Charlsie Northcutt Morrison v. James Robinson and Charles Owen Robinson

IN THE TENTH COURT OF APPEALS No. 10-05-00321-CV Charlsie Northcutt Morrison, Appellant v. James Robinson and Charles Owen Robinson, Appellees From the 82nd District Court Robertson County, Texas Trial Court No. 04-12-17,123-CV Opinion Appellant Charlsie Northcutt Morrison appeals the trial court’s summary judgment in favor of Appellees James Robinson and Charles Owen Robinson. Background Morrison and her sister-in-law, Barbara Evans, each owned an undivided one-half interest in 87.36 acres in Robertson County. They conveyed their interests in the surface estate to the Robinsons on July 9, 1998. The deed conveying the surface estate also contained separate mineral reservations for each of the grantors. The deed was prepared by Morrison’s attorney. Prior to executing the deed, counsel for the Robinsons reviewed a draft and contacted the attorney about concerns with the language in the mineral reservations. However, he was assured that the language was consistent with the intent of the parties as expressed in the contract, and the parties executed the deed with this language. Thereafter, T-Bar-X Company leased the minerals under the 87.36 acres and a dispute arose between Morrison and the Robinsons as to what portion of the minerals each party owned. On December 21, 2004, the Robinsons filed their original petition for declaratory judgment against Morrison, who answered and filed a counterclaim for declaratory judgment and to quiet title.[1] The trial court granted summary judgment in favor of the Robinsons and, on August 15, 2005, denied Morrison’s Motion for New Trial. Morrison brings four issues on appeal. We will reverse on the first issue and need not address the other three. Standard of Review We review the decision to grant or deny a summary-judgment motion de novo. See Provident Life & Accident Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex. App.—Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. Deed Ambiguity In her first issue, Morrison questions whether the deed is ambiguous. The question of ambiguity in a deed is a question of law. Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 353 (Tex. App.—Texarkana 2000, no pet.) (citing Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex. 1987)). An instrument is not ambiguous if it can be given a definite or certain meaning as a matter of law. Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). However, if a deed is subject to two or more reasonable interpretations, it is ambiguous. See Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). An ambiguity creates a fact issue as to the parties’ intent. Id. An ambiguity does not arise simply because the parties advance conflicting interpretations. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000) (citing Columbia Gas, 940 S.W.2d at 589). For an ambiguity to exist, both interpretations must be reasonable. Id. Therefore, we must decide if there is more than one reasonable interpretation of Morrison’s mineral reservation in the deed. At issue is the following language: SAVE AND EXCEPT and there is hereby reserved for Grantor, Charlsie Northcutt Morrison, and her heirs, administrators, successors or assigns, an undivided one-half (½) interest of the oil, gas and other minerals produced with the oil and gas now owned by Charlsie Northcutt Morrison that are in and under the property and that may be produced from it[.] Under the Robinsons’ interpretation, the express wording of the reservation operated to reserve unto Morrison an undivided one-quarter interest in the mineral estate. The reservation, as quoted above, states that Morrison reserved an undivided one-half of the minerals produced with the oil and gas now owned by her. The words “now owned” are underlined in the deed. We find that it is reasonable to read the reservation with an emphasis on the words “now owned” and conclude that Morrison intended to convey one-half of her mineral interest (i.e. one-quarter of the total mineral interest). Morrison argues, however, that her reservation must be harmonized with the Evans Reservation which contains the following language: SAVE AND EXCEPT and there is hereby reserved for Grantor, Barbara Morrison Evans and her heirs, administrators, successors or assigns, for a period until June 11, 2000, an undivided one-half (½) interest of the oil and gas and other minerals produced with the oil and gas now owned by Barbara Morrison Evans, that are in and under the property and that may be produced from it[.] … On June 11, 2000, an undivided one-fourth (¼) interest of the total mineral estate shall pass to and be owned by Grantees, their heirs and assigns. It is the intent of the Grantor Barbara Morrison Evans and the Grantee [sic] James E. Robinson and Charles Owen Robinson, that as of June 11, 2000 that Barbara Morrison Evans, her heirs and assigns shall own an undivided one-fourth (¼) of the oil, gas and other minerals and James E. Robinson and Charles Owen Robinson and their heirs and assigns shall own an undivided one-fourth (¼) of the total oil, gas and mineral estate. Morrison claims that the meaning of the “now owned by” language in her reservation is revealed in the additional language. She argues that the last sentence of the Evans Reservation indicates that both reservations intended for the grantors to initially retain their undivided one-half interests in the minerals. She argues that because the language in the Evans Reservation makes clear that the parties intended for Evans to retain her undivided one-half interest in the mineral estate until June 11, 2000, the only reasonable construction for the language in the Morrison Reservation is that she would likewise retain her undivided one-half interest in the mineral estate. Whether an instrument is ambiguous is a question of law that must be decided by examining it as a whole in light of the circumstances present when it was executed. See Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004). We must examine and consider the entire writing in an effort to harmonize and give effect to all provisions so that none will be rendered meaningless. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). No single provision will control; rather, all provisions must be considered with reference to the whole instrument. Id. Finding that the wording of the Morrison Reservation is substantially identical to the Evans Reservation, and considering the additional language, we find that both interpretations are reasonable. Because the deed is reasonably susceptible to more than one meaning, it is ambiguous. This ambiguity creates a fact issue as to the parties’ intent and, therefore, summary judgment was not proper. Conclusion Having sustained Morrison’s first issue, we reverse the summary judgment and remand the cause to the trial court for further proceedings. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissenting) Reversed and remanded Opinion delivered and filed August 30, 2006 [CV06] [1] Barbara Evans is not a party. He said that he went to the hospital where Damon was being treated for his thumb injury and talked to him outside his wife’s presence. He indicated that Damon told him he had seen a blonde in a red convertible and did not think she should be out and about. He related that Damon said he wanted to talk to her. He said that Damon indicated that when the prostitute came up and asked him for the money, he told her he wanted to talk to her. Dressler stated that Damon told him that at that point he did not know what happened, but said he believed that his thumb could have been cut by a knife. Detective Dresser acknowledged that he had not preserved Damon’s statements at the time in a notebook or report, but put them on the computer later in the day. Damon argues that the evidence is insufficient to support his conviction, urging that neither the absence of a knife at the scene or the State’s plea for the jury to find DePriest more credible disproved self-defense. As Damon acknowledges, the State does not have the burden to affirmatively produce evidence to refute his theory of self-defense. Saxton, 804 S.W.2d at 913. Defensive evidence that is merely consistent with the physical evidence at the scene of the alleged offense will not render the State’s evidence insufficient because the credibility of such evidence is solely within the jury’s province, and the jury is free to accept or reject the defensive evidence. Id. at 914. A jury’s verdict of guilty is an implicit finding rejecting the defendant’s self-defense theory. Id. We hold that the evidence is legally sufficient to support Damon’s conviction. We overrule issue one. Damon urges in issue two that the trial court erred in sustaining the State’s objection to defense argument concerning the limits of the court’s punishment options. Counsel for Damon argued to the jury at the punishment phase of the trial that ”there is just no provision in Texas law in cases of aggravated assault for a defendant to come in and throw himself on the mercy of the court because in cases of deadly weapons our wise legislature has said only juries may consider these cases if a defendant applies for probation.” The State objected on the basis that the Court could give him deferred adjudication. After a brief exchange between counsel, the trial court stated, “I’ll allow the State to answer the argument.” Damon’s counsel resumed argument, stating, “Jason Damon could not come into this court and plead guilty with hopes of being found guilty and given probation by the Judge.” At that point State’s counsel objected, stating, “Again, that’s a misstatement of the law. It’s an entirely — it’s entirely within your discretion.” The trial court then sustained the objection. At that point, Damon’s counsel replied, “Judge, you can’t find him guilty and give him probation and that’s clear in the law.” The trial court then stated, “I’ll overrule the objection. The State can answer the argument.” Damon’s counsel resumed argument again, saying, “Counsel is trying to break up my continuity because they know what I’m saying is true and the Court overruled his objection.” Inasmuch as the trial court ultimately overruled the State’s objection, the trial court did not reversibly err in initially sustaining the objection. Even if we were to assume that it was error for the trial court to initially sustain the State’s objection, this did not affect Damon’s substantial rights inasmuch as the trial court immediately thereafter overruled the objection. To the extent Damon is complaining of error in the form of the State’s objection, nothing is preserved for review because Damon made no objection to the form of the objection at trial. Tex. R. App. P. 33.1(a)(1). We overrule issue two. The judgment is affirmed. JOHN G. HILL Senior Justice Before Chief Justice Davis, Justice Vance, and Senior Justice Hill (Sitting by Assignment) Affirmed Opinion delivered and filed on March 19, 2003 Do not publish [CR25]