Opinion filed May 26, 2022

In The

Eleventh Court of Appeals __________

No. 11-20-00138-CV

__________

SANDRA SMITH BROWN, INDEPENDENT EXECUTRIX OF 

THE ESTATE OF R. J. SMITH, JR., Appellant

V.

WILLIAM CHARLES UNDERWOOD, JAN ANN UNDERWOOD, 

AND ROSANNE UNDERWOOD GERRARD, Appellees

On Appeal from the 118th District Court

Glasscock County, Texas

Trial Court Cause No. 1877

M E M O R A N D U M O P I N I O N

This appeal involves an attempt to modify a royalty deed that was executed 

over thirty years earlier. Appellant, Sandra Smith Brown, seeks to change the 

interest that was conveyed by the royalty deed. Appellant is the independent 

executor of the estate of her late husband, R. J. Smith, Jr. Smith executed a royalty 

deed in 1985 conveying a 35/1920 nonparticipating royalty interest to Shirley Ann 
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Conaway, formerly known as Shirley Ann Underwood. Appellant contends that 

Smith “mistakenly conveyed” the wrong interest to Conaway. 

Appellant filed the underlying suit in 2018 against Appellees, William Charles 

Underwood, Jan Ann Underwood, and Rosanne Underwood Gerrard. Appellees are 

the surviving heirs of Conaway. After considering competing motions for summary 

judgment, the trial court entered final judgment in favor of Appellees to the effect 

that Appellant take nothing on all of her claims. Appellant brings five issues on 

appeal. We affirm.

Background Facts

In 1975, Smith acquired an undivided 35/960 nonparticipating royalty interest 

from W. C. Schrader to the following described lands in Glasscock County:

All of Sections 4, 9, 12, 13, 14, 22, 24, 27, 36, and the North 120 

acres of the NW/4 of Section 26; all of said lands being in Block 

36, T-4-S, T&P RR. Co. Survey; and 

All of Sections 18 and 30, and the NW/4 of Section 31, all in 

Block 35, T-4-S, T&P RR. Co. Survey[.]

Five days later, Smith executed a “Stipulation and Agreement” with W. H. 

Underwood and his wife, Shirley Ann Underwood, whereby Smith agreed that he 

would hold one-half of the interest he acquired from Schrader in trust for the 

Underwoods. This agreement also noted that First National Bank of Midland had 

advanced funds for the interest acquired from Schrader and that two deeds of trust 

had been executed for two notes in the amount of $75,000 each. One note was 

executed by Smith individually, and the other note was executed by Smith as trustee, 

along with the Underwoods. 

In 1977, Smith assigned one-half of the interest that he acquired from 

Schrader to himself as trustee for the Underwoods. Thus, after the assignment, 

Smith possessed record title to two identical interests—a 35/1920 nonparticipating 
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royalty interest that he owned individually (which we will refer to as the “individual 

interest”) and a 35/1920 nonparticipating royalty interest that he held as trustee for 

the Underwoods (which we will refer to as the “trustee interest”). 

The Underwoods divorced in 1983. Under the terms of their property 

settlement agreement in the divorce, Shirley Ann Underwood received the royalty 

interest purchased and held by Smith as trustee for the Underwoods. As noted 

previously, Shirley Ann Underwood later became Shirley Ann Conaway. 

In 1985, Smith executed a royalty deed in favor of Conaway. The royalty 

deed provided in relevant part as follows:

. . . R.J. SMITH, JR., of 3303 Lee Parkway, Dallas, Texas 75217 

hereinafter called Grantor (whether one or more) for and in 

consideration of the sum of: TEN ($10.00) DOLLARS cash in hand 

paid by SHIRLEY ANN CONAWAY hereinafter called Grantee, the 

receipt of which is hereby acknowledged, have granted, sold, conveyed, 

assigned and delivered . . . unto the said grantee an undivided 

***35/1920*** [royalty] interest [to the property in Glasscock County 

that is the subject of this appeal].

The royalty deed made no specific reference to either the individual interest or the 

trustee interest. Appellees assert, and Appellant agrees, that as written, Smith 

conveyed his individual interest to Conaway because he did not convey his interest 

in his capacity as trustee.

Appellant contends that Smith mistakenly conveyed his individual interest in 

the 1985 royalty deed. She asserts that Smith’s error began because of an “incorrect 

release of lien” in 1984 by First Financial Bank of Midland’s successor-in-interest. 

Appellant contends that the 1984 release incorrectly released Smith’s individual 

interest rather than the trustee interest. Appellant later obtained a release from the 

FDIC in 2017 for the trustee interest, and she contends that this act vested the trustee 

interest into Smith’s Estate.
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Appellant also executed a document entitled “Affidavit of Clarification” in 

2017 that she filed in the public deed records. She executed the document as the 

independent executrix of Smith’s estate. As affiant, she asserted that she “does 

hereby make, confess, decree and swear, under oath, FOR AND IN 

CONSIDERATION of the sum of TEN U.S. DOLLARS ($10.00) cash, and other 

good and valuable consideration in hand . . . so that the truth and veracity of the 

[contents of the affidavit] could be made.” Under the heading 

“CLARIFICATION:”, she stated that “[t]he ‘problems’ started with what is 

believed to be an incorrect RELEASE OF LIEN.” Appellant further stated that “[i]t 

is now clear that R. J. Smith, Jr. SHOULD have conveyed to Shirley Ann Conaway, 

only ‘As TRUSTEE,’ and not individually.” She concluded the affidavit with the 

following statement: “This is what all of the documentation would seem to indicate, 

and what the LANDMEN have proved up.”

Appellant did not base the affidavit of clarification on her personal knowledge 

of the 1985 mineral deed from Smith to Conaway. Instead, she based it on a review 

of the documents surrounding the transaction and reports by landmen that had 

evaluated the transactions. Additionally, Appellant noted in her pleadings that 

Appellees refused to participate in the execution of the Affidavit of Clarification.

Appellant filed suit against Appellees in 2018. She primarily alleged a cause 

of action for trespass to try title. She supported the action for trespass to try title on 

the matters discussed above—the transactions and documents concerning the royalty 

interest and her affidavit of clarification. Appellant also asserted claims for slander 

of title, intentional misrepresentation, unjust enrichment, assumpsit, and equitable 

relief. Appellant also asserted an alternative claim for declaratory judgment seeking 

a declaration of her rights under the relevant documents.

Appellees filed a motion for partial summary judgment on Appellant’s action

for trespass to try title. They asserted that Appellant had no evidence to support her
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claim for trespass to try title. Appellees also asserted that they had superior title to 

the individual interest as a matter of law and that Appellant lacked standing to assert 

an action for trespass to try title. In response, Appellant filed a motion for partial

summary judgment on the title issue in addition to her response to Appellees’ motion 

for summary judgment. Appellant asserted that Appellees had no evidence that 

Conaway paid any consideration for the purchase of the individual interest in 

connection with the 1985 royalty deed.

The trial court granted Appellees’ motion for partial summary judgment on 

Appellant’s action for trespass to try title. The trial court also denied Appellant’s 

motion for summary judgment on the same issue. Afterwards, Appellees filed 

another motion for summary judgment on Appellant’s remaining claims. Appellees 

contended in the motion that Appellant’s remaining claims were rendered moot by 

the trial court’s determination on the action for trespass to try title. Appellees also 

asserted that Appellant had no evidence to support her remaining claims. Appellant 

responded with her own motion for summary judgment wherein she again asserted 

her contention that there is no evidence that Conaway paid consideration for the 

1985 royalty deed. The trial court granted Appellees’ second motion for summary 

judgment, denied Appellant’s second motion for summary judgment, and entered 

final judgment in favor of Appellees. 

Analysis

In her fifth issue, Appellant asserts that the trial court erred by denying her 

objections to Appellees’ summary judgment evidence. Appellant objected to the 

summary judgment evidence attached to Appellees’ initial motion for partial 

summary judgment on the basis that all of Appellees’ summary judgment evidence 

was:

irrelevant, immaterial, not properly authenticated [especially all of the 

documents regarding the title and, containing hearsay, not based on 
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personal knowledge, being factual matters from Defendants’ attorney, 

violates the best-evidence rule, violates the dead man’s statute, 

submitted without a certified copy of the Glasscock County, Texas 

Clerk as a business record, not based on actual knowledge and belief, 

and does not qualify as [an] Affidavit properly sworn to[.]

Appellees’ summary judgment evidence for the initial motion for partial summary 

judgment on the action for trespass to try title consisted of many of the same 

documents that Appellant filed, including the 1975 royalty deed, the stipulation and 

agreement between Smith and the Underwoods, the 1977 assignment of the trust 

interest from Smith individually to Smith as trustee, the property settlement 

agreement, the 1985 royalty deed, and two releases of lien. Appellees also included 

the wills of Conaway and her surviving husband, Billy R. Conaway, and a 

distribution deed involving a portion of Conaway’s interest. Finally, Appellees 

attached a copy of an Order Terminating Trust entered by the 385th District Court 

of Midland County in February 2018, which was filed of record in the deed records 

of Glasscock County on February 27, 2018.

Appellant repeated the same objections to Appellees’ subsequent motion for 

summary judgment on the remaining claims. The only evidence attached to 

Appellees’ subsequent motion was a copy of the trial court’s order granting the initial 

motion for partial summary judgment on the action for trespass to try title.

We review the trial court’s grant of summary judgment de novo. Lujan v. 

Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins. 

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). However, a trial court’s decision to 

exclude or admit summary judgment evidence is reviewed for an abuse of discretion. 

Id. (citing Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017)). 

The rules of error preservation apply to issues involving summary judgment 

evidence. FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 

837 (Tex. 2022) (citing Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 163–64 (Tex. 
7

2018)). In order to complain about a defect in summary judgment evidence, the 

appellant must timely object in the trial court and obtain a ruling from the trial court 

on the objection. Id. Appellant does not cite a ruling in the appellate record on her 

objections to Appellees’ summary judgment evidence. Instead, Appellant cites an 

e-mail from the trial court that Appellant attached to her appellate brief as an 

appendix. 

An appellate court is required to consider a case solely on the appellate record, 

and it cannot consider documents attached to briefs as exhibits or appendices. 

Robb v. Horizon Cmtys. Improvement Ass’n, 417 S.W.3d 585, 589 (Tex. App.—El 

Paso 2013, no pet.); Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 

(Tex. App.—Houston [14th Dist.] 2003, no pet.); Brown v. McGonagill, 940 S.W.2d 

178, 179 (Tex. App.—San Antonio 1996, no writ); see WorldPeace v. Comm’n for 

Lawyer Discipline, 183 S.W.3d 451, 465 n.23 (Tex. App.—Houston [14th Dist.] 

2005, pet. denied) (“[W]e cannot consider documents attached as appendices to 

briefs and must consider a case based solely upon the [appellate] record filed.”). 

Attaching documents to briefs as exhibits or appendices does not make them part of 

the appellate record. Robb, 417 S.W.3d at 589. 

Additionally, “[l]etters to counsel are not the kind of documents that constitute 

a judgment, decision or order from which an appeal may be taken.” Goff v. 

Tuchscherer, 627 S.W.2d 397, 398–99 (Tex. 1982). The e-mail from the trial court 

upon which Appellant relies was not filed of record. See Genesis Producing Co., 

L.P. v. Smith Big Oil Corp., 454 S.W.3d 655, 660 (Tex. App.—Houston [14th Dist.] 

2014, no pet.). While the trial court’s e-mail states that Appellant’s objections to 

Appellees’ summary judgment “are overruled,” the e-mail further states that 

Appellant’s attorneys “can efile an order as to my ruling on the evidentiary 

objections if you wish to do so.” A statement to the effect that another writing is 

anticipated indicates that the trial court did not intend for the letter to be an 
8

appealable ruling. In re Johnson, 557 S.W.3d 740, 742–44 (Tex. App.—Waco 2018, 

orig. proceeding) (discussing Goff and Perdue v. Patten Corp., 142 S.W.3d 596 

(Tex. App.—Austin 2004, no pet.)). Thus, the e-mail from the trial court to the 

attorneys in the case, announcing its intended ruling, did not constitute an appealable 

ruling on Appellant’s objections to Appellees’ summary judgment evidence. 

Moreover, to the extent that the trial court may have overruled Appellant’s 

objections to the summary judgment evidence, this ruling did not constitute an abuse 

of discretion. See Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 

(Tex. 2016) (A trial court’s evidentiary rulings are reviewed for abuse of discretion.). 

An abuse of discretion exists only when the trial court’s decision is made without 

reference to any guiding rules and principles. U-Haul Int’l, Inc. v. Waldrip, 380 

S.W.3d 118, 132 (Tex. 2012). As noted previously, most of Appellees’ summary 

judgment evidence items were documents that Appellant also filed as summary 

judgment evidence. Other documents filed by Appellees consisted of copies of filed 

wills and a deed filed in the public deed records. These documents established 

Appellees’ status as Conaway’s successors-in-interest. Finally, Appellees included 

as summary judgment evidence a copy of a judgment from a district court in Midland 

County, which had been filed in Glasscock County, and a copy of the trial court’s 

previous order ruling on the initial motion for partial summary judgment. We 

conclude that the trial court did not abuse its discretion by overruling Appellant’s 

objection to Appellees’ summary judgment evidence. We overrule Appellant’s fifth 

issue.

In her first issue, Appellant asserts that the trial court erred by granting 

Appellees’ motion for partial summary judgment on her claim for trespass to try 

title. She contends that her summary judgment evidence showed that Smith only 

intended to convey the trust interest in the 1985 royalty deed. She also asserts that 

there was a genuine issue of material fact on the issue of mistake.
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When the trial court’s order does not specify the grounds for its summary 

judgment, we will affirm the summary judgment if any of the theories are 

meritorious. Knott, 128 S.W.3d at 216. Generally, if a party moves for summary 

judgment on both traditional and no-evidence grounds, we first consider the noevidence motion. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 

39, 45 (Tex. 2017).

After an adequate time for discovery, a party may move for summary 

judgment on the ground that there is no evidence of one or more essential elements 

of a claim or defense on which an adverse party would have the burden of proof at 

trial. TEX. R. CIV. P. 166a(i). We review a no-evidence motion for summary 

judgment under the same legal sufficiency standard as a directed verdict. 

Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Under this 

standard, the nonmovant has the burden to produce more than a scintilla of evidence 

to support each challenged element of its claims. Id. Evidence is no more than a 

scintilla if it is “so weak as to do no more than create a mere surmise or suspicion” 

of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting 

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

A party moving for traditional summary judgment bears the burden of proving 

that there is no genuine issue of material fact and that it is entitled to judgment as a 

matter of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 

S.W.3d 254, 257 (Tex. 2017). To be entitled to a traditional summary judgment, a 

defendant must conclusively negate at least one essential element of the cause of 

action being asserted or conclusively establish each element of an affirmative 

defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). 

Evidence is conclusive only if reasonable people could not differ in their 

conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the 

movant initially establishes a right to summary judgment on the issues expressly 
10

presented in the motion, then the burden shifts to the nonmovant to present to the 

trial court any issues or evidence that would preclude summary judgment. See City 

of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).

When, as here, the parties file cross-motions for summary judgment and the 

trial court grants one party’s motion and denies the other’s, we review the summary 

judgment evidence presented by both parties and determine all the issues presented.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing 

both traditional and no-evidence summary judgments, we consider 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. Merriman, 

407 S.W.3d at 248; City of Keller, 168 S.W.3d at 824.

As a preliminary matter, we will address Appellees’ contention that Appellant 

did have not standing to assert a claim for trespass to try title. In order for a court to 

have subject-matter jurisdiction, the plaintiff must have standing to sue. Sw. Elec. 

Power Co. v. Lynch, 595 S.W.3d 678, 683 (Tex. 2020). The doctrine of standing 

stems from the prohibition against advisory opinions, which in turn is rooted in the 

separation-of-powers doctrine. Patterson v. Planned Parenthood of Houston & Se. 

Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). Standing is a component of subjectmatter jurisdiction and focuses on whether a party has a sufficient relationship with 

the lawsuit to have a justiciable interest in its outcome. Austin Nursing Ctr., Inc. v. 

Lovato, 171 S.W.3d 845, 848 (Tex. 2005). If a party lacks standing, the trial court 

lacks subject-matter jurisdiction to hear the case. Id. at 849.

Standing is a matter that concerns the jurisdiction of a court to afford the relief 

requested, rather than the right of a plaintiff to maintain a suit for the relief requested. 

Sneed v. Webre, 465 S.W.3d 169, 186 (Tex. 2015) (citing Dubai Petroleum Co. v. 

Kazi, 12 S.W.3d 71, 76–77 (Tex. 2000)). “[A] plaintiff does not lack standing in its 

proper, jurisdictional sense ‘simply because he cannot prevail on the merits of his 
11

claim; he lacks standing [when] his claim of injury is too slight for a court to afford 

redress.’” Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 774 (Tex. 2020) (quoting 

Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484–85 (Tex. 2018);

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 305 (Tex. 2008)). 

Appellant’s claim involves a non-participating royalty interest, a 

nonpossessory interest. See Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 

192 (Tex. 2003). Appellees assert that Appellant’s claim is not suitable for 

resolution in an action for trespass to try title. Appellees are correct in making this 

assertion. Because trespass to try title is a possessory remedy, a nonpossessory 

interest such as a royalty interest is not suitable for an action for trespass to try title. 

Richmond v. Wells, 395 S.W.3d 262, 266–67 (Tex. App.—Eastland 2012, no pet.);

Glover v. Union Pac. R. Co., 187 S.W.3d 201, 210–11 (Tex. App.—Texarkana 2006, 

pet. denied); T-Vestco Litt-Vada v. Lu-Cal One Oil Co., 651 S.W.2d 284, 291 (Tex. 

App.—Austin 1983, writ re’d n.r.e.). However, Appellees’ contention that an action 

for trespass to try title is not available to Appellant does not address standing in the 

jurisdictional sense,

1 but rather it addresses the merits of Appellant’s cause of action. 

See Pike, 610 S.W.3d at 774; Sneed, 465 S.W.3d at 186. Accordingly, Appellees’ 

standing contention is incorrect, and it does not serve as a valid basis for the trial 

court’s summary judgment.

Irrespective of the inapplicability of an action for trespass to try title in this 

case, the initial motions for summary judgment addressed each party’s claims of title 

to the individual interest, and Appellant’s first issue challenges the trial court’s 

determination of the question of title. Simply put, Appellees assert that, by virtue of 

the terms of the 1985 royalty deed, they have title to the individual interest.

1

As a practical matter, we note that a plaintiff has standing for an action for trespass to try title 

when he asserts an interest in the land. See Ramsey v. Grizzle, 313 S.W.3d 498, 505 (Tex. App.—Texarkana 

2010, no pet.). 
12

Appellees contend that the other documents and the affidavit of clarification cannot 

be used to vary the terms of the 1985 royalty deed. Conversely, Appellant contends 

that the surrounding documents and the affidavit of clarification establish that Smith 

only intended to convey the trust interest in the 1985 royalty deed.

We begin our analysis with the 1985 royalty deed because the nature of the 

interest conveyed by a deed is ascertained from the language of the deed itself. See 

Endeavor Energy Res., LP v. Trudy Jane Anderson Testamentary Tr., by & Through 

Anderson, No. 11-20-00263-CV, 2022 WL 969542, at *8–9 (Tex. App.—Eastland 

Mar. 31, 2022, no pet. h.) (citing Lockhart as Tr. Of Lockhart Family Bypass Tr. v. 

Chisos Minerals, LLC, 621 S.W.3d 89 (Tex. App.—El Paso 2021, pet. denied); West 

17th Res., LLC v. Pawelek, 482 S.W.3d 690, 694–95 (Tex. App.—San Antonio 

2015, pet. denied)). “As with any deed or contract, our task is to determine and 

enforce the parties’ intent as expressed within the four corners of the written 

agreement. Piranha Partners v. Neuhoff, 596 S.W.3d 740, 743 (Tex. 2020) (citing 

Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 117–18 (Tex. 

2018)). We must first determine whether the deed is ambiguous, considering its 

language as a whole in light of well-settled construction principles and the relevant 

surrounding circumstances. Id. (citing URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 

763 (Tex. 2018); First Bank v. Brumitt, 519 S.W.3d 95, 109 (Tex. 2017)). Whether 

a deed or contract is ambiguous is a question of law that we decide de novo. URI, 

543 S.W.3d at 763. The fact that the parties interpret the document differently does 

not make it ambiguous—it is only ambiguous if each party’s interpretation is 

reasonable. Piranha Partners, 596 S.W.3d 743–44 (citing URI, 543 S.W.3d at 763, 

765).

An appellate court may only construe a deed as a matter of law if it is 

unambiguous. ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 874 (Tex. 2018) 

(citing J. Hiram Moore, Ltd. v. Greer, 172 S.W.3d 609, 613 (Tex. 2005)). If a deed 
13

is worded in such a way that it can be given a certain or definite legal meaning, then 

the deed is not ambiguous. Endeavor Energy Res., L.P. v. Discovery Operating, 

Inc., 554 S.W.3d 586, 601 (Tex. 2018). 

Our task when construing an unambiguous deed is to “ascertain the intent of 

the parties from the language in the deed” as expressed within the “four corners” of 

the instrument. Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). The four-corners 

rule requires the court to ascertain the intent of the parties solely from all of the 

language in the deed. Wenske v. Ealy, 521 S.W.3d 791, 794 (Tex. 2017) (citing 

Luckel, 819 S.W.2d at 461). The intent that governs is not the intent that the parties 

meant but failed to express but, rather, the intent that is expressed. Luckel, 819 

S.W.2d at 462. 

The 1985 royalty deed is a straightforward instrument prepared on a 

preprinted form. We have quoted the operative provision above. Simply put, Smith 

conveyed a 35/1920 nonparticipating royalty interest to Conaway. He executed the 

1985 royalty deed at a time when he owned two 35/1920 nonparticipating royalty 

interests—one that he owned individually and one that he held as trustee for 

Conaway. The 1985 royalty deed does not specify which of the two interests he was 

conveying, and it is silent as to the capacity in which Smith conveyed the interest to 

Conaway. In the absence in the deed of the capacity by which Smith conveyed the 

interest or a further description of the particular interest conveyed, the four corners 

of the 1985 royalty deed indicate that Smith conveyed his individual interest.

Appellant’s lawsuit is an attempt to change the effect of the express language 

in the 1985 royalty deed. She primarily contends that summary judgment on the title 

question was improper because she either established that the 1985 royalty deed 

mistakenly conveyed the individual interest or raised a fact question on the issue of 

mistake. She relies upon the circumstances surrounding the 1985 royalty deed and

her affidavit of clarification to establish her claims. 
14

We will first examine the surrounding circumstances as reflected by the other 

conveyances and documents upon which Appellant relies. In construing a contract 

or deed, a “[c]onsideration of the surrounding circumstances is limited by the parol 

evidence rule, which prohibits a party to an integrated written contract from 

presenting extrinsic evidence ‘for the purpose of creating an ambiguity or to give the 

contract a meaning different from that which its language imports.’” URI, Inc., 543 

S.W.3d at 764 (first citing Hous. Expl. Co. v. Wellington Underwriting Agencies, 

Ltd., 352 S.W.3d 462, 469 (Tex. 2011); then quoting Cmty. Health Sys. Prof’l Servs. 

Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017)). Appellant does not rely on the 

surrounding circumstances of the transaction to either create an ambiguity or to 

explain an ambiguity in the 1985 royalty deed. See id. at 764–65. Instead, she relies 

on the surrounding circumstances to give the royalty deed a meaning different than 

what it expresses. See id. 

The parol evidence rule does not bar extrinsic proof of mutual mistake.

Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990) (citing Santos v. Mid–Continent 

Refrigerator Co., 471 S.W.2d 568, 569 (Tex. 1971) (per curiam)). “Pursuant to the 

doctrine of mutual mistake, when parties to an agreement have contracted under a 

misconception or ignorance of a material fact, the agreement will be avoided.” Id. 

“The question of mutual mistake is determined not by self-serving subjective 

statements of the parties’ intent, which would necessitate trial to a jury in all such 

cases, but rather solely by objective circumstances surrounding execution of the 

[contract].” Id. 

A mutual mistake of fact occurs when the parties to an agreement have a 

common intention, but the written contract does not reflect the intention of the 

parties due to a mutual mistake. Smith-Gilbard v. Perry, 332 S.W.3d 709, 713 (Tex. 

App.—Dallas 2011, no pet.) (citing Johnson v. Conner, 260 S.W.3d 575, 581 (Tex.

App.—Tyler 2008, no pet.); N. Nat. Gas v. Chisos Joint Venture I, 142 S.W.3d 447, 
15

456 (Tex. App.—El Paso 2004, no pet.)). The claimant must show “that the 

contracting parties were acting under the same misunderstanding of the same 

material fact.” Johnson, 260 S.W.3d at 581 (emphasis added). A mutual mistake 

regarding a material fact is grounds for avoiding a contract, but the mistake must be 

mutual rather than unilateral. Smith-Gilbard, 332 S.W.3d at 713 (citing Holley v. 

Grigg, 65 S.W.3d 289, 295 (Tex. App.—Eastland 2001, no pet.)). A unilateral 

mistake does not provide grounds for relief even though it results in inequity to one 

of the parties. Id at 714 (citing Holley, 65 S.W.3d at 295).

When a party alleges that, by reason of mutual mistake, an agreement does 

not express the real intentions of the parties, extrinsic evidence is admissible to show 

the real agreement. Smith-Gilbard, 332 S.W.3d at 713; Johnson, 260 S.W.3d at 581. 

“For a mutual mistake to exist, there must be the same mistaken belief or assumption 

in the minds of the grantors and grantees named in the deed.” Johnson, 260 S.W.3d 

at 582 (emphasis added). 

When seeking relief from a mutual mistake, the party seeking reformation 

must also prove what the true agreement was, but its case is not made by proof that 

there was an agreement which is at variance with the writing. Smith-Gilbard, 332 

S.W.3d at 714; Johnson, 260 S.W.3d at 581. “It must go further and establish that 

the terms or provisions of the writing that differ from the true agreement made were 

placed in the instrument by mutual mistake.” Smith-Gilbard, 332 S.W.3d at 714; 

accord Johnson, 260 S.W.3d at 581. 

The surrounding circumstances upon which Appellant primarily relies are 

(1) that Smith held the trustee interest on behalf of the Underwoods by express 

agreement and (2) that the successor-in-interest to First Financial Bank of Midland 

purportedly released the wrong interest in 1984. However, there is no evidence that 

specifically links these events to the 1985 royalty deed. There is no evidence of any 

oral discussions or written communications between Smith and Conaway with 
16

respect to the 1985 royalty deed. Instead, Appellant’s reliance on the surrounding 

circumstances is based on an assumption that Smith must have intended to convey 

the trustee interest when he executed the 1985 royalty deed.

Appellant also contends that the 2017 affidavit of clarification is an instrument 

that was effective to change the interest conveyed by the 1985 royalty deed. She 

relies on Sections 5.028 and 5.030 of the Correction Instrument statutes to support 

this contention. See TEX. PROP. CODE ANN. §§ 5.028, .030 (West 2021). We 

recently addressed the Correction Instrument statutes in Endeavor Energy 

Resources. See 2022 WL 969542, at *5. “These statutes permit the use of correction 

instruments to make both material and nonmaterial corrections under certain 

circumstances, including the conveyance of additional, separate properties[.]” Id.

Section 5.028 governs nonmaterial corrections of deeds. PROP. § 5.028. It 

permits a single party to unilaterally execute a correction instrument to correct a 

nonmaterial error. See id. Conversely, Section 5.029 governs material corrections. 

Id. § 5.029. Unlike a nonmaterial corrections governed by Section 5.028, Section 

5.029 requires both parties to the original instrument of conveyance “or the parties’ 

heirs, successors, or assigns as applicable” to execute a correction instrument in 

order for it to be a valid correction instrument. Id.; see Endeavor Energy Res., 2022 

WL 969542, at *5. 

Appellant’s reliance on Section 5.028 is misplaced because the correction that 

Appellant sought to make was a material correction. In this regard, Appellant sought 

to change the interest conveyed by the 1985 royalty deed. Accordingly, a correction 

instrument of this nature would be governed by Section 5.029 and it would require 

the execution by someone on behalf of Conaway to be effective as a corrective 

instrument. PROP. § 5.029; see Endeavor Energy Res., 2022 WL 969542, at *5. 

Thus, as a document filed in the public deed records, Appellant’s affidavit of 

clarification had no effect on the interest conveyed by the 1985 royalty deed.
17

In an effort to show mutual mistake, Appellant also relies on the affidavit of 

clarification as summary judgment evidence. We have previously noted that the 

affidavit of clarification is not based on Appellant’s personal knowledge of the 

conveyance reflected in the 1985 royalty deed, but rather it is based on her review 

of records and a review of the same records performed by others. 

Appellant also filed an affidavit executed by David Lawrence, a title attorney.

Lawrence’s affidavit does not state or otherwise indicate that it is based on his 

personal knowledge. To the contrary, he stated that his affidavit is based on his 

review of the relevant documents. Specifically, he stated that “[f]rom my review of 

the above described documents it appears that the following facts exists, or may 

reasonably be inferred based upon the sequence and time of same.” He opined that 

his review of the documents indicates that Smith was mistaken about the interest that 

he conveyed in the 1985 royalty deed. Lawrence speculated that “[Smith] was 

apparently operating without the benefit of counsel or a bona fide Title Company, 

and he was probably trying to assist [Conaway] in clearing her title to the [trust] 

interest.” He further stated that there is no evidence that Conaway conveyed 

“independent consideration” for the purchase of the individual interest.

An affidavit that fails to disclose that the affiant has personal knowledge of 

the facts or that shows “no basis for personal knowledge is legally insufficient” and 

constitutes a defect of substance that may be raised for first time on appeal. Kerlin v. 

Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam) (holding that an affidavit was

legally insufficient because “nothing in the affidavit affirmatively show[ed] how 

[affiant] could possibly have personal knowledge about events occurring in the 

1840s”); see Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 666 (Tex. 2010)

(“An affidavit not based on personal knowledge is legally insufficient.” (citing

Kerlin, 274 S.W.3d at 668)); Wash. DC Party Shuttle, LLC v. IGuide Tours, LLC, 

406 S.W.3d 723, 733 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (noting 
18

that an affidavit that fails to disclose that the affiant has personal knowledge of facts 

asserted suffers from a substantive defect). 

Neither Appellant’s affidavit of clarification nor Lawrence’s affidavit 

indicates that either of them has any personal knowledge of the conveyance reflected 

by the 1985 royalty deed. Instead, these affidavits are based on a review of 

documents—a review that any person could provide—as opposed to a person with 

personal knowledge of the relevant facts surrounding the 1985 royalty deed. 

Furthermore, Appellant’s affidavit and Lawrence’s affidavit are little more than an 

effort to speculate about the interest that Smith intended to convey to Conaway by 

way of the 1985 royalty deed. An affiant’s subjective belief about facts is legally 

insufficient as evidence. Threlkeld v. Urech, 329 S.W.3d 84, 89 (Tex. App.—Dallas 

2010, pet. denied) (citing Kerlin, 274 S.W.3d at 667); see Thompson & Knight 

LLP v. Patriot Exp., LLC, 444 S.W.3d 157, 162 (Tex. App.—Dallas 2014, no pet.)

(Expert testimony that is speculative is legally insufficient to prove the facts testified 

to.). Thus, Appellant’s affidavit and Lawrence’s affidavit are insufficient to create 

a genuine issue of material fact either on what interest Smith intended to convey or

on mutual mistake.

Moreover, Smith and Conaway were the original grantor and grantee to the 

1985 royalty deed. Smith died in 2005 and Conaway died in 2010. The record is 

silent regarding either of their subjective thoughts or impressions about the 1985 

royalty deed. For example, there is no reference, hearsay or otherwise, to any 

conversation between Smith and Conaway or a verbal agreement between the two 

that preceded the 1985 royalty deed with respect to its purpose and intent. 

Additionally, Appellant’s summary judgment evidence is only directed toward 

Smith’s purported thoughts. The record is devoid of any reference to Conaway’s 

understanding of the 1985 royalty deed—a matter that would be essential to mutual 

mistake. 
19

Finally, we address Appellant’s contention that Appellees have no evidence 

that Conaway paid consideration for the individual interest conveyed by the 1985 

royalty deed. A mere lack of consideration is not enough to void a deed. Watson v. 

Tipton, 274 S.W.3d 791, 801 (Tex. App.—Fort Worth 2008, pet. denied); Uriarte v. 

Petro, 606 S.W.2d 22, 24 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). 

As noted by Professor Leopold:

Consideration is not necessary to the validity of a deed conveying Texas 

land. When an instrument conforms to the statutory requirements and 

purports to be an executed conveyance of land, the delivery of such 

instrument has the effect, as between the parties, of vesting title in the 

grantee in all respects, the same when there is no consideration for the 

conveyance as when there is one.

Aloysius A. Leopold, 5 Texas Practice Series: Land Titles And Title Examination

§ 33.14 (3d ed. 2021) (footnotes omitted) (Validity of Texas deed without 

consideration). Additionally, the 1985 royalty deed recites in the body both that 

Conaway paid consideration and that Smith acknowledged receipt of it. Recitals of 

consideration in a deed are prima facie evidence of the amount and payment of 

consideration. See Watson, 274 S.W.3d at 802. Furthermore, Smith executed an 

acknowledgment for the 1985 royalty deed before a notary public wherein Smith 

acknowledged that he executed the deed for “the purpose and consideration therein 

expressed.” “An acknowledgment on a deed is prima facie evidence that the grantor 

executed the deed for the consideration expressed in the deed.” Id. (citing Bell v. 

Sharif–Munir–Davidson Dev. Corp., 738 S.W.2d 326, 330 (Tex. App.—Dallas 

1987, writ denied); see TEX. CIV. PRAC. & REM. CODE ANN. § 121.006(b)(1) (West 

Supp. 2021) (defining “acknowledged” as meaning “that the person personally 

appeared before the officer taking the acknowledgment and acknowledged executing 

the instrument for the purposes and consideration expressed in it”).
20

As set out above, Appellant has no evidence of title to the individual interest 

conveyed to Conaway by the 1985 royalty deed. She also has no evidence of a 

mutual mistake by Smith and Conaway. Thus, the evidence conclusively establishes 

that Appellees have title to the individual interest. We overrule Appellant’s first 

issue.

In her second issue, Appellant contends that the trial court erred by granting 

Appellees’ second motion for summary judgment on Appellant’s remaining claims. 

With one exception, Appellant’s second issue is premised on the success of her first 

issue on the question of title. The one exception pertains to her claim of unjust 

enrichment. She contends that, even if we affirm the title question on the individual 

interest in favor of Appellees, she still has a claim for unjust enrichment because 

there is no evidence that Conaway paid any consideration for the individual interest. 

However, as set out above, the language of the 1985 royalty deed and the 

acknowledgment signed by Smith preclude a claim that no consideration was paid. 

Accordingly, our disposition of Appellant’s first issue is also dispositive of 

Appellant’s second issue. We overrule Appellant’s second issue.

Appellant asserts in her third issue that the trial court erred by granting 

summary judgment on causes of action that were not the subject of Appellees’ 

second motion for summary judgment. She contends that, although the title of 

Appellees’ second motion for summary judgment addressed “Plaintiff’s remaining 

claims,” the body of the motion did not address her claims for a declaratory judgment 

or equitable relief. Appellant’s characterization of the second motion for summary 

judgment is incorrect. Appellees sought a traditional motion for summary judgment 

on Appellant’s remaining claims on the premise that the trial court’s determination 

of the title issue precluded Appellant’s remaining claims because they were all based 

on her claim that she possessed title to the individual interest. Appellees then 

asserted an alternative no-evidence ground with respect to Appellant’s claims for 
21

slander of title, intentional misrepresentation, fraud, unjust enrichment, and 

assumpsit. 

As noted previously, Appellees’ initial motion for summary judgment 

resolved the title question with respect to Appellant’s claim to the individual interest. 

This title determination was dispositive of Appellant’s remaining claims because 

they were all based on her efforts to seek title to the individual interest and seek 

damages against Appellees for their adverse claim to the title to the individual 

interest. We overrule Appellant’s third issue.

In her fourth issue, Appellant contends that the trial court erred by denying 

her countermotions for summary judgment. She contends that she conclusively 

established legal title to the individual interest by virtue of the surrounding 

circumstances and her affidavit of clarification. We have already rejected these 

contentions in our resolution of Appellant’s first issue. We overrule Appellant’s 

fourth issue. 

Finally, Appellant included an unnumbered, alternative issue for our 

consideration. Appellant asserts that if the 1985 royalty deed conveyed the 

individual interest to Conaway, then Appellees should be ordered as a matter of 

equity to convey the trustee interest to Appellant. Appellant acknowledges that the 

Midland County judgment awarded the trustee interest to Appellees. She contends 

in her brief that the Midland County action was instituted by Appellees without her 

participation and that she has filed a bill of review to challenge the Midland County 

judgment. 

We note that Appellant later filed a notice of appeal in the Midland County 

action. The appeal was docketed in this court as Cause No. 11-21-00019-CV, styled

Sandra Smith Brown, Independent Executrix of the Estate of R.J. Smith, Jr., 

Deceased v. William Charles Underwood, Jan Ann Underwood Pinborough, and 

Rosanne Underwood Gerrard. However, we dismissed the appeal because
22

Appellant filed an untimely notice of appeal. See Brown v. Underwood, No. 11-21-

00019-CV, 2021 WL 924942, at *1 (Tex. App.—Eastland Mar. 11, 2021, no pet.)

(mem. op.). Because the judgment from Midland County is a final judgment that 

awarded title to the trustee interest to Appellees, it precludes the alternative relief 

that Appellant seeks.

This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY

CHIEF JUSTICE

May 26, 2022

Panel consists of: Bailey, C.J., 

Wright, S.C.J.,

2 and Marion, S.C.J.3

Trotter, J., and Williams, J., not participating.

2

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.

3

Sandee Bryan Marion, Senior Chief Justice (Retired), Court of Appeals, 4th District of Texas at 

San Antonio, sitting by assignment.