### IN THE TENTH COURT OF APPEALS
No. 10
- 07
- 00320
- CV JOAN E. GIVENS, SHAN NON KRAUS, GREGORY D. GIVENS, INDIVIDUA LLY AND AS INDEPENDE NT EXECUTOR OF THE ESTA TE OF WILLIAM L. GIV ENS, J. HAROLD SEWELL , AND ALAMO TITLE COMP ANY , Appellant s v. ELVIS AN D DIAN N A WARD , Appellee s

From the 413th District Court Johnson County, Texas Trial Court No. C2005
- 00331

O P I N I O N

Elvis and Dian n a Ward purchased a 115

- acre tract of land from Joan Givens, Shannon Kraus, and Gregory Givens, Individually and as I ndependent Executor of the Estate of William L. Givens (collectively, the Givens es ). The warranty deed contains no reservation of mineral interests. The trial court granted the Wards’ summary

- judgment motion and denied summary

- judgm ent motions filed by t he Givenses , Harold Sewell,Givens v. Ward Page 2

and Alamo Title Company. The primary substantive issues in this appeal are: (1)
whether the Givenses are entitled to reformation of the warranty deed due to mutual
mistake because it does not contain a reservation of the minera l interests in the property ; and ( 2 ) whether Sewell and Alamo Title are entitled to specific enforcement of an agreement the parties signed at closing whereby the parties agreed “to fully cooperate, adjust, and correct any errors or omissions and to execut e any and all documents needed or necessary to comply with all provisions of the [real estate contract].” We will reverse and remand. Background After a period of negotiations, the Givenses agreed to sell the 115

- acre tract to the
Wards for $250,000

. Th e sales contract contains the following provision (paragraph 2(F)) regarding the disputed mineral interests:
F. RESERVATIONS: Seller reserves the following mineral, water, royalty, timber , or other interests: SEE ATTACHED OIL, GAS, AND MINERAL LEASE 1 Attached to the sales contract is a 2001 oil and gas lease from the Givenses in favor of a third party. In a separate document entitled “Acceptance of Title and Closing Agreements,” t he parties agreed “to fully cooperate, adjust, and correct any errors or omissions and to execute any and all documents needed or necessary to comply with all provisions of the [ sales contract].”

1 This handwritten reference to the oil and gas lease was inser ted into the sales contract by the Givenses’ real estate agent. The Givenses and the Wards initialed paragraph 2(F).Givens v. Ward Page 3

The deed contains no mineral reservation. About six months after closing,
Alamo contacted the Givenses and the Wards by letter exp laining that the deed erroneously omitted the mineral reservation and asking the parties to sign a correction deed with the mineral reservation. The Wards refused to sign. Instead, they filed a declaratory judgment action against the Givenses seeking a j udicial declaration that they own the disputed mineral interests. The Givenses filed a general denial, asserted the affirmative defense of mistake, and counterclaimed for reformation of the deed due to mistake. The Wards responded with a traditional
moti on for summary judgment contending among other things: (1) the deed is unambiguous, (2) it cannot be set aside due to unilateral mistake, and (3) there was no
mutual mistake. The Givenses amended their pleadings to include an additional
counterclaim for b reach of the compliance agreement. Alamo and Sewell then filed a joint petition in intervention alleging breach of the compliance agreement and requesting specific performance. The Givenses followed with an amended pleading asserting counterclaim s : (1) a lleging breach of the compliance agreement; and (2) seeking a judicial declaration that the deed’s conveyance of the m inerals to the Wards is
invalid

. The Givenses then filed a summary

- judgment motion on both counterclaims against the Wards

. Alamo and Se well filed a joint summary

- judgment motion on their breach of contract claims. The Wards filed a response to “Defendant’s Motion forGivens v. Ward Page 4

Summary Judgment.” 2 The Wards argued in their response that the deed is unambiguous, “there are no legal reasons to refor m the deed” because there is no mistake, etc., and thus they did not breach the compliance agreement.
The Givenses filed a response to the Wards’ summary

- judgment motion alleging that the Wards failed to conclusively establish that there was no mutual mis take and requesting that the Wards’ motion be denied. Following a hearing, the trial court signed a “final order” granting the Wards’
summary -

judgment motion and denying the other parties’ summary

- judgment
motions.
Standard of Review
We review a trial co urt’s summary judgment de novo. Provident Life & Accident
Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, we
must consider whether reasonable and fair

- minded jurors could differ in their conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007) (per curiam) (citing Wal

- Mart Stores, Inc. v. Spates , 186 S.W.3d 566, 568 (Tex. 2006) (per curiam) ; City of Keller v. Wilson , 168 S.W.3d 802, 822

- 24 (Tex. 20 05)). We must consider all 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 mo vant

. See Goodyear Tire , 236 S.W.3d at 756 (citing
Sudan v. Sudan , 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) ; Spates , 186 S.W.3d at 568)

.

2 Although the title of the Wards’ summary

- judgment response is vague, the prayer for relief indicates that it was directed toward both t he Givenses’ summary

- judgment motion and Alamo’s and Sewell’s joint motion.Givens v. Ward Page 5

When competing motions for summary judgment are filed and some are granted while others denied, the general rule is that the appellate court should determine all questions presente d and render the judgment the trial court should have rendered. Tex.
Workers ’ Comp. Comm ’ n v. Patient Advocates of Tex. , 136 S.W.3d 643, 648 (Tex. 2004); Am. Hous. Found. v. Brazos County Appraisal Dist. , 166 S.W.3d 885, 887 (Tex. App.

— Waco 2005, pet. den ied). T his rule applies only when both (or all) parties ’ motions sought a final judgment, namely, relief on all pending claims. See CU Lloyds of Tex. v. Feldman , 977 S.W.2d 568, 569 (Tex. 1998) (per curiam); Am. Hous. Found. , 166 S.W.3d at 887;
Krishnan v. Law Offices of Preston Henrichson, P.C. , 83 S.W.3d 295, 303 (Tex. App.

— Cor pus Christi 2002, pet. denied). However, an appellate court may reverse and remand if resolution of the pertinent issues rests in disputed facts or if the parties’ motions are pr emised on different grounds. See Sarandos v. Blanton , 25 S.W.3d 811, 814 & n.5 (Tex. App.

— Waco 2000, pet. denied).
Reformation of Deed The Givenses contend in their fourth issue that genuine issues of material fact remain on the question of whether they are entitled to reformation of the deed. Sewell raises the same complaint in his fourth issue.

“ The underlying objective of reformation is to correct a mutual mistake made in preparing a written instrument, so that the instrument truly reflects the origi nal agreement of the parties.” Cherokee Water Co. v. Forderhause , 741 S.W.2d 377, 379 (Tex.
19 87); accord Tribble & Stephens Co. v. RGM Constructors, L.P. , 154 S.W.3d 639, 659 (Tex. App.

— Houston [14th Dist.] 2004, pet. denied); Hatch v. Williams , 110 S.W. 3d 516, 522Givens v. Ward Page 6

(Tex. App.

— Waco 20 03, no pet.). For reformation of a written instrument, a party must prove two elements: “ (1) an original agreement and (2) a mutual mistake, made after the original agreement, in reducing the original agreement to writing. ” Cherokee Water Co. , 741 S.W.2d at 379; accord U.S. Fire Ins. Co. v. Scottsdale Ins. Co. , No. 05

- 06

- 01138

- CV, 2008 WL 62561, at *8 (Tex. App.

— Dallas Jan. 7, 20 08, no pet. h.); Tribble & Stephens , 154
S.W.3d at 659. Here, the Givenses contend that the requi site mutual mistake consists of their unilateral mistake in signing a deed which did not conform to the parties’ agreement and the Wards’ knowledge that the deed did not conform. “ Unilateral mistake by one party, and knowledge of that mistake by the other party, i s equivalent to mutual
mistake.” Davis v. Grammer , 750 S.W.2d 766, 76 8 (Tex. 19 88) (citing Cambridge Cos. v.
Williams , 602 S.W.2d 306, 308 (Tex. Civ. App.

— Texarkana 19 80), aff’d , 615 S.W.2d 172 (Tex. 19 81)); 3 accord Navasota Res., L.P. v. First S ource Tex., Inc. , 249 S.W.3d 526, 539 (Tex. App.

— Waco 20 08, pet. filed); Atlantic Lloyds Ins. Co. v. Butler , 137 S.W.3d 199, 213 (Tex. App.

— Houston [1st Dist.] 20 04, pet. denied). The Wards suggest that different considerations apply when a party seeks

re formation of a deed , particularly a deed which is unambiguous on its face. As an example, the Wards cite Alvarado v. Bolton , 749 S.W.2d 47 (Tex. 19 88), for the proposition

3 In Cambridge Companies , the Texarkana Court of Civil Appeals cited its 1941 decision in Warren v. Osborne , which in turn quoted a 10th Circuit decision, which in turn quoted Wil liston ’s treatise on c ontracts

. Cambridge Cos. v. Williams , 602 S.W.2d 306, 308 (Tex. Civ. App.

— Texarkana 19 80) (quoting Warren v. Osborne , 154 S.W.2d 944, 946 (Tex. Civ. App.

— Texarkana 19 41, writ ref’d w.o.m.) (quoting Columbian Nat’l Life Ins. Co. v. Bl ack , 35 F.2d 571, 574 (10th Cir. 1929) (quoting 3 S AMUEL W ILLISTON , A T REATISE ON THE L AW OF C ONTRACTS § 1497))). The current Williston treatise continues to recognize this category of mutual mistake. See 27 S AMUEL W ILLISTON & R ICHARD A. L ORD , A T REATISE ON THE L AW OF C ONTRACTS § 70:105 (4th ed. 2003).Givens v. Ward Page 7

that the merger doctrine applies and that any contrary language in the real estate contract was extinguished when the Givens es signed the deed. In Alvarado , the Supreme Court described the merger doctrine as follows: When a deed is delivered and accepted as performance of a contract to convey, the contract is merged in the deed. Though the terms of the deed may vary from those contained in the contract, still the deed must be looked to alone to determ ine the rights of the parties.
Id. at 48 (quoting Baker v. Baker , 207 S.W.2d 244, 249 (Tex. Civ. App.

— San Antonio 19 47,
writ ref’d n.r.e. ) (quoting 2 R OBERT T. D EVLIN , A T REATISE ON THE L AW OF D EEDS § 850a (2d ed. 1897))). Although the Court recited this as a correct statement of the merger doctrine as it applies to deeds, the Court held that the merger doctrine did not apply in that case, which was a DTPA suit for breach of a warranty contained in the parties’ earnest money

co ntract. Id. (“we hold that the doctrine of merger may not be applied to defeat a cause of action under the DTPA for breach of an express warranty made in an earnest mone y contract and breached by deed”). And as that Court has previously held, the merger doctrine applies to deeds only “in the absence of fraud, accident, or mistake.” Commercial Bank of Mason v. Satterwhite , 413 S.W.2d 905, 909 (Tex. 19 67); accord Geod yne Energy Income Prod. P’ship I

- E v. Newton Corp. , 161 S.W.3d 482, 487 (Tex. 20 05); Hill v. Spencer & Son, Inc. , 973 S.W.2d 772, 775 (Tex. App.

— Texarkana 19 98, no pet.). Moreover, o ur research has disclosed numerous decisions involving reformation
of a d eed. See , e.g., Davis , 750 S.W.2d at 768; Hatch , 110 S.W.3d at 522; Hill , 973 S.W.2d at
775 ; Hamberlin v. Longview Bank & Trust Co. , 770 S.W.2d 12, 13

- 14 (Tex. App.

—Givens v. Ward Page 8

Texarkana 19 89, writ denied). Thus, we reject the Wards’ contention that the merger
doctr ine bars the Givenses’ reformation claim. 4 1. Original Agreement The Givenses’ reformation claim as pleaded rests on (1) whether the deed varies from the parties’ original agreement; and (2) whether this variance was a mistake on the Givenses’ part of wh ich the Wards had knowledge. Thus, we must first determine what was the parties’ original agreement. As previously stated, the sales contract contains the following reservation, “ Seller reserves the following mineral, water, royalty , timber , or other int erests: SEE ATTACHED OIL, GAS, AND MINERAL LEASE .” If this reservation is unambiguous, then extrinsic evidence is not admissible to interpret it. See Kelley

- Coppedge, Inc. v. Highlands Ins. Co. , 980 S.W.2d 462, 464 (Tex. 19 98); Barrand, Inc. v. Whataburg er, Inc. , 214
S.W.3d 122, 12 9 (Tex. App.

— Corpus Christi 20 06, pet. denied); EMC Mortg age Corp. v.
Davis , 167 S.W.3d 406, 413 (Tex. App.

— Austin 20 05, pet. denied). Conversely, if this reservation is reasonably susceptible to more than one legal meaning, th en it is ambiguous and extrinsic evidence is admissible to determine its true meaning. Id.

4 The Wards also contend that other legal principles pose a bar to the Givenses’ reformation claim including (1) the expressed

- intention rule, (2) the greatest

- estate

- transferred rule, and (3) the no

unila teral

- mistake rule. However, the first two are principles of contract construction and have no bearing on a claim of mutual mistake. See , e.g., Frost Nat’l Bank v. L & F Distribs., Ltd. , 165 S.W.3d 310, 311

- 12 (Tex. 20 05) (per curiam) (“In construing a c ontract, we must ascertain and give effect to the parties’ intentions as expressed in the document.”); Stewman Ranch, Inc. v. Double M Ranch, Ltd. , 192 S.W.3d 808, 811 (Tex. App.

— Eastland 20 06, pet. denied) (“[C] ourts have held that deeds should be constru ed to convey the greatest estate possible and that reservations should be construed against the grantor. These canons, however, do not apply when the deed is unambiguous.”). And because the Givenses allege mutual mistake, the third principle does not app ly.Givens v. Ward Page 9

Whether a contractual provision is ambiguous is a question of law for the court.
Id. In construing a contract, our primary concern “ is to ascertain the true inte nt of the parties as expressed in the instrument. If a written contract is so worded that it can be given a definite or certain legal meani ng, then it is not ambiguous.” Kelly

- Coppedge , 980
S.W.2d at 464 (quoting Nat’l Union Fire Ins. Co. v. CBI Indus., Inc. , 907 S.W.2d 517, 520 (Tex. 19 95) (per curiam) ); accord Barrand , 214 S.W.3d at 129; EMC Mortg age , 167 S.W.3d
at 413. The Givenses contend that the quoted language constitutes a reservation of the
entire mineral estate. The Wards contend that the prov ision is ambiguous. They refer to Appellant Kraus’s statement in a letter to the realtor who represented the Givenses and the Wards in this transaction. Kraus stated that the provision is “ambiguous” and “could be interpreted to mean that all rights were reserved, that only the rights under the lease were reserved, or as a simple disclosure that the lease existed, reserving no rights.” The Wards also refer to Sewell’s deposition testimony that he cannot tell from the quoted language “specifically what is reserved.” We agree with the Wards that the provision is ambiguous. Therefore, we may consider extraneous evidence to aid in its interpretation. See id. The Givenses refer to evidence of the parties’ pre

- contract negotiations to support their interpre tation. See Savage v. Doyle , 153 S.W.3d 231, 234 (Tex. App.

— Beaumont 20 04, no pet.); Baty v. ProTech Ins. Agency , 63 S.W.3d 841, 848 (Tex. App.

— Houston [14th Dist.] 2001, pet. denied). In this regard, the Givenses cite Dianna Ward’s deposition testimony that the Wards’ initially offered $200,000 for the property with the minerals. When the GivensesGivens v. Ward Page 10

rejected this offer and countered with an offer to sell the property without the minerals for $280,000, the Wards responded by offering $220,000 with half the minerals. After the Givenses rejected this offer, the Wards offered $245,000 without the minerals. Two weeks later, the parties signed the real estate contract at issue. Dianna testified that at the closing she “really didn’t know” if they were purchas ing the minerals. The Givenses also cite the deposition testimony of the real estate agent who handled the negotiations. The agent testified that at the time of the final offer “the Wards understood they were not purchasing the mineral rights.” And at t he time they signed the sales contract, they continued to understand that they were not purchasing the mineral rights. In addition, the Givenses cite Dianna’s testimony that, after the closing, she “maybe in a hypothetical sense” posted a message on the w ebsite of the National Association of Royalty Owners 5 to the effect that sh e “ thought that [she] had not purchased the minerals and evidently there was some

— something wrong with the
deed.” The Wards refer to Appellant Shannon Kraus’s deposition testimony which the Wards contend indicates that Kraus “instructed their agent who drafted the contractual language to disclose the mineral lease to the Wards.” However, Kraus actually testified

5 The Givenses stated in their summary

- judgment response that Dianna’s web postings “indicat[e] that [the Wards] knew they weren’t buying the mineral rights but that such rights were inadvertently conveyed by deed.” The excerpts of Dianna’s depositio n testimony attached to the response also make numerous references to these postings, which were apparently collectively identified at the deposition as “Exhibit Number 8.” However, it does not appear that the Givenses attached this exhibit to their summa ry -

judgment response, so the contents of the web postings are not part of the summary

- judgment record.Givens v. Ward Page 11

that the agent disclosed the existence of the lease but she never inst ructed him to do so. The Wards also rely on Dianna’s deposition testimony that she interpreted the contract to mean that the Givenses were only disclosing the existence of the lease and the Wards were getting the minerals. Similarly, Elvis Ward provided deposition testimony that they “really didn’t know” whether they were getting the minerals but they “had a pretty goo d speculation” that they were. Finally, the Wards refer to a lawsuit the Givenses filed in a Tarrant County district court against Alamo, Sewell, and their agent in which they allege, “Unfortunately, the Contract failed to clearly reserve Plaintiffs’ mineral interest in the Property.” Although the Wards do not use the term “judicial admission” when referring to this allegation in their summ ary - judgment pleadings or in their brief, such is the only basis on which pleadings can constitute summary

- judgment evidence. Compare Whittington v. City of Austin , 174 S.W.3d 889, 900 (Tex. App.

— Austin 20 05, pet. denied) (pleadings are not competent summ ary - judgment evidence), with Beasley v.
Burns , 7 S.W.3d 768, 770 (Tex. App.

— Texarkana 1999, pet. denied) (party may offer pleadings which constitute judicial admissions as summary

- judgment evidence).

“ A judicial admission must be a clear, delibera te, and unequivocal statement.” Horizon/CMS Healthcare Corp. v. Auld , 34 S.W.3d 887, 905 (Tex. 20 00) (quoting Regency Advantage Ltd. P’ship v. Bingo Idea

- Watauga, Inc. , 936 S.W.2d 275, 278 (Tex. 19 96) (per curiam); Bowen v. Robinson , 227 S.W.3d 86, 92 (Tex. App.

— Houston [1st Dist.] 20 06, no pet.). Here, a statement that the contract “failed to clearly reserve” the mineral interest
does not constitute “ a clear, delibera te, and unequivocal statement” that the contractGivens v. Ward Page 12

“did not reserve” the mineral interest. Thus, the statement in question does not constitute a judicial admission. See Bowen , 227 S.W.3d at 92

- 93

. However, because the Givenses failed to object to this evidence, the statement is part of the summary

-

judgment record for purposes of our review. Viewed in the light
most favorable to the non

- movants (the Givenses in this instance), this statement is at best evidence that the contract is ambiguous. In summary, the parties have advanced competing evidence and interpretations of that evidence regarding whet her the parties’ original agreement was for the Givenses to reserve the minerals in the subject property. Thus, genuine issues of material fact remain on this question.
2. Mistake The Givenses contend that any variance between the deed and the parties’ original agreement was a mistake on their part of which the Wards had knowledge. The Wards respond that sustaining the Givenses’ contention “would create an undue burden on all vendees of real estate. It would require the purchaser, after the fact, to

as k the seller if the contract the seller signed . . . was really what the seller intended to sell.” We disagree. Under the case law already cited, a “[u] nilateral mistake by one party, and knowledge of that mistake by the other party, i s equivalent to mutual mistake.” Davis , 750 S.W.2d at 76 8 ; accord Navasota Res. , 249 S.W.3d at 539; Atlantic Lloyds Ins. , 137 S.W.3d at 213. This is not some novel legal theory. It has been recognized for decades by various courts and by respected commentators. See , e.g., R ESTATEMENT (S ECOND ) OFGivens v. Ward Page 13

C ONTRACTS § 155 cmt. b, § 166 cmt. a (1981); R ESTATEMENT OF C ONTRACTS § 505 (1932);
27 S AMUEL W ILLISTON & R ICHARD A. L ORD , A T REATISE ON THE L AW OF C ONTRACTS § 70:105 (4th ed. 2003); 3 S AMUEL W ILLISTON , A T REATISE ON THE L AW O F C ONTRACTS §
1497. Our research has disclosed six Texas cases applying this principle to the
reformation of a deed and three others to reformation of other instrument s affecting an interest in real property. See Davis , 750 S.W.2d at 767

- 68; Hill , 973 S. W.2d at 775; Escamilla v. Estate of Escamilla , 921 S.W.2d 723, 725

- 26 (Tex. App.

— Corpus Christi 19 96, writ denied); Hamberlin , 770 S.W.2d at 13

- 14; Spellman v. Am. Universal Inv. Co. , 687
S.W.2d 27, 31 (Tex. App.

— Corpus Christi 19 84, writ ref’d n.r.e.) ; Wa rren v. Osborne , 154
S.W.2d 944, 946

- 47 (Tex. Civ. App.

— Texarkana 19 41, writ ref’d w.o.m.); see also Parker v.
HNG Oil Co. , 732 S.W.2d 754, 755

- 56 (Tex. App.

— Corpus Christi 19 87, no writ) (release of mineral lease); Ace Drug Marts, Inc. v. Sterling , 502 S. W.2d 935, 939

- 40 (Tex. Civ. App.

— Corpus Christi 19 73, writ ref’d n.r.e.) (lease); Coker v. Hughes , 307 S.W.2d 354,
359

- 60 (Tex. Civ. App.

— Amarillo 19 57, no writ) (lease). Our research has also disclosed eleven Texas decisions either applying this principl e to the reformation of other contracts or recognizing the validity of the principle. 6 Therefore, we do not agree that

6 See Mullins v. Mullins , 889 S.W.2d 550, 552

- 53 (Tex. App.

— Houston [14th Dist.] 1994, writ denied) (indemnity agreement); Marcuz v. Marcuz , 857 S.W.2d 623, 627

- 28 (Tex. App.

— Houston [1st Dist.] 1993, no writ) ( property settlement agreement); First Nat’l Bank of Andrews v. Jones , 635 S.W.2d 950, 952

- 53 (Tex. App.

— Eastland 1982, writ ref’d n.r.e.) (note); Cambridge Cos. , 602 S.W.2d at 308

- 09 ( not e); Automo bile Ins. Co. of Hartford v. United Elec. Serv. Co. , 275 S.W.2d 833, 839 (Tex. Civ. App.

— Fort Worth 1955, writ ref’d n.r.e.) (insurance policy); see also Navasota Res., L.P. v. First Source Tex., Inc. , 249 S.W.3d 526, 539 (Tex. App.

— Waco 2008, pet. filed); Gilbane Bldg. Co. v. Keystone Structural Concrete, Ltd. , No. 01

- 05

- 00988

- CV, 2007 WL 2130373, at *7 (Tex. App.

— Houston [1st Dist.] July 26, 2007, no pet.); Atlantic Lloyds Ins. Co. v. Butler , 137 S.W.3d 199, 213 (Tex. App.

— Houston [1st Dist.] 2004, pet. d enied) ; Seymour v. Am. Engine & Grinding Co. , 956 S.W.2d 49, 58 (Tex. App.

— Houston [14th Dist.] 1996, writ denied); Victoria Bank & Trust Co. v. Brady , 779 S.W.2d 893, 903

- 04 (Tex. App.

— Corpus Christi 19 89), rev’d in part on other grounds , 811Givens v. Ward Page 14

application of this established princip le to the Givenses’ reformation claim will turn real
estate law on its head or “create an undue b urden on all vendees of real estate” as the
Wards claim. Here, Krau s provided deposition testimony that she read the deed before signing it and noticed that it stated that there were no reservations. According to her, they
“were told” that the mineral re servation “would be under encumbrances.” A review of the deed confirms that the mineral rights at issue are identified in Exhibit “B” to the deed under the heading “Encumbrances” which are also referenced in the “Exceptions to Conveyance and Warranty” cla use 7 of the deed . Item 5(b) of the “Encumbrances”
exhibit states, “All oil, gas and other minerals, the royalties, bonuses, rentals and all other rights in connection with the same are excepted herefrom as set forth in instrument recorded in Volume 415, P age 368 of the Deed Records of Johnson County, Texas.” Kraus testified that an Alamo representative told them that this provision “reserved the minerals.” Thus, there is summary

- judgment evidence that the Givenses
believed that the deed reserved their mi neral interests.

S.W.2d 931 ( Tex. 19 91); Am. Nat’l Ins. Co. v. Gifford

- Hill & Co. , 673 S.W.2d 915, 922 (Tex. App.

— Dallas 19 84, writ ref’d n.r.e.)

.

7 This clause reads as follows: Exceptions to Conveyance and Warranty: This Deed is executed by Grantor and accepted by Grantee subject to liens described as part of the Consideration and any other liens described in this deed as being either assumed by Grantee or subject to which title is taken by Grantee; all validly existing and enforceable rights, interests, estates, restrictions, eas ements and liability for standby fees and taxes in connection with those matters described on Exhibit “B” attached to this Deed and incorporated by reference (the “Encumbrances”).Givens v. Ward Page 15

From the perspective of the Wards, they were on notice that the deed contained no mineral reservation whenever they received their copy. 8 Dianna conceded in her deposition testimony that, after the closing, she “maybe in a hypothetical s ense” posted a message on the website of the National Association of Royalty Owners to the effect that she “thought that [she] had not purchased the minerals and evidently there was

some — something wrong with the deed.” In addition , Alamo notified the Ward s’ attorney by letter dated June 29, 2005 that the deed contained no mineral reservation and by letter to counsel dated July 19 asked that the Wards execute a correction deed to include the omitted mineral reservation. Although Dianna testified that she d oes not recall ever seeing the first letter, she “thinks” she remembers getting a letter asking them to sign a correction deed.
The re is no summary - judgment evidence which establishes whether the Wards
realized at the closing that the deed contained no mi neral reservation. Nevertheless, reformation of a deed has been awarded even when neither party realized on the date of conveyance that there was a mistake in the deed. See Hatch , 110 S.W.3d at 520; 9 see also Lathem v. Richey , 772 S.W.2d 249, 253 (Tex. A pp. — Dallas 19 89, writ denied) (“The presumption that a grantor has immediate knowledge of a mistake in a deed is, however, rebuttable.”); accord Sullivan v. Barnett , 471 S.W.2d 39, 45 (Tex. 19 71) (statute of limitations begins to run on claim for reformati on of deed “when the mutual mistake

8 According to a notation on the first page of the deed, the county clerk was to mail it to the Wards “after recording.” The deed was recorded on December 8, 2004, five days after it was executed.

9 In Hatch , the seller did not discover the mistake for more than 3 years while the buyer discovered the mistake within 3 days. S ee Hatch v. Williams , 110 S.W.3d 516, 523 & n.3 (Tex. App.

— Waco 20 03, no pet.).Givens v. Ward Page 16

was, or in the exercise of reasonable diligence should have been, discovered”); Cullins v.
Foster , 171 S.W.3d 521, 531 (Tex. App.

— Houston [14th Dist.] 2005, pet. denied) (same). Accordingly, the parties have advanced co mpeting evidence and interpretations of that evidence regarding whether the deed varies from the parties’ original agreement with regard to a reservation of minerals and whether this was due to a mistake o n the part of the Givenses of which the Wards had ( or acquired) knowledge . Thus, genuine
issues of material fact remain on th e question of whether the deed varies from the parties’ original agreement because of a mutual mistake

. 3. Summary Because genuine issues of material fact remain on the meaning of the parties’ original agreement and on whether the deed varies from that agreement because of a mutual mistake, the Wards failed to conclusively establish their entitlement to judgment on their claim that they are entitled to a judicial declaration that t hey own the minerals at issue because the deed is “not a product of a mutual mistake.” Therefore,
we sustain the Givenses’ fourth issue and Sewell’s fourth issue. The Compliance Agreement
Sewell contends in his second issue and Alamo contends in its seco nd issue that the court erred by denying their joint summary

- judgment motion because the evidence conclusively establishes that the Wards breached the compliance agreement by refusing to sign the correction deed. The compliance provision of the parties’ “ Acceptance of Title and Closing Agreements” reads as follows:Givens v. Ward Page 17

The undersigned agree to comply with all provisions of the real estate contract, Lenders [sic] closing instructions, or other documents executed in connection with the closing of this transactio n. The undersigned further agree to fully cooperate, adjust, and correct any errors or omissions and to execute any and all documents needed or necessary to comply with all provisions of the above mentioned real estate contract, Lender’s closing instructi ons or other documents executed in connection with the closing of this transaction, including the payment of attorney’s fees incurred in enforcing the terms of this compliance agreement. Sewell and Alamo contend that the Wards have breached this agreemen t because they have refused to sign a correction deed with the mineral reservation allegedly required by the real estate contract. However, we have already determined that genuine issues of material fact remain on the question of whether the real estate

c ontract included a reservation of minerals. The issue of whether the Wards have breached the compliance agreement cannot be resolved until it is determined whether the real estate contract included a reservation of minerals. Accordingly, the evidence
doe s not conclusively establish that the Wards breached the compliance agreement. Therefore, we overrule Sewell’s second issue and Alamo’s second issue.
Abatement Sewell contends in his fifth issue that the court abused its discretion by denying the join t p lea in abatement he filed with Alamo. They asked the court to abate the dispute between the Givenses and the Wards pending the resolution of their claims for specific performance of the compliance agreement. They further contended that “[i]t would be imp ractical for either [the Wards’] or [the Givenses’] Motions for Summary Judgment to be granted prior to this Court’s ruling on Intervenors’ request for [specific performance].”Givens v. Ward Page 18

We will assume without deciding that abatement may be appropriate in some
circ umstances for claims pending in the same lawsuit. “ The obvious reasons for
abatement

. . . are the conservation of judicial resources, avoidance of delay, ‘ comity, convenience, and the necessity for an orderly procedure in the trial of contested
issue s .’” Perry v. Del Rio , 66 S.W.3d 239, 252 (Tex. 20 01) (quoting Wyatt v. Shaw Plumbing Co. , 760 S.W.2d 245, 248 (Tex. 19 88)) (footnotes omitted); accord Mission Res., Inc. v. Garza Energy Trust , 166 S.W.3d 301, 326 (Tex. App.

— Corpus Christi 20 05, no pet.). As we have explained, however, the issue of whether the Wards have breached the compliance agreement cannot be resolved until the dispute between the Wards and the Givenses has been resolved. For this reason, “ the necessity for an orderly procedure ” of the contested issues requires that the dispute between the Wards and the Givenses be first resolved. Accordingly, the court did not abuse its discretion by denying the plea in abatement. Thus, we overrule Sewell’s fifth issue.
Conclusion The parties’ res pective claims hinge primarily on the meaning to be given the real estate contract. Genuine issues of material fact remain on the question of whether that contract includes a reservation of minerals. Therefore, summary judgment was not proper on any of t he parties’ claims. Because of our disposition of the issues discussed, we need not address any of the remaining issues. See T EX
. R. A PP
. P. 47.1. We reverse the judgment and remand this cause to the trial court for further proceedings consistent
with t his opinion. See Sarandos , 25 S.W.3d at 814.Givens v. Ward Page 19 FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurring in part with note)* Reversed and remanded Opinion delivered and filed October 8, 2008 [CV06]

* ( “Chief Justice Gray concurs, in part, with the judgment. A separate opinion will not issue. He notes, however, the deed is unambiguous and the Wards are entitled to that portion of the trial court’s declaratory judgment. While I do not join the basis or reasoning as expressed in the Court’s opinion, I agree there are unresolved fact issues that prevent the affirmance of the judgment and require that it be remanded for further proceedings.”)