Brown v. Underwood
| Decision Date | 26 May 2022 |
| Docket Number | 11-20-00138-CV |
| Parties | SANDRA SMITH BROWN, INDEPENDENT EXECUTRIX OF THE ESTATE OF R. J. SMITH, JR., Appellant v. WILLIAM CHARLES UNDERWOOD, JAN ANN UNDERWOOD, AND ROSANNE UNDERWOOD GERRARD, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 118th District Court Glasscock County, Texas Trial Court Cause No. 1877
Panel consists of: Bailey, C.J., Wright, S.C.J., [2] and Marion, S.C.J. [3]
This appeal involves an attempt to modify a royalty deed that was executed over thirty years earlier. Appellant, Sandra Smith Brown, seeks to change the interest that was conveyed by the royalty deed. Appellant is the independent executor of the estate of her late husband, R. J. Smith, Jr. Smith executed a royalty deed in 1985 conveying a 35/1920 nonparticipating royalty interest to Shirley Ann Conaway formerly known as Shirley Ann Underwood. Appellant contends that Smith "mistakenly conveyed" the wrong interest to Conaway.
Appellant filed the underlying suit in 2018 against Appellees, William Charles Underwood, Jan Ann Underwood, and Rosanne Underwood Gerrard. Appellees are the surviving heirs of Conaway. After considering competing motions for summary judgment, the trial court entered final judgment in favor of Appellees to the effect that Appellant take nothing on all of her claims. Appellant brings five issues on appeal. We affirm.
In 1975, Smith acquired an undivided 35/960 nonparticipating royalty interest from W. C. Schrader to the following described lands in Glasscock County:
Five days later, Smith executed a "Stipulation and Agreement" with W. H. Underwood and his wife, Shirley Ann Underwood, whereby Smith agreed that he would hold one-half of the interest he acquired from Schrader in trust for the Underwoods. This agreement also noted that First National Bank of Midland had advanced funds for the interest acquired from Schrader and that two deeds of trust had been executed for two notes in the amount of $75, 000 each. One note was executed by Smith individually, and the other note was executed by Smith as trustee, along with the Underwoods.
In 1977, Smith assigned one-half of the interest that he acquired from Schrader to himself as trustee for the Underwoods. Thus, after the assignment, Smith possessed record title to two identical interests-a 35/1920 nonparticipating royalty interest that he owned individually (which we will refer to as the "individual interest") and a 35/1920 nonparticipating royalty interest that he held as trustee for the Underwoods (which we will refer to as the "trustee interest").
The Underwoods divorced in 1983. Under the terms of their property settlement agreement in the divorce, Shirley Ann Underwood received the royalty interest purchased and held by Smith as trustee for the Underwoods. As noted previously Shirley Ann Underwood later became Shirley Ann Conaway.
In 1985, Smith executed a royalty deed in favor of Conaway. The royalty deed provided in relevant part as follows:
. . . R.J. SMITH, JR., of 3303 Lee Parkway, Dallas, Texas 75217 hereinafter called Grantor (whether one or more) for and in consideration of the sum of: TEN ($10.00) DOLLARS cash in hand paid by SHIRLEY ANN CONAWAY hereinafter called Grantee, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered . . . unto the said grantee an undivided ***35/1920*** [royalty] interest [to the property in Glasscock County that is the subject of this appeal].
The royalty deed made no specific reference to either the individual interest or the trustee interest. Appellees assert, and Appellant agrees, that as written, Smith conveyed his individual interest to Conaway because he did not convey his interest in his capacity as trustee.
Appellant contends that Smith mistakenly conveyed his individual interest in the 1985 royalty deed. She asserts that Smith's error began because of an "incorrect release of lien" in 1984 by First Financial Bank of Midland's successor-in-interest. Appellant contends that the 1984 release incorrectly released Smith's individual interest rather than the trustee interest. Appellant later obtained a release from the FDIC in 2017 for the trustee interest, and she contends that this act vested the trustee interest into Smith's Estate.
Appellant also executed a document entitled "Affidavit of Clarification" in 2017 that she filed in the public deed records. She executed the document as the independent executrix of Smith's estate. As affiant, she asserted that she "does hereby make, confess, decree and swear, under oath, FOR AND IN CONSIDERATION of the sum of TEN U.S. DOLLARS ($10.00) cash, and other good and valuable consideration in hand . . . so that the truth and veracity of the [contents of the affidavit] could be made." Under the heading "CLARIFICATION:", she stated that "[t]he 'problems' started with what is believed to be an incorrect RELEASE OF LIEN." Appellant further stated that She concluded the affidavit with the following statement: "This is what all of the documentation would seem to indicate, and what the LANDMEN have proved up."
Appellant did not base the affidavit of clarification on her personal knowledge of the 1985 mineral deed from Smith to Conaway. Instead, she based it on a review of the documents surrounding the transaction and reports by landmen that had evaluated the transactions. Additionally, Appellant noted in her pleadings that Appellees refused to participate in the execution of the Affidavit of Clarification.
Appellant filed suit against Appellees in 2018. She primarily alleged a cause of action for trespass to try title. She supported the action for trespass to try title on the matters discussed above-the transactions and documents concerning the royalty interest and her affidavit of clarification. Appellant also asserted claims for slander of title, intentional misrepresentation, unjust enrichment, assumpsit, and equitable relief. Appellant also asserted an alternative claim for declaratory judgment seeking a declaration of her rights under the relevant documents.
Appellees filed a motion for partial summary judgment on Appellant's action for trespass to try title. They asserted that Appellant had no evidence to support her claim for trespass to try title. Appellees also asserted that they had superior title to the individual interest as a matter of law and that Appellant lacked standing to assert an action for trespass to try title. In response, Appellant filed a motion for partial summary judgment on the title issue in addition to her response to Appellees' motion for summary judgment. Appellant asserted that Appellees had no evidence that Conaway paid any consideration for the purchase of the individual interest in connection with the 1985 royalty deed.
The trial court granted Appellees' motion for partial summary judgment on Appellant's action for trespass to try title. The trial court also denied Appellant's motion for summary judgment on the same issue. Afterwards, Appellees filed another motion for summary judgment on Appellant's remaining claims. Appellees contended in the motion that Appellant's remaining claims were rendered moot by the trial court's determination on the action for trespass to try title. Appellees also asserted that Appellant had no evidence to support her remaining claims. Appellant responded with her own motion for summary judgment wherein she again asserted her contention that there is no evidence that Conaway paid consideration for the 1985 royalty deed. The trial court granted Appellees' second motion for summary judgment, denied Appellant's second motion for summary judgment, and entered final judgment in favor of Appellees.
In her fifth issue, Appellant asserts that the trial court erred by denying her objections to Appellees' summary judgment evidence. Appellant objected to the summary judgment evidence attached to Appellees' initial motion for partial summary judgment on the basis that all of Appellees' summary judgment evidence was:
irrelevant, immaterial, not properly authenticated [especially all of the documents regarding the title and containing hearsay, not based on personal knowledge, being factual matters from Defendants' attorney, violates the best-evidence rule, violates the dead man's statute, submitted without a certified copy of the Glasscock County, Texas Clerk as a business record, not based on actual knowledge and belief, and does not qualify as [an] Affidavit properly sworn to[.]
Appellees' summary judgment evidence for the initial motion for partial summary judgment on the action for trespass to try title consisted of many of the same documents that Appellant filed including the 1975 royalty deed, the stipulation and agreement between Smith and the Underwoods, the 1977 assignment of the trust interest from Smith individually to Smith as trustee, the property settlement agreement, the 1985 royalty deed, and two releases of lien. Appellees also included the wills of Conaway and her surviving husband, Billy R. Conaway, and a distribution deed involving a portion of Conaway's interest. Finally, Appellees attached a copy of an Order Terminating Trust entered by the 385th District Court of Midland County in February 2018, which was filed of record in the deed records...
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