### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00221- CV

Teri Road P artner s, Ltd.; Beinh orn P artner s Limite d Par tnership; Teri Road Housi ng, Ltd.; Blazer Re alty, L.L.C.; Blazer R esidential In c.; and Blazer Land, L.L .C., Appellants

v. 4800 F reidrich Lane L.L.C., App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-0 8-0 0348 9, H ONO RAB LE SCO TT H . JENK INS, J UDGE P RESIDING

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

4800 Fr eidrich L ane, L .L .C. (“the Purchase r”) sued Teri Road Partners, L td.; Be inhorn P ar t n er s L imited Partnership; Teri Road Housing , L td.; Bla zer Realty , L .L .C.; Bla zer Residential I nc.; and Bla zer L and, L .L .C. (collec tively , “Te ri Road”) for trespass and trespass to try ti t l e, an d al so soug ht a decla ration reg arding owner ship of a portion of a 2.72-ac re trac t of land. After a bench t rial, t he trial court ruled that the P urcha ser owned t he property , that Ter i Road had

no license or ease ment over the proper ty , and that the Purchase r should rec over attorney s’ fee s. On
appea l, Teri Road asser

ts in three issues that: (1) the Purchase r’s deed did not convey to the Purchase r the land in dispute, (2) the Purchase r fa iled to defe at a pr esumption, arising out of prior possession, that Teri Road owne d the disputed land, and ( 3) the for m of the trial cour

t’s judgme nt was improper . We will affirm.F ACTUAL AND P ROCEDURAL BACK GR OUND I n 2007 the Boa

rd of Reg ents of the University of Texas executed a Special Warranty Dee d convey

ing approximately 8.3 acr es of land to the Purchase r. The deed included the following descr iption of the proper

ty convey ed: “B eing 8.377 acr es of land, more or less, out of the Santiag o Del Valle Gra

nt, Austin, Travis Count y , Texas, being more particularly descr ibed on t h e attache d
Ex hibi t A i n co rp o ra ted here in by ref ere nce.” Ex hibit A to the deed contained a leg al descr iption identify ing the proper

ty by field notes followed by a metes and bounds descr iption. The field notes descr ibed the 8.3-ac re trac t as co n s i s t i ng of a “2.726 acr e trac t being all of L ot 2 Bloc k A, Woodway Square Subdivis ion” and “5.65 acr es of land out of the Santiag o Del Va lle Gra nt, Abstrac t No. 24.” The metes and bounds descr iption identified the location of the southern border of L ot 2, Bloc k A of the Woodway Square Subdivision (here afte r “L ot 2”) by stating the bear ings and distances of a series of mag netic nails set betwee n an iron rod marking the southeast corne r of the L ot 2 and a mag netic nail mar king the southwest corne r of L ot 2. The de ed also c ontained the f ollowing pr ovision:

Rese rvations from and E xceptions to Conveyance and Warranty T h er e i s rese rved from this convey ance all the oil, g as and other minerals in and u n d er the Property owned by the Gra ntor, if any , which are expressly rese rved to Gra ntor. This convey ance is further su b j ec t to all ease ments, rig hts-of-wa y and presc riptive rig hts, whether of rec ord or not, all prese ntly rec orded matters that aff ect the Property , and those items listed on the attac hed Exhibi t B.

Ex hibit B to t h e d ee d , the heading for which is “Permitted Ex ceptions,” is a list identify ing the following ten items:

21. Plat and Restrictive Co v e n a n ts , a s r e c o r d e d in D o cument #20030081, Offic ial Public Records of Tr avis County , Texas. 2. Restrictive Coven ant Reg arding Unified Deve lopment, as rec orded in Document #2003035097, Of ficial Public Recor ds of Travis County , Texas. 3. Title to all the coal, lignite, oil, g as and other minerals in, under and that may be produce d from the land toge ther with all rig hts, privileg es and immunit ies rela ting ther eto. 4. One- six t eenth (1/16th) of all the oil, g as and other minerals, the roy alties, bonuses, renta ls, and all other rig hts in connec tion with the same are excepted here from, as set forth in instrument rec orded in [t he Offic ial Public Records of Travis County ; T exas] ; subject to 50% convey ance deed rec orded in [the Offic ial Public Records of Tr avis County , Texas]

. 5. Pipeline ease ment g rante d to United Gas Pipeline as rec orded in [t he Travis County Dee d Records]. 6. A 5’ wide elec tric and telephone ease ment g rante d to the City o f Austin as rec orded in [the Travis County Dee d Records]. 7. Notice to Buy ers, L essee s, and Occ upants as re corded in [t he Offic ial Records of

Travis County ]. 8. The following matter(s) disclosed by survey of s u b j ec t proper

ty dated J u ly 12, 2007, updated Aug ust 29, 2007, prepa red by All Star Survey ing, Survey Company J ob No. A0700307: inset of metal fence along southerly and easte rly lot lines and asphalt parking are a along the southerly portion of L ot 2 of the Proper

ty

. 9. Dra inag e ease ment g rante d to City of Austin as rec orded in [t he Of fi ci al Records of

Travis County ]. 10. Restri ct ive C ovenant Rega rding Unified Development and Maintenanc e of Dra inag e Fa cili t i es for Woodway Square Apar tment dated April 14, 2003, rec orded in [the Offic ial Public Records of Tr avis County ].

I tem number 8 on this list ref ers to a fenc ed-in parking are a wi t h improvements built on approximately 0.653 acr es located along and within the southern boundary of L ot 2 (the “Disputed
3Property ”). The fenc e and parking are a wer e built by Teri Road in connec tion with an apar tment complex it constructe d on L ot 1, Bloc k A, Woodway Square Subdivis ion, a 10.122-ac re trac t of land ly ing direc tly south of and contig uous with L ot 2 that it had purcha sed from the University of Texas in 2002.
I n its suit, the Purchaser initially alleg ed ca

uses of a ction for trespass and nuisance and soug ht a decla

ration of the parties’ rig hts to the Disputed Property

. The Purchase r alleg ed that the fenc e, parking lot, and improvements there on wer e built without consent on L ot 2, now owned by the Purchase r, and constituted an unauthorized encr oachme nt onto that proper ty

. Teri Road filed

a g ener al denial and further responde d that it had a rig ht to maintain the fenc e and parking lot on the Disputed Property by virtue of an ease ment or license to use the proper ty g rante d by the University of Tex as , t h e parties’ common g rantor. Teri Road also alleg ed that the issues befor e the court
prese nted a question of title to the Disputed Property that could not proper ly be the subject of a suit for decla ratory relief

, but had to be broug ht in a trespass- to-try -title actio n . There afte r, the 1 Purchase r ame nded its petition to add a trespa ss-to-try -title action to deter mine title to L ot 2. The case was tried to the court, and the focus of the trial was whether the University of Texas had g rante d Teri Road a license or ease ment permitting it to construct and maint ai n the

This Court h as p re v i o u sly held that claims reg arding the exis tence of an ease ment, a 1 nonpossessory rig ht, can properly be brought unde r the Unifor m Dec lara tory J udg ments Act. See Rob er s o n v. C i ty of Austin , 157 S.W .3d 130, 137 (Tex. App.—Austin 2005, pet. denied). On t he other hand, disputed claims of title to r eal proper ty , unless the sole issue conce rning the title is the deter mination of the proper boundary line betwee n adjoining proper ties, may only be adjudicate d in a trespass- to-try -title action. See Tex. Prop. Code § 22.001(a) ; Martin v. Amerman , 133 S.W .3d 262, 267 (Tex. 2004); State v. BP Am. Prod. Co. , 290 S.W .3d 345, 360 (Tex. App.—Austin 2009, pet. denied)

. 4improvements that encr oache d onto L ot 2, which was still owned by the University at the time the

improvements wer e construc t ed

. T er i Road never asser ted at trial that it owned the Disputed Property , nor did it alleg e or a rg ue that the Purchase r did not own the Disputed Property

. At trial 2 both parties ag ree d that they wer e seeking a decla ration as to whether or not Teri Road had a license,

ease ment, or other rig ht to maintain the improvements on L ot 2 despite the fac t tha t T eri Road did
not own the proper

ty on which the improvements wer e constructe d. At the conclusion of the trial, the court rende red judgme nt that: (1) the Purchase r owns L ot 2, and (2) Teri Road does not have a license or ease ment on L ot 2. The court also order ed that t h e Purchase r rec over from Teri Road $80,000 in attorney s’ fee s and, in addition, conditional attorney s’ fee s in the event of unsucce ssful
appea ls to thi s Court and to the Texas Supreme Court. Ter i Road perf ecte d this appeal.

DISCUSSIO N I n its first issue on appea l, Teri Road asser ts for the first time that, as a matter of law, the P urcha ser does not own t he Disput ed P roper ty beca use t he deed from t h e Uni versity of Tex as
to the Purchase r did not actua l l y co n v ey i t to the Purchase r. Teri Road contends that, as a conseque nce, the P u rcha ser had no justiciable interest in the Dis puted P roper ty and the trial court ther efor e lacke d subject-matter jurisdiction to adjudicate any of the Purchase r’s claims. The trial court’s judgme nt rec ites: “[The Purchase r] owns the rea l pr operty known as 4800 Fr eidrich L ane, Austin, Travis County , Texas and more particula rly descr ibed as L ot 2, Bloc k A, Woodway Square

I n its brief on appea l, Teri Road conce des that the parking are a improvements on the 2 Disputed Property are an encr oachme nt on L ot 2. T h e i s s ue, there fore , was whether the encr oachme nt was authorized

. 5Subdi v i sion, Austin, Travis County , Texas (‘L ot 2’).” The court also filed finding s of fac t and

conclusions of law , which include the following :

FOF 1: [The Purchase r] owns the rea l proper ty known as Fr eid ri ch L ane, Austin, Travis County , Texas and more particula rly descr ibed as L ot 2, Bloc k A, Woodway Square Subdivision, Austin, Travis County , Texas (“L ot 2”).

Whil e Teri Road descr ibes its first issue as a challeng e to the trial court’s subject-matter jurisdiction, which it could bring for the first time on appea l, the complaint eff ectively challeng es the trial court’s
express finding regard ing owner ship of the Disputed Property

. I n a nonjury case , complaints 3
reg arding the l eg al or fac tual sufficie ncy of t he evidence supporting a finding may be made for the first time on appea l. See Tex. R. App. P . 33.1(d). 4

I n the prese nt case , whether the Purchase r owns the Disputed Property turns on whether the deed convey ed the Disputed Property to the Purchase r or, as Teri Road maintains, the Disputed Property was expressly rese rved from the conve y an ce. Both parties ag ree the deed is unambig uou s. An unambig uous deed is one that can be g iven a definite or cer tain leg al meaning

. Stewart Title Guar. Co. v

. Aiello , 941 S.W .2d 68, 74 (Tex. 1997) ; see Columbia Gas Transmission

We e x press no opinion a s to whether a succ essful cha lleng e on appea l to the trial court’s 3 ruling that the Purcha ser owne d L ot 2 in its entirety would, as Ter i Road urg es, mea n that the trial court did not have subject-matter j u ri sdiction over any of the Purchase r’s claims and that conseque ntly

its order should be va cate d. As we explain below, this ruling should have been labeled a conclusion of law rathe r than 4 a finding of fac t. Conclusions of law are alway s revie wable, and when, as here , the rec ord contains specific finding s of fact and conclusions of l aw as well as a reporter ’s record, the revie wing court may revie w the leg al conclusions draw n from those fac ts in order to deter mine their corr ectne ss. See W estec h Eng’g, Inc. v. Clearwater Co n s t r uctors, Inc. , 835 S.W .2d 190, 196 & n.1 (Tex. App.—Austin 1992, no writ). 6Co. v. New Ul m Ga s , Ltd. , 940 S.W .2d 587, 589 (Tex. 1996) (“[A]mbi g uity does not arise simply

beca use the parties advanc e conflicting interpre tations of t h e contra ct.”)

. The construction of an unambig uous deed pr esents a que stion of law. Luckel v. W hite , 819 S.W .2d 459, 461 (Tex. 1991). Although the trial court labeled i ts ruling reg arding owner ship a finding of fa ct, it is more proper ly identified as a

conclusion of law, and we will ther efor e trea t the court’s r uling on owne rship of L ot 2 , i n cluding the Disputed Property , as a leg al conclusion. See Seasha Pools, Inc. v. Hardi s t er , 391 S.W .3d 635, 640 (Tex. App.—Austin 2012, no pet.) (trial court’s desig nation of items as finding s of fac t or conclusions of law is not controlling on appea l, and appellate court may trea t court’s ruling

as fac tual finding or leg al conclusion reg ardle ss of label used). We revie w conclusions of law de 5

novo to deter

mine whether they are l ega l ly corr ect. BMC Software Belgium, N.V. v. Marchand , 83 S.W .3d 789, 794 (Tex. 2002).

A deed is subject t o the same g ener al rules of interpre tation and construction as a
contra ct. See Luckel , 819 S.W .3d at 461-62. Our primary duty when construing an unambig uous deed is to asce rtain the parties’ true intent as expressed within the deed’ s four corne rs. Id. at 461-63; Forbau v. Aetna Life I

ns. Co. , 876 S.W .2d 132, 133 (Tex. 1994). We a pply the “four corne rs” rule and look not at isolated terms but consider the instrument as a w hole, attempting to harmonize and
g ive eff ect t o al l i t s p ro v isions. Luckel , 819 S.W .2d at 462; Plainsman Trading Co. v. Crews , 898 S.W .2d 786, 789 (Tex. 1995). A dee d must not onl y be construe d as a w hole, har moniz ing a ll its parts if possible, but also to confe r on the g rante e the g rea test estate that the terms of the deed will

We presume this ruling was char acte rized as a fi n d i n g o f fact beca use neither party 5 asser t ed at trial that the Purchase r did not hold fee title to the entirety of L ot 2, including the Disputed Property

. 7permit. Lott v. Lott , 370 S.W .2d 463, 465 (Tex. 1963); Thomason v. Badgett , No. 02-12-00303- CV,

2013 WL 3488254, at *3 (Te x . App.—For t Worth J uly

11, 2013, pet. denied) (mem. op.). Teri Road arg ues that the deed convey s “no fee or other estate in the parkin g are a improvements.” We understand Teri R oad to mean t h at t h e University of Tex as i ntended to car ve the Dis puted P roper

ty out of the conve y ance of L ot 2 and re tain owner ship of it. I n support of t his
arg ument, Teri Road points to the second sentenc e of the two-sentenc e para g raph in the deed, quoted above, e ntitled “Reserva tions from and Exceptions to Convey ance and Warra nty ”:

There is rese rved from this convey ance all the oil, g as and other minerals in and under the Property owned by Gra ntor, if any , which are expressly rese rved to Gra ntor. This conve yance is further subject to all easem ents, rights-of-way and prescriptive rights, whether of record or not, all presently recorde d matters that affect the Property, and those items listed on the attached Ex hibit B.
(Emphasis added.) Acc ording to Teri Road, the second sentenc e of the para g raph ref lects the University of Texas’s int en t t o r es erve from the conve yance eac h of the items listed on Ex hibit B. We disa g ree . As an initial matter, the para g raph is within a section of the deed titled “ Reserva tions from and Ex ceptions to Convey ance and Warranty .” Thus, the para g raph descr ibes not only what the University of Texas intended to rese rve from the convey ance but also what it was excepting from its

war ranty of t itle. The first sen t ence i n the parag raph is a specific reserva tion from the convey ance of all oil, g as, and mineral rig hts in and under the proper ty convey ed. The second sentenc e, howeve r, does not purport to reserv e any thing further fr o m t h e convey ance , but mere ly states that the
convey ance is “subject to” cer tain matters, including those items listed on Ex hibit B

. I t is a ppare nt from rea ding that list of items that, as the exhibi t’s heading (“Per mitted Ex ceptions”) sug g ests, they

8primarily identify the exceptions to war ranty ref err ed to in the deed. These include cer tain ease ments and restric tive covena

nts, as well as the encr oaching improvements located on the Disputed Property

. The fac t tha t the list also includes a ref ere nce to the oil, g as, and mineral rig hts, which the lang uag e of the deed itself expressly rese rved from the convey ance , does not transfor m the rema ining items on the list into additional rese rvations from the convey ance . The deed’ s descr iption of the proper ty
convey ed includes the entirety of L ot 2, and nowhe re d o es the deed purport to rese rve from the
convey ance any

portion of the surf

ace there of. Teri Road relies on Fricks v. Hancoc k , in which the court of appea ls construed a deed that rec ited:
This gr ant and c onvey ance is ex pressly made subjec t to the following:

. . . . 3. Title to any portion of t he property within the bounds of Ba y side Colony , as such subdivision is s hown on the map a nd plat there of i n Volume 1, Pag e 5, of the Map a

nd Plat Records of Ref

ug io County , Texas.

45 S.W .3d 322, 327-28 (Tex. App.—Corpus Christi 2001, no pet.). There , the court of appea ls held that this lang uag e ex presse d the gra ntor’s i ntent to limit the prope rty g rante d and ex clude from the
convey ance any proper

ty located within the bounds of the Ba y side Colony

. Id. at 328. Our holding is not inconsistent with Fricks

. The para g raph of the deed construed by the court in Fricks made no ref ere nce to exceptions to the war ranty but did expressly ref er to “title” to a portion of the proper ty

. Id

. at 327. Her e, in contra st, there is nothing in the deed or the Ex hibit B list that purports to exclude

9title to the Disputed Property

. Unlike the Fricks deed, item number 8 on Ex hibit B in the prese nt case

mere ly states:

The following matter(s) disclosed by survey of subject proper ty dated J uly 12, 2007, updated Aug ust 29, 2007, prepa red by All Star Survey ing, Survey Company J ob No. A0700307: inset of metal fenc e along southerly and easte rly lot lines and asphalt parking are a along the southerly portion of L ot 2 of the Proper ty

.
Teri Road arg

ues that this lang uag e expresses the g rantor’ s intent to rese rve for itself fee -simple title
to the Disputed Property

. But this descr iption of an encr oachme nt reve aled by a survey don e in

connec tion with the sale of L ot 2 cannot rea sonably be construed as a rese rvation of part of the trac t descr ibed in the dee d. There is no refe renc e to “title” to any part of L ot 2. Moreove r, the Fricks court relied for its holding on Bass v. Harper , in which the Texas Suprem e C o u rt concluded that lang uag e in a deed stating that the “g rant is subject to the Mineral Reserva tion contained in” nine other deeds unambig uously excluded from the g rant the mineral rig hts descr ibed and wa s not simpl y an ex ception to war ranty of t itle. 441 S.W .2d 825, 827 (Tex. 1985). The supreme court held that “[i] t is also clea r that the g rant itself ‘is subject to the mineral

rese rvations’” contained in t h e re fe renc ed deeds. Id. Unlike t he Bass deed, none of the i tems that the co n v ey ance in the prese nt case was “subjec t to”—the items listed on Ex hibit B—a re actua l

rese rvations except for the mineral rig hts, which are expressly rese rved elsewhe re in the deed. There is no rese rvation lang uag e indicating the g rantor’ s intent to exclude the Disputed Property from the
convey ance or to reta in fee title to the Disputed Property

. See State v. Dunn , 574 S.W .2d 821, 824 (Tex. Civ. App.—Amar illo 1978, writ ref ’d n.r.e.) (as g ener al rule, exceptions are strictly construed
ag ainst g rantor)

. 10Our holding is consistent with case s interpre ting the eff ect of a deed that excepts from

a convey ance a rig ht of way , road, or ease ment

. I n L ew i s v. East Texas Finance Co. , the Texas Supreme Court consider ed the e ffe ct of such e x ceptions to conve y ance s and held:

An instrument of convey ance which convey s land definitely d es cribed in such instrument, and then excepts from such convey ance a road, railroa d rig ht of way , cana l rig ht of way , etc., as such, o cc u p y i n g a mere ease ment on, over, or acr oss the land convey ed, convey s the fee to the entire trac t, and the exception only opera tes to rende r the conve y ance or g rant subjec t to the ease ment.

146 S.W .2d 977, 980 (Tex. 1941) (citations omitted); see also Moore v. Rotello , 719 S.W .2d 372, 375-76 (Tex. App.—Houston [14t h Dist.] 1986, writ ref ’d n.r.e.)

. Simi larly , an exception that mere ly ref ers to an encr oachme nt on the proper ty , as opposed to specific ally rese rving the convey ance of title
to the proper

ty underly i n g the encr oachme nt, does no more than say that the proper ty convey ed is burdene d by the encr oachme nt. J ust as the Purchase r here obtained fee simple title to the land under the pi peli ne easement (item number 5 on Ex hibit B) and the draina g e easement (item number 9 on Ex hibit B), it also obtained fe e simple title to the land under the e ncroa chment.

For the fore go i n g re as o ns, we conclude that the convey ance from the University of
T ex as t o the Purchase r included the Disputed Property ; the trial court’s ruling was there fore not

err oneous. We overr

ule Ter i Road’s first appe llate issue.
I n its second appellate issue, Teri Road claims that it was entitled to a presumption of title arising out of its “prior possession” of the Disputed Property

. Teri Road also corr ectly states in its brie f, howeve r, that a dee d unambig uously g ranting title to the Disputed Property would “sure ly

overc ome a presumption of title.” See Reiter v. Coastal States Gas Producing Co. , 382 SW .2d 243,

11250 (Tex. 1964) (“Assuming that the pl aintiff is rely ing upon prior possession, proof of title in the defe ndant unquestionably opera tes to rebut th e i n fe re n ce of owner ship arising from plaintiff’s possession.”). Be ca u s e we h av e conclude d that the deed convey ed the entirety of L ot 2 to the Purchase r, any presumption that Teri R o ad h as title to the Disputed Property by virtue of its prior possession has bee n rebutted. We ove rrule the second a ppellate issue.
I n its third appellate issue, Teri Road raises for the first time complaints about the form of the tri al co u rt ’s j udg ment, specific ally the rec itation that the Purchase r “owns” L ot 2. This complaint was not preserve d in the t rial court by timely reque st, objection, or motion and may not, there fore , be raised for the fi rs t t i m e o n appea l. See Tex. R. App. P. 33.1 (as prer equisite to
prese nting complaint for appellate revie w, rec ord must show that complaint was made to tr ial court by timely reque st, objection, or motion). Acc ording ly , any complaints about the form of the judgme nt have been waived. I n any event, we do not r ead the trial court’s judgme nt a s adjudicating any thing other than the issue of disputed owner ship as betwee n the P u rc h aser and Teri Road. We overr ule Teri Road’ s third issue.

CONCLUSION

Having overr

uled Teri Roa d ’s three appellate issues, we aff irm the trial court’s judg ment.

12_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: June 4, 2014

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