                   COURT OF APPEALS
                    SECOND DISTRICT OF TEXAS
                         FORT WORTH

                        NO. 02-12-00303-CV


JAMES C. THOMASON AND                          APPELLANTS
DOROTHY L. LUPTON

                                V.

JAMES E. BADGETT AND DARRYL                     APPELLEES
G. POU; LARRY BRADSHAW AND
WIFE, SHARON BRADSHAW;
TYLER J. CHILD AND WIFE,
BETTINA CHILD; GARY W.
ELLIOTT AND WIFE, LAVADA
ELLIOTT; BRYAN G. FEILLE AND
WIFE, LAURIE P. FEILLE; BRUCE
FOWLER AND WIFE, ANNETTE
FOWLER; DONALD M. GUMMELT
AND WIFE, CONSTANCE
GUMMELT; FRED HAFFNER AND
WIFE, LINDA HAFFNER; MICHAEL
R. HALE AND WIFE, LORI HALE;
RAY HALL, JR. AND WIFE,
KIMBERLY HALL; DONALD
MAHANAY AND WIFE, CHRISTY
MAHANAY; MICHAEL R. NOAH
AND WIFE, PEGGY NOAH;
VINCENT C. SANCHEZ AND WIFE,
GLORIA M. SANCHEZ; LARRY J.
SHARP AND WIFE, JACQUELINE
SHARP
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          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

                                     ----------

                        MEMORANDUM OPINION 1

                                     ----------

                               Background Facts

      In August 1996, Kenneth Hopkins purchased land from Dan Reese and his

family. In the warranty deed (the Reese deed), the Reeses reserved one half of

the mineral rights (the Reese reservation). The Reese deed was recorded in

volume 1684, page 335 of the real property records of Parker County, Texas.

Hopkins then sold the land to Thomason and Lupton via warranty deed (the

Hopkins deed), “save and except” the Reeses’ one-half mineral interest as

reserved in the Reese deed. The Hopkins deed contained no other reservations

or exceptions to the conveyance. The Hopkins deed was recorded in volume

1686, page 122 of the real property records of Parker County.

      Thomason and Lupton eventually divided the land into lots and sold one lot

to E.L. Ford and the rest of the lots to Reata Properties, Ltd. 2 Nineteen of the

twenty-three warranty deeds described the property to be conveyed as the

respective lots “SAVE & EXCEPT: ALL OIL, GAS[,] AND OTHER MINERALS AS


      1
       See Tex. R. App. P. 47.4.
      2
       The lots were eventually sold to the appellees.


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RECORDED IN [the Reese deed] AND [the Hopkins deed].” Two of the warranty

deeds stated, “SAVE & EXCEPT: OIL, GAS[,] AND OTHER MINERALS AS

RECORDED IN [the Reese deed] AND [the Hopkins deed].” The last two of the

warranty deeds stated, “SAVE & EXCEPT: ALL OIL, GAS[,] AND OTHER

MINERALS AS RECORDED IN [the Reese deed] AND OTHER OIL, GAS[,] AND

MINERALS AS RECORDED IN [the Hopkins deed].” The deeds contained no

other reservations or exceptions to the conveyances.

      In 2007, Thomason and Lupton executed an oil, gas, and mineral lease

with Devon Energy Production Company, L.P. purporting to lease the mineral

interest that they had reserved. After execution of the lease, however, Devon

became concerned that Thomason and Lupton did not own the undivided one-

half interest. Thomason and Lupton filed a trespass to try title action against the

current owners of the lots, seeking to determine title to the one-half mineral

interest not reserved by the Reeses. Both the appellants and the appellees filed

motions for summary judgment. 3 The trial court granted the appellees’ motion

and denied the appellants’ motion. Thomason and Lupton then filed this appeal.

                              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


      3
       Not all of the defendants joined appellees’ motion for summary judgment.
The trial court severed the action against the non-moving defendants from this
case.


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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).        A plaintiff is entitled to

summary judgment on a cause of action if it conclusively proves all essential

elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710

S.W.2d 59, 60 (Tex. 1986). A defendant who conclusively negates at least one

essential element of a cause of action is entitled to summary judgment on that

claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see

Tex. R. Civ. P. 166a(b), (c).

      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.

                                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


                                       4
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)). Courts do not favor reservations by implication in favor

of the grantor. Sharp v. Fowler, 151 Tex. 490, 494, 252 S.W.2d 153, 154 (1952);

Reeves, 621 S.W.2d at 212.

                                  Discussion

      In their sole issue on appeal, Thomason and Lupton argue that the proper

interpretation of the deed shows that they retained ownership of one half of the

mineral estate.

      Thomason and Lupton argue that although they did not “reserve” the

mineral interest, they did “except” it from the conveyance, which functioned as a

reservation. Exceptions and reservations “are not strictly synonymous.” Pich v.

Lankford, 157 Tex. 335, 342, 302 S.W.2d 645, 650 (1957). But an exception has

the same legal effect as a reservation when the excepted interest remains with

the grantor. See id. Thus, if the exceptions in the warranty deeds were effective,

Thomason and Lupton properly excepted a half interest in the mineral estate,

leaving it in themselves.

      The majority of the deeds except “ALL OIL, GAS[,] AND OTHER

MINERALS AS RECORDED IN [the Reese deed] AND [the Hopkins deed].” The

exception does not describe what minerals are excepted but only directs the


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reader to the two previously recorded deeds.       The Reese deed contains an

explicit reservation of one half of the mineral estate. Thus, the reference to the

Reese deed in the exception here at bar serves to alert the reader to the Reese

reservation. The Hopkins deed, however, contains no separate reservation. It

excepts the minerals previously reserved by the Reeses and conveys “all

remaining oil, gas[,] and other minerals.” So, the minerals “as recorded” in the

Hopkins deed belong 50% to the Reeses and 50% to Thomason and Lupton.

Neither the reference to the Reese deed nor the reference to the Hopkins deed

created a new reservation or exception of the 50% interest conveyed to

Thomason and Lupton. They conveyed the mineral and surface estates subject

to any previously recorded reservations, namely the Reese reservation. See

Farm & Ranch Investors, Ltd. v. Titan Operating, L.L.C., 369 S.W.3d 679, 684

(Tex. App.—Fort Worth 2012, pet. denied) (holding that grantor conveyed the

mineral estate along with the surface estate when the deeds conveyed the

property “subject to” previous deeds and when those deeds did not include an

express reservation of mineral rights in the grantor); Wright v. E.P. Operating

Ltd., 978 S.W.2d 684, 688 (Tex. App.—Eastland 1998, pet. denied) (“The

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.”). The language in the other four warranty deeds also do

not effectively except the 50% mineral interest as they all contain the same


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troublesome references to the previous deeds and make no explicit separate

exception.

      The main thrust of Thomason and Lupton’s argument is that the word “all”

is an express exception of the mineral interest. Setting aside the fact that two of

the deeds do not even use the word “all,” thus defeating their own argument

regarding those two deeds, the word “all” in the warranty deeds still refers to the

minerals “as recorded” in the previous deeds. Looking to the Hopkins deed, all

the minerals are accounted for—half previously reserved by the Reeses plus half

conveyed to Thomason and Lupton. The meaning of the phrase “all oil, gas[,]

and other minerals as recorded” is simply not a clear exception of the 50%

mineral interest owned by Thomason and Lupton. 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); Miller v.

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

deed that only excepted interests in minerals as “reserved and excepted in prior

conveyances” conveyed the entire mineral estate when there were no prior

reservations or exceptions because the clause “[did] not reserve or except any

mineral interest in clear and unambiguous language”). And when the language is

unclear, it is construed against the grantor to confer upon the grantee the

greatest estate that the terms of the instrument will permit. Lott v. Lott, 370


                                          7
S.W.2d 463, 465 (Tex. 1963). Although Thomason and Lupton may have meant

something by the use of the phrase “all oil, gas[,] and other minerals as

recorded,” we cannot say that that something is an effective exception of the

mineral estate. See Reeves, 621 S.W.2d at 211 (“The question to be answered

in 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.”); see also Large v. T. Mayfield, Inc.,

646 S.W.2d 292, 293 (Tex. App.—Eastland 1983, writ ref’d n.r.e.) (noting that the

rights of the parties are governed by the language used and that the choice of

words is of controlling importance).    The trial court therefore did not err by

granting the lot owners’ motion for summary judgment and by denying Thomason

and Lupton’s motion for summary judgment.           We overrule Thomason and

Lupton’s issue.

                                   Conclusion

      Having overruled Thomason and Lupton’s sole issue on appeal, we affirm

the trial court’s judgment.



                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: July 11, 2013




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