                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-11-00217-CV


FARM & RANCH INVESTORS, LTD.                                        APPELLANT

                                       V.

TITAN OPERATING, L.L.C.; BRUCE                                      APPELLEES
D. PFAFF; TERESA M. WALTER;
DAVID NOVOTNY; DENNIS J.
FEGAN II; MICHAEL C. AND KRIS
ALJOE; JEFFREY J. AND DIANE S.
BRUNDAGE; JOHN T. EUBANKS
FAMILY LIVING TRUST;
CHRISTOPHER M. AND NANCY L.
HOLLOWAY; C.E. BYE AND
SANDRA J. BYE


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        FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

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                                   OPINION
                                 ----------
      Appellant Farm & Ranch Investors, Ltd. appeals the trial court’s grant of

summary judgment in favor of appellees Titan Operating, L.L.C. and individual lot

owners Bruce D. Pfaff, Teresa M. Walter, David Novotny, Dennis J. Fegan II,
Michael C. and Kris Aljoe, Jeffrey J. and Diane S. Brundage, John T. Eubanks

Family Living Trust, Christopher M. and Nancy L. Holloway, and C.E. Bye and

Sandra J. Bye (collectively, the lot owners). We affirm.

                                Background Facts

      Caldwell’s Creek, Ltd. was the owner of roughly sixty acres of land in

Colleyville known as the Caldwell’s Creek Addition. In 1994, Caldwell’s Creek,

Ltd. recorded a dedication and restrictions for the land in the deed records.1 One

of the restrictions stated, “No oil drilling, oil development operations, oil refining,

quarrying or mining operations of any kind shall be permitted upon or on any lot.

All mineral rights shall belong and shall continue to belong to the limited

partnership of Caldwell’s Creek, LTD.”

      After the restrictive covenants were recorded, Caldwell’s Creek, Ltd.

divided the land into lots and sold the lots to individual owners. Caldwell’s Creek,

Ltd. executed the first of the nine deeds at issue in 1994 and the last in 1999.

The warranty deeds that conveyed the property to the individual owners stated,

“This conveyance is made subject to any and all easements, restrictions, and


      1
       The dedication stated,

            All utility, sanitary sewer service, and emergency access
      easements are hereby dedicated to the Public unless specifically
      stated otherwise in the granting instruments filed of record.
      However, Common Areas, and Common Area Access Easements
      shall be for the use of the Lot Owners encompassed herein and
      shall not be construed as being for the use of the general public
      unless expressly stated in the granting instrument.


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mineral reservations affecting said property that are filed for record in the office of

the County Clerk of Tarrant County, Texas.”          The deeds did not contain a

separate reservation of the mineral interest. In October 2005, Caldwell’s Creek,

Ltd. purported to convey all of the oil, gas, and mineral rights to Farm & Ranch by

special mineral deed. Caldwell’s Creek, Ltd. believed it had retained the mineral

rights to the Caldwell’s Creek Addition based on the recorded restrictions and the

statement in the lot owners’ deeds that conveyed the property subject to any

recorded restrictions.

      Farm & Ranch joined an organization of property owners in Colleyville

called the Colleyville Area Mineral Rights Association (CAMRA) to negotiate

mineral leases. In 2008, CAMRA negotiated on behalf of Farm & Ranch for a

mineral lease with Titan. Titan ultimately decided that Farm & Ranch did not hold

the mineral rights to the Caldwell’s Creek Addition and refused to sign the

CAMRA lease. Instead, Titan contracted with the nine lot owners individually.

      Titan then filed suit against Farm & Ranch seeking a declaratory judgment

that it owns the mineral rights to the nine lots in the Caldwell’s Creek Addition.

Farm & Ranch counterclaimed for breach of contract. The nine lot owners were

later added to the case as third party defendants. They also filed a claim for

declaratory judgment. All parties then filed motions for summary judgment on

their respective claims. After a hearing, the trial court granted Titan’s motion and

denied Farm & Ranch’s motion, and it declared, “Titan owns fee simple

determinable title to the minerals under these nine subject lots in the Caldwell[’s]


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Creek subdivision pursuant to its oil and gas leases . . . .”2 Farm & Ranch

appealed.

                             Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). 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 Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). 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). 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; see

Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n, 300 S.W.3d 746, 753 (Tex. 2009).

The reviewing court should render the judgment that the trial court should have

rendered. Mann Frankfort, 289 S.W.3d at 848.




      2
        The order did not grant the lot owners’ motion for summary judgment.
However, the lot owners sought essentially the same declaratory judgment as
Titan, and on appeal, they joined in and adopted Titan’s brief.


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                               Deed Construction

      Deeds are construed to convey to the grantee the greatest estate possible.

Reeves v. Towery, 621 S.W.2d 209, 212 (Tex. App.—Corpus Christi 1981, writ

ref’d n.r.e.) (citing Waters v. Ellis, 158 Tex. 342, 347, 312 S.W.2d 231, 234

(1958)). A general warranty deed conveys all of the grantor’s interest unless

there is language in the instrument that clearly shows an intention to convey a

lesser interest. Id. (citing Cockrell v. Gulf Sulphur Co., 157 Tex. 10, 15, 299

S.W.2d 672, 675 (1957)). A reservation by implication in favor of the grantor is

not favored by courts. Sharp v. Fowler, 151 Tex. 490, 494, 252 S.W.2d 153, 154

(1952); Reeves, 621 S.W.2d at 212.

                                    Discussion

      In Farm & Ranch’s sole issue on appeal, it argues that the deed

restrictions reserved the mineral rights to Caldwell’s Creek, Ltd. and that the

statement in the lot owners’ deeds that conveyed the property subject to any

recorded restrictions means that Caldwell’s Creek, Ltd. conveyed only the

surface estate to the lot owners.

      At the time that Caldwell’s Creek, Ltd. filed the restrictions, it owned both

the mineral and surface rights to the Caldwell’s Creek land. An owner cannot

reserve to himself an interest in property that he already owns, see Reeves, 621

S.W.2d at 213, and the restrictions did not convey any surface or mineral estates

to another party, see Moser v. U.S. Steel Corp., 676 S.W.2d 99, 101 (Tex. 1984)

(“In Texas, the mineral estate may be severed from the surface estate by a grant


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of the minerals in a deed or lease, or by reservation in a conveyance.”). Thus,

the restrictions were not a reservation of the mineral rights by Caldwell’s Creek,

Ltd.3 The trial court so found in its grant of declaratory relief.

      Farm & Ranch does not directly challenge the trial court’s finding but

instead argues that the restrictions and the deeds “must be read as an integrated

instrument of conveyance . . . .” The deeds state, “This conveyance is made

subject to any and all easements, restrictions, and mineral reservations affecting

said property that are filed for record in the office of the County Clerk of Tarrant

County, Texas.” Farm & Ranch argues that this “subject to” language imports

the language of the restrictions into the deed and is constructive notice of the

restrictions. See Tex. Prop. Code Ann. § 13.002 (West 2004) (“An instrument

that is properly recorded in the proper county is . . . notice to all persons of the

existence of the instrument.”); Westland Oil Dev. Corp. v. Gulf Oil Corp., 637

S.W.2d 903, 908 (Tex. 1982) (“It is well settled that ‘a purchaser is bound by

every recital, reference and reservation contained in or fairly disclosed by any

instrument which forms an essential link in the chain of title under which he

claims.’”) (quoting Wessels v. Rio Bravo Oil Co., 250 S.W.2d 668 (Tex. Civ.

App.—Eastland 1952, writ ref’d)). But if the lot owners had looked back to the

restrictions, they would only have found an affirmative statement that Caldwell’s

      3
        We further note that the restrictions were subject to change by a vote of
70% of the lot owners. To construe the restriction as a reservation of the mineral
rights would mean that the lot owners could vote to divest Caldwell’s Creek, Ltd.
of its mineral rights simply by voting it to themselves.


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Creek, Ltd. did indeed own the mineral rights in fee simple and were thus able to

convey them to the lot owners.

      Farm & Ranch argues that the phrase “shall continue to belong” “serves as

a clear reservation of mineral rights” in attempt to distinguish this case from

Reeves, in which the failed attempt at a reservation was a plat showing the

conveyed property with a portion marked “Reserved by Owner.” See Reeves,

621 S.W.2d at 210.        It contends that the restrictions in this case are

distinguishable because “shall continue to belong” is a future-looking statement

that, once read into a deed at a later date, “can only mean that we’re reserving it

each and every time that we issue a deed in reference to or subject to those

restrictions.” This argument first neglects both that the restrictions are neither a

lease nor an instrument of conveyance, and thus, cannot reserve an interest, see

Moser, 676 S.W.2d at 101, and that an owner cannot reserve to himself an

interest that he already owns, Reeves, 621 S.W.2d at 213. Farm & Ranch cites

no case holding that a statement that does not rise to a reservation retroactively

transmutes into a reservation when referenced in a later deed, nor do we believe

it to be so. A reservation must be made at the time of the conveyance or lease.

See id. at 212 (“It is fundamental that a general warranty deed conveys all of the

interest that a grantor has in the land described therein unless there is language

in the instrument which clearly shows an intention to convey a lesser interest,

and there is not reserved to the grantor any interest in the land conveyed, absent




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a clear and unequivocal intent to do so which is expressed in the deed itself.”)

(emphasis added).

      Second, we do not believe that the phrase “shall continue to belong” can

only be interpreted as a future reservation. The trial court correctly interpreted it

to mean that nothing in the restrictions and reservations deprived Caldwell’s

Creek, Ltd. of its ownership of the mineral rights in the property. Thus, Caldwell’s

Creek, Ltd. continued to possess the mineral rights and was therefore able to

convey them in future deeds.

      Turning to the language of the deeds conveying the property to the lot

owners, Farm & Ranch does not argue that anything in the deeds’ language is a

separate reservation of mineral interests in the deeds, only that the provision that

made the conveyance “subject to any and all easements, restrictions, and

mineral reservations affecting said property that are filed for record in the office of

the County Clerk of Tarrant County, Texas” reads the language of the restrictions

into the deeds. As stated above, a general warranty deed conveys all of the

grantor’s interest unless there is language in the instrument that clearly shows an

intention to convey a lesser interest. Waters, 158 Tex. at 347, 312 S.W.2d at

234; Reeves, 621 S.W.2d at 212. The “subject to” language in the lot owners’

deeds is not a clear intention to reserve or except an interest from the

conveyance.    See Wright v. E.P. Operating L.P., 978 S.W.2d 684, 688 (Tex.

App.—Eastland 1998, pet. denied) (construing similar language as a limitation of

warranty).


                                          8
      In Wright, Wright, the owner of a tract of land, executed a deed of trust

pledging both his surface and mineral rights as collateral on a loan. Id. at 685.

Oliver later assumed Wright’s loan in an agreement that expressly reserved the

mineral rights to Wright. Id. The bank approved the assumption and reservation,

and it also agreed not to foreclose on the minerals should Oliver default on his

payments.     Id.   When Oliver defaulted on the loan, the bank erroneously

foreclosed on both the surface and the minerals.           Id. at 686.    The bank’s

successor in interest (Oregon) later conveyed its interest by special warranty

deed that included language stating the conveyance was “subject and

subordinate to . . . [a]ny and all valid and subsisting leases, reservations, [and]

severances of any and all oil, gas[,] and minerals . . . which are presently of

record . . . including, without limitation, that certain reservation of all oil, gas[,]

and minerals . . . reserved by [Wright].” Id. Our sister court held, as a matter of

law, that

      [t]he language stating that the conveyances were made subject to
      any and all reservations . . . does not reserve any mineral interest in
      Oregon’s predecessors in title, but rather recognizes that
      reservations have been made in the past and are in the chain of title.
      This language is more in the form of limiting the warranty than
      reserving an interest.

Id. at 688. The court recognized that all the parties agreed that Oregon intended

to reserve the mineral rights, but it noted that the court’s duty is to “ascertain

what the language of the instrument says, not what the parties meant for it to

say.” Id.; see also Reeves, 621 S.W.2d at 211 (“The question to be answered in



                                          9
this case is not what the grantors may have intended to say in the deed, but the

meaning of what they did, in fact, say.”).

      Farm & Ranch argues that this construction renders the clause a nullity.

We do not believe the “subject to” language is null, but it is a limitation of the

warranty. See Wright, 978 S.W.2d at 688; see also Averyt v. Grande, Inc., 686

S.W.2d 632, 634 (Tex. App.—Texarkana 1984) (citing Kokernot v. Caldwell, 231

S.W.2d 528 (Tex. Civ. App.—Dallas 1950, writ ref’d)) (“As used in conveyances,

‘subject to’ is a term of qualification and not of contract.”), aff’d, 717 S.W.2d 891

(Tex. 1986).    That is, the “subject to” language serves to protect Caldwell’s

Creek, Ltd.’s warranty.    See Tex. Indep. Exploration, Ltd. v. Peoples Energy

Prod.-Tex., L.P., No. 04-07-00778-CV, 2009 WL 2767037, at *5 (Tex. App.—San

Antonio Aug. 31, 2009, no pet.) (mem. op.) (“The principal function of a ‘subject

to’ clause is to protect a grantor against a breach of warranty claim. Conveying

land ‘subject to’ defined interests is merely a means of providing notice of

outstanding interests that may affect a grantee’s title.”) (citations omitted); Averyt,

686 S.W.2d at 634 (“This clause [‘less, however, and subject to’] limits the

granting or conveyance of the mineral interest from Grande, Inc. to the

Fogelmans, thereby protecting the general warranty in the deed and avoiding an

estoppel situation . . . .”). As our sister court explained in Stewman Ranch, Inc.

v. Double M. Ranch, Ltd., 192 S.W.3d 808, 811 (Tex. App.—Eastland 2006, pet.

denied) (citations omitted),




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      The warranty clause does not convey title nor does it determine the
      character of the title conveyed. Rather, it warrants that the same
      estate or any right, title, or interest therein has not been conveyed to
      any person other than the grantee and that the property is free from
      encumbrances.

See also Petro Pro, Ltd. v. Upland Res., Inc., 279 S.W.3d 743, 750 (Tex. App.—

Amarillo 2007, pet. denied) (noting that phrase “insofar and only insofar,” “[l]ike

the phrase ‘subject to,’” does not serve to limit the rights conveyed or to reserve

any rights).

      Thus, while Caldwell’s Creek, Ltd. may have intended to reserve the

mineral rights, it did not effectively do so. See Johnson v. Conner, 260 S.W.3d

575, 578 (Tex. App.—Tyler 2008, no pet.) (holding that deed conveyed all

mineral interests, despite any intent not to do so, when it stated that “[n]one of

the [mineral, water, royalty, timber, or other interests] are available to

be conveyed” because that language was not an explicit reservation). When

Caldwell’s Creek, Ltd. conveyed its interests to the lot owners without

reservation, it conveyed its interests in both the mineral and surface. It conveyed

those interests subject to the previously recorded restrictions, but those

restrictions were insufficient to reserve the mineral interests. See Miller v. Melde,

730 S.W.2d 12, 13 (Tex. App.—Corpus Christi 1987, no writ) (holding that a deed

noting that prior conveyances reserved and excepted interests in the mineral

estate conveyed the entire interest when there were no prior conveyances). The

mineral interest thus passed to Titan, not to Farm & Ranch. The trial court did




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not err by granting Titan’s motion for summary judgment and denying Farm &

Ranch’s motion for summary judgment. We overrule Farm & Ranch’s sole issue.

                                Conclusion

     Having overruled Farm & Ranch’s sole issue, we affirm the trial court’s

judgment.




                                              LEE GABRIEL
                                              JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DELIVERED: May 17, 2012




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