Givens v. Ward, No. 10-07-00320-CV.

• Court: Court of Appeals of Texas
• Writing for the Court: Felipe Reyna
• Citation: 272 S.W.3d 63
• Parties: Joan E. GIVENS, Shannon Kraus, Gregory D. Givens, Individually and as Independent Executor of the Estate of William L. Givens, J. Harold Sewell, and Alamo Title Company, Appellants, v. Elvis and Dianna WARD, Appellees.
• Docket Number: No. 10-07-00320-CV.
• Decision Date: 08 October 2008

272 S.W.3d 63 Joan E. GIVENS, Shannon Kraus, Gregory D. Givens, Individually and as Independent Executor of the Estate of William L. Givens, J. Harold Sewell, and Alamo Title Company, Appellants,
v.
Elvis and Dianna WARD, Appellees. No. 10-07-00320-CV. Court of Appeals of Texas, Waco. October 8, 2008.

[272 S.W.3d 65]

L. Kelly Jones and Michael Hassett, Jones & Cannon PC, Arlington, Joseph W. Spence, Shannon Gracey Ratliff & Miller LLP, Stephen B. O'Rear, Albert Neely & Kuhlmann LLP. Fort Worth, Randal L. Telford, Irving, for appellants.

D. Scott Cain, Bradley & Cain, Cleburne, for appellees.

Before Cheif Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

Elvis and Dianna Ward purchased a 115-acre tract of land from Joan Givens, Shannon Kraus, and Gregory Givens, Individually and as Independent Executor of the Estate of William L. Givens (collectively, the Givenses). The warranty deed contains no reservation of mineral interests. The trial court granted the Wards' summary-judgment motion and denied summary-judgment motions filed by the Givenses, Harold Sewell, and Alamo Title Company. The primary substantive issues in this appeal are: (1) whether the Givenses are entitled to reformation of the warranty deed due to mutual mistake because it does not contain a reservation of the mineral interests in the property; and (2) whether Sewell and Alamo Title are entitled to specific enforcement of an agreement the parties signed at closing whereby the parties agreed "to fully cooperate, adjust, and correct any errors or omissions and to execute any and all documents needed or necessary to comply with all provisions of the [real estate contract]." We will reverse and remand.

Background

After a period of negotiations, the Givenses agreed to sell the 115-acre tract to the Wards for $250,000. The sales contract contains the following provision (paragraph 2(F)) regarding the disputed mineral interests:

272 S.W.3d 66

F. RESERVATIONS: Seller reserves the following mineral, water, royalty, timber, or other interests:

SEE ATTACHED OIL, GAS, AND MINERAL LEASE¹

Attached to the sales contract is a 2001 oil and gas lease from the Givenses in favor of a third party. In a separate document entitled "Acceptance of Title and Closing Agreements," the parties agreed "to fully cooperate, adjust, and correct any errors or omissions and to execute any and all documents needed or necessary to comply with all provisions of the [sales contract]."

The deed contains no mineral reservation. About six months after closing, Alamo contacted the Givenses and the Wards by letter explaining that the deed erroneously omitted the mineral reservation and asking the parties to sign a correction deed with the mineral reservation. The Wards refused to sign.

Instead, they filed a declaratory judgment action against the Givenses seeking a judicial declaration that they own the disputed mineral interests. The Givenses filed a general denial, asserted the affirmative defense of mistake, and counterclaimed for reformation of the deed due to mistake. The Wards responded with a traditional motion for summary judgment contending among other things: (1) the deed is unambiguous, (2) it cannot be set aside due to unilateral mistake, and (3) there was no mutual mistake. The Givenses amended their pleadings to include an additional counterclaim for breach of the compliance agreement. Alamo and Sewell then filed a joint petition in intervention alleging breach of the compliance agreement and requesting specific performance. The Givenses followed with an amended pleading asserting counterclaims: (1) alleging breach of the compliance agreement; and (2) seeking a judicial declaration that the deed's conveyance of the minerals to the Wards is invalid.

The Givenses then filed a summary-judgment motion on both counterclaims against the Wards. Alamo and Sewell filed a joint summary-judgment motion on their breach of contract claims. The Wards filed a response to "Defendant's Motion for Summary Judgment."² The Wards argued in their response that the deed is unambiguous, "there are no legal reasons to reform the deed" because there is no mistake, etc., and thus they did not breach the compliance agreement.

The Givenses filed a response to the Wards' summary-judgment motion alleging that the Wards failed to conclusively establish that there was no mutual mistake and requesting that the Wards' motion be denied.

Following a hearing, the trial court signed a "final order" granting the Wards' summary-judgment motion and denying the other parties' summary-judgment motions.

Standard of Review

We review a trial court's summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). In reviewing a summary judgment, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007) (per curiam) (citing Wal-Mart

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Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006) (per curiam); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex. 2005)). We must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the movant. See Goodyear Tire, 236 S.W.3d at 756 (citing Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006) (per curiam); Spates, 186 S.W.3d at 568).

When competing motions for summary judgment are filed and some are granted while others denied, the general rule is that the appellate court should determine all questions presented and render the judgment the trial court should have rendered. Tex. Workers' Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex.2004); Am. Hous. Found. v. Brazos County Appraisal Dist., 166 S.W.3d 885, 887 (Tex.App.-Waco 2005, pet. denied). This rule applies only when both (or all) parties' motions sought a final judgment, namely, relief on all pending claims. See CU Lloyd's of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex.1998) (per curiam); Am. Hous. Found., 166 S.W.3d at 887; Krishnan v. Law Offices of Preston Henrichson, P.C., 83 S.W.3d 295, 303 (Tex.App.-Corpus Christi 2002, pet. denied). However, an appellate court may reverse and remand if resolution of the pertinent issues rests in disputed facts or if the parties' motions are premised on different grounds. See Sarandos v. Blanton, 25 S.W.3d 811, 814 & n. 5 (Tex.App.-Waco 2000, pet. denied).

Reformation of Deed

The Givenses contend in their fourth issue that genuine issues of material fact remain on the question of whether they are entitled to reformation of the deed. Sewell raises the same complaint in his fourth issue.

"The underlying objective of reformation is to correct a mutual mistake made in preparing a written instrument, so that the instrument truly reflects the original agreement of the parties." Cherokee Water Co. v. Forderhause, 741 S.W.2d 377, 379 (Tex.1987); accord Tribble & Stephens Co. v. RGM Constructors, L.P., 154 S.W.3d 639, 659 (Tex.App.-Houston [14th Dist.] 2004, pet. denied); Hatch v. Williams, 110 S.W.3d 516, 522 (Tex.App.-Waco 2003, no pet.). For reformation of a written instrument, a party must prove two elements: "(1) an original agreement and (2) a mutual mistake, made after the original agreement, in reducing the original agreement to writing." Cherokee Water Co., 741 S.W.2d at 379; accord U.S. Fire Ins. Co. v. Scottsdale Ins. Co., 264 S.W.3d 160, 171 (Tex.App.-Dallas 2008, no pet. h.); Tribble & Stephens, 154 S.W.3d at 659.

Here, the Givenses contend that the requisite mutual mistake consists of their unilateral mistake in signing a deed which did not conform to the parties' agreement and the Wards' knowledge that the deed did not conform. "Unilateral mistake by one party, and knowledge of that mistake by the other party, is equivalent to mutual mistake." Davis v. Grammer, 750 S.W.2d 766, 768 (Tex.1988) (citing Cambridge Cos. v. Williams, 602 S.W.2d 306, 308 (Tex.Civ.App.-Texarkana 1980), aff'd, 615 S.W.2d 172 (Tex.1981));³ accord

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Navasota Res., L.P. v. First Source Tex., Inc., 249 S.W.3d 526, 539 (Tex.App.-Waco 2008, pet. filed); Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 213 (Tex.App.-Houston [1st Dist.] 2004, pet. denied).

The Wards suggest that different considerations apply when a party seeks reformation of a deed, particularly a deed which is unambiguous on its face. As an example, the Wards cite Alvarado v. Bolton, 749 S.W.2d 47 (Tex.1988), for the proposition that the merger doctrine applies and that any contrary language in the real estate contract was extinguished when the Givenses signed the deed. In Alvarado, the Supreme Court described the merger doctrine as follows:

When a deed is delivered and accepted as performance of a contract to convey, the contract is merged in the deed. Though the terms of the deed may vary from those contained in the contract, still the deed must be looked to alone to determine the rights of the parties.

Id. at 48 (quoting Baker v. Baker, 207 S.W.2d 244, 249 (Tex.Civ.App.-San Antonio 1947, writ ref'd n.r.e.) (quoting 2 ROBERT T. DEVLIN, A TREATISE ON THE LAW OF DEEDS § 850a (2d ed. 1897))).

Although the Court recited this as a correct statement of the merger doctrine as it applies to deeds, the Court held that the merger doctrine did not apply in that case, which was a DTPA suit for breach of a warranty contained in the parties' earnest money contract. Id. ("we hold that the doctrine of merger may not be applied to defeat a cause of action under the DTPA for breach of an express warranty made in an earnest money contract and breached by deed"). And as that Court has previously held, the merger doctrine applies to deeds only "in the absence of fraud, accident, or mistake." Commercial Bank of Mason v. Satterwhite, 413 S.W.2d 905, 909...