IN THE

TENTH COURT OF APPEALS

No. 10-11-00239-CV

BAKER'S CAMPGROUND, INC., 

KELLI GRAVES, AND KOURTNIE GRAVES,

Appellants

v.

ANTHONY L. MCCALLA 

AND CHERYL A. MCCALLA,

Appellees

From the 413th District Court

Johnson County, Texas

Trial Court No. C200600228

MEMORANDUM OPINION

Baker’s Campground Inc., Kelli Graves, and Kourtnie Graves (Graves) filed suit 

against Anthony and Cheryl McCalla alleging cloud on title and slander on title based 

upon the McCallas recording a “Notice of Settlement Agreement” in the Johnson 

County deed records. On October 23, 2008, the trial court granted the McCallas’ partial 

motion for summary judgment. On April 21, 2011, the trial court entered its final 

judgment awarding the McCallas specific performance of the Release and Settlement 
Baker's Campground, Inc. v. McCalla Page 2

Agreement, damages, and attorney fees. The Graves appeal from the trial court’s order 

granting the McCallas’ partial motion for summary judgment and the trial court’s final 

judgment awarding damages and attorney fees. We reverse and remand.

Background Facts

This case involves a lengthy dispute over 380 acres of land along the Brazos 

River in Johnson County. Arthur William Glazier owned the 380 acres, and in 1992, he 

entered into a 99-year lease (the Glazier lease) with Walt and Mary Baker that covered 

the entire property. Within the Glazier lease, the Bakers sub-leased a two-acre tract to 

the McCallas. The sub-lease contained a provision allowing the McCallas the first 

option to purchase the property at market value if the Bakers obtained legal ownership 

of the property and elected to sell the property.

In 1993, Glazier died leaving the property to the Bakers. Walt deeded his interest 

to his mother, Mary. In 1996, Mary entered into a 99-year lease for the entire 380 acres

with Stephen and Karen Davis and Ski River Development Inc. (the Baker-Davis lease). 

Mary died later that year.

The McCallas filed suit to enforce their option to purchase the property and to 

invalidate the Baker-Davis lease. A jury found in favor of the McCallas and against the 

Davises. In 2003, before the trial court entered final judgment, Walt Baker and the 

McCallas prepared a “Release and Settlement Agreement.” The validity and 

enforceability of that agreement is the central issue in this appeal.

The Davises appealed the judgment in favor of the McCallas. In 2005, this Court 

found that the McCallas’ option to purchase the property was void. This Court further 
Baker's Campground, Inc. v. McCalla Page 3

deleted from the judgment the tortious interference damages, exemplary damages, and 

attorney’s fees awarded to the McCallas against the Davises. This Court also found the 

Baker-Davis lease to be voidable.

 Walt Baker died, leaving the property to Kelli and Kourtnie Graves. In 2004, the 

McCallas recorded a Notice of Settlement in the Johnson County deed records. The 

Graves filed suit to have the Notice of Settlement removed from the title to the 

property. The Graves and the McCallas both filed motions for summary judgment. In 

October 2008, the trial court granted the McCallas’ motion for partial summary 

judgment determining that the 2003 Release and Settlement Agreement between Walt 

Baker and the McCallas was valid and enforceable.

On March 7, 2011, the trial court found that the only remaining issue would be 

the amount of damages. On April 21, 2011, the trial court entered final judgment that 

the McCallas are entitled to specific performance of the 2003 Release and Settlement 

Agreement between the McCallas and Walt Baker. The trial court ordered that 

equitable and legal title in the property, including mineral interests, is vested in the 

McCallas. The trial court further awarded damages and attorney’s fees to the McCallas. 

Jurisdiction

In the first issue, the Graves contend that the trial court lacked subject matter 

jurisdiction to hear the case. The Graves argue that because the Estate of Walt Baker 

was opened in the County Court at Law Number 2 of Johnson County, that court had 

exclusive jurisdiction over these proceedings.
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Johnson County Court at Law No. 2 is a statutory county court. TEX. GOV’T CODE 

ANN. § 25.1281 (West 2004). When counties lack a statutory probate court, Section 4 of 

the Texas Probate Code provides statutory county courts with the same general 

jurisdiction as probate courts1. Act of June 19, 1993, 73rd Leg., R.S., ch. 957, § 4, 1993 

Tex. Gen. Laws 4081, 4161,repealed by Act of June 19, 2009, 81st Leg., R.S., ch. 1351, § 

12(h), 2009 Tex. Gen. Laws 4273, 4279. This jurisdiction includes the ability to "transact 

all business appertaining to estates subject to administration." In re Puig, 351 S.W.3d 

301, 304 (Tex. 2011) (quoting repealed Section 4 of the Texas Probate Code). Section 

5A(a) of the Probate Code provides a non-exclusive list of matters qualifying as 

"appertaining to" and "incident to" an estate administered in a statutory county court, 

including: "all actions for trial of title to land ... and for the enforcement of liens thereon 

... [,] all actions for trial of the right of property ... [,] and generally all matters relating to 

the settlement, partition, and distribution of estates of deceased persons." Id. When a 

matter raised in a separate lawsuit is not expressly mentioned in the Probate Code's 

definition of matters appertaining to and incident to an estate, we have employed the 

"controlling issue" test to determine whether the matter meets that definition. Id. 

Under the controlling issue test, "a suit is appertaining to or incident to an estate when 

the controlling issue is the settlement, partition, or distribution of an estate. Id.

 

1

In 2009, the Texas Legislature repealed §§ 4, 5, and 5A(a) of the Probate Code. Act of June 19, 2009, 81st 

Leg., R.S., ch. 1351, § 12(h), 2009 Tex. Gen. Laws 4273, 4279. Because this case was filed before the 

effective date of the repeal, the prior law applies to this proceeding.
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Kelli and Kourtnie Graves own the property in question by virtue of the 

Executors General Warranty Deed executed in 2005 by the Executrix of the Estate of 

Walt Baker. The Graves filed suit to quiet title on property they acquired from Baker. 

The suit did not involve the settlement, partition, or distribution of the Estate of Walt 

Baker. We find that the trial court had jurisdiction over the case.

Moreover, when the jurisdiction of a county court sitting in probate and a district 

court are concurrent, the issue is one of dominant jurisdiction. In re Puig, 351 S.W.3d at 

305. When two courts have concurrent jurisdiction to determine inherently intertwined 

issues, filing a dilatory plea in abatement is the proper method for drawing a court's 

attention to another court's possible dominant jurisdiction. Id. The Graves did not file a 

plea in abatement seeking to have the matter heard in the Johnson County Court at Law 

No. 2. We overrule the first issue.

Summary Judgment

The Graves argue that the trial court abused its discretion in granting the 

McCallas’ motion for partial summary judgment. Both parties included the validity 

and enforceability of the 2003 Release and Settlement Agreement in their grounds for 

summary judgment.

Standard of Review

We review the grant or denial of a traditional motion for summary judgment de 

novo. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n. 7 (Tex. 2005). To be entitled 

to summary judgment, the movant must demonstrate that no genuine issues of material 

fact exist and that he is entitled to judgment as a matter of law. See TEX. R. CIV. P. 
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166a(c). To determine if a fact issue exists, we must consider whether reasonable and 

fair-minded jurors could differ in their conclusions in light of all the evidence

presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). We 

must consider all the evidence in the light most favorable to the nonmovant, indulging 

all reasonable inferences in favor of the nonmovant. Nixon v. Mr. Property Management 

Co., 690 S.W.2d 546 (Tex. 1985).

When competing motions for summary judgment are filed and one is granted 

and the other is denied, the general rule is that an appellate court should determine all 

questions presented and render the judgment the trial court should have rendered. 

Texas Worker’ Compensation Commission v. Patient Advocates of Texas, 136 S.W.3d 643, 648 

(Tex. 2004). 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. den’d).

Settlement Agreement

The McCallas’ attorney drafted the 2003 Release and Settlement Agreement. 

Walt Baker made handwritten changes in the body of the Agreement. Walt further 

added handwritten provisions to the bottom of the Agreement as follows:

I will agree to $470,000 purchase price above

Use of my name

No Attorney fees charged against me or you, between us

Access including friends once in a while

60 days to close from date mentioned above

I agree to enter an agreement as discussed above
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Walt signed the Agreement below his handwritten provisions. He did not sign on the 

signature line designated in the typed Agreement.

At the time the Agreement was prepared, the trial court was set to hold a hearing 

to enter judgment on the jury verdict. The parties informed the trial court that they had 

reached an agreement and that it would not be necessary for the court to enter any 

order or relief that relates to Walt Baker and the McCallas. The parties did not disclose 

the terms of the settlement.

The Graves argue that the Agreement is unenforceable because it was an 

“agreement to agree.” The Graves further argue that the terms of the Agreement are 

ambiguous and unspecific to support a summary judgment granting specific 

performance that vests title to the property in the McCallas.

If the written instrument is so worded that it can be given a certain or definite 

legal meaning or interpretation, then it is not ambiguous and the court will construe the 

contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). A contract, 

however, is ambiguous when its meaning is uncertain and doubtful or it is reasonably 

susceptible to more than one meaning. Id. Whether a contract is ambiguous is a 

question of law for the court to decide by looking at the contract as a whole in light of 

the circumstances present when the contract was entered. Coker v. Coker, 650 S.W.2d at 

394. When a contract contains an ambiguity, the granting of a motion for summary 

judgment is improper because the interpretation of the instrument becomes a fact issue. 

Id.
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Walt added several provisions to the Agreement. Looking at the drafted 

Agreement with the handwritten provisions, it is ambiguous whether Walt intended 

that another Agreement would be drafted to include his additional provisions. The 

Agreement does not clearly incorporate the additional provisions. Walt indicates that 

he “will” agree to the purchase price and enter “an” agreement. The meaning of the 

additional provisions is uncertain and susceptible to more than one meaning.

The parties were under time restraints as they were scheduled for a hearing to 

enter judgment on the jury verdict. The parties informed the trial court that they 

reached an agreement and they did not need the trial court to enter an order or any 

relief between the parties. However, the terms of the Agreement were not disclosed to 

the trial court. It is unclear whether the parties agreed that the Agreement was the final 

agreement between the parties or that they had agreed that they had reached an 

agreement to settle the dispute and would not need the trial court to enter an order.

We find that the Agreement with the handwritten provisions contains an 

ambiguity. The granting of the partial motion for summary judgment was improper 

because the interpretation of the instrument is a fact issue. We sustain the Graves’ 

second issue. Because of our disposition of the second issue, we need not address the 

remaining issues. See TEX. R. APP. P. 47.1.

Conclusion

We reverse the trial court’s judgment granting the McCallas’ motion for partial 

summary judgment and the trial court’s final judgment. We remand for further 

proceedings consistent with this opinion.
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AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Justice Gray concurring)

Reversed and remanded

Opinion delivered and filed July 26, 2012

[CV06]