d at 393. A warranty deed will pass the entire estate owned by the

grantor at the time of the conveyance unless reservations or exceptions reduce the

estate conveyed. Griswold, 459 S.W.3d at 717 (citing Cockrell v. Tex. Gulf Sulphur Co.,

157 Tex. 10, 299 S.W.2d 672, 676 (1956)).


                                             7
      The foundation of Goss’s position on appeal is the assertion the “less, save and

except herefrom all oil, gas and other minerals . . .” language appearing in the deed

under the heading “reservations from and exceptions to conveyance and warranty,”

coupled with the “subject to” language in the deed’s granting clause, is a limitation on

the Bells’ warranty of title and not a reservation of the minerals to the Bells. Goss’s

argument emphasizes the distinction the law draws between reservations and

exceptions.


      Courts recognize that reservations and exceptions “are not strictly synonymous.”

See, e.g., Griswold, 459 S.W.3d at 718 (quoting Pich v. Lankford, 157 Tex. 335, 302

S.W.2d 645, 650 (1957)). The chief distinction between a reservation and an exception

is that a reservation always operates for the benefit of the grantor. Bright v. Johnson,

302 S.W.3d 483, 488 (Tex. App.—Eastland 2009, no pet.) (citing Patrick v. Barrett, 734

S.W.2d 646, 647 (Tex. 1987) and Pich, 302 S.W.2d at 648-50). “An exception generally

does not pass title itself; instead, it operates to prevent the excepted interest from

passing at all.” Griswold, 459 S.W.3d at 717; accord, Bright, 302 S.W.3d at 488. But,

as the Fort Worth court reiterated in its recent opinion in Griswold, even though not

effective to pass title, a save-and-except clause may exempt a portion of the grantor’s

estate from passing title to the grantee, leaving title with the grantor provided the

interest excepted is not outstanding in another. Griswold, 459 S.W.3d at 718 (citing

Pich, 302 S.W.2d at 650; Patrick, 734 S.W.2d at 648 n.1). No one suggests that any

interest in the minerals underlying the land the Bells conveyed to Kestrel was

outstanding in a third party. For that reason, absent an ambiguity, the trial court was

correct to find the deed left title to the minerals in the Bells, regardless whether the


                                           8
“less, save and except herefrom all oil, gas and other minerals” language is considered

a reservation or an exception.


       In support of his alternative contention the deed contains an ambiguity, Goss

again asserts the position the “subject to” language in the deed’s granting clause is

intended only to limit the warranty of title. Addax argues Goss’s position disregards the

plain language of the granting clause, which states the grant is made “for the

consideration and subject to the reservations from and exceptions to conveyance and

warranty.” We agree with Addax. See J.M. Davidson, Inc., 128 S.W.3d at 229; Glover

v. National Ins. Underwriters, 545 S.W.2d 755, 761 (Tex. 1977) (noting the plain

language of an instrument will be given effect when the parties’ intent may be discerned

from that language).


       Moreover, Goss’s ambiguity argument leaves us to assume the Bells intended to

convey the mineral estate to Kestrel but, for reasons unexplained, excluded it from the

warranty of title. We find Goss’s alternative reading of the deed to be unreasonable and

thus conclude no ambiguity is shown. See Hausser v. Cuellar, 345 S.W.3d 462, 467

(Tex. App.––San Antonio 2011, pet. denied) (deed is ambiguous if both interpretations

are reasonable). The deed unambiguously left the mineral estate in the Bells. The trial

court did not err in so declaring.


Take-Nothing Summary Judgment Against Goss


       The trial court did not state a reason for rendering a take-nothing judgment

against Goss on his claims. When the trial court does not state the ground on which it

relied for rendering summary judgment, we may affirm the summary judgment on any


                                            9
meritorious ground asserted in the movant’s motion for summary judgment.                  Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). As noted, one of

the grounds Addax asserted was its affirmative defense of statute of limitations.


       A claim for reformation of a deed is subject to a four-year limitations period.

Cosgrove v. Cade, 468 S.W.3d 32, 37 (Tex. 2015) (citing Havard, 593 S.W.2d at 943).

Limitations will not bar an action to quiet title if a deed is void 3 or has expired by its own

terms. Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007). “But the

same rule does not apply when a deed is voidable rather than void.” Id. If a deed is

merely voidable, the four-year statute of limitations will apply to the suit. Id. No one

here argues the Bell deed is void or somehow has expired.


       In his petition Goss alleged the discovery rule. Under this doctrine accrual of a

cause of action is deferred until the injured party learned of, or in the exercise of

reasonable diligence should have learned of, the injury-causing act. Cosgrove, 468

S.W.3d at 37. But availability of the discovery rule is limited to those instances where

“the nature of the injury incurred is inherently undiscoverable and the evidence of injury

is objectively verifiable.” Id. (citing Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d

453, 456 (Tex. 1996)). The focus in discovery rule cases is not on causes of action but

on categorical types of injury. Id. (citing Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314

(Tex. 2006)).


       3
         It is said that a deed is void if, for example, the grantee entity does not exist,
Parham Family L.P. v. Morgan, 434 S.W.3d 774, 787-788 (Tex. App.—Houston [14th
Dist.] 2014, no pet.), the deed is forged, Dyson Descendant Corp. v. Sonat Exploration
Co., 861 S.W.2d 942, 947 (Tex. App.—Houston [1st Dist.] 1993, no writ), or the deed
lacks a description of the land involved, Brown v. Moss, 265 S.W.2d 613, 617 (Tex. Civ.
App.—Fort Worth 1954, writ ref’d n.r.e.).

                                              10
       We have found the deed here unambiguous and believe the retention of minerals

by the grantors is plain on its face. As both parties have emphasized in asserting their

respective positions, the deed contains only one express reference to the mineral

estate, and that appears under the heading “reservations from and exceptions to

conveyance and warranty.” Thus the discovery rule has no application. See Cosgrove,

468 S.W.3d at 37 (“A plainly evident omission on an unambiguous deed’s face is not a

type of injury for which the discovery rule is available”); id. at 34 (Texas Property Code

section 13.002 provides all persons have notice of contents of properly recorded

instrument); see Aston Meadows, Ltd. v. Devon Energy Prod. Co., L.P., 359 S.W.3d

856, 859 (Tex. App.—Fort Worth 2012, pet. denied) (bona fide purchaser claim;

recorded instruments in grantee’s chain of title “generally establish an irrebuttable

presumption of notice) (citing Ford, 235 S.W.3d at 617 (fraud claim)).


       Even if we are mistaken, however, and the discovery rule applies, Goss’s claims

are nonetheless barred by limitations. Goss had read the deed before November 30,

2005, and was aware Guilliams was preparing an affidavit concerning the property

before her affidavit was filed on November 30, 2005. Guilliams’ affidavit, which states

she made a scrivener’s error in preparing the 1994 deed, also was filed of record on

November 30, 2005. Goss “communicated” with the title company of which Guilliams

was president in 2005 and 2006 regarding ownership of the minerals. Goss states in

his reply brief that the title company assured him the scrivener’s error was corrected

and “confirmed his title and ownership.” Regardless of his subjective belief concerning

the effect of the deed, Goss knew or reasonably should have known no later than 2006

of the deed’s provisions concerning the minerals. Yet his lawsuit was not filed until April


                                            11
2013. Goss’s claim was barred by the statute of limitations. The trial court did not err in

rendering judgment that he take nothing.


                                        Conclusion


       Having found the trial court correctly rendered summary judgment that Goss take

nothing by his lawsuit and rightly found title to the minerals in Addax under its

counterclaim, we affirm the judgment.




                                                 James T. Campbell
                                                     Justice




                                            12
