                           NUMBER 13-12-00449-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


WYNNE/JACKSON DEVELOPMENT,
L.P. AND W/J LAKES, L.P.,                                             Appellants,

                                          v.

PAC CAPITAL HOLDINGS, LTD. D/B/A
PAC GROUP, LTD., ET AL.,                                               Appellees.


                      On appeal from the Probate Court
                          of Denton County, Texas.


             MEMORANDUM OPINION ON REHEARING

  Before Chief Justice Valdez and Justices Rodriguez and Longoria
    Memorandum Opinion on Rehearing by Chief Justice Valdez

      We grant appellants’ motion for rehearing, withdraw our opinion and judgment

dated February 7, 2013, and issue this opinion on rehearing.

      Appellants, Wynne/Jackson Development, L.P. and W/J Lakes, L.P. (collectively,

“Wynne Jackson”), appeal a final summary judgment entered in favor of appellees, PAC
Capital Holdings, Ltd. d/b/a PAC Group, Ltd., Hillwood Oil & Gas Operating Company,

L.P., Hillwood Energy Texas, L.P., Denton Independent School District (“DISD”), and

the Owners’ Association at Country Lakes, Inc. (“HOA”). We reverse and render in part

and remand in part.

                                          I. BACKGROUND1

        This is a dispute over the proper calculation of royalties to be paid on minerals

being produced from wells in Denton County.                 The appeal centers on the proper

construction of a clause in the three “Porter Deeds,” which were executed in 1968. The

Porter Deeds conveyed extensive tracts of land to third party purchasers, but reserved a

non-participating royalty interest (“NPRI”) in the mineral estate.                  That NPRI was

described as “one-half (1/2) of the usual one-eighth (1/8) royalty in and to all oil, gas,

and other minerals produced, saved and sold from [such property].”

        PAC Capital is the current owner of the NPRI and the successor in title to the

grantor. The NPRI reservation is identical in each of the three Porter Deeds. PAC

Capital’s entitlement to receive royalty payments is not at issue; the parties dispute the

proper calculation of payments due to PAC Capital under the NPRI.

        Wynne Jackson, DISD, and the HOA own parcels of land subject to the NPRI

claimed by PAC Capital. Therefore, the calculation of PAC Capital’s NPRI payments

will affect each of these parties.

        Hillwood Oil & Gas Operating Company, L.P. and Hillwood Energy Texas, L.P.

operate the wells at issue. Their leases were executed after the Porter Deeds and

provide for royalty payments equal to one-fourth (1/4) of production.


        1
          This case is before this Court on transfer from the Fort Worth Court of Appeals pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).

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       The parties disagree as to the proper construction of the NPRI reservation. PAC

Capital contends that the NPRI reserved what is commonly referred to as a “fraction of

royalty.” See, e.g., Range Res. Corp. v. Bradshaw, 266 S.W.3d 490, 493 (Tex. App.—

Fort Worth 2008, pet. denied) (“A ‘fraction of royalty’ conveys a fractional share of the

royalty that is contained in an oil and gas lease—it is not fixed, but rather ‘floats’ in

accordance with the size of the landowner’s royalty contained in the lease and, in

addition to the landowner’s royalty, the fraction of non-participating royalty also shares

proportionally in any overriding royalty interest reserved in the oil and gas lease, and the

holder of the executive right owes a duty to the NPRI owner in establishing the

landowner's royalty in an oil and gas lease.”). If so, this would entitle PAC Capital to

receive an NPRI equal to one-half of whatever royalties are provided for in mineral

leases that have been executed since 1968 when the Porter Deeds were executed.

Wynne Jackson contends that the NPRI reserved what is commonly referred to as a

“fractional royalty.” Id. (“A ‘fractional royalty’ interest entitles the owner to the specified

fractional amount stated in the deed of oil, gas, or other minerals produced from the

land and remains constant regardless of the amount of royalty contained in a

subsequently-negotiated oil and gas lease.”). This would mean a fixed royalty equal to

one-half of one-eighth of production, which equals 1/16 and remains fixed regardless of

the language contained in any mineral lease executed after the Porter Deeds.

       Thus, under the Hillwood leases, if PAC Capital is correct, it would receive a one-

eighth royalty. If Wynne Jackson is correct, PAC Capital would receive a one-sixteenth

royalty.




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        On May 27, 2012, PAC Capital filed suit, seeking a declaration that its NPRI

interest under the Porter Deeds was a “fraction of royalty.” Wynne Jackson filed an

answer and counterclaim, seeking a declaration that the NPRI was a “fractional royalty”

equal to one-sixteenth of production.            PAC Capital and Wynne Jackson filed cross

motions for partial summary judgment on the issue of the proper calculation of the

NPRI. The trial court ruled in favor of PAC Capital. Pursuant to a rule 11 agreement

and stipulation by the parties, the trial court subsequently entered a final judgment in

favor of PAC Capital. See TEX. R. CIV. P. 11. This appeal ensued.2

                                              II. ANALYSIS

A. Standard of Review

        We review summary judgments de novo. Alejandro v. Bell, 84 S.W.3d 383, 390

(Tex. App.—Corpus Christi 2002, no pet.).                  In a traditional motion for summary

judgment, the movant has the burden of showing both that there is no genuine issue of

material fact and entitlement to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

see also Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); Ortega v. City Nat’l Bank,

97 S.W.3d 765, 772 (Tex. App.—Corpus Christi 2003, no pet.). In deciding whether

there is a genuine issue of material fact, evidence favorable to the nonmovant is taken

as true, and all reasonable inferences are made, and all doubts are resolved, in favor of

the nonmovant.        Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).

Summary judgment is proper if the movant disproves at least one element of each of

        2
           Other issues in the case were resolved and are not before this Court. The Hillwood parties
agreed to be bound by the trial court’s determination regarding the NPRI and to continue the deposit of
funds into the court’s registry via a rule 11 agreement. See TEX. R. CIV. P. 11. An unopposed motion to
dismiss the Hillwood parties from this appeal is pending before this Court and is hereby granted. Wynne
Jackson and the HOA had filed cross claims against each other regarding who would bear the brunt of a
PAC Capital victory (i.e., if PAC Capital’s payments increase, whose will decrease?), but they filed a rule
11 agreement purporting to resolve their cross claims. See id. The parties entered into a stipulation as to
PAC Capital’s reasonable and necessary attorney’s fees so as to avoid a trial solely on the issue of fees.

                                                    4
the plaintiff's claims or affirmatively establishes each element of an affirmative defense

to each claim. Id. The nonmovant has no burden to respond to a traditional summary

judgment motion unless the movant conclusively establishes its cause of action or

defense. Swilley, 488 S.W.2d at 68.

      When both parties move for summary judgment on the same issue and the trial

court grants one motion and denies the other, as here, the reviewing court considers the

summary judgment evidence presented by both sides, determines all questions

presented, and if the reviewing court determines that the trial court erred, renders the

judgment the trial court should have rendered. See Fed. Deposit Ins. Corp. v. Lenk,

361 S.W.3d 602, 611 (Tex. 2012).

B. Applicable Law

      The construction of an unambiguous deed is a question of law for the court.

Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986). In interpreting a deed, the primary

duty of a court is to ascertain the intent of the parties by a fundamental rule of

construction known as the “four corners” rule. Luckel v. White, 819 S.W.2d 459, 461

(Tex. 1991). The interpretation of the contract is controlled by the parties’ intentions as

expressed within the four corners of the instrument. Altman, 712 S.W.2d at 118. In

seeking to ascertain the intention of the parties, the court must attempt to harmonize all

parts of a deed.    Id.   Even if different parts of the deed appear contradictory or

inconsistent, the court must strive to construe the instrument to give effect to all of its

provisions. Luckel, 819 S.W.2d at 462.

      A mineral estate consists of five interests: (1) the right to develop; (2) the right to

lease; (3) the right to receive bonus payments; (4) the right to receive delay rentals; and



                                             5
(5) the right to receive royalty payments. French v. Chevron U.S.A., 896 S.W.2d 795,

797 (Tex. 1995). A mineral fee owner has a possessory estate in the land. Pickens v.

Hope, 764 S.W.2d 256, 263 (Tex. App.—San Antonio 1988, writ denied). As such, he

has the right to develop the minerals himself or the exclusive power to lease the land to

another for mineral development. Elick v. Champlin Petroleum Co., 697 S.W.2d 1, 3–4

(Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.); Campbell v. Dreier, 382 S.W.2d

179, 183 (Tex. Civ. App.—San Antonio 1964, writ ref’d n.r.e.).       In contrast, a non-

participating royalty owner has no possessory estate in the land, and hence, no right to

lease the land to another for mineral development or to produce the minerals himself.

Pickens, 764 S.W.2d at 264. A “non-participating royalty” does not entitle the owner to

produce the minerals himself, or permit him to join in a lease of the mineral estate to

which the royalty is appurtenant, or entitle him to share in bonus or delay rentals that

may be paid for the lease, but merely entitles him to a share of production under the

lease free of exploration and production expenses. Id.

      A “fractional royalty” is a fixed amount of the minerals that are produced. See,

e.g., White v. White, 830 S.W.2d 767, 770 (Tex. App.—Houston [1st Dist.] 1992, writ

denied) (“[T]he grantor intended to convey three-eighths of all the oil and gas and other

minerals ‘produced and saved,’ in other words, a fractional royalty, not a fraction of

royalty.”); Helms v. Guthrie, 573 S.W.2d 855, 857 (Tex. App.—Fort Worth 1978, writ

ref’d n.r.e.) (“Our holding is that [grantor] contractually provided that he should own a

‘fractional royalty’ of 1/16th of the total production, not a ‘fraction of royalty,’

determinable upon the execution of some future lease.”). A fractional royalty remains

constant regardless of the amount of royalty provided for under any particular mineral



                                           6
lease. Range Res. Corp. v. Bradshaw, 266 S.W.3d 490, 493 (Tex. App.—Fort Worth

2008, pet. denied) (“A ‘fractional royalty’ interest entitles the owner to the specified

fractional amount stated in the deed of oil, gas, or other minerals produced from the

land and remains constant regardless of the amount of royalty contained in a

subsequently-negotiated oil and gas lease.”); Hawkins v. Tex. Oil & Gas Corp., 724

S.W.2d 878, 889 (Tex. App.—Waco 1987, writ ref’d n.r.e.) (“A conveyance of ‘1/2 of the

1/8th royalty interest’ has been held to convey a 1/16th fractional royalty, entitling the

royalty owner to one out of every sixteen parts of production regardless of the royalty

retained in any lease.”).

       A “fraction of royalty” conveys a fractional share of the royalty that is contained in

an oil and gas lease—it is not fixed, but rather “floats” in accordance with the size of the

landowner’s royalty contained in the lease and, in addition to the landowner’s royalty,

the fraction of non-participating royalty also shares proportionally in any overriding

royalty interest reserved in the oil and gas lease, and the holder of the executive right

owes a duty to the NPRI owner in establishing the landowner’s royalty in an oil and gas

lease. Range Res. Corp., 266 S.W.3d at 493. The amount to be paid to the owner is

determinable upon the execution of some future lease and is calculated by multiplying

the fraction in the royalty reservation by the royalty provided in a lease. Id.

C. Discussion

       In this case, the relevant language in the Porter Deeds provides as follows:

       There is excepted herefrom and reserved unto Grantor a non-participating
       royalty of one-half (1/2) of the usual one-eighth (1/8) royalty in and to all
       oil, gas, and other materials produced, saved and sold from the above-
       described property, provided, however, that although said reserved royalty
       is non-participating and Grantee shall own and possess all leasing rights
       in and to all oil, gas and other minerals, Grantor shall, nevertheless, have

                                              7
       the right to receive one-half (1/2) of any bonus, overriding royalty interest,
       or other payments, similar or dissimilar, payable under the terms of any
       oil, gas and mineral lease covering the above-described property.

       The foregoing language covers four of the five components of the mineral estate:

(1) the right to lease, which is conveyed in its entirety; (2) the right to receive bonus

payments, which is conveyed subject to a reservation; (3) the right to receive delay

rentals, which is conveyed subject to a reservation; and (4) the right to receive royalty

payments, which is conveyed subject to a reservation. At issue in this case is the

proper construction of the reservation with respect to the right to receive royalty

payments.

       The relevant clause states, “There is excepted herefrom and reserved unto

Grantor a non-participating royalty of one-half (1/2) of the usual one-eighth (1/8) royalty

in and to all oil, gas, and other materials produced, saved and sold from the above-

described property.” In Harriss v. Ritter, the Texas Supreme Court was presented with

a deed that included a nearly identical reservation of “one-half of one-eighth of the oil,

gas and other mineral royalty.” Harriss v. Ritter, 279 S.W.2d 845, 847 (Tex. 1955). In

its decision, the Texas Supreme Court held, “[T]he reservation is susceptible of but one

interpretation.” Id. The court held, “as a matter of law that the term ‘one-half of one-

eighth of the oil, gas and other mineral royalty’ could have but one meaning and that is

1/16th of the royalty on all the oil, gas and other minerals that may be produced from

said land.” Id. Again, this is consistent with the interest being a fractional royalty. Here,

the only difference in the relevant language is that the words “the usual” are used to

qualify the one-eighth royalty.




                                             8
       Similar language was interpreted by the San Antonio Court of Appeals in

Pickens. Pickens, 764 S.W.2d at 258–59. In Pickens, the language provided for “an

undivided 1/4 of the usual 1/8 royalty in all of the oil, gas or other minerals produced,

saved and sold from the premises conveyed under the terms of any valid oil and gas

lease.” Id. The court held that the language reserved a “stated fraction” (i.e., 1/32) of

the minerals produced as a royalty. Id. at 267. The court further held that, in the event

of production, the grantor was entitled to “no more and no less” than the stated

fraction—“and this irrespective of who manages the lease or upon what terms were

contained in a lease.” Id. Thus, the court treated the interest as a fractional royalty.

       Based on the foregoing precedent, we conclude that the interest in this case is a

fractional royalty, not a fraction of royalty. In so holding, we note that appellees have

cited and relied upon the decision of the Fort Worth Court of Appeals in Sundance

Minerals. See Sundance Minerals, L.P. v. Moore, 354 S.W.3d 507, 510 (Tex. App.—

Fort Worth 2011, pet. denied). Unfortunately, the opinion in Sundance Minerals did not

quote the operative language of the deed in its entirety; instead, the court summarized

the language, thus making it impossible to compare it directly to the language at issue in

this case.   In its opinion, the Fort Worth Court of Appeals indicated that the deed

included language that reserved “an undivided and non-participating one-half interest in

the oil, gas, and other mineral rights.” See id. The court noted that, if the language had

not been qualified, it would have entitled the grantees to receive one-half of any royalty

paid under a lease, as well as a one-half interest in any bonuses and rentals. Id.

Interpreting the deed as a whole, the court concluded that the language was applicable

only to the right to receive royalty payments. Id.



                                             9
       In this case, the language of the deeds does not purport to reserve an undivided

interest in the entire mineral estate, as did the deed in Sundance Minerals. Moreover,

unlike the deed in Sundance Minerals, the deeds in this case clearly reserve the rights

of the grantor as they relate to bonus payments and delay rentals. Appellees argue that

the reservations should be lumped together and construed as a single reservation;

however, this would blur the distinction between the different components of the mineral

estate when the deeds clearly sought to maintain that distinction.

       In sum, we are guided by the precedent of the Texas Supreme Court in Harriss

and the precedent of the San Antonio Court of Appeals in Pickens in concluding that the

deeds in this case reserved what is known as a fractional royalty. We are mindful of the

Fort Worth Court of Appeals’ decision in Sundance Minerals; however, we believe this

case is sufficiently distinguishable to preclude any conflict with that decision.

Accordingly, we conclude that Wynne Jackson is entitled to judgment as a matter of

law. The trial court’s ruling to the contrary was error. Therefore, Wynne Jackson’s

issue is sustained.

                                   III. ATTORNEY’S FEES

       In its motion for rehearing, Wynne Jackson requests that we remand the case to

the trial court for resolution of its claim for attorney’s fees under the Uniform Declaratory

Judgment Act (“UDJA”). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.004(a) & 37.009

(West 2008). The Court requested a response from appellees. See TEX. R. APP. P.

49.2. PAC has filed a response, stating that although it opposes Wynne Jackson’s

motion for rehearing, it “agrees with the general proposition that a court of appeals may

remand a decision in a declaratory judgment action solely on the issue of attorney’s



                                             10
fees under the UDJA.” PAC also states that “it is the trial court that should decide

whether Wynne Jackson is entitled to its attorney’s fees.”        HOA has also filed a

response. HOA states that it “has no opposition to [the] motion for rehearing whereby

[Wynne Jackson] request[s] that the Court amend its Memorandum Opinion and

Judgment to include a remand to the trial court on the issue of . . . attorney’s fees under

the Declaratory Judgment Act.”

A. Applicable Law

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

any proceeding under this chapter, the court may award costs and reasonable and

necessary attorney’s fees as are equitable and just.” See TEX. CIV. PRAC. & REM. CODE

ANN. § 37.009. The Texas Supreme Court has interpreted this language to mean that

the decision to award attorney’s fees is within the discretion of the trial court. See

Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (“[The UDJA] provides that the court

‘may’ award attorney fees.     The statute thus affords the trial court a measure of

discretion in deciding whether to award attorney fees or not.”). “[W]hen we reverse a

declaratory judgment, and the trial court awarded attorney’s fees to the party who

prevailed [in the] trial [court], we may remand the attorney’s fee award for

reconsideration in light of our disposition on appeal.”     Sava Gumarska in Kemijska

Industria D.D. v. Advanced Polymer Sciences, Inc., 128 S.W.3d 304, 324 (Tex. App.—

Dallas 2004, no pet.).

B. Discussion

       Based on the foregoing, we conclude that it is appropriate to remand the

attorney’s fee award for reconsideration in light of our disposition on appeal.       See



                                            11
Mohican Oil & Gas, LLC v. Scorpion Exploration & Prod., 337 S.W.3d 310, 324 (Tex.

App.—Corpus Christi 2011, pet. denied) (“Therefore, we will remand the issue of

attorneys’ fees for determination by the trial court.”).

                                      IV. CONCLUSION

       The judgment of the trial court is reversed and a judgment is rendered in favor of

Wynne Jackson. We reverse and remand the issue of attorney’s fees to the trial court.



                                                           ____________________
                                                           ROGELIO VALDEZ
                                                           Chief Justice

Delivered and filed the
6th day of June, 2013.




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