Vernon D. Ray v. Lamar Elder, Jr., Ferria Jean Elder, Rodney Elder, Patricia C. Jones, Wilbert R. Elder, Barbara F. Cox, Lacetta R. Elder and Pamela Elder

NO. 12-06-00141-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS VERNON D. RAY, § APPEAL FROM THE FOURTH APPELLANT V. LAMAR ELDER, JR., FERRIA JEAN § JUDICIAL DISTRICT COURT OF ELDER, RODNEY ELDER, PATRICIA C. JONES, WILBERT R. ELDER, BARBARA F. COX, LACETTA R. ELDER AND PAMELA ELDER, APPELLEES § RUSK COUNTY, TEXAS MEMORANDUM OPINION Appellant Vernon D. Ray appeals a summary judgment granted in favor of Appellees, Lamar Elder, Jr., Ferria Jean Elder, Rodney Elder, Patricia C. Jones, Wilbert R. Elder, Barbara F. Cox, Lacetta R. Elder, and Pamela Elder. In two issues, Ray argues that the deed in controversy was not void for uncertainty and, alternatively, that if the deed was ambiguous, the case should be remanded for a trial on the merits. We affirm. Background On June 9, 1995, Vernon D. Ray recorded a mineral deed dated March 4, 1994 in the land records of Rusk County, Texas (the “1994 deed”). The deed named Almore Kennedy Elder as the grantor and stated that Elder conveyed Ray one hundred percent of her minerals from land situated in Rusk County, Texas, “to wit: Division of interest on page 4 attached hereto and made a part hereof.” Attached to the recorded deed were three pages of an exhibit (Exhibit “A”) containing the metes and bounds descriptions of twenty-four tracts of land. The deed does not include any reference to Exhibit “A.” On June 17, 1999, Ray recorded a certified copy of the 1994 deed. However, the rerecorded deed (the “1999 deed”) contained two additional pages. The first was “Exhibit A. Page 4,” which was entitled “Division of Interest.” The second was a page containing the metes and bounds descriptions of three tracts of land in Rusk County, Texas. On March 22, 2004, Appellees, who are the heirs and beneficiaries of Almore Kennedy Elder, filed a trespass to try title action against Ray alleging that the 1994 deed was void. Appellees also alleged fraud, claiming that Ray forged Elder’s signature on the mineral deed and/or its attachments, and made intentional misrepresentations to Elder for the purpose of obtaining her reliance. Ray filed an answer, which included a general denial and a plea of “not guilty” to the trespass to try title action along with allegations that Appellees’ claims were barred by the applicable statutes of limitation, res judicata, and/or collateral estoppel, laches, and waiver. Appellees filed a motion for partial summary judgment, stating that they were entitled to summary judgment as a matter of law because the 1994 deed was void. More specifically, Appellees stated that the 1994 deed did not contain a valid property description because the deed, as originally recorded, did not include page 4 or a division of interests. Appellees contended that the descriptions attached to the 1994 deed as Exhibit “A” were insufficient because they were not expressly incorporated into the language of the granting clause of the deed. They further asserted that, because the granting clause mentions only Rusk County, the Gregg County lands listed in Exhibit “A” cannot be included in the grant. Finally, Appellees stated that Ray could not rely on the 1999 deed for title because he did not use the original deed to rerecord it, did not make a diligent search for the original deed, and altered the certified copy of the 1994 deed by adding pages to it before he recorded it. As part of their summary judgment proof, Appellees attached a copy of Ray’s deposition in which he stated that page 4 of Exhibit “A” was originally attached to the deed, but that, in copying the deed, he failed to reattach page 4. He also admitted that he did not recall whether the page containing the descriptions of the three Rusk County tracts was part of the 1994 deed. He stated that he attached the page to the 1999 deed because the oil company told him three tracts from the 1994 deed did not include the county in the descriptions. At another point in his deposition, he said the oil company told him the three tracts were missing from the deed and he needed to get descriptions of them. Ray filed a motion for partial summary judgment, stating that he was entitled to summary judgment because the deed was voidable, not void, Appellees’ claims and facts did not support their suit for trespass to try title, and Appellees’ other claims were barred by limitations. On June 14, 2005, the trial court granted Appellees’ motion for partial summary judgment and denied Ray’s motion. Moreover, the trial court stated that there was no genuine issue of material fact regarding Appellees’ claim that the 1994 deed was void. Ray filed a motion to set aside the trial court’s order based on new case law. The trial court denied Ray’s motion and, on March 30, 2006, signed a final judgment in favor of Appellees and against Ray on all claims. This appeal followed. Summary Judgment In his first issue, Ray argues that the trial court erred as a matter of law when it declared that the deed was void for uncertainty. Standard of Review In reviewing a traditional motion for summary judgment,1 we apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985), which are (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. See id. at 548-49. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). A movant must either negate at least one essential element of the nonmovant's cause of action or prove all essential elements of an affirmative defense. See Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952). The only question is whether an issue of material fact is presented. See Tex. R. Civ. P. 166a(c). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c). When, as here, parties file cross motions for summary judgment, each party in support of its own motion necessarily takes the position that there is no genuine issue of fact in the case and that it is entitled to judgment as a matter of law. Lambrecht & Assocs., Inc. v. State Farm Lloyds, 119 S.W.3d 16, 20 (Tex. App.–Tyler 2003, no pet.). If one motion is granted and the other denied, we must review the summary judgment evidence presented by both sides and determine all questions presented. Id. In so doing, we first review the order granting summary judgment and if we determine the order was erroneous, we review the trial court’s action in overruling the denied motion. Id. We may then either affirm the judgment or reverse and render the judgment the trial court should have rendered, including one that denies both motions. Id. Construction of Deeds We construe a deed as a matter of law. J. Hiram Moore, Ltd. v. Greer, 172 S.W.3d 609, 613 (Tex. 2005); Chambers v. Huggins, 709 S.W.2d 219, 221 (Tex. App.–Houston [14th Dist.] 1986, no writ). The rules of construction require that (1) where there is no ambiguity, a deed will be enforced as written even if it does not express the original intention of the parties; (2) the intention of the parties must be ascertained from the entire instrument, and not isolated portions thereof; (3) deeds are construed to confer the greatest estate that their terms will permit; (4) grants are liberally, and exceptions strictly, construed against the grantor; (5) deeds capable of two constructions are construed to convey to the grantee the largest estate possible; (6) it is presumed that all promises and agreements were merged into and fully expressed by the written instrument; and (7) an unambiguous written document will be enforced as written and cannot be varied or contradicted by parol testimony unless it is clearly alleged and proved that its execution was procured by fraud, accident, or mistake. Chambers, 709 S.W.2d at 222. To be sufficient, a description of land in a deed must be so definite and certain upon the face of the instrument itself, or by other writing referred to, that the land can be identified with reasonable certainty. Smith v. Sorelle, 126 Tex. 353, 357, 87 S.W.2d 703, 705 (1935); Templeton v. Dreiss, 961 S.W.2d 645, 658 (Tex. App.–San Antonio 1998, pet. denied). Thus, if there appears in the instrument enough to enable one by pursuing an inquiry based upon the information contained in the deed to identify the particular property to the exclusion of others, the description will be held sufficient. Templeton, 961 S.W.2d at 658. This has been referred to as the “nucleus of description” theory. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 909 (Tex. 1982). The description in a deed is not required to be mathematically certain, but only reasonably certain so as to enable a party familiar with the locality to identify the premises to be conveyed to the exclusion of others. Templeton, 961 S.W.2d at 659. A deed should not be declared void for uncertainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property the parties intended to convey. Teledyne Isotopes, Inc. v. Bravenec, 640 S.W.2d 387, 389 (Tex. App.–Houston [1st Dist.] 1982, writ ref’d n.r.e.). Every presumption should be indulged to reach the conclusion that some interest should be passed by a deed. Templeton, 961 S.W.2d at 657. If a conveyance of an interest in real property does not sufficiently describe the land to be conveyed, it is void under the statute of frauds. See Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983); Greer v. Greer, 191 S.W.2d 848, 849 (Tex. 1946). Such a deed will not support an action for specific performance or a suit for damages for a breach of contract. See Wilson v. Fisher, 188 S.W.2d 150, 152 (Tex. 1945). Analysis In determining whether the trial court properly found that the deed was void and granted Appellees’ motion for summary judgment, we must decide if the property description in the deed is sufficient to pass title to the mineral interests purportedly conveyed. See Templeton, 961 S.W.2d at 658. As stated above, the deed purports to convey all of the minerals owned by Almore Kennedy Elder in certain lands located in Rusk County, Texas. Attached to the 1994 deed is a three page exhibit containing metes and bounds descriptions of twenty-four tracts of land. This deed includes no reference to Exhibit “A.” The granting clause refers only to “Division of interest on page 4 attached hereto and made a part hereof.” Ray argues that it was not necessary for the granting clause to refer to this exhibit because the function of a deed is to furnish a means for identifying the land. Moreover, Ray contends that the reference to the division of interest on page 4 provides notice that there was a four page attachment to the deed. We disagree. An unsigned paper may be incorporated by reference in a paper signed by the person sought to be charged. When real property is conveyed, it is not uncommon for the property description to be included in an exhibit that is attached to the deed and expressly incorporated into the deed by reference. The language used to incorporate the exhibit is not important provided the deed plainly refers to the exhibit. See Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex. 1968). However, the deed in this case includes no reference to Exhibit “A.” Because the granting clause describes only page 4 as “attached hereto and made a part hereof,” we conclude that the remaining three pages of Exhibit “A” are not part of the deed. Thus, we cannot consider the first three pages of Exhibit “A” in our determination of the adequacy of the property description.2 Ray also argues that the general grant on page 4 effectively conveyed everything Elder owned. However, the general grant to which Ray refers is one sentence in a paragraph above the descriptions on page 4 stating that “[t]his grant does so includs. [sic] all of the lands owned by Grantor.” A deed purporting to convey all lands owned by the grantor in the state or in a named county is a sufficient description to effect a conveyance. Harlan v. Vetter, 732 S.W.2d 390, 394 (Tex. App.–Eastland 1987, writ ref’d n.r.e.) (quoting Texas Consol. Oils v. Bartels, 270 S.W.2d 708 (Tex. Civ. App.–Eastland 1954, writ ref’d)). However, this sentence does not purport to convey all of the lands owned by the grantor in Texas or in a named county. See id. Thus, this description is insufficient to effect a conveyance. We now turn to the descriptions on page 4 of Exhibit “A” to determine whether the land can be identified with reasonable certainty to the exclusion of other tracts.3 See Templeton, 961 S.W.2d at 658. Page 4 contains references to fifteen royalty interests, but no references to the underlying mineral interests. The first seven royalty interests are identified by the name and number of an oil or gas unit, the name of an oil company, an abstract number and/or a survey name, and what appears to be the total number of acres in the unit. Only one of these descriptions includes the county in which the unit is located. That county is not Rusk County, the county named in the granting clause of the deed, but Gregg County. Moreover, none of these descriptions refers to any existing writing by which the land may be identified with reasonable certainty. See Westland Oil Dev. Corp., 637 S.W.2d at 909. Further, the abstract numbers alone, without an adequate description of the land owned by Elder within these abstracts, are insufficient to identify the land with reasonably certainty to the exclusion of other tracts. See Templeton, 961 S.W.2d at 658. The next eight descriptions include the name of an oil company, the name and number of the oil or gas unit, and the county in which the unit is located. None of these eight descriptions identifies the survey in which these units are located. As such, it is impossible to determine where these lands are located within the particular county. See id. Moreover, none of these descriptions refers to some other existing writing by which the land may be identified with reasonable certainty. See Westland Oil Dev. Corp., 637 S.W.2d at 909. Because the descriptions on page 4 do not provide a means for identifying the lands referred to in the granting clause with reasonable certainty, the descriptions are insufficient to pass title. Consequently, we conclude that there is no genuine issue of material fact that the deed, recorded in 1995 and rerecorded in 1999, is void. Therefore, the trial court did not err in granting Appellees’ motion for summary judgment. Accordingly, we overrule Ray’s first issue. Because Ray’s first issue is dispositive, we need not consider his remaining argument. Disposition The judgment of the trial court is affirmed. JAMES T. WORTHEN Chief Justice Opinion delivered May 29, 2007. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (PUBLISH) Appendix TRAWICK GAS UNIT#54 EXXON CORPORATION                         .000282RI AB 14 ETL M.F. HUJAS ETL SUR 653.950 ac KENNEDY GAS#3 UNION PACIFIC RESOURCES CO.        . 001326RI 334.720ac AB 46 RUSSELL WILLIAMSON SUR CARTHAGE 111 UNIT. 702.870ac KENNEDY 1.2.3.FOSTER 1.                    .000484RI HUTCHINGS J GAS UNIT# TOTAL MINATOME CORPORATION 643.860AC .000484 RI AB 42 J WALLING SUR KENNEDY GAS UNIT #4 UNION PACIFIC RESOURCE                  .0016414 RI AB 46 RUSSELL WILLIAMSON SUR 320.000ac KENNEDY GAS UNIT#5 (702.870ac .001833 UNION PACIFIC RESOURCE CO AB 42 JOHN WALLING SUR GREGG COUNTY TEXAS. LNGV 603% BUFORD BLOW GAS UT#1(#1 1&2 615.880 ac UNION PACIFIC RESOURCE CO             .000561 RI AB 46 ETAL WILLIAMSON RTAL SUR MAJOR KENNEDY ESTATE#1 UNION PACIFIC OIL&GAS CO .00183290RI RUSK COUNTY TEXAS. UNION PACIFIC COMPANY MAJOR KENNEDY ESTATE#2 .00183290RI RUSK COUNTY TEXAS MAJOR KENNEDY ESTATE#3 .00183290RI UNION PACIFIC OIL&GAS CO. RUSK COUNTY TEXAS. UNION PACIFIC COMPANY                 .00162880RI MAJOR KENNEDY#4 RUSK COUNTY TEXAS UNION PACIFIC COMPANY                 .00183290RI MAJOR KENNEDY#5 RUSK COUNTY TEXAS UNION PACIFIC COMPANY MAJOR KENNEDY#6 0.00162880RI RUSK COUNTY TEXAS UNION PACIFIC COMPANY MAJOR KENNEDY#9 0.00162880RI RUSK COUNTY TEXAS UNION PACIFIC COMPANY FOSTER#(S.I) .00183290RI RUSK COUNTY TEXAS 1 See Tex. R. Civ. P. 166a(c). 2 We also do not consider the second page that was added to the 1999 deed, because the record does not show that it was originally part of the 1994 deed. 3 The descriptions on page 4 of Exhibit “A” are contained in Appendix A to this opinion.