                                                                               ACCEPTED
                                                                              12-14-00262
                                                              TWELFTH COURT OF APPEALS
                                                                            TYLER, TEXAS
                                                                      7/10/2015 4:55:37 PM
                                                                             CATHY LUSK
                                                                                    CLERK

                   NO. 12-14-00262-CV

                           IN THE                          FILED IN
                                                    12th COURT OF APPEALS
                                                         TYLER, TEXAS
            TWELFTH COURT OF APPEALS                7/10/2015 4:55:37 PM
                                                         CATHY S. LUSK
               SITTING AT TYLER, TEXAS                       Clerk


          ___________________________


      CHARLES ALFORD AND MARY LOU ALFORD,
                  APPELLANTS

                             VS.

ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND
          CENTRAL TEXAS LAND SERVICES,
                   APPELLEES.

          ___________________________

        Appealed from the 1ST Judicial District Court of
                San Augustine County, Texas
                 Trial Court No. CV-12-9344

   BRIEF OF APPELLEE ROBERT THOMAS MCKEITHEN

                                Noel D. Cooper
                                Texas Bar No. 00796397
                                LAW OFFICES OF NOEL D. COOPER
                                117 North St., Suite 2
                                Nacogdoches, Texas 75961
                                Telephone: (936) 564-9000
                                Telecopier: (936) 715-6022
                                Email: noelcooper@noelcooper.com
                                ATTORNEY FOR APPELLEE,
                                ROBERT THOMAS MCKEITHEN

                                ORAL ARGUMENT REQUESTED
                           NO. 12-14-00262-CV

           CHARLES ALFORD AND MARY LOU ALFORD,
                       APPELLANTS

                                     VS.

ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND
          CENTRAL TEXAS LAND SERVICES,
                   APPELLEES.

                 IDENTITY OF PARTIES & COUNSEL

      Appellant certifies that the following is a complete list of the parties,
attorneys, and any other person who has any interest in the outcome of this
lawsuit:

Noel D. Cooper
Texas Bar No. 00796397
LAW OFFICES OF NOEL D. COOPER
117 North St., Suite 2
Nacogdoches, Texas 75961
Telephone: (936) 564-9000
Telecopier: (936) 715-6022
Email: noelcooper@noelcooper.com
ATTORNEY FOR APPELLEE,
ROBERT THOMAS MCKEITHEN

ROBERT THOMAS MCKEITHEN
APPELLEE

Tom Rorie
Attorney at Law
210 North Street
Nacogdoches, Texas 75961
TEL: (936) 559-1188
FAX: (936) 559-0099
Email: trorie@sbcglobal.net
ATTORNEY FOR APPELLANTS,
CHARLES ALFORD AND MARY LOU ALFORD


                                      -2-
CHARLES ALFORD AND MARY LOU ALFORD
APPELLANTS

Jason R. Mills
FREEMAN MILLS PC
110 N. College, Suite 1400
Tyler, Texas 75702
TEL: (903) 592-7755
FAX: (903) 592-7787
Email: eservicejrm@freemanmillspc.com
ATTORNEY FOR APPELLEES,
EOG RESOURCES, INC. AND
CENTRAL TEXAS LAND SERVICES

EOG RESOURCES, INC.
APPELLEE

CENTRAL TEXAS LAND SERVICES
APPELLEE




                                -3-
                                    TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL .......................................................... 2

TABLE OF CONTENTS ................................................................................. 4

INDEX OF AUTHORITIES ........................................................................... 5

STATEMENT OF THE CASE ........................................................................ 7

ISSUES PRESENTED ................................................................................... 8

STATEMENT OF FACTS ............................................................................... 8

SUMMARY OF THE ARGUMENT............................................................... 11

ARGUMENT.................................................................................................12

        Response to                        The trial court did not err in
        Appellants’ Issue 1:               holding that the mineral reservation
                                           was incorporated into the Deed.....................12

PRAYER ...................................................................................................... 23

CERTIFICATE OF COMPLIANCE .............................................................. 23

CERTIFICATE OF SERVICE....................................................................... 24

APPENDIX .................................................................................................. 25




                                                     -4-
                                 INDEX OF AUTHORITIES

                                                  CASES

American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842
    (Tex. 1994) .......................................................................................... 15

Duhig v. Peavy-Moore Lumber Co., Inc., 144 S.W.2d 878
     (Tex. 1940) ..........................................................................................16

Dupnik v. Hermis, No. 04–12–00417–CV,
    2013 Tex. App. Lexis 2461, 2013 WL 979199
    (Tex. App.—San Antonio March 13, 2013, pet. denied)(mem. op.) ... 18

Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864
     (Tex. 2007)..........................................................................................12

Gulf States Utils. Co. v. Low, 79 S.W.3d 561
      (Tex. 2002) ......................................................................................... 15

Harmes v. Arkalatex Corp. 615 S.W.2d 177
    (Tex. 1981)........................................................................................... 15

Harris v. Windsor, 294 S.W.2d 798
     (Tex. 1956) ..........................................................................................16

Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323
      (Tex. 2011)........................................................................................... 17

Klein v. Humble Oil & Refining Co., 67 S.W.2d 911
      (Tex. Civ. App.—Beaumont 1934), aff'd,
      Klein v. Humble Oil & Refining Co., 86 S.W.2d 1077 (1935) ..............16

Mitchell v. Castellaw, 246 S.W.2d 163
     (Tex. 1952) .......................................................................................... 17

Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493
     (Tex. 1991) ........................................................................................... 15




                                                     -5-
Smith v. Allison, 301 S.W.2d 608
     (Tex. 1956) ..........................................................................................16

Spencer v. Eagle Star Ins. Co. of America, 876 S.W.2d 154
     (Tex., 1994) .........................................................................................12



                                                  RULES

TEX. R. APP. P. 44 ..........................................................................................21

TEX. R. CIV. P. 272 ........................................................................................12

TEX. R. CIV. P. 273.........................................................................................12

TEX. R. CIV. P. 274 ........................................................................................12

Tex. R. Civ. P. 279.........................................................................................14




                                                     -6-
                          NO. 12-14-00262-CV

          CHARLES ALFORD AND MARY LOU ALFORD,
                      APPELLANTS

                                    VS.

ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND
          CENTRAL TEXAS LAND SERVICES,
                   APPELLEES.

      BRIEF OF APPELLEE ROBERT THOMAS MCKEITHEN

     COMES NOW, Noel D. Cooper, counsel for Appellee, Robert Thomas

McKeithen, hereinafter identified as “Robert” or “McKeithen,” in the above

numbered cause, and files this Appellee’s Brief and would show this

Honorable Court as follows:

                     STATEMENT OF THE CASE

     Nature of the Case. McKeithen was the sole heir of Annie and Jack

Jessup, two long-time residents of San Augustine County, Texas. Appellants

were ranchers and farmers in San Augustine County, and they rented

property from the Jessups for their cattle. The purchased the Jessups’

property in 2003 to graze their cattle, and they never discussed the mineral

estate. A Special Warranty Deed With Vendor’s Lien (“the Deed”) and a

Deed Of Trust were was drawn up to reflect the agreements of the parties,

and a mineral reservation was included in one of the legal descriptions.

After the fracking boom began in San Augustine County, Appellants


                                    -7-
brought suit against Appellees seeking to reform the deeds between

Appellants and the Jessups to remove the mineral reservation.

      Course of Proceedings. All parties moved for summary judgment, and

the trial court denied all motions for summary judgment. CR 2:93, 3:87. A

jury was selected, and evidence was heard on May 6 and 7, 2014.

      Trial Court Disposition. A verdict was returned by the jury, and the

trial court entered a take-nothing judgment as to all of the Appellants’

claims. CR 3:133.

                  ISSUES PRESENTED FOR REVIEW

      Response to Issue 1: Appellants erroneously contend that the trial

court erred in ruling that the mineral reservation in the Warranty Deed

With Vendor’s Lien was incorporated into the deed. At first review of the

record, Appellants’ waived this issue at the trial court. Appellants failed to

object to the jury charge which included an instruction to the jury regarding

mineral reservation, effectively conceding that this was a lost cause for

them. However, even had there not been a waiver, the Appellants are

incorrect regarding the law as it relates to the Deed.

                         STATEMENT OF FACTS

      This is a case about a pasture, 117 acres out of 128 acres of pasture,

which the Appellants purchased from the Jessups in 2003. RR 3:18,26. For



                                     -8-
five or six years, Appellants leased the pasture from Jack and Annie Jessup.

RR 3:16-17. In 2002, Annie asked Mary Lou if she knew of anyone who

would want to purchase the pasture. RR 3:18. Mary Lou was interested, but

the Appellants could not afford the pasture at that time. RR 3:18. The next

year, Mary Lou approached Annie about buying the pasture, and they

entered into an oral contract for the sale of the pasture for $80,000, or

about $684/acre. RR 3:18-20. Mary Lou and Annie never discussed the

mineral estate. RR 3:20. Appellants and the Jessups met at the office of a

local attorney, and paperwork was drawn up for the sale of the pasture plus

the Jessups’ house. RR 3:22. Appellants signed a Deed of Trust. RR 3:31-

32.

      Mary Lou conceded that the mineral estate was not part of

Appellant’s contract with the Jessups to buy the pasture. RR 3:53. More

importantly, she and her husband would have purchased the pasture with

or without the mineral estate; they got a great deal on the pasture. RR 3:53.

Mary Lou agreed that the contract to purchase the pasture was a handshake

deal between people with an ongoing business relationship. RR 3:56. Mary

Lou did completely read neither the Deed or the Deed of Trust. RR 3:57.

      Robert was the Jessups’ nephew and their sole heir. RR 3:59-60.

Before Mr. Jessup had passed, Robert was appointed his guardian. RR 3:74.



                                    -9-
After the pasture had been sold to the Jessups, Robert was approached

about leasing the mineral rights under the pasture, and he leased them. RR

3:68-69. The guardianship proceedings were initiated so that Robert could

lease the mineral rights to EOG. RR 3:78. At some point, Mary Lou’s

daughter-in-law, Brenda, called Mary Lou and told her that Robert had

made a deposit of funds that he received from EOG. RR 3:46. Mary Lou

called Robert and wanted him to sign a release of lien on the pasture she

and her husband bought, and when Robert reviewed the proposed release,

it did not release just the lien but also had sneaked in a line by which he

would release all of his mineral rights. RR 3:71. Appellants later sued

Robert. CR 1:4.

     Connie Vaughn worked for Ken Muckleroy as a part-time real estate

closer. RR 4:16-17. According to her description of her duties, a real estate

closer would meet with the parties in conjunction with a real estate closing,

review all of the documentation with them, make sure everything was

correct, and the proceed with the parties’ signing the documents. RR 4:17.

Ms. Vaughn knows that she prepared documents for selling the pasture, but

she had no specific recollection of the closing. RR 4:24-25. She reviewed

the Exhibit A attached to the Deed. RR 4:29. The earlier instruments from

which she obtained the property description would have usually been



                                    - 10 -
brought to her by the property sellers, but she had no memory of whether

the Jessups had brought the particular legal description to her. RR 4:35.

She agreed that it was possible that the Jessups gave the legal description to

her knowing that the mineral reservation was in there. RR 4:36. Ms.

Vaughn agreed that the face of the Deed referenced a 1950 instrument with

the same mineral reservation, and that if the metes and bounds had not

been attached to the Deed, only the reference to the 1950 instrument, the

Deed still would have been valid. RR 4:40-41. The attorney who employed

Ms. Vaughn, Ken Muckleroy, could not recall meeting with the Jessups and

the Alfords, and he had no specific recollections about the transaction

which led to this litigation. RR 4:65-66.

                   SUMMARY OF THE ARGUMENT

      Appellants were poured out of court by a jury of their peers because

the causes of action under which they chose to sue McKeithen had no

factual support. In their sole ground for appeal, they argue not about those

facts or the jury charge but about one ruling made by the trial court. That

one complaint boils down to their assertion that the mineral reservation

attached to the Deed was not actually incorporated into the Deed. However,

Appellants failed to preserve this issue as they did not object to an

instruction on this point included in the Charge of the Court. This really



                                     - 11 -
was a last-ditch effort as Appellants raised this issue with the trial court at

the 11th hour and after their motion for summary judgment had been heard.

However, even if they had not waived their sole complaint, Texas case law is

firmly against their position, and Appellants fail to address a recent

decision from another Texas appellate court which is exactly on point and

for which the Texas Supreme Court denied the petition for review. Finally,

their request for a remand on damages is frivolous and without merit.

                               ARGUMENT

     Response to Appellants’ Issue 1: The trial court did not err
in ruling that the mineral reservation was incorporated into
the deed.
                          Argument & Authorities

      This matter started out as a suit to reform the Deed to remove the

mineral reservation, CR 1:4, and evolved to include a claim for trespass to

try title. CR 3:88. Only the trespass to try title and reformation claims were

submitted to the jury, CRS 2:4,8,9, and the jury found against Appellants

on both of these issues. CRS 2:8,9. The jury also found that the Appellants

had not utilized due diligence in reviewing the deed. CRS 2:10. Well after all

of the parties had filed and had heard their motions for summary judgment

and six (6) days before jury selection, Appellants filed a Motion for Court to

Construe Document Prior to Evidence and Submission of Issues to Jury In



                                     - 12 -
Trial. CR 3:118-21. The trial court ruled that “under the rules of

construction of documents that the language stating a mineral reservation

found in the description of a 117 acre tract described as Tract 1 in Exhibit ‘A’

attached to that deed: Is Incorporated [sic] into the Deed.” CRS 4-5 (Ex. 1).

Appellants’ sole issue is that the trial court incorrectly ruled that the

mineral reservation was incorporated into the Deed.

      Appellants Waived This Issue

      Appellants waived this issue for purposes of appeal. “All objections

[to the charge] not so presented shall be considered as waived.” TEX. R. CIV.

P. 272. “Either party may present to the court and request written

questions, definitions, and instructions to be given to the jury . . . . A

request by either party for any questions, definitions, or instructions shall

be made separate and apart from such party’s objections to the court’s

charge.” TEX. R. CIV. P. 273. “A party objecting to a charge must point out

distinctly the objectionable matter and the grounds of the objection. Any

complaint as to a question, definition, or instruction on account of any

defect, omission, or fault in pleading, is waived unless specifically included

the objections.” TEX. R. CIV. P. 274. A party must object to an erroneous or

defective question, instruction, or definition. See Equistar Chems., L.P. v.

Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007)(holding that failure to



                                     - 13 -
object to an improper instruction waived that issue); Spencer v. Eagle Star

Ins. Co. of America, 876 S.W.2d 154, 157 (Tex., 1994)(holding an objection

is necessary to preserve error on improper instruction).

     During the formal charge conference, Appellants’ only objections to

the Charge of the Court concerned Question No. 3, the Due Diligence issue.

RR 4:105-06. Appellants did no object to any other part of the Charge of the

Court. RR 4:passim. Thus, the following question was submitted to the jury

without objection from Appellants:




                                     - 14 -
CRS 2:8 (Ex. 2). Included in the instructions is the following: “You are

further instructed that Exhibit A was incorporated into the Deed.” Id. While

Appellants are not specifically complaining about the Charge of the Court,

they are complaining about a finding, and they waived this issue by not

complaining during the charge conference to an instruction which directly

addressed the issue about which they were complaining. There is a large

body of case law which has held that a party can waive an entire theory of

recovery or damage by not objecting with its omission from the charge. TEX.

R. CIV. P. 279; see Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 565 (Tex.

2002); Harmes v. Arkalatex Corp. 615 S.W.2d 177, 179 (Tex. 1981); see,

e.g., American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 n.12

(Tex.     1994)(holding   that    defendant    waived   estoppel   defense);

Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex.

1991)(holding that plaintiff waived breach of contract claim). Appellants

cannot now come and complain of the trial court’s ruling when they did not

object to the jury being given this instruction.

        The Mineral Reservation Was Incorporated Into the Deed

        Irrespective of whether Appellants waived their one complaint on

appeal, they never address any of the litany of Texas court decisions

interpreting mineral reservations and instead rely totally on general



                                     - 15 -
contract cases. Texas courts “have long since relaxed the strictness of the

ancient rules for the construction of deeds, and have established the rule for

the construction of deeds as for the construction of all contracts,-that the

intention of the parties, when it can be ascertained from a consideration of

all parts of the instrument, will be given effect when possible. That

intention, when ascertained, prevails over arbitrary rules.” Harris v.

Windsor, 294 S.W.2d 798, 800 (Tex. 1956). “The ultimate purpose in

construing a deed is to ascertain the intention of the grantor, and when this

intention is ascertained, that construction which carries the intention into

effect, when such intention is lawful, governs and controls.” Smith v.

Allison, 301 S.W.2d 608, 614 (Tex. 1956). “The cardinal rule for the

construction of deeds is to ascertain the intention of the parties as

expressed in the deed.” Klein v. Humble Oil & Refining Co., 67 S.W.2d 911,

914 (Tex. Civ. App.—Beaumont 1934), aff'd, Klein v. Humble Oil & Refining

Co., 126 Tex. 450, 86 S.W.2d 1077, 1078 (1935). A reservation on the face of

the deed only serves to further identify what is included in the metes and

bounds. See Duhig v. Peavy-Moore Lumber Co., Inc., 144 S.W.2d 878, 879

(Tex. 1940). Further, the trial court ruled that the Deed was ambiguous.

CRS 4. When the court determines that the contract language is ambiguous,

the intended meaning of that language becomes a fact issue for the trier of



                                    - 16 -
fact and extraneous evidence may be admitted to help determine the

language’s meaning. Italian Cowboy Partners v. Prudential Ins., 341

S.W.3d 323, 333-34 (Tex. 2011).

     The agreement of the parties was to purchase the pasture. RR 3:18-

20. Would anyone, reading the entire document which was filed with the

San Augustine County Clerk, have had any doubt of the mineral reservation

in Tract One? The short answer is “no.” Moreover, if the mineral

reservation was simply lifted from the metes and bounds to the first page of

the deed, it would be obvious that it would serve the effect of the

reservation. See Mitchell v. Castellaw, 246 S.W.2d 163, 164-65 (Tex. 1952).

Appellants signed a deed of trust with the exact same mineral reservation.

     Mary Lou and her husband would have bought with pasture with or

without the mineral estate, RR 3:53, and she conceded that neither she nor

the Jessups ever uttered the word “minerals.” RR 3:56. Appellants were

running cattle on the pasture when they bought it, RR 3:34, and they were

still using the pasture for that purpose at the time of trial. RR 3:56. If we

are trying to determine the intent of the parties, the intent is clear:

Appellants did not intend to purchase the mineral estate. Nowhere in the

record does it say that Appellants intended to purchase the mineral estate

beneath the pasture.



                                    - 17 -
      Appellants are aware of adverse case law directly on point which is
      controlling to their single issue, though they never cite or contrast
      that law to this appeal.
      It is troubling that Appellants, though they have been aware of

adverse authority for over a year, CR 2:143-147, do not even make mention

of it in their brief. A recent case from San Antonio considered a deed like

the one in this case. Dupnik v. Hermis, No. 04–12–00417–CV, 2013 Tex.

App. Lexis 2461, 2013 WL 979199 (Tex. App.—San Antonio March 13, 2013,

pet. denied)(mem. op.)(Ex. 3). In that case, four co-tenants partitioned a

nearly 100-acre piece of land in 1983, but the minerals remained undivided.

Id. at *2. In 1991, Hermis, an original cotenant, conveyed Dupnik, another

original cotenant, one surface acre and her 114 mineral interest 1n the acre.

Id. Hermis did the same thing in 1994 with five acres (the five acres

included the previously conveyed one acre). Id. Then in 1998 Hermis

conveyed her entire 24.68-acre tract to Dupnik. Id. The 1998 deed

contained the same alleged problem as the deed in this case. The property

description in the deed contained an acreage amount and survey, but also

relied on a description in the attached Exhibit A. Id. at *3. But while the

reservation in the deed said "none," the description described tract two as

"the surface only." Id.



                                    - 18 -
      Dupnik arose out of the same error as this case: the property

description in the 1998 deed was copied out of an older deed. Id at *4.

Dupnik sued in 2011 for a declaratory judgment on her mineral ownership

in the land. Id. at *3. The trial court found that the deed unambiguously

contained a binding mineral reservation. Id. at * 1. The court of appeals

affirmed, first because Dupnik's claim to the minerals was barred by

limitations, and second because the deed unambiguously contained a

binding mineral reservation. Id. at * 12, * 15.

      Courts must interpret deeds harmoniously to give effect to all their

parts. Id. at *13-*14. The intent to be enforced is not the parties' subjective

intent, but rather the intent "from the language used within the

instrument's four comers[.]" Id. at * 15. Therefore, "the actual, subjective

intent of the parties will not always be given effect even if [the court] were

able to discern that subjective intent." Id. (internal quotations omitted).

Applying those interpretive rules, the court of appeals in Dupnik properly

found that the reservation of "none" simply meant that the grantor was not

retaining the rights "to any of the substances that belong to the surface

estate owner." Id. (citing Moser v. US. Steel Corp., 676 S.W.2d 99, 102

(Tex. 1984)).

      The tract at issue in this case is Tract One of the deed, and the



                                     - 19 -
Jessups stated that the property being conveyed is more particularly

described in the exhibit to the Deed. The exhibit describes the location of

the tract and states that the conveyance does not include one half of all the

minerals beneath the tract. The Deed also contains the following provision

under the heading “Exemptions to Conveyance and Warranty:”




RR 5:PX-2. In addition, the Deed stated that it incorporated any prior

mineral reservations, and there was a prior reservation of one half of the

minerals. Accordingly, because one-half of the minerals had been

previously reserved and the Jessups were excluding from the description

the other half of the minerals, the exhibit was also providing a horizontal

boundary and not just vertical boundary lines. The conveyance of Tract One

was limited to the surface.

       Because the conveyance of Tract One was for the surface only, the

part of the deed reserving a life estate in Tract Two does not create an

ambiguity. Like in Dupnik, where a reservation of "none" did not conflict

with a grant of the surface only, the Jessups did not need to reserve

anything from Tract One because they did not grant the minerals. Dupnik,

2013    Tex.   App.   Lexis,   at   *15.   Accordingly,   the   warranty   deed

unambiguously does not grant any of the minerals in Tract One to

                                      - 20 -
Appellants.

     Appellants did not introduce any evidence of damages at trial, so
     there is no basis to remand the case on the issue of damages.
     Appellants’ request that the case be remanded to the trial court is

frivolous and without merit. “The court may not order a separate trial solely

on unliquidated damages if liability is contested.” TEX. R. APP. P. 44.1(b).

The jury did not make a determination of damages. CRS 2:12. While

Appellants introduced copies of two checks, RR 5:PX-12, PX-13, they did

not elicit any testimony about specifically what those monies related to so

that a jury could determine any damages. RR 3:passim, 4:passim. It is

telling that, despite their having sued both EOG and Central Texas Land

Services, they did not call any expert witnesses from either of those two

appellants or under their own control to testify regarding how monies paid

to the Jack Jessup Estate equated to harm to the Appellants. What was that

money for? Appellants never offered any testimony on that issue.

                                Conclusion

     Appellants claims are easy to follow: they would like to have been

deeded the minerals. Of course, equitably this falls flat. They never

negotiated for the mineral estate, they never agreed to purchase the mineral

estate, and they would have purchased the pasture with or without the

mineral estate—for less than $700 per acre who would not? They bought


                                    - 21 -
the pasture for what they were paying to lease the pasture. The jury

understood Appellants’ motivations, and their findings reflect the facts: not

only did the Appellants not own the mineral estate, there was no mistake in

reducing the Jessups’ and Alfords’ agreement to writing.

     Not being able to win on the facts, Appellants are left trying to find

some justification for stealing something which doesn’t belong to them—a

legal do over. Unfortunately for their arguments, they are were done in the

trial court. Appellants tried to get the trial court to rule that the mineral

reservation was not part of the deed, but when that was successful, they did

not bring it up again during the trial, and they waived the issue by not

objecting to the trial court’s instructions on the mineral reservation. Even

had Appellants preserved the issue, they are wrong on the law as the

mineral reservation, according to the courts which have addressed similar

facts, is incorporated into the Deed. EOG and Central Texas Land Services

obviously thought that the Jessups had retained the minerals, and the

Appellants attorney, Mr. Muckleroy, also knew that the Deed reserved the

minerals. Why else would he have sneaked in a line into the release of lien

about the minerals? Thus, Appellant’s single issue is wholly without merit,

and the judgment of the trial court should be affirmed.




                                    - 22 -
                                   PRAYER

      Wherefore, Appellee Robert Thomas McKeithen prays this Court to

affirm the decision of the trial court for the reasons stated herein and for all

other relief to which he is entitled.

                                           Respectfully submitted,


                                           /s/Noel D. Cooper
                                           Noel D. Cooper
                                           Texas Bar No. 00796397
                                           LAW OFFICES OF NOEL D. COOPER
                                           117 North St., Suite 2
                                           Nacogdoches, Texas 75961
                                           Telephone: (936) 564-9000
                                           Telecopier: (936) 715-6022
                                           Email: noelcooper@noelcooper.com
                                           ATTORNEY FOR APPELLANT,
                                           ROBERT THOMAS MCKEITHEN


                    CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document is

computer generated and contains 2,962 words based on a computer word

count.


                                                 /s/Noel D. Cooper
                                                 NOEL D. COOPER




                                        - 23 -
                     CERTIFICATE OF SERVICE
     I certify that I delivered a copy of this Brief of Appellee Robert

Thomas McKeithen to each attorney of record or party in accordance with

the Texas Rules of Appellate Procedure on July 10, 2015, at the addresses

and manners below.

     Tom Rorie
     Attorney for Charles Alford and Mary Lou Alford
     Attorney at Law
     210 North Street
     Nacogdoches, Texas 75961
     TEL: (936) 559-1188
     FAX: (936) 559-0099
     Email: trorie@sbcglobal.net
     By Electronic Filing Manager

     Jason R. Mills
     Attorney for EOG Resources, Inc. and Central Texas Land Services
     Freeman Mills PC
     110 N. College, Suite 1400
     Tyler, Texas 75702
     TEL: (903) 592-7755
     FAX: (903) 592-7787
     Email: eservicejrm@freemanmillspc.com
     By Electronic Filing Manager


                                           /s/Noel D. Cooper
                                           NOEL D. COOPER




                                  - 24 -
                                NO. 12-14-00262-CV

           CHARLES ALFORD AND MARY LOU ALFORD,
                       APPELLANTS

                                             VS.

 ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND
           CENTRAL TEXAS LAND SERVICES,
                    APPELLEES.

                           APPELLANT’S APPENDIX

                              LIST OF DOCUMENTS

1.   Order on Construction by Court of Warranty
     Deed from Jack P. Jessup and Annie Elizabeth
     Jessup to Charles Alford and Mary Lou Alford
     Dated April 25, 2003 ............................................................... Exhibit 1

2.   Charge of the Court ................................................................. Exhibit 2

3.   Dupnik v. Hermis, No. 04–12–00417–CV,
     2013 Tex. App. Lexis 2461, 2013 WL 979199
     (Tex. App.—San Antonio March 13, 2013,
     pet. denied)(mem. op.) ........................................................... Exhibit 3




                                             - 25 -
    EXHIBIT 1
4
5
                                   CAUSE NO. CV-12-9344

CHARLES and MARY LOU ALFORD  §            IN THE DISTRICT COURT
                             §
    Plaintiffs,              §
                             §
vs.                          §
                             §                               OF     FILED
ROBERT THOMAS McKEITHEN;     §         rq J ·.1 S-0 CLOCK~ M
                                                   1
EOG   RESOURCES,  INC.;  and §
CENTRAL TEXAS LAND SERVICES §
                                               ~ 20-1JJ...
                                       JEAN s0TOE Dl~lerk
                                                             s=-
                             §         SAN AUGUS!V1:TEXAS
    Defendant.               §         BY         "/?=----      u




                             §
                             § SAN AUGUSTINE COUNTY, TEXAS

                                 CHARGE OF THE COURT

LADIES AND GENTLEMEN OF THE JURY:

After the closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.

Remember my previous instructions: Do not discuss the case with anyone else, either in person
or by any other means. Do not do any independent investigation about the case or conduct any
research. Do not look up any words in dictionaries or on the Internet. Do not post information
about the case on the Internet. Do not share any special knowledge or experiences with the other
jurors. Do not use your phone or any other electronic device during your deliberations for any
reason. [The Court will give you a number where others may contact you in case of an
emergency.]

Any notes you have taken are for your own personal use. You may take your notes back into the
jury room and consult them during deliberations, but do not show or read your notes to your
fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on
your independent recollection of the evidence and not be influenced by the fact that another juror
has or has not taken notes.

You must leave your notes with the bailiff when you are not deliberating. The bailiff will give
your notes to me promptly after collecting them from you. I will make sure your notes are kept in
a safe, secure location and not disclosed to anyone. After you complete your deliberations, the
bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly
destroy your notes so that nobody can read what you wrote.

Here are the instructions for answering the questions.

1.     Do not let bias, prejudice, or sympathy play any part in your decision.    EXHIBIT 2
CHARGE OF THE COURT                            4                                               1/10
2.    Base your answers only on the evidence admitted in court and on the Ia:w that is in these
      instructions and questions. Do not consider or discuss any evidence that was not admitted
      in the courtroom.

3.    You are to make up your own minds about the facts. You are the sole judges of the
      credibility of the witnesses and the weight to give their testimony. But on matters oflaw,
      you must follow all of my instructions.

4.    If my instructions use a word in a way that is different from its ordinary meaning, use the
      meaning I give you, which will be a proper legal definition.

5.    All the questions and answers are important. No one should say that any question or
      answer is not important.

6.     Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" answer must
       be based on a preponderance of the evidence [unless you are told otherwise]. Whenever a
       question requires an answer other than "yes" or "no," your answer must be based on a
       preponderance of the evidence [unless you are told otherwise].

7.     The term "preponderance of the evidence" means the greater weight of credible evidence
       presented in this case. If you do not find that a preponderance of the evidence supports a
       "yes" answer, then answer "no." A preponderance of the evidence is not measured by the
       number of witnesses or by the number of documents admitted in evidence. For a fact to
       be proved by a preponderance of the evidence, you must find that the fact is more likely
       true than not true.

8.     Do not decide who you think should win before you answer the questions and then just
       answer the questions to match your decision. Answer each question carefully without
       considering who will win. Do not discuss or consider the effect your answers will have.

9.     Do not answer questions by drawing straws or by any method of chance.

10.    Some questions might ask you for a dollar amount. Do not agree in advance to decide on
       a dollar amount by adding up each juror's amount and then figuring the average.

11.    Do not trade your answers. For example, do not say, "I will answer this question your
       way if you answer another question my way."

12.    The answers to the questions must be based on the decision of at least 10 of the 12 jurors.
       The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of
       anything less than 10 jurors, even if it would be a majority.

As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties' money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.



CHARGE OF THE COURT                           5                                                2/10
Presiding Juror:

1.     When you go into the jury room to answer the questions, the first thing you will need to
       do is choose a presiding juror.

2.     The presiding juror has these duties:

       a.      have the complete charge read aloud if it will be helpful to your deliberations;

       b.      preside over your deliberations, meaning manage the discussions, and see.that you
               follow these instructions;

       c.      give written questions or comments to the bailiff who will give them to the judge;

       d.      write down the answers you agree on;

       e.      get the signatures for the verdict certificate; and

       f.      notify the bailiff that you have reached a verdict.

Do you understand the duties of the presiding juror? If you do not, please tell me now.

Instructions for Signing the Verdict Certificate:

•      You may answer the questions on a vote of 10 jurors. The same 10 jurors must agree on
       every answer in the charge. This means you may not have one group of 10 jurors agree
       on one answer and a different group of 10 jurors agree on another answer.

•      If 10 jurors agree on every answer, those 10 jurors sign the verdict.

•       If 11 jurors agree on every answer, those 11 jurors sign the verdict.

•       If all 12 of you agree on every answer, you are unanimous and only the presiding juror
        signs the verdict.

•       All jurors should deliberate on every question. You may end up with all 12 of you
        agreeing on some answers, while only 10 or 11 of you agree on other answers. But when
        you sign the verdict, only those 10 who agree on every answer will sign the verdict.

Do you understand these instructions? If you do not, please tell me now.




CHARGE OF THE COURT                              6                                                3/10
                                      DEFINITIONS

      Throughout this charge, the following terms shall have the meaning indicated:

     1.      "The Alfords" means the Plaintiffs Charles Alford and Mary Lou Alford.

     2.      "The Jessups" means Jack P. Jessup and Annie Elizabeth Jessup.

     3.      "McKeithen" means Defendant Robert Thomas McKeithen, in all his capacities.

     4.       "EOG" means Defendant EOG Resources, Inc.

     5.       "Central Texas Land Services" means Defendant Central Texas Land Services.

     6.       The "Deed" means the April 25, 2003 Warranty Deed with Vendor's Lien from
              the Jessups to the Alfords.

     7.        "Tract One" means the 117.50 acre tract of land located about seven miles west
              of San Augustine, Texas, and that is more particularly described as Tract One in
              the Deed.




CHARGE OF THE COURT                          7                                             4110
                                         QUESTION NO. 1
Question:
Have the Alfords proved that they have title to an undivided one-half of the mineral estate
beneath Tract One?

Instruction:
To establish title, the Alfords must (1) prove a regular chain of conveyances from the sovereign,
(2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove
title by prior possession coupled with proof that possession was not abandoned.

The Alfords may prevail only on the superiority of their title, not on the weakness of
McKeithen's title.

You are instructed that it is undisputed that prior to executing the Deed, the Jessups owned an
undivided one-half of the minerals beneath Tract One. The question of fact for you to decide is
whether the Deed reserved or conveyed the mineral interest. If it reserved the mineral interest
answer "No," and if it conveyed the mineral interest answer "Yes."

You are further instructed that Exhibit A was incorporated into the Deed.

You are further instructed that a warranty deed will pass all of the estate owned by the granter at
the time of the conveyance unless there are reservations or exceptions which reduce the estate
conveyed.


Answer:                    o~
Answer "Yes" or ''No."--+--'--"V.___ _




CHARGE OF THE COURT                             8                                              5/10
                                       QUESTION NO. 2
If you answered "No" to Question No. 1, then answer this question. Otherwise do not answer this
question.

Question:

Have the Alfords proved that the Deed should be reformed such that the reservation of minerals
in Exhibit A of the Deed should be removed?

Instruction:
To be entitled to a reformation of the Deed, the Alfords must prove that (1) there was an
agreement before the Deed was written; and (2) there was a mutual mistake, made after the
original agreement, in reducing the agreement to writing that to does not reflect the agreement of
the parties to the Deed~ \c.,,;

You are instructed that to prove a "mutual mistake," the Alfords must prove (1) a mistake of fact,
(2) held mutually by the parties to the Deed, (3) and which materially affects the subject matter
of the Deed.

You are further instructed that a warranty deed will pass all of the estate owned by the grantor at
the time of the conveyance unless there are reservations or exceptions which reduce the estate
conveyed.


Answer:                   /)0
Answer "Yes" or ''No."__.__ _ __




CHARGE OF THE COURT                             9                                              6/10
                                        QUESTION NO. 3
If you answered "Yes" to Question No. 2, then answer this question. Otherwise do not answer
this question.

Question:
Have the Alfords proved that they exercised due diligence in reviewing the Deed?

Instruction:
You are instructed that the standard of diligence in reviewing the Deed is that diligence an
ordinary prudent person would have used under the same or similar circumstances.

Answer:                      I\
Answer "Yes" or ''No.;'_..._!1--=0___




CHARGE OF THE COURT                          10                                          7/10
                                     QUESTION NO. 4
If you answered "Yes" to Question No. 3, then answer this question. Otherwise do not answer
this question.

Question:
By what date did the Alfords discover, or should have discovered by exercising reasonable care
and diligence, the reservation of minerals for Tract One in Exhibit A to the Deed?

Instruction:
You are instructed that the standard of diligence in reviewing the Deed is that diligence an
ordinary prudent person would have used under the same or similar circumstances.


Answer:
Answer by inserting a specific, month, day and year. - - - - - - - - - - -




CHARGE OF THE COURT                           11                                          8/10
                               REQUESTED QUESTION NO. 5
If you answered "Yes" to Question No. 1 or "Yes" to Question No. 2, then answer this question.
Otherwise do not answer this question.

Question:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate the
Alfords for the damages, if any, that resulted from the minerals beneath Tract One being leased?

Instruction:
You shall consider only the difference, if any, between the royalty the Alfords received and the
royalty the Alfords would have received had the Jessups or McKeithen not claimed title to one-
half of the minerals beneath Tract One.

Do not add any amount for interest on damages, if any.

Answer:
Answer in dollars and cents, if any. $_ _ _ _ _ _ _ _ __




CHARGE OF THE COURT                            12                                           9/10
                                             VERDICT CERTIFICATE

      If the verdict is unanimous, the presiding juror should sign below.



      Presiding Juror



      If the verdict is not unanimous, then thedecidingjurors should sign below.


      1/'L-JuJ IJ~                                          2.    (kk   <mt1t;n JY

                                                            4.&k,il)~

                                                            8.~~
      9./~~                                                 10.   /c ldttdd   ~.

      11.




                        . FILED
                 Aft. D~'CLOgK 14
                  s--:i       20 ·
                 JEAN STEt'TOE Dlsii Clerk
                 ~N AU'1!-~· TEXAS
...




      CHARGE OF THE COURT                              13                            10/10
                                            BILL OF COSTS


                                             CV-12-9344




Charles Alford & Mary Lou Alford
Vs.
Robert Thomas McKeithen, EOG Resource Inc., & Central Texas Land Services



Costs to prepare transcript for the above case is $15.00 and has been paid.


I hereby certify that the above amounts are correct and true.




                                                       14
                                   CLERK'S CERTIFICATE

The State of Texas            {

County of San Augustine        {


   I, Jean Steptoe, Clerk of the District Courts in and for San Augustine County, State

of Texas do hereby certify that the above and foregoing, are true and correct copies of

all the proceedings directed by counsel to be included in the transcript in the case

of Charles Alford & Marv Lou Alford vs. Robert Thomas McKeithen, EOG Resources

Inc., & Central Texas Land Service in Cause No.       CV-12-9344

as the same appear from the originals now on file and of record in this office.

   Given under my hand and seal of said Court at office in the City of San Augustine,

on the_----'1_ _ day of JulY, 2015.




~e~
District Clerk
San Augustine, Texas




                                             15
                                          Dupnik v. Hermis (Tex. App., 2013)



                                     Cynthia DUPNIK Appellant
                                                  v.
                                     Hermina HERMIS, Appellee
                                         No. 04-12-00417-CV
                              Fourth Court of Appeals San Antonio, Texas
                                 Delivered and Filed: March 13, 2013


MEMORANDUM OPINION                                                  On February 19, 1991, Hermis deeded to
From the 81st Judicial District Court, Karnes                  Dupnik and her husband one acre out of
County, TexasTrial Court No. 11-11-                            Hermis's partitioned 24.68 acres (the "1991
00269Honorable Donna S. Rayes, Judge                           deed"). Both parties agree the 1991 deed
Presiding                                                      conveyed both the surface and Hermis's
                                                               undivided one-fourth mineral interest in the acre.
Opinion by: Catherine Stone, Chief Justice
                                                                    On October 28, 1994, Hermis deeded to
Sitting: Catherine Stone, Chief Justice                        Dupnik and her husband five acres out of
      Sandee Bryan Marion, Justice                             Hermis's partitioned 24.68 acres (the "1994
      Rebeca C. Martinez, Justice                              deed"). The five acres conveyed in the 1994
                                                               deed included the one acre conveyed in the 1991
AFFIRMED AS MODIFIED                                           deed, and, again, both parties agree the 1994
     Cynthia Dupnik appeals the trial court's                  deed conveyed both the surface and Hermis's
denial of her motion for summary judgment and                  undivided one-fourth mineral interest in all five
the grant of Hermina Hermis's motion for                       acres.
summary judgment, which declared that Hermis                        On August 27, 1998, Hermis and Dupnik
owned title to the mineral interest in land                    again engaged in a conveyance of Hermis's
conveyed by Hermis to Dupnik in 1998.                          property in Karnes County. The deed resulting
Specifically, Dupnik asserts that the 1998 deed                from this conveyance is the subject of this suit
was ambiguous and the trial court erred by not                 and will be referred to as the "1998 deed." The
considering the circumstances surrounding the                  relevant portion of the 1998 deed recites the
conveyance in determining the intention of the                 following:
parties. Hermis responds that the deed
unambiguously grants Dupnik the surface estate                           PROPERTY (including         any
only, and that the suit is barred by the statute of                      improvements)
frauds and the statute of limitations.
                                                                         24.68 acres out of the E. Seguin
Page 2                                                                   Survey, Karnes County, Texas,
                                                                         and fully described in Exhibit
BACKGROUND                                                               A.
     Marcine Dupnik, Hermina Hermis, Emma                                RESERVATIONS from and
Dunaubauer, and M.E. Syring each owned an                                Exceptions to Conveyance and
undivided one-fourth interest in both the surface                        Warranty:
and the minerals of an approximately one-
hundred acre tract in Karnes County, Texas. In                           None
1983, these individuals agreed to partition the
surface estate into four equal parts (24.68 acres                   Exhibit A titles the property described as
each), but each maintained an undivided one-                   "Tract No. Two: (the surface only)" and then
fourth mineral interest in the entire one-hundred              gives the metes and bounds description for
acre tract.                                                    Hermis's tract from the 1983 partition deed. On



                                                                                 EXHIBIT 3                   -1-
                                        Dupnik v. Hermis (Tex. App., 2013)



November 2, 2011, over thirteen years after the              asserts that Dupnik's claim is barred by the
1998 deed was signed, Dupnik filed suit against              statute of frauds and the statute of limitations.

Page 3                                                       Page 4

Hermis requesting the trial court to declare                 STANDARD OF REVIEW
Dupnik the owner of the undivided one-fourth
mineral interest in the entire one-hundred acre                   We review a trial court's summary
tract. Hermis filed an answer, a counterclaim for            judgment de novo. Provident Life & Accident
trespass to try title, and a motion for summary              Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.
judgment alleging that the suit was barred by the            2003); Longoria v. Lasater, 292 S.W.3d 156,
statute of frauds and the statute of limitations,            162 (Tex. App.—San Antonio 2009, pet.
and because the grant of the surface estate only             denied). A party should be granted summary
reserved title to the mineral estate as a matter of          judgment only if it proves all elements of its
law. Dupnik also filed a cross-motion for                    cause of action or affirmative defense. Holy
summary judgment essentially asserting that the              Cross Church of God in Christ v. Wolf, 44
"surface only" language was erroneously entered              S.W.3d 562, 566 (Tex. 2001); see also TIG Ins.
in the description because the property                      Co. v. San Antonio YMCA, 172 S.W.3d 652,
description was merely copied and pasted from                655-56 (Tex. App.—San Antonio 2005, no pet.).
the 1983 partition deed. Dupnik alleged the                  When both parties file motions for summary
parties' true intent could be ascertained from the           judgment and the trial court grants one motion
previous conveyances (the 1991 and 1994                      and denies the other, the reviewing court must
deeds) and contracts for sale between the parties.           consider the evidence presented by both parties
Finding no genuine issue of material fact, the               and determine all questions presented to the trial
trial court granted Hermis's motion for summary              court. FM Props. Operating Co. v. City of
judgment, determining Hermis was entitled to                 Austin, 22 S.W.3d 868, 872-73 (Tex. 2000); TIG
judgment in her favor as a matter of law, and                Ins. Co., 172 S.W.3d at 655-56. It is the duty of
denied Dupnik's motion for summary judgment.                 a reviewing court to "render the judgment that
                                                             the trial court should have rendered." Wolf, 44
      On appeal, Dupnik claims the trial court               S.W.3d at 566; see also FM Props. Operating
erred in granting Hermis's motion for summary                Co., 22 S.W.3d at 872-73.
judgment because there is a patent internal
conflict within the 1998 deed, and the trial court           STATUTE OF LIMITATIONS
erred in failing to consider the prior conveyances
between the parties and the contract for sale for                  Hermis contends Dupnik's suit is barred by
the 1998 deed. Specifically, Dupnik complains                the four-year statute of limitations. In response,
the grant of the surface estate only and the                 Dupnik first argues that a court always "has an
reservation of "none" are irreconcilable because             inherent right to properly interpret instruments."
a grantor must specifically reserve any rights               Dupnik, however, cites no authority, and we can
associated with the mineral estate. Dupnik also              find none, supporting the proposition that courts
asserts that because she filed a verified affidavit          retain an inherent right to litigate title disputes
in support of her motion for summary judgment                after the statute of limitations expires. Dupnik
and Hermis did not, the trial court erred in                 next argues that even if the statute of limitations
granting summary judgment in Hermis' favor                   applies, the discovery rule deferred the accrual
because Dupnik's verified pleading carried more              of limitations in this case.
weight. Lastly, Dupnik complains that the                          A. Applicable Statute of Limitations
summary judgment entered by the trial court
does not conform to the pleadings and grants                      This is a trespass to try title suit where the
relief not requested by Hermis. Hermis, in                   parties are seeking interpretation of a deed. See
addition to contesting Dupnik's arguments,                   Longoria, 292 S.W.3d at 165 ("A suit to resolve


                                                                                                            -2-
                                          Dupnik v. Hermis (Tex. App., 2013)



a dispute over title to land is, in effect, a trespass         Page 6
to try title action regardless of the form the
action takes and whether legal or equitable                    may not attack a facially valid, and thus
                                                               voidable, deed merely by pleading in equity. Id.
Page 5                                                         at 619. "When a deed is merely voidable, equity
                                                               will not intervene as the claimant has an
relief is sought."). To determine the applicable               adequate legal remedy." Id. at 618.
statute of limitations in a trespass to try title suit
where parties dispute the title conveyed, we                        The 1998 deed at issue in this case was
must determine whether the deed is void or                     legally effective when signed because it validly
voidable.1 Slaughter v. Qualls, 162 S.W.2d 671,                granted Dupnik the surface estate. The term
674 (Tex. 1942); Garcia v. Garza, 311 S.W.3d                   "none" used in the reservation clause does not in
28, 42 (Tex. App.—San Antonio 2010, pet.                       and of itself render the deed invalid because it
denied).                                                       can be read as simply reserving no rights to the
                                                               substances belonging to the surface estate
      If the deed is void, the cause of action will            owner. See Moser v. U.S. Steel Corp., 676
not be barred by the statute of limitations. Ford              S.W.2d 99, 102 (Tex. 1984) (listing substances
v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618                  that belong to the surface estate as a matter of
(Tex. 2007); Garcia, 311 S.W.3d at 42. A deed                  law); Poag v. Flories, 317 S.W.3d 820, 827
is void if it is "without vitality or legal effect."           (Tex. App.—Fort Worth 2010, pet. denied)
Slaughter, 162 S.W.2d at 674 (quoting Smith v.                 (indicating that a conveyance of the "surface
Thornhill, 25 S.W.2d 597, 600 (Tex. Comm'n                     estate only" provides the grantee notice that he
App. 1926)) (internal quotation marks omitted).                owns only the surface estate). Therefore, the
Conversely, if a deed is merely voidable, the                  deed in this case is voidable because it is facially
four-year statute of limitations will apply to the             effective and any ambiguity or error would be
suit. Ford, 235 S.W.3d at 618; Garcia, 311                     found only after a court looked behind the
S.W.3d at 42. A deed is voidable if it "operates               instrument to determine the intention of the
to accomplish the thing sought to be                           parties.
accomplished, until the fatal vice in the
transaction has been judicially ascertained or                       B. Discovery Rule
declared." Slaughter, 162 S.W.2d at 674
(quoting Smith, 25 S.W.2d at 600) (internal                         In response to Hermis's assertion that
quotation marks omitted).                                      Dupnik's cause of action is barred by the statute
                                                               of limitations, Dupnik claims the discovery rule
      If an instrument is legally effective when               prevents limitations from barring this suit.
suit is brought and at least one party's claim to              Dupnik has likely waived the ability to assert the
title requires the court to exercise its equitable             discovery rule in avoidance of the statute of
powers before title can be determined, the                     limitations. If this rule is not pleaded in an
instrument is not in and of itself void. Pure Oil              original, amended, or supplemental petition and
Co v. Ross, 111 S.W.2d 1076, 1078 (Tex. 1938);                 the party does not secure findings on its
Neill v. Pure Oil Co., 101 S.W.2d 402, 404                     applicability, the claim is waived. Woods v.
(Tex. Civ. App.—Dallas 1937, writ ref'd). In                   William M. Mercer, Inc., 769 S.W.2d 515, 518
Ford v. Exxon Mobil Chemical Co., the Texas                    (Tex. 1988); Morriss v. Enron Oil & Gas Co.,
Supreme Court rejected the appellate court's                   948 S.W.2d 858, 868 (Tex. App.—San Antonio
conclusion that an equitable action to quiet title             1997, no writ). Even if the claim was not
is not subject to the statute of limitations. 235              waived, it would fail on its merits.
S.W.3d at 618. The supreme court explained that
"an equitable action to remove cloud on title is                    As a general rule, a cause of action accrues
not subject to limitations if a deed is void or has            when the legal injury occurs, regardless of when
expired by its own terms." Id. However, a party                the legal injury is discovered or when all of the


                                                                                                               -3-
                                        Dupnik v. Hermis (Tex. App., 2013)



resulting damages occur. S.V. v. R.V., 933                   period despite due diligence." Id. at 7. In her
S.W.2d 1, 4 (Tex. 1996). Some cases, however,                Responses to Request for Admissions, Dupnik
present an exception to this rule that defers                denied that she read all parts of the 1998 deed
                                                             when it was delivered to her by Hermis. As
Page 7                                                       such, there can be little doubt that due diligence
                                                             was
accrual of limitations until the plaintiff "knew or
through the exercise of diligence should have                Page 8
known of the wrongful act and resulting injury."
Id. (citing Trinity River Auth. v. URS                       not exercised. Dupnik's claim fails for two
Consultants, Inc., 889 S.W.2d 259, 262 (Tex.                 reasons: (1) it was not an inherently
1994)). This exception is also known as the                  undiscoverable defect; and (2) due diligence was
"discovery rule." Id. at 6. The discovery rule               not exercised. Thus, the discovery rule is
provides relief to wronged parties when "the                 inapplicable to prevent this case from being
nature of the injury incurred is inherently                  barred by limitations.
undiscoverable and the evidence of injury is
objectively verifiable." Id. (quoting Computer               APPLYING        RULES       OF
Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453,          INTERPRETATION/CONSTRUCTION TO
456 (Tex. 1996)) (internal quotation marks                   1998 DEED
omitted). Despite the equitable effect of the
discovery rule in some cases, "[t]he fact that a                  Even if this suit were not barred by the
meritorious claim might . . . be rendered                    statute of limitations, Dupnik's claim would fail
nonassertible is an unfortunate, occasional by-              under the rules of interpretation/construction.
product of the operation of limitations." Id.                Dupnik contends that the 1998 deed is
(quoting Robinson v. Weaver, 550 S.W.2d 18,                  ambiguous and that without looking to the
20 (Tex. 1990)) (internal quotation marks                    history of transactions between the parties, there
omitted).                                                    is a facially "irreconcilable internal conflict" in
                                                             the 1998 deed because it purports to convey only
     First, Dupnik claims "[i]t was impossible to            the surface estate without reserving the mineral
know the exact meaning of the contradictory                  estate. This court is urged to look to the 1991
terms in the 1998 deed [or] to know that she had             and 1994 deeds, which conveyed the mineral
suffered a legal harm unless and until [Hermis]              interests along with the surface estates, and the
attempted to assert claims adverse to [Dupnik]."             contract for sale of the 1998 deed, which did not
This argument contradicts her claim that the                 include "surface only" language, to determine
ambiguity was patent and obvious on the face of              the parties' intent to convey the mineral estate in
the instrument. Regardless, the fact that Dupnik             the 1998 deed as well.
may not have understood the exact meaning of
the allegedly contradictory terms does not                        In Terrill v. Tuckness, this court set out a
negate that, by her very own admission, the                  three-step interpretation process: (1) "ascertain
terms of the instrument appear facially                      the grantor's intent by examining the plain
problematic to her. With due diligence, she                  language of the deed"; (2) apply the appropriate
would have learned of the alleged mistake.                   rules of construction; and then (3) allow
                                                             extrinsic evidence to aid in interpretation. 985
     An instrument that describes the property               S.W.2d 97, 102 (Tex. App.—San Antonio 1998,
as "surface only" in contravention of the parties'           no pet.). Courts reach the third step of admitting
alleged intent is not the type of inherently                 extrinsic evidence only if the grantor's intent
undiscoverable injury contemplated by the                    remains unclear after the rules of construction
discovery rule. An inherently undiscoverable                 are applied. Longoria, 292 S.W.3d at 166 (citing
injury is one that is "by nature unlikely to be              Terrill, 985 S.W.2d at 102). "An instrument is
discovered within the prescribed limitations                 ambiguous only when the application of the


                                                                                                            -4-
                                       Dupnik v. Hermis (Tex. App., 2013)



rules of construction leaves it unclear which               Moser, 676 S.W.2d at 102 (listing substances
meaning is the correct one." Id.; Terrill, 985              that belong to the surface estate as a matter of
S.W.2d at 102. When construing a deed, we try               law). As the Supreme Court of Texas has
to determine the intent of the parties by                   recognized, because we are required to ascertain
considering the instrument as a whole,                      the parties' intent from the language used within
attempting "to harmonize and give effect to all             the instrument's four corners, "the actual,
the provisions of the agreement, even if different          subjective intent of the parties will not always be
parts of the deed appear inconsistent or                    given effect even if we were able to discern that
contradictory." Concord Oil Co. v. Pennzoil                 subjective intent." Concord Oil Co., 966 S.W.2d
Exploration & Prod. Co., 966                                at 454. Because Dupnik's cause of action is
                                                            barred by the statute
Page 9
                                                            Page 10
S.W.2d 451, 454 (Tex. 1998); Hausser v.
Cuellar, 345 S.W.3d 462, 466 (Tex. App.—San                 of limitations, we need not address the parties'
Antonio 2011, pet. denied).                                 remaining claims regarding the statute of frauds,
                                                            the attachment of a verified affidavit, and relief
      A reservation of minerals must be by clear            not requested.
language, and "[c]ourts do not favor reservations
by implication." Sharp v. Fowler, 252 S.W.2d                CORRECTION OF JUDGMENT
153, 154 (Tex. 1952). At least one Texas court,
however, has considered a grant of only the                       Upon review of the judgment and relevant
surface estate to be a clear reservation of the             deeds in the case, we noticed that the judgment
mineral estate. See Large v. T. Mayfield, Inc.,             mistakenly excepted Dupnik's mineral interest
646 S.W.2d 292, 294 (Tex. App.—Eastland                     from an improper tract of land, thereby
1983, writ ref'd n.r.e.) (holding that a grant of           incorrectly awarding Hermis a mineral interest
"the Surface Rights" conveyed only the surface              under all 24.58 acres of Dupnik's surface estate.
estate); see also Poag, 317 S.W.3d at 827                   An appellate court has the authority to modify
(suggesting that the language "surface estate               an incorrect judgment, even without a party's
only" conveys only the surface estate).                     request, when the record contains the necessary
Moreover, a reservation "is something to be                 information to do so. TEX. R. APP. P. 43.2(b);
deducted from the thing granted, narrowing and              Hutton v. State, 313 S.W.3d 902, 909 (Tex.
limiting what would otherwise pass by the                   App.—Amarillo 2010, pet. ref'd); In re T.P., 251
general words of the grant." King v. First Nat'l            S.W.3d 212, 215 (Tex. App.—Dallas 2008, no
Bank of Wichita Falls, 192 S.W.2d 260, 262                  pet.).
(Tex. 1946); see also Hunsaker v. Brown
Distrib. Co., 373 S.W.3d 153, 158 (Tex. App.—                     The judgment purports to identify the
San Antonio 2012, pet. denied) (concluding that             parties' respective mineral interests in the entire
even though Hunsaker did not specifically                   one-hundred acres partitioned in 1983. A review
reserve one-half of the mineral estate he owned,            of the deeds in this case revealed that tracts one,
Brown only received one-half of Hunsaker's                  three, and six are the 24.68 acre tracts owned by
mineral estate because Hunsaker only conveyed               the other three parties to the 1983 partition.
one-half of the mineral estate to Brown).                   Tract two in the judgment is the 24.68 acre tract
                                                            that was owned by Hermis after the 1983
     Harmonizing the "surface only" language                partition. Tracts four and five described in the
with the reservation of "none" leads to the                 judgment are the tracts conveyed to Dupnik by
conclusion that the intent reflected in the                 Hermis in the 1991 and 1994 deeds. In
document was to convey the surface estate                   accordance with the 1998 deed, the judgment
without retaining rights to any of the substances           properly provides that Hermis has an undivided
that belong to the surface estate owner. See                25% interest in the minerals under tracts one and


                                                                                                           -5-
                                       Dupnik v. Hermis (Tex. App., 2013)



three. The judgment also correctly provides that                  We conclude the four-year statute of
Dupnik has an undivided 25% mineral interest in             limitations applies and the discovery rule does
tracts four and five.                                       not prevent its accrual in this case.
                                                            Consequently, we affirm the judgment of the
      It appears, however, that the trial court's           trial court as modified to reflect the parties'
judgment confused tracts two and six and                    actual interests in the one-hundred acres.
incorrectly excepted Dupnik's mineral interest in
tracts four and five from Hermis's mineral                        Catherine Stone, Chief Justice
interest in tract six instead of tract two. The
judgment should reflect that Hermis has an
undivided 25% mineral interest in tract six with            --------
no exception. The judgment should also reflect              Notes:
that Hermis has an undivided 25% mineral
interest in tract two, save and except Dupnik's                    1.
                                                                      This appears to be the correct approach in all
                                                            cases where the title dispute originates from a
Page 11                                                     conveyance (as opposed to adverse possession),
                                                            despite its characterization as a suit for trespass to try
undivided 25% mineral interest in tracts four and           title, a suit to quiet title, or a suit to remove cloud on
five (described as tracts A and B in the incorrect          title. See Ford v. Exxon Mobil Chem. Co., 235
portion of the judgment excepting these tracts              S.W.3d 615, 618 (Tex. 2007) (approving of this
from Hermis's undivided 25% mineral interest in             approach for suits to quiet title/remove cloud on
tract six). Accordingly, we modify the judgment             title); Slaughter v. Qualls, 162 S.W.2d 671, 674 (Tex.
to reflect these changes.                                   1942) (applying this standard in a trespass to try title
                                                            suit).
CONCLUSION
                                                            --------




                                                                                                                  -6-
