Roberson v. El Paso Exploration & Prod. Co.

• Decision Date: 04 September 2012
• Docket Number: No. 06-12-00017-CV,06-12-00017-CV
• Citation: Roberson v. El Paso Exploration & Prod. Co., No. 06-12-00017-CV (Tex. App. Sep 04, 2012)
• Parties: JEFFERY ROBERSON, INDEPENDENT EXECUTOR OF THE ESTATE OF EARL NIX, DECEASED, AND CARISSA AUSTIN, INDEPENDENT EXECUTRIX OF THE ESTATE OF OCTA NIX, DECEASED, Appellants v. EL PASO EXPLORATION & PRODUCTION CO., L.P., AND GEORGE TODD CRAIG, Appellees
• Court: Texas Court of Appeals

JEFFERY ROBERSON, INDEPENDENT EXECUTOR OF THE ESTATE OF EARL NIX,DECEASED, AND CARISSA AUSTIN, INDEPENDENT EXECUTRIX OFTHE ESTATE OF OCTA NIX, DECEASED, Appellants

v. EL PASO EXPLORATION & PRODUCTION CO., L.P.,AND GEORGE TODD CRAIG, Appellees

No. 06-12-00017-CV

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: August 8, 2012

Date Decided: September 4, 2012

On Appeal from the 4th Judicial District Court

Rusk County, Texas

Trial Court No. 2009-398

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice MorrissMEMORANDUM OPINION

Almost a half century ago, Earl Nix executed a deed conveying some Rusk County property to LeRoy L. Propes and Valean Propes.¹ Today, we must determine whether, by the following provision of that deed, Nix reserved a mineral interest:

It being understood and agreed that all oil, gas, and other minerals, excluding coal, lignite and clay, in and under the above described tract have heretofore been reserved and excepted, together with the right to ingress and egress for the purpose of exploring and drilling for, producing[,] storing[,] and removing the same herefrom.

Jeffery Roberson, Independent Executor of the Estate of Earl Nix, and Carissa Austin, Independent Executrix of the Estate of Octa Nix, Deceased (collectively, the Nix Estates), succeeded to whatever interest Nix retained, if any, after that deed, while George Todd Craig and El Paso Exploration & Production Co., L.P. (El Paso), as a mineral leaseholder under Craig's interest, succeeded to their interests under the Propeses. Because Nix's deed did not retain any minerals, but merely recited, falsely, that minerals had been previously retained, we affirm the trial court's summary judgment rendered for El Paso and Craig.

The Nix Estates filed suit against El Paso and Craig. Among other items, the Nix Estates sought: (1) declaratory judgment that the lease was "null, void and of no further effect," and that title to the mineral estate belonged to the estates; (2) damages resulting from conversion "in an amount equal to the market value of the proceeds of the sale of all oil, gas, and other mineralsattributable to production from the subject property"; (3) an accounting; and (4) attorney's fees. Craig filed an answer of not guilty to the trespass to try title suit,² asserted a claim of adverse possession, and advanced the affirmative defense of statute of limitations with respect to the Nix Estates' conversion claims. El Paso filed a general denial and asserted affirmative defenses of "statute of limitations or laches" and "Waiver and estoppel and mitigation."

Cross-motions for summary judgment were filed, both focusing on the interpretation of the 1963 deed. The trial court denied the Nix Estates' motion, granted El Paso and Craig's motion, and decreed that the minerals are "vested in the Defendant, George Todd Craig, as mineral owner and Lessor, and that the leasehold estate is vested in Defendant El Paso E&P Company, Co., [sic] L.P., as Lessee" We address the dispositive issue of whether summary judgment was proper.³

We review de novo the grant or denial of a motion for summary judgment "to determine whether a party's right to prevail is established as a matter of law." Lamar Corp v. City of Longview, 270 S.W.3d 609, 613 (Tex. App.—exarkana 2008, no pet.); see Nash v. Beckett, 365S.W.3d 131, 136 (Tex. App.—Texarkana 2012, pet. denied) (citing Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)). Where, as here, both parties file dispositive cross-motions for summary judgment, and the trial court grants one and overrules the other, we review the summary judgment evidence presented by each party, determine all questions presented, and render judgment as the trial court should have rendered. Nash, 365 S.W.3d at 136 (citing Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007); Comm'rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); Harris v. Hines, 137 S.W.3d 898, 902-03 (Tex. App.—Texarkana 2004, no pet.)).

All parties agree that there is no ambiguity in the 1963 deed, although they differ markedly on its interpretation. The question of ambiguity in a deed is a question of law. Corine, Inc. v. Harris, 252 S.W.3d 657, 660 (Tex. App.—Texarkana 2008, no pet.) (citing Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 353 (Tex. App.—Texarkana 2000, no pet.)). An instrument is not ambiguous if it can be given a definite or certain meaning as a matter of law. Id. (citing Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983)). If, however, a deed is subject to two or more reasonable interpretations, it is ambiguous. Id. (citing Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996)). An ambiguity does not exist simply because the parties advance conflicting interpretations. Id. (citing Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000)). For an ambiguity to exist, both interpretations must be reasonable. Id.

The Nix Estates take the position that the reservation language unequivocally reserves a mineral estate. El Paso and Craig argue that the language reserves nothing under the lawbecause, as the Nix Estates admit, there was no reservation or exception before the execution of the 1963 deed. Only one interpretation can be supported under the law. Therefore, the deed is not ambiguous.

When a deed is unambiguous, our primary duty in construing it is to ascertain the intent of the parties from the language in the deed. Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). The actual intent of the parties, as expressed in the deed as a whole, prevails over arbitrary rules. Id. at 462. We ascertain the parties' intentions as expressed in the document by considering the entire writing and attempting to harmonize and give effect to the whole document. Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005).

To support their position, the Nix Estates cite to Pich v. Lankford, 302 S.W.2d 645 (Tex. 1957). In Pich, the one who held the common source of title conveyed 160 acres of land to Turner in a deed containing a reservation of "one half of the full 1/8th Oil Royalty, or a 1/16th of all minerals produced on said land."⁴ Id. at 646. Turner conveyed that land to Adams; and Adams conveyed the land to Higgs, reserving "one fourth of all royalty, the same being 1/32 of all oil and gas produced from said land.⁵ Id. Higgs conveyed to Howard, who deeded the land to the Sharps, "[s]ave and [e]xcept an undivided three-fourths of the oil, gas and other minerals, on and under said land, which have been heretofore reserved."⁶ The Sharps then conveyed the land to the Lankfords "[s]ave and [e]xcept an undivided three-fourths of the oil, gas and other minerals. . ., and an undivided one-fourth of the minerals . . ., which minerals do not belong to the grantors herein." Id.

The issue determined by that court involved interpretation of the deed by the Howards to the Sharps and the deed from the Sharps to the Lankfords. The court determined that the deeds conveyed an undivided three-fourths interest in the minerals in place "in plain and unambiguous language" and that the phrases "have heretofore been reserved" and "do not belong to the grantors herein" were simply "recitals which purport[ed] to state why the exceptions [were] made." Id. at 648. Even though the chain of title showed that the recitals were false, the court stated, "[T]he giving of a false reason for an exception from a grant does not operate to alter or cut down the interest or estate excepted, nor does it operate to pass the excepted interest or estate to the grantee." Id. Thus, the court found that the undivided three-fourths interest in the minerals "was excluded from the grants in the Howard and Sharp deeds and title thereto did not pass" to their grantees. Id. at 650.

Referring to this language, the Nix Estates argue that "it makes no difference that no minerals had previously been conveyed prior to the deed in question." We disagree. In Pich, the deeds began with an unambiguous reservation, followed by a false recital concerning what was owned by the grantor. Here, the 1963 deed contains the false recital in the grant itself by stating that "all oil, gas, and other minerals, excluding coal, lignite and clay, in and under the above described tract have heretofore been reserved and excepted" and contains no reservation language.Here, because the 1963 deed does not except from the grant the mineral interests it says were previously reserved, Pich does not support the Nix Estates' proposition.⁷

On the other hand, El Paso and Craig rely on the cases of Ladd v. DuBose, Sharp v. Fowler, and Miller v. Melde.

In Sharp v. Fowler, a deed from Cockrell, who had title to the surface of fifty acres of land and an undivided one-quarter interest in the minerals in a portion of that tract, conveyed to Browning "50 acres of land . . . being the same land described in a deed from Frost Lumber Industries, Inc. of Texas to A.D. Cockrell." 252 S.W.2d 153, 154 (Tex. 1952). While this deed did not contain express language of reservation, certain minerals were excepted in the Frost deed conveying the property to Cockrell. Id. at 153. The issue ripe for resolution was whether the reference to the Frost deed in Browning's deed operated to reserve the one-fourth mineral interest in Cockrell, or whether the reference only served to define the boundaries of the land. Id. at 154. Citing the rules that "[a] reservation of minerals to be effective must be by clear language" and that "[c]ourts do not favor reservations by implication," the court held that the reference to the interest in the Frost deed could not be seen as a reservation in the Browning deed. Id.

Applying the rules set forth in Sharp, language similar to the 1963 deed was interpreted as reserving nothing in the grantor. Ladd v. DuBose, 344 S.W.2d 476 (Tex....