NO. 12-14-00262-CV

IN THE 

TWELFTH COURT OF APPEALS 

SITTING AT TYLER, TEXAS 

___________________________

CHARLES ALFORD AND MARY LOU ALFORD, 

APPELLANTS 

VS. 

ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND 

CENTRAL TEXAS LAND SERVICES, 

APPELLEES. 

___________________________

Appealed from the 1ST Judicial District Court of

San Augustine County, Texas 

Trial Court No. CV-12-9344 

BRIEF OF APPELLEE ROBERT THOMAS MCKEITHEN 

Noel D. Cooper 

Texas Bar No. 00796397 

LAW OFFICES OF NOEL D. COOPER

117 North St., Suite 2 

Nacogdoches, Texas 75961 

Telephone: (936) 564-9000 

Telecopier: (936) 715-6022 

Email: noelcooper@noelcooper.com 

ATTORNEY FOR APPELLEE, 

ROBERT THOMAS MCKEITHEN 

ORAL ARGUMENT REQUESTED 

ACCEPTED

12-14-00262

TWELFTH COURT OF APPEALS

TYLER, TEXAS

7/10/2015 4:55:37 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 7/10/2015 4:55:37 PM CATHY S. LUSK Clerk
- 2 -

NO. 12-14-00262-CV

CHARLES ALFORD AND MARY LOU ALFORD,

APPELLANTS

VS.

ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND 

CENTRAL TEXAS LAND SERVICES,

APPELLEES.

IDENTITY OF PARTIES & COUNSEL

Appellant certifies that the following is a complete list of the parties, 

attorneys, and any other person who has any interest in the outcome of this 

lawsuit:

Noel D. Cooper

Texas Bar No. 00796397

LAW OFFICES OF NOEL D. COOPER

117 North St., Suite 2

Nacogdoches, Texas 75961

Telephone: (936) 564-9000

Telecopier: (936) 715-6022

Email: noelcooper@noelcooper.com

ATTORNEY FOR APPELLEE,

ROBERT THOMAS MCKEITHEN

ROBERT THOMAS MCKEITHEN

APPELLEE

Tom Rorie

Attorney at Law

210 North Street

Nacogdoches, Texas 75961

TEL: (936) 559-1188

FAX: (936) 559-0099

Email: trorie@sbcglobal.net

ATTORNEY FOR APPELLANTS,

CHARLES ALFORD AND MARY LOU ALFORD
- 3 -

CHARLES ALFORD AND MARY LOU ALFORD

APPELLANTS

Jason R. Mills

FREEMAN MILLS PC

110 N. College, Suite 1400

Tyler, Texas 75702

TEL: (903) 592-7755

FAX: (903) 592-7787

Email: eservicejrm@freemanmillspc.com

ATTORNEY FOR APPELLEES, 

EOG RESOURCES, INC. AND 

CENTRAL TEXAS LAND SERVICES

EOG RESOURCES, INC. 

APPELLEE

CENTRAL TEXAS LAND SERVICES

APPELLEE
- 4 -

TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL.......................................................... 2

TABLE OF CONTENTS................................................................................. 4

INDEX OF AUTHORITIES........................................................................... 5

STATEMENT OF THE CASE ........................................................................ 7

ISSUES PRESENTED ...................................................................................8

STATEMENT OF FACTS...............................................................................8

SUMMARY OF THE ARGUMENT............................................................... 11

ARGUMENT.................................................................................................12

Response to The trial court did not err in

Appellants’ Issue 1: holding that the mineral reservation

was incorporated into the Deed.....................12

PRAYER ...................................................................................................... 23

CERTIFICATE OF COMPLIANCE.............................................................. 23

CERTIFICATE OF SERVICE....................................................................... 24

APPENDIX.................................................................................................. 25
- 5 -

INDEX OF AUTHORITIES

CASES

American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842

(Tex. 1994)..........................................................................................15

Duhig v. Peavy-Moore Lumber Co., Inc., 144 S.W.2d 878

(Tex. 1940)..........................................................................................16

Dupnik v. Hermis, No. 04–12–00417–CV, 

2013 Tex. App. Lexis 2461, 2013 WL 979199 

(Tex. App.—San Antonio March 13, 2013, pet. denied)(mem. op.) ... 18

Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864

(Tex. 2007)..........................................................................................12

Gulf States Utils. Co. v. Low, 79 S.W.3d 561

(Tex. 2002) .........................................................................................15

Harmes v. Arkalatex Corp. 615 S.W.2d 177

(Tex. 1981)...........................................................................................15

Harris v. Windsor, 294 S.W.2d 798

(Tex. 1956) ..........................................................................................16

Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323

(Tex. 2011)...........................................................................................17

Klein v. Humble Oil & Refining Co., 67 S.W.2d 911

(Tex. Civ. App.—Beaumont 1934), aff'd, 

Klein v. Humble Oil & Refining Co., 86 S.W.2d 1077 (1935)..............16

Mitchell v. Castellaw, 246 S.W.2d 163

(Tex. 1952) ..........................................................................................17

Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493

(Tex. 1991)...........................................................................................15
- 6 -

Smith v. Allison, 301 S.W.2d 608

(Tex. 1956) ..........................................................................................16

Spencer v. Eagle Star Ins. Co. of America, 876 S.W.2d 154

(Tex., 1994).........................................................................................12

RULES

TEX. R. APP. P. 44..........................................................................................21

TEX. R. CIV. P. 272 ........................................................................................12

TEX. R. CIV. P. 273.........................................................................................12

TEX. R. CIV. P. 274 ........................................................................................12

Tex. R. Civ. P. 279.........................................................................................14
- 7 -

NO. 12-14-00262-CV

CHARLES ALFORD AND MARY LOU ALFORD,

APPELLANTS

VS.

ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND 

CENTRAL TEXAS LAND SERVICES,

APPELLEES.

BRIEF OF APPELLEE ROBERT THOMAS MCKEITHEN

COMES NOW, Noel D. Cooper, counsel for Appellee, Robert Thomas 

McKeithen, hereinafter identified as “Robert” or “McKeithen,” in the above 

numbered cause, and files this Appellee’s Brief and would show this 

Honorable Court as follows:

STATEMENT OF THE CASE

Nature of the Case. McKeithen was the sole heir of Annie and Jack 

Jessup, two long-time residents of San Augustine County, Texas. Appellants 

were ranchers and farmers in San Augustine County, and they rented 

property from the Jessups for their cattle. The purchased the Jessups’ 

property in 2003 to graze their cattle, and they never discussed the mineral 

estate. A Special Warranty Deed With Vendor’s Lien (“the Deed”) and a 

Deed Of Trust were was drawn up to reflect the agreements of the parties,

and a mineral reservation was included in one of the legal descriptions. 

After the fracking boom began in San Augustine County, Appellants 
- 8 -

brought suit against Appellees seeking to reform the deeds between 

Appellants and the Jessups to remove the mineral reservation.

Course of Proceedings. All parties moved for summary judgment, and 

the trial court denied all motions for summary judgment. CR 2:93, 3:87. A 

jury was selected, and evidence was heard on May 6 and 7, 2014. 

Trial Court Disposition. A verdict was returned by the jury, and the 

trial court entered a take-nothing judgment as to all of the Appellants’ 

claims. CR 3:133.

ISSUES PRESENTED FOR REVIEW

Response to Issue 1: Appellants erroneously contend that the trial 

court erred in ruling that the mineral reservation in the Warranty Deed 

With Vendor’s Lien was incorporated into the deed. At first review of the 

record, Appellants’ waived this issue at the trial court. Appellants failed to 

object to the jury charge which included an instruction to the jury regarding 

mineral reservation, effectively conceding that this was a lost cause for 

them. However, even had there not been a waiver, the Appellants are 

incorrect regarding the law as it relates to the Deed. 

STATEMENT OF FACTS

This is a case about a pasture, 117 acres out of 128 acres of pasture,

which the Appellants purchased from the Jessups in 2003. RR 3:18,26. For 
- 9 -

five or six years, Appellants leased the pasture from Jack and Annie Jessup. 

RR 3:16-17. In 2002, Annie asked Mary Lou if she knew of anyone who 

would want to purchase the pasture. RR 3:18. Mary Lou was interested, but 

the Appellants could not afford the pasture at that time. RR 3:18. The next 

year, Mary Lou approached Annie about buying the pasture, and they 

entered into an oral contract for the sale of the pasture for $80,000, or 

about $684/acre. RR 3:18-20. Mary Lou and Annie never discussed the 

mineral estate. RR 3:20. Appellants and the Jessups met at the office of a 

local attorney, and paperwork was drawn up for the sale of the pasture plus 

the Jessups’ house. RR 3:22. Appellants signed a Deed of Trust. RR 3:31-

32. 

Mary Lou conceded that the mineral estate was not part of 

Appellant’s contract with the Jessups to buy the pasture. RR 3:53. More 

importantly, she and her husband would have purchased the pasture with 

or without the mineral estate; they got a great deal on the pasture. RR 3:53. 

Mary Lou agreed that the contract to purchase the pasture was a handshake 

deal between people with an ongoing business relationship. RR 3:56. Mary 

Lou did completely read neither the Deed or the Deed of Trust. RR 3:57.

Robert was the Jessups’ nephew and their sole heir. RR 3:59-60.

Before Mr. Jessup had passed, Robert was appointed his guardian. RR 3:74. 
- 10 -

After the pasture had been sold to the Jessups, Robert was approached 

about leasing the mineral rights under the pasture, and he leased them. RR 

3:68-69. The guardianship proceedings were initiated so that Robert could 

lease the mineral rights to EOG. RR 3:78. At some point, Mary Lou’s 

daughter-in-law, Brenda, called Mary Lou and told her that Robert had 

made a deposit of funds that he received from EOG. RR 3:46. Mary Lou 

called Robert and wanted him to sign a release of lien on the pasture she 

and her husband bought, and when Robert reviewed the proposed release, 

it did not release just the lien but also had sneaked in a line by which he 

would release all of his mineral rights. RR 3:71. Appellants later sued 

Robert. CR 1:4.

Connie Vaughn worked for Ken Muckleroy as a part-time real estate 

closer. RR 4:16-17. According to her description of her duties, a real estate 

closer would meet with the parties in conjunction with a real estate closing, 

review all of the documentation with them, make sure everything was 

correct, and the proceed with the parties’ signing the documents. RR 4:17. 

Ms. Vaughn knows that she prepared documents for selling the pasture, but 

she had no specific recollection of the closing. RR 4:24-25. She reviewed 

the Exhibit A attached to the Deed. RR 4:29. The earlier instruments from 

which she obtained the property description would have usually been 
- 11 -

brought to her by the property sellers, but she had no memory of whether 

the Jessups had brought the particular legal description to her. RR 4:35.

She agreed that it was possible that the Jessups gave the legal description to 

her knowing that the mineral reservation was in there. RR 4:36. Ms. 

Vaughn agreed that the face of the Deed referenced a 1950 instrument with 

the same mineral reservation, and that if the metes and bounds had not 

been attached to the Deed, only the reference to the 1950 instrument, the 

Deed still would have been valid. RR 4:40-41. The attorney who employed 

Ms. Vaughn, Ken Muckleroy, could not recall meeting with the Jessups and 

the Alfords, and he had no specific recollections about the transaction 

which led to this litigation. RR 4:65-66. 

SUMMARY OF THE ARGUMENT

Appellants were poured out of court by a jury of their peers because

the causes of action under which they chose to sue McKeithen had no 

factual support. In their sole ground for appeal, they argue not about those 

facts or the jury charge but about one ruling made by the trial court. That 

one complaint boils down to their assertion that the mineral reservation 

attached to the Deed was not actually incorporated into the Deed. However, 

Appellants failed to preserve this issue as they did not object to an 

instruction on this point included in the Charge of the Court. This really 
- 12 -

was a last-ditch effort as Appellants raised this issue with the trial court at 

the 11th hour and after their motion for summary judgment had been heard. 

However, even if they had not waived their sole complaint, Texas case law is 

firmly against their position, and Appellants fail to address a recent 

decision from another Texas appellate court which is exactly on point and 

for which the Texas Supreme Court denied the petition for review. Finally, 

their request for a remand on damages is frivolous and without merit.

ARGUMENT

Response to Appellants’ Issue 1: The trial court did not err 

in ruling that the mineral reservation was incorporated into 

the deed.

Argument & Authorities

This matter started out as a suit to reform the Deed to remove the

mineral reservation, CR 1:4, and evolved to include a claim for trespass to 

try title. CR 3:88. Only the trespass to try title and reformation claims were 

submitted to the jury, CRS 2:4,8,9, and the jury found against Appellants 

on both of these issues. CRS 2:8,9. The jury also found that the Appellants 

had not utilized due diligence in reviewing the deed. CRS 2:10. Well after all 

of the parties had filed and had heard their motions for summary judgment 

and six (6) days before jury selection, Appellants filed a Motion for Court to 

Construe Document Prior to Evidence and Submission of Issues to Jury In 
- 13 -

Trial. CR 3:118-21. The trial court ruled that “under the rules of 

construction of documents that the language stating a mineral reservation 

found in the description of a 117 acre tract described as Tract 1 in Exhibit ‘A’ 

attached to that deed: Is Incorporated [sic] into the Deed.” CRS 4-5 (Ex. 1).

Appellants’ sole issue is that the trial court incorrectly ruled that the 

mineral reservation was incorporated into the Deed. 

Appellants Waived This Issue

Appellants waived this issue for purposes of appeal. “All objections 

[to the charge] not so presented shall be considered as waived.” TEX. R. CIV. 

P. 272. “Either party may present to the court and request written 

questions, definitions, and instructions to be given to the jury . . . . A 

request by either party for any questions, definitions, or instructions shall 

be made separate and apart from such party’s objections to the court’s 

charge.” TEX. R. CIV. P. 273. “A party objecting to a charge must point out 

distinctly the objectionable matter and the grounds of the objection. Any 

complaint as to a question, definition, or instruction on account of any 

defect, omission, or fault in pleading, is waived unless specifically included 

the objections.” TEX. R. CIV. P. 274. A party must object to an erroneous or 

defective question, instruction, or definition. See Equistar Chems., L.P. v. 

Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007)(holding that failure to 
- 14 -

object to an improper instruction waived that issue); Spencer v. Eagle Star 

Ins. Co. of America, 876 S.W.2d 154, 157 (Tex., 1994)(holding an objection 

is necessary to preserve error on improper instruction).

During the formal charge conference, Appellants’ only objections to 

the Charge of the Court concerned Question No. 3, the Due Diligence issue. 

RR 4:105-06. Appellants did no object to any other part of the Charge of the 

Court. RR 4:passim. Thus, the following question was submitted to the jury 

without objection from Appellants:
- 15 -

CRS 2:8 (Ex. 2). Included in the instructions is the following: “You are 

further instructed that Exhibit A was incorporated into the Deed.” Id. While 

Appellants are not specifically complaining about the Charge of the Court, 

they are complaining about a finding, and they waived this issue by not 

complaining during the charge conference to an instruction which directly 

addressed the issue about which they were complaining. There is a large 

body of case law which has held that a party can waive an entire theory of 

recovery or damage by not objecting with its omission from the charge. TEX.

R. CIV. P. 279; see Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 565 (Tex. 

2002); Harmes v. Arkalatex Corp. 615 S.W.2d 177, 179 (Tex. 1981); see, 

e.g., American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 n.12 

(Tex. 1994)(holding that defendant waived estoppel defense); 

Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex. 

1991)(holding that plaintiff waived breach of contract claim). Appellants

cannot now come and complain of the trial court’s ruling when they did not 

object to the jury being given this instruction.

The Mineral Reservation Was Incorporated Into the Deed

Irrespective of whether Appellants waived their one complaint on 

appeal, they never address any of the litany of Texas court decisions 

interpreting mineral reservations and instead rely totally on general 
- 16 -

contract cases. Texas courts “have long since relaxed the strictness of the 

ancient rules for the construction of deeds, and have established the rule for 

the construction of deeds as for the construction of all contracts,-that the 

intention of the parties, when it can be ascertained from a consideration of 

all parts of the instrument, will be given effect when possible. That 

intention, when ascertained, prevails over arbitrary rules.” Harris v. 

Windsor, 294 S.W.2d 798, 800 (Tex. 1956). “The ultimate purpose in 

construing a deed is to ascertain the intention of the grantor, and when this 

intention is ascertained, that construction which carries the intention into 

effect, when such intention is lawful, governs and controls.” Smith v. 

Allison, 301 S.W.2d 608, 614 (Tex. 1956). “The cardinal rule for the 

construction of deeds is to ascertain the intention of the parties as 

expressed in the deed.” Klein v. Humble Oil & Refining Co., 67 S.W.2d 911, 

914 (Tex. Civ. App.—Beaumont 1934), aff'd, Klein v. Humble Oil & Refining 

Co., 126 Tex. 450, 86 S.W.2d 1077, 1078 (1935). A reservation on the face of 

the deed only serves to further identify what is included in the metes and 

bounds. See Duhig v. Peavy-Moore Lumber Co., Inc., 144 S.W.2d 878, 879 

(Tex. 1940). Further, the trial court ruled that the Deed was ambiguous. 

CRS 4. When the court determines that the contract language is ambiguous, 

the intended meaning of that language becomes a fact issue for the trier of 
- 17 -

fact and extraneous evidence may be admitted to help determine the 

language’s meaning. Italian Cowboy Partners v. Prudential Ins., 341 

S.W.3d 323, 333-34 (Tex. 2011).

The agreement of the parties was to purchase the pasture. RR 3:18-

20. Would anyone, reading the entire document which was filed with the 

San Augustine County Clerk, have had any doubt of the mineral reservation 

in Tract One? The short answer is “no.” Moreover, if the mineral 

reservation was simply lifted from the metes and bounds to the first page of 

the deed, it would be obvious that it would serve the effect of the 

reservation. See Mitchell v. Castellaw, 246 S.W.2d 163, 164-65 (Tex. 1952). 

Appellants signed a deed of trust with the exact same mineral reservation. 

Mary Lou and her husband would have bought with pasture with or 

without the mineral estate, RR 3:53, and she conceded that neither she nor 

the Jessups ever uttered the word “minerals.” RR 3:56. Appellants were 

running cattle on the pasture when they bought it, RR 3:34, and they were 

still using the pasture for that purpose at the time of trial. RR 3:56. If we 

are trying to determine the intent of the parties, the intent is clear: 

Appellants did not intend to purchase the mineral estate. Nowhere in the 

record does it say that Appellants intended to purchase the mineral estate 

beneath the pasture. 
- 18 -

Appellants are aware of adverse case law directly on point which is 

controlling to their single issue, though they never cite or contrast 

that law to this appeal.

It is troubling that Appellants, though they have been aware of 

adverse authority for over a year, CR 2:143-147, do not even make mention 

of it in their brief. A recent case from San Antonio considered a deed like 

the one in this case. Dupnik v. Hermis, No. 04–12–00417–CV, 2013 Tex. 

App. Lexis 2461, 2013 WL 979199 (Tex. App.—San Antonio March 13, 2013, 

pet. denied)(mem. op.)(Ex. 3). In that case, four co-tenants partitioned a 

nearly 100-acre piece of land in 1983, but the minerals remained undivided. 

Id. at *2. In 1991, Hermis, an original cotenant, conveyed Dupnik, another 

original cotenant, one surface acre and her 114 mineral interest 1n the acre. 

Id. Hermis did the same thing in 1994 with five acres (the five acres 

included the previously conveyed one acre). Id. Then in 1998 Hermis 

conveyed her entire 24.68-acre tract to Dupnik. Id. The 1998 deed 

contained the same alleged problem as the deed in this case. The property 

description in the deed contained an acreage amount and survey, but also 

relied on a description in the attached Exhibit A. Id. at *3. But while the 

reservation in the deed said "none," the description described tract two as 

"the surface only." Id.
- 19 -

Dupnik arose out of the same error as this case: the property 

description in the 1998 deed was copied out of an older deed. Id at *4.

Dupnik sued in 2011 for a declaratory judgment on her mineral ownership 

in the land. Id. at *3. The trial court found that the deed unambiguously 

contained a binding mineral reservation. Id. at * 1. The court of appeals 

affirmed, first because Dupnik's claim to the minerals was barred by 

limitations, and second because the deed unambiguously contained a 

binding mineral reservation. Id. at * 12, * 15. 

Courts must interpret deeds harmoniously to give effect to all their 

parts. Id. at *13-*14. The intent to be enforced is not the parties' subjective 

intent, but rather the intent "from the language used within the 

instrument's four comers[.]" Id. at * 15. Therefore, "the actual, subjective 

intent of the parties will not always be given effect even if [the court] were 

able to discern that subjective intent." Id. (internal quotations omitted).

Applying those interpretive rules, the court of appeals in Dupnik properly 

found that the reservation of "none" simply meant that the grantor was not 

retaining the rights "to any of the substances that belong to the surface 

estate owner." Id. (citing Moser v. US. Steel Corp., 676 S.W.2d 99, 102 

(Tex. 1984)).

The tract at issue in this case is Tract One of the deed, and the 
- 20 -

Jessups stated that the property being conveyed is more particularly 

described in the exhibit to the Deed. The exhibit describes the location of 

the tract and states that the conveyance does not include one half of all the 

minerals beneath the tract. The Deed also contains the following provision 

under the heading “Exemptions to Conveyance and Warranty:”

RR 5:PX-2. In addition, the Deed stated that it incorporated any prior 

mineral reservations, and there was a prior reservation of one half of the 

minerals. Accordingly, because one-half of the minerals had been 

previously reserved and the Jessups were excluding from the description 

the other half of the minerals, the exhibit was also providing a horizontal 

boundary and not just vertical boundary lines. The conveyance of Tract One 

was limited to the surface.

Because the conveyance of Tract One was for the surface only, the 

part of the deed reserving a life estate in Tract Two does not create an 

ambiguity. Like in Dupnik, where a reservation of "none" did not conflict 

with a grant of the surface only, the Jessups did not need to reserve 

anything from Tract One because they did not grant the minerals. Dupnik, 

2013 Tex. App. Lexis, at *15. Accordingly, the warranty deed 

unambiguously does not grant any of the minerals in Tract One to 
- 21 -

Appellants.

Appellants did not introduce any evidence of damages at trial, so 

there is no basis to remand the case on the issue of damages.

Appellants’ request that the case be remanded to the trial court is 

frivolous and without merit. “The court may not order a separate trial solely 

on unliquidated damages if liability is contested.” TEX. R. APP. P. 44.1(b). 

The jury did not make a determination of damages. CRS 2:12. While

Appellants introduced copies of two checks, RR 5:PX-12, PX-13, they did 

not elicit any testimony about specifically what those monies related to so 

that a jury could determine any damages. RR 3:passim, 4:passim. It is 

telling that, despite their having sued both EOG and Central Texas Land 

Services, they did not call any expert witnesses from either of those two 

appellants or under their own control to testify regarding how monies paid 

to the Jack Jessup Estate equated to harm to the Appellants. What was that 

money for? Appellants never offered any testimony on that issue.

Conclusion

Appellants claims are easy to follow: they would like to have been 

deeded the minerals. Of course, equitably this falls flat. They never 

negotiated for the mineral estate, they never agreed to purchase the mineral 

estate, and they would have purchased the pasture with or without the

mineral estate—for less than $700 per acre who would not? They bought 
- 22 -

the pasture for what they were paying to lease the pasture. The jury 

understood Appellants’ motivations, and their findings reflect the facts: not 

only did the Appellants not own the mineral estate, there was no mistake in 

reducing the Jessups’ and Alfords’ agreement to writing. 

Not being able to win on the facts, Appellants are left trying to find 

some justification for stealing something which doesn’t belong to them—a 

legal do over. Unfortunately for their arguments, they are were done in the 

trial court. Appellants tried to get the trial court to rule that the mineral 

reservation was not part of the deed, but when that was successful, they did 

not bring it up again during the trial, and they waived the issue by not 

objecting to the trial court’s instructions on the mineral reservation. Even 

had Appellants preserved the issue, they are wrong on the law as the 

mineral reservation, according to the courts which have addressed similar 

facts, is incorporated into the Deed. EOG and Central Texas Land Services 

obviously thought that the Jessups had retained the minerals, and the 

Appellants attorney, Mr. Muckleroy, also knew that the Deed reserved the 

minerals. Why else would he have sneaked in a line into the release of lien 

about the minerals? Thus, Appellant’s single issue is wholly without merit, 

and the judgment of the trial court should be affirmed. 
- 23 -

PRAYER

Wherefore, Appellee Robert Thomas McKeithen prays this Court to 

affirm the decision of the trial court for the reasons stated herein and for all 

other relief to which he is entitled.

Respectfully submitted,

/s/Noel D. Cooper 

Noel D. Cooper

Texas Bar No. 00796397

LAW OFFICES OF NOEL D. COOPER

117 North St., Suite 2

Nacogdoches, Texas 75961

Telephone: (936) 564-9000

Telecopier: (936) 715-6022

Email: noelcooper@noelcooper.com

ATTORNEY FOR APPELLANT, 

ROBERT THOMAS MCKEITHEN

CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document is 

computer generated and contains 2,962 words based on a computer word 

count. 

/s/Noel D. Cooper 

NOEL D. COOPER
- 24 -

CERTIFICATE OF SERVICE

I certify that I delivered a copy of this Brief of Appellee Robert 

Thomas McKeithen to each attorney of record or party in accordance with 

the Texas Rules of Appellate Procedure on July 10, 2015, at the addresses 

and manners below.

Tom Rorie

Attorney for Charles Alford and Mary Lou Alford

Attorney at Law

210 North Street

Nacogdoches, Texas 75961

TEL: (936) 559-1188

FAX: (936) 559-0099

Email: trorie@sbcglobal.net

By Electronic Filing Manager 

Jason R. Mills

Attorney for EOG Resources, Inc. and Central Texas Land Services

Freeman Mills PC

110 N. College, Suite 1400

Tyler, Texas 75702

TEL: (903) 592-7755

FAX: (903) 592-7787

Email: eservicejrm@freemanmillspc.com

By Electronic Filing Manager 

/s/Noel D. Cooper 

NOEL D. COOPER
- 25 -

NO. 12-14-00262-CV

CHARLES ALFORD AND MARY LOU ALFORD,

APPELLANTS

VS.

ROBERT THOMAS MCKEITHEN, EOG RESOURCES, INC., AND 

CENTRAL TEXAS LAND SERVICES,

APPELLEES.

APPELLANT’S APPENDIX

LIST OF DOCUMENTS

1. Order on Construction by Court of Warranty

Deed from Jack P. Jessup and Annie Elizabeth

Jessup to Charles Alford and Mary Lou Alford

Dated April 25, 2003 ...............................................................Exhibit 1

2. Charge of the Court................................................................. Exhibit 2

3. Dupnik v. Hermis, No. 04–12–00417–CV, 

2013 Tex. App. Lexis 2461, 2013 WL 979199 

(Tex. App.—San Antonio March 13, 2013, 

pet. denied)(mem. op.) ........................................................... Exhibit 3
4
5
CAUSE NO. CV-12-9344 

CHARLES and MARY LOU ALFORD § 

Plaintiffs, 

vs. 

ROBERT THOMAS McKEITHEN; 

EOG RESOURCES, INC.; and 

CENTRAL TEXAS LAND SERVICES 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

FILED OF 

rq J ·.1 S-0 CLOCK~ M 

s=- ~ 20-1JJ... JEAN s0TOE Dl~lerk 

SAN AUGUS!V1:TEXAS 

BY u "/?=----

SAN AUGUSTINE COUNTY, TEXAS 

CHARGE OF THE COURT 

LADIES AND GENTLEMEN OF THE JURY: 

After the closing arguments, you will go to the jury room to decide the case, answer the 

questions that are attached, and reach a verdict. You may discuss the case with other jurors only 

when you are all together in the jury room. 

Remember my previous instructions: Do not discuss the case with anyone else, either in person 

or by any other means. Do not do any independent investigation about the case or conduct any 

research. Do not look up any words in dictionaries or on the Internet. Do not post information 

about the case on the Internet. Do not share any special knowledge or experiences with the other 

jurors. Do not use your phone or any other electronic device during your deliberations for any 

reason. [The Court will give you a number where others may contact you in case of an 

emergency.] 

Any notes you have taken are for your own personal use. You may take your notes back into the 

jury room and consult them during deliberations, but do not show or read your notes to your 

fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on 

your independent recollection of the evidence and not be influenced by the fact that another juror 

has or has not taken notes. 

You must leave your notes with the bailiff when you are not deliberating. The bailiff will give 

your notes to me promptly after collecting them from you. I will make sure your notes are kept in 

a safe, secure location and not disclosed to anyone. After you complete your deliberations, the 

bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly 

destroy your notes so that nobody can read what you wrote. 

Here are the instructions for answering the questions. 

1. Do not let bias, prejudice, or sympathy play any part in your decision. 

CHARGE OF THE COURT 

4

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2. Base your answers only on the evidence admitted in court and on the Ia:w that is in these 

instructions and questions. Do not consider or discuss any evidence that was not admitted 

in the courtroom. 

3. You are to make up your own minds about the facts. You are the sole judges of the 

credibility of the witnesses and the weight to give their testimony. But on matters oflaw, 

you must follow all of my instructions. 

4. If my instructions use a word in a way that is different from its ordinary meaning, use the 

meaning I give you, which will be a proper legal definition. 

5. All the questions and answers are important. No one should say that any question or 

answer is not important. 

6. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" answer must 

be based on a preponderance of the evidence [unless you are told otherwise]. Whenever a 

question requires an answer other than "yes" or "no," your answer must be based on a 

preponderance of the evidence [unless you are told otherwise]. 

7. The term "preponderance of the evidence" means the greater weight of credible evidence 

presented in this case. If you do not find that a preponderance of the evidence supports a 

"yes" answer, then answer "no." A preponderance of the evidence is not measured by the 

number of witnesses or by the number of documents admitted in evidence. For a fact to 

be proved by a preponderance of the evidence, you must find that the fact is more likely 

true than not true. 

8. Do not decide who you think should win before you answer the questions and then just 

answer the questions to match your decision. Answer each question carefully without 

considering who will win. Do not discuss or consider the effect your answers will have. 

9. Do not answer questions by drawing straws or by any method of chance. 

10. Some questions might ask you for a dollar amount. Do not agree in advance to decide on 

a dollar amount by adding up each juror's amount and then figuring the average. 

11. Do not trade your answers. For example, do not say, "I will answer this question your 

way if you answer another question my way." 

12. The answers to the questions must be based on the decision of at least 10 of the 12 jurors. 

The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of 

anything less than 10 jurors, even if it would be a majority. 

As I have said before, if you do not follow these instructions, you will be guilty of juror 

misconduct, and I might have to order a new trial and start this process over again. This would 

waste your time and the parties' money, and would require the taxpayers of this county to pay for 

another trial. If a juror breaks any of these rules, tell that person to stop and report it to me 

immediately. 

CHARGE OF THE COURT 2/10 

5
Presiding Juror: 

1. When you go into the jury room to answer the questions, the first thing you will need to 

do is choose a presiding juror. 

2. The presiding juror has these duties: 

a. have the complete charge read aloud if it will be helpful to your deliberations; 

b. preside over your deliberations, meaning manage the discussions, and see.that you 

follow these instructions; 

c. give written questions or comments to the bailiff who will give them to the judge; 

d. write down the answers you agree on; 

e. get the signatures for the verdict certificate; and 

f. notify the bailiff that you have reached a verdict. 

Do you understand the duties of the presiding juror? If you do not, please tell me now. 

Instructions for Signing the Verdict Certificate: 

• You may answer the questions on a vote of 10 jurors. The same 10 jurors must agree on 

every answer in the charge. This means you may not have one group of 10 jurors agree 

on one answer and a different group of 10 jurors agree on another answer. 

• If 10 jurors agree on every answer, those 10 jurors sign the verdict. 

• If 11 jurors agree on every answer, those 11 jurors sign the verdict. 

• If all 12 of you agree on every answer, you are unanimous and only the presiding juror 

signs the verdict. 

• All jurors should deliberate on every question. You may end up with all 12 of you 

agreeing on some answers, while only 10 or 11 of you agree on other answers. But when 

you sign the verdict, only those 10 who agree on every answer will sign the verdict. 

Do you understand these instructions? If you do not, please tell me now. 

CHARGE OF THE COURT 3/10 

6
DEFINITIONS 

Throughout this charge, the following terms shall have the meaning indicated: 

1. "The Alfords" means the Plaintiffs Charles Alford and Mary Lou Alford. 

2. "The Jessups" means Jack P. Jessup and Annie Elizabeth Jessup. 

3. "McKeithen" means Defendant Robert Thomas McKeithen, in all his capacities. 

4. "EOG" means Defendant EOG Resources, Inc. 

5. "Central Texas Land Services" means Defendant Central Texas Land Services. 

6. The "Deed" means the April 25, 2003 Warranty Deed with Vendor's Lien from 

the Jessups to the Alfords. 

7. "Tract One" means the 117.50 acre tract of land located about seven miles west 

of San Augustine, Texas, and that is more particularly described as Tract One in 

the Deed. 

CHARGE OF THE COURT 4110 

7
QUESTION NO. 1 

Question: 

Have the Alfords proved that they have title to an undivided one-half of the mineral estate 

beneath Tract One? 

Instruction: 

To establish title, the Alfords must (1) prove a regular chain of conveyances from the sovereign, 

(2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove 

title by prior possession coupled with proof that possession was not abandoned. 

The Alfords may prevail only on the superiority of their title, not on the weakness of 

McKeithen's title. 

You are instructed that it is undisputed that prior to executing the Deed, the Jessups owned an 

undivided one-half of the minerals beneath Tract One. The question of fact for you to decide is 

whether the Deed reserved or conveyed the mineral interest. If it reserved the mineral interest 

answer "No," and if it conveyed the mineral interest answer "Yes." 

You are further instructed that Exhibit A was incorporated into the Deed. 

You are further instructed that a warranty deed will pass all of the estate owned by the granter at 

the time of the conveyance unless there are reservations or exceptions which reduce the estate 

conveyed. 

Answer: o~ 

Answer "Yes" or ''No."--+--'--"V.__ __ 

CHARGE OF THE COURT 

8

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QUESTION NO. 2 

If you answered "No" to Question No. 1, then answer this question. Otherwise do not answer this 

question. 

Question: 

Have the Alfords proved that the Deed should be reformed such that the reservation of minerals 

in Exhibit A of the Deed should be removed? 

Instruction: 

To be entitled to a reformation of the Deed, the Alfords must prove that (1) there was an 

agreement before the Deed was written; and (2) there was a mutual mistake, made after the 

original agreement, in reducing the agreement to writing that to does not reflect the agreement of 

the parties to the Deed~ \ c.,,; 

You are instructed that to prove a "mutual mistake," the Alfords must prove (1) a mistake of fact, 

(2) held mutually by the parties to the Deed, (3) and which materially affects the subject matter 

of the Deed. 

You are further instructed that a warranty deed will pass all of the estate owned by the grantor at 

the time of the conveyance unless there are reservations or exceptions which reduce the estate 

conveyed. 

Answer: /)0 Answer "Yes" or ''No."__._ ___ _ 

CHARGE OF THE COURT 

9

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QUESTION NO. 3 

If you answered "Yes" to Question No. 2, then answer this question. Otherwise do not answer 

this question. 

Question: 

Have the Alfords proved that they exercised due diligence in reviewing the Deed? 

Instruction: 

You are instructed that the standard of diligence in reviewing the Deed is that diligence an 

ordinary prudent person would have used under the same or similar circumstances. 

Answer: I\ 

Answer "Yes" or ''No.;'_..._!1--=0 __ _ 

CHARGE OF THE COURT 7/10 

10
QUESTION NO. 4 

If you answered "Yes" to Question No. 3, then answer this question. Otherwise do not answer 

this question. 

Question: 

By what date did the Alfords discover, or should have discovered by exercising reasonable care 

and diligence, the reservation of minerals for Tract One in Exhibit A to the Deed? 

Instruction: 

You are instructed that the standard of diligence in reviewing the Deed is that diligence an 

ordinary prudent person would have used under the same or similar circumstances. 

Answer: 

Answer by inserting a specific, month, day and year. -----------

CHARGE OF THE COURT 

11

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REQUESTED QUESTION NO. 5 

If you answered "Yes" to Question No. 1 or "Yes" to Question No. 2, then answer this question. 

Otherwise do not answer this question. 

Question: 

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate the 

Alfords for the damages, if any, that resulted from the minerals beneath Tract One being leased? 

Instruction: 

You shall consider only the difference, if any, between the royalty the Alfords received and the 

royalty the Alfords would have received had the Jessups or McKeithen not claimed title to onehalf of the minerals beneath Tract One. 

Do not add any amount for interest on damages, if any. 

Answer: 

Answer in dollars and cents, if any. $ _________ _ 

CHARGE OF THE COURT 

12

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... 

VERDICT CERTIFICATE 

If the verdict is unanimous, the presiding juror should sign below. 

Presiding Juror 

If the verdict is not unanimous, then thedecidingjurors should sign below. 

1/'L-JuJ IJ~ 2. (kk <mt1t;n JY 

4.&k,il)~ 

9./~~ 

11. 

. FILED 

Aft. D~'CLOgK 14 s--:i 20 · 

JEAN STEt'TOE Dlsii Clerk 

~N AU'1!-~· TEXAS 

CHARGE OF THE COURT 

8.~~ 

10. /c ldttdd ~ .. 

13

10/10 
Charles Alford & Mary Lou Alford 

Vs. 

BILL OF COSTS 

CV-12-9344 

Robert Thomas McKeithen, EOG Resource Inc., & Central Texas Land Services 

Costs to prepare transcript for the above case is $15.00 and has been paid. 

I hereby certify that the above amounts are correct and true. 

14
CLERK'S CERTIFICATE 

The State of Texas { 

County of San Augustine { 

I, Jean Steptoe, Clerk of the District Courts in and for San Augustine County, State 

of Texas do hereby certify that the above and foregoing, are true and correct copies of 

all the proceedings directed by counsel to be included in the transcript in the case 

of Charles Alford & Marv Lou Alford vs. Robert Thomas McKeithen, EOG Resources 

Inc., & Central Texas Land Service in Cause No. CV-12-9344 

as the same appear from the originals now on file and of record in this office. 

Given under my hand and seal of said Court at office in the City of San Augustine, 

on the_----'1 __ day of Jul Y, 2015. 

~e~ District Clerk 

San Augustine, Texas 

15
Dupnik v. Hermis (Tex. App., 2013)

 - 1 -

Cynthia DUPNIK Appellant

v.

Hermina HERMIS, Appellee

No. 04-12-00417-CV

Fourth Court of Appeals San Antonio, Texas

Delivered and Filed: March 13, 2013

MEMORANDUM OPINION

From the 81st Judicial District Court, Karnes 

County, TexasTrial Court No. 11-11-

00269Honorable Donna S. Rayes, Judge 

Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice

 Sandee Bryan Marion, Justice

 Rebeca C. Martinez, Justice

AFFIRMED AS MODIFIED

 Cynthia Dupnik appeals the trial court's 

denial of her motion for summary judgment and 

the grant of Hermina Hermis's motion for 

summary judgment, which declared that Hermis 

owned title to the mineral interest in land 

conveyed by Hermis to Dupnik in 1998. 

Specifically, Dupnik asserts that the 1998 deed 

was ambiguous and the trial court erred by not 

considering the circumstances surrounding the 

conveyance in determining the intention of the 

parties. Hermis responds that the deed 

unambiguously grants Dupnik the surface estate 

only, and that the suit is barred by the statute of 

frauds and the statute of limitations.

Page 2

BACKGROUND

 Marcine Dupnik, Hermina Hermis, Emma 

Dunaubauer, and M.E. Syring each owned an 

undivided one-fourth interest in both the surface 

and the minerals of an approximately onehundred acre tract in Karnes County, Texas. In 

1983, these individuals agreed to partition the 

surface estate into four equal parts (24.68 acres 

each), but each maintained an undivided onefourth mineral interest in the entire one-hundred 

acre tract.

 On February 19, 1991, Hermis deeded to 

Dupnik and her husband one acre out of 

Hermis's partitioned 24.68 acres (the "1991 

deed"). Both parties agree the 1991 deed 

conveyed both the surface and Hermis's 

undivided one-fourth mineral interest in the acre.

 On October 28, 1994, Hermis deeded to 

Dupnik and her husband five acres out of 

Hermis's partitioned 24.68 acres (the "1994 

deed"). The five acres conveyed in the 1994 

deed included the one acre conveyed in the 1991 

deed, and, again, both parties agree the 1994 

deed conveyed both the surface and Hermis's 

undivided one-fourth mineral interest in all five 

acres.

 On August 27, 1998, Hermis and Dupnik 

again engaged in a conveyance of Hermis's 

property in Karnes County. The deed resulting 

from this conveyance is the subject of this suit 

and will be referred to as the "1998 deed." The 

relevant portion of the 1998 deed recites the 

following:

PROPERTY (including any 

improvements)

24.68 acres out of the E. Seguin 

Survey, Karnes County, Texas, 

and fully described in Exhibit 

A.

RESERVATIONS from and 

Exceptions to Conveyance and 

Warranty:

None

 Exhibit A titles the property described as 

"Tract No. Two: (the surface only)" and then 

gives the metes and bounds description for 

Hermis's tract from the 1983 partition deed. On 
Dupnik v. Hermis (Tex. App., 2013)

 - 2 -

November 2, 2011, over thirteen years after the 

1998 deed was signed, Dupnik filed suit against

Page 3

Hermis requesting the trial court to declare 

Dupnik the owner of the undivided one-fourth 

mineral interest in the entire one-hundred acre 

tract. Hermis filed an answer, a counterclaim for 

trespass to try title, and a motion for summary 

judgment alleging that the suit was barred by the 

statute of frauds and the statute of limitations, 

and because the grant of the surface estate only 

reserved title to the mineral estate as a matter of 

law. Dupnik also filed a cross-motion for 

summary judgment essentially asserting that the 

"surface only" language was erroneously entered 

in the description because the property 

description was merely copied and pasted from 

the 1983 partition deed. Dupnik alleged the 

parties' true intent could be ascertained from the 

previous conveyances (the 1991 and 1994 

deeds) and contracts for sale between the parties. 

Finding no genuine issue of material fact, the 

trial court granted Hermis's motion for summary 

judgment, determining Hermis was entitled to 

judgment in her favor as a matter of law, and 

denied Dupnik's motion for summary judgment.

 On appeal, Dupnik claims the trial court 

erred in granting Hermis's motion for summary 

judgment because there is a patent internal 

conflict within the 1998 deed, and the trial court 

erred in failing to consider the prior conveyances 

between the parties and the contract for sale for 

the 1998 deed. Specifically, Dupnik complains 

the grant of the surface estate only and the 

reservation of "none" are irreconcilable because 

a grantor must specifically reserve any rights 

associated with the mineral estate. Dupnik also 

asserts that because she filed a verified affidavit 

in support of her motion for summary judgment 

and Hermis did not, the trial court erred in 

granting summary judgment in Hermis' favor 

because Dupnik's verified pleading carried more 

weight. Lastly, Dupnik complains that the 

summary judgment entered by the trial court 

does not conform to the pleadings and grants 

relief not requested by Hermis. Hermis, in 

addition to contesting Dupnik's arguments, 

asserts that Dupnik's claim is barred by the 

statute of frauds and the statute of limitations.

Page 4

STANDARD OF REVIEW

 We review a trial court's summary 

judgment de novo. Provident Life & Accident 

Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 

2003); Longoria v. Lasater, 292 S.W.3d 156, 

162 (Tex. App.—San Antonio 2009, pet. 

denied). A party should be granted summary 

judgment only if it proves all elements of its 

cause of action or affirmative defense. Holy 

Cross Church of God in Christ v. Wolf, 44 

S.W.3d 562, 566 (Tex. 2001); see also TIG Ins. 

Co. v. San Antonio YMCA, 172 S.W.3d 652, 

655-56 (Tex. App.—San Antonio 2005, no pet.). 

When both parties file motions for summary 

judgment and the trial court grants one motion 

and denies the other, the reviewing court must 

consider the evidence presented by both parties 

and determine all questions presented to the trial 

court. FM Props. Operating Co. v. City of 

Austin, 22 S.W.3d 868, 872-73 (Tex. 2000); TIG 

Ins. Co., 172 S.W.3d at 655-56. It is the duty of 

a reviewing court to "render the judgment that 

the trial court should have rendered." Wolf, 44 

S.W.3d at 566; see also FM Props. Operating 

Co., 22 S.W.3d at 872-73.

STATUTE OF LIMITATIONS

 Hermis contends Dupnik's suit is barred by 

the four-year statute of limitations. In response, 

Dupnik first argues that a court always "has an 

inherent right to properly interpret instruments." 

Dupnik, however, cites no authority, and we can 

find none, supporting the proposition that courts 

retain an inherent right to litigate title disputes 

after the statute of limitations expires. Dupnik 

next argues that even if the statute of limitations 

applies, the discovery rule deferred the accrual 

of limitations in this case.

 A. Applicable Statute of Limitations

 This is a trespass to try title suit where the 

parties are seeking interpretation of a deed. See 

Longoria, 292 S.W.3d at 165 ("A suit to resolve 
Dupnik v. Hermis (Tex. App., 2013)

 - 3 -

a dispute over title to land is, in effect, a trespass 

to try title action regardless of the form the 

action takes and whether legal or equitable

Page 5

relief is sought."). To determine the applicable 

statute of limitations in a trespass to try title suit 

where parties dispute the title conveyed, we 

must determine whether the deed is void or 

voidable.1Slaughter v. Qualls, 162 S.W.2d 671, 

674 (Tex. 1942); Garcia v. Garza, 311 S.W.3d 

28, 42 (Tex. App.—San Antonio 2010, pet. 

denied).

 If the deed is void, the cause of action will 

not be barred by the statute of limitations. Ford 

v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 

(Tex. 2007); Garcia, 311 S.W.3d at 42. A deed 

is void if it is "without vitality or legal effect." 

Slaughter, 162 S.W.2d at 674 (quoting Smith v. 

Thornhill, 25 S.W.2d 597, 600 (Tex. Comm'n 

App. 1926)) (internal quotation marks omitted). 

Conversely, if a deed is merely voidable, the 

four-year statute of limitations will apply to the 

suit. Ford, 235 S.W.3d at 618; Garcia, 311 

S.W.3d at 42. A deed is voidable if it "operates 

to accomplish the thing sought to be 

accomplished, until the fatal vice in the 

transaction has been judicially ascertained or 

declared." Slaughter, 162 S.W.2d at 674 

(quoting Smith, 25 S.W.2d at 600) (internal 

quotation marks omitted).

 If an instrument is legally effective when 

suit is brought and at least one party's claim to 

title requires the court to exercise its equitable 

powers before title can be determined, the 

instrument is not in and of itself void. Pure Oil 

Co v. Ross, 111 S.W.2d 1076, 1078 (Tex. 1938); 

Neill v. Pure Oil Co., 101 S.W.2d 402, 404 

(Tex. Civ. App.—Dallas 1937, writ ref'd). In 

Ford v. Exxon Mobil Chemical Co., the Texas 

Supreme Court rejected the appellate court's 

conclusion that an equitable action to quiet title 

is not subject to the statute of limitations. 235 

S.W.3d at 618. The supreme court explained that 

"an equitable action to remove cloud on title is 

not subject to limitations if a deed is void or has 

expired by its own terms." Id. However, a party

Page 6

may not attack a facially valid, and thus 

voidable, deed merely by pleading in equity. Id. 

at 619. "When a deed is merely voidable, equity 

will not intervene as the claimant has an 

adequate legal remedy." Id. at 618.

 The 1998 deed at issue in this case was 

legally effective when signed because it validly 

granted Dupnik the surface estate. The term 

"none" used in the reservation clause does not in 

and of itself render the deed invalid because it 

can be read as simply reserving no rights to the 

substances belonging to the surface estate 

owner. See Moser v. U.S. Steel Corp., 676 

S.W.2d 99, 102 (Tex. 1984) (listing substances 

that belong to the surface estate as a matter of 

law); Poag v. Flories, 317 S.W.3d 820, 827

(Tex. App.—Fort Worth 2010, pet. denied) 

(indicating that a conveyance of the "surface 

estate only" provides the grantee notice that he 

owns only the surface estate). Therefore, the 

deed in this case is voidable because it is facially 

effective and any ambiguity or error would be 

found only after a court looked behind the 

instrument to determine the intention of the 

parties.

 B. Discovery Rule

 In response to Hermis's assertion that 

Dupnik's cause of action is barred by the statute 

of limitations, Dupnik claims the discovery rule 

prevents limitations from barring this suit. 

Dupnik has likely waived the ability to assert the 

discovery rule in avoidance of the statute of 

limitations. If this rule is not pleaded in an 

original, amended, or supplemental petition and 

the party does not secure findings on its 

applicability, the claim is waived. Woods v. 

William M. Mercer, Inc., 769 S.W.2d 515, 518 

(Tex. 1988); Morriss v. Enron Oil & Gas Co., 

948 S.W.2d 858, 868 (Tex. App.—San Antonio 

1997, no writ). Even if the claim was not 

waived, it would fail on its merits.

 As a general rule, a cause of action accrues 

when the legal injury occurs, regardless of when 

the legal injury is discovered or when all of the 
Dupnik v. Hermis (Tex. App., 2013)

 - 4 -

resulting damages occur. S.V. v. R.V., 933 

S.W.2d 1, 4 (Tex. 1996). Some cases, however, 

present an exception to this rule that defers

Page 7

accrual of limitations until the plaintiff "knew or 

through the exercise of diligence should have 

known of the wrongful act and resulting injury." 

Id. (citing Trinity River Auth. v. URS 

Consultants, Inc., 889 S.W.2d 259, 262 (Tex. 

1994)). This exception is also known as the 

"discovery rule." Id. at 6. The discovery rule 

provides relief to wronged parties when "the 

nature of the injury incurred is inherently 

undiscoverable and the evidence of injury is 

objectively verifiable." Id. (quoting Computer 

Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 

456 (Tex. 1996)) (internal quotation marks 

omitted). Despite the equitable effect of the 

discovery rule in some cases, "[t]he fact that a 

meritorious claim might . . . be rendered 

nonassertible is an unfortunate, occasional byproduct of the operation of limitations." Id. 

(quoting Robinson v. Weaver, 550 S.W.2d 18, 

20 (Tex. 1990)) (internal quotation marks 

omitted).

 First, Dupnik claims "[i]t was impossible to 

know the exact meaning of the contradictory 

terms in the 1998 deed [or] to know that she had 

suffered a legal harm unless and until [Hermis] 

attempted to assert claims adverse to [Dupnik]." 

This argument contradicts her claim that the 

ambiguity was patent and obvious on the face of 

the instrument. Regardless, the fact that Dupnik 

may not have understood the exact meaning of 

the allegedly contradictory terms does not 

negate that, by her very own admission, the 

terms of the instrument appear facially 

problematic to her. With due diligence, she 

would have learned of the alleged mistake.

 An instrument that describes the property 

as "surface only" in contravention of the parties' 

alleged intent is not the type of inherently 

undiscoverable injury contemplated by the 

discovery rule. An inherently undiscoverable 

injury is one that is "by nature unlikely to be 

discovered within the prescribed limitations 

period despite due diligence." Id. at 7. In her 

Responses to Request for Admissions, Dupnik 

denied that she read all parts of the 1998 deed 

when it was delivered to her by Hermis. As 

such, there can be little doubt that due diligence 

was

Page 8

not exercised. Dupnik's claim fails for two 

reasons: (1) it was not an inherently 

undiscoverable defect; and (2) due diligence was 

not exercised. Thus, the discovery rule is 

inapplicable to prevent this case from being 

barred by limitations.

APPLYING RULES OF 

INTERPRETATION/CONSTRUCTION TO 

1998 DEED

 Even if this suit were not barred by the 

statute of limitations, Dupnik's claim would fail 

under the rules of interpretation/construction. 

Dupnik contends that the 1998 deed is 

ambiguous and that without looking to the 

history of transactions between the parties, there 

is a facially "irreconcilable internal conflict" in 

the 1998 deed because it purports to convey only 

the surface estate without reserving the mineral 

estate. This court is urged to look to the 1991 

and 1994 deeds, which conveyed the mineral 

interests along with the surface estates, and the 

contract for sale of the 1998 deed, which did not 

include "surface only" language, to determine 

the parties' intent to convey the mineral estate in 

the 1998 deed as well.

 In Terrill v. Tuckness, this court set out a 

three-step interpretation process: (1) "ascertain 

the grantor's intent by examining the plain 

language of the deed"; (2) apply the appropriate 

rules of construction; and then (3) allow 

extrinsic evidence to aid in interpretation. 985 

S.W.2d 97, 102 (Tex. App.—San Antonio 1998, 

no pet.). Courts reach the third step of admitting 

extrinsic evidence only if the grantor's intent 

remains unclear after the rules of construction 

are applied. Longoria, 292 S.W.3d at 166 (citing 

Terrill, 985 S.W.2d at 102). "An instrument is 

ambiguous only when the application of the 
Dupnik v. Hermis (Tex. App., 2013)

 - 5 -

rules of construction leaves it unclear which 

meaning is the correct one." Id.; Terrill, 985 

S.W.2d at 102. When construing a deed, we try 

to determine the intent of the parties by 

considering the instrument as a whole, 

attempting "to harmonize and give effect to all 

the provisions of the agreement, even if different 

parts of the deed appear inconsistent or 

contradictory." Concord Oil Co. v. Pennzoil 

Exploration & Prod. Co., 966

Page 9

S.W.2d 451, 454 (Tex. 1998); Hausser v. 

Cuellar, 345 S.W.3d 462, 466 (Tex. App.—San 

Antonio 2011, pet. denied).

 A reservation of minerals must be by clear 

language, and "[c]ourts do not favor reservations 

by implication." Sharp v. Fowler, 252 S.W.2d 

153, 154 (Tex. 1952). At least one Texas court, 

however, has considered a grant of only the 

surface estate to be a clear reservation of the 

mineral estate. See Large v. T. Mayfield, Inc., 

646 S.W.2d 292, 294 (Tex. App.—Eastland 

1983, writ ref'd n.r.e.) (holding that a grant of 

"the Surface Rights" conveyed only the surface 

estate); see also Poag, 317 S.W.3d at 827 

(suggesting that the language "surface estate 

only" conveys only the surface estate). 

Moreover, a reservation "is something to be 

deducted from the thing granted, narrowing and 

limiting what would otherwise pass by the 

general words of the grant." King v. First Nat'l 

Bank of Wichita Falls, 192 S.W.2d 260, 262 

(Tex. 1946); see also Hunsaker v. Brown 

Distrib. Co., 373 S.W.3d 153, 158 (Tex. App.—

San Antonio 2012, pet. denied) (concluding that 

even though Hunsaker did not specifically 

reserve one-half of the mineral estate he owned, 

Brown only received one-half of Hunsaker's 

mineral estate because Hunsaker only conveyed 

one-half of the mineral estate to Brown).

 Harmonizing the "surface only" language 

with the reservation of "none" leads to the 

conclusion that the intent reflected in the 

document was to convey the surface estate 

without retaining rights to any of the substances 

that belong to the surface estate owner. See 

Moser, 676 S.W.2d at 102 (listing substances 

that belong to the surface estate as a matter of 

law). As the Supreme Court of Texas has 

recognized, because we are required to ascertain 

the parties' intent from the language used within 

the instrument's four corners, "the actual, 

subjective intent of the parties will not always be 

given effect even if we were able to discern that 

subjective intent." Concord Oil Co., 966 S.W.2d 

at 454. Because Dupnik's cause of action is 

barred by the statute

Page 10

of limitations, we need not address the parties' 

remaining claims regarding the statute of frauds, 

the attachment of a verified affidavit, and relief 

not requested.

CORRECTION OF JUDGMENT

 Upon review of the judgment and relevant 

deeds in the case, we noticed that the judgment 

mistakenly excepted Dupnik's mineral interest 

from an improper tract of land, thereby 

incorrectly awarding Hermis a mineral interest 

under all 24.58 acres of Dupnik's surface estate. 

An appellate court has the authority to modify 

an incorrect judgment, even without a party's 

request, when the record contains the necessary 

information to do so. TEX. R. APP. P. 43.2(b); 

Hutton v. State, 313 S.W.3d 902, 909 (Tex. 

App.—Amarillo 2010, pet. ref'd); In re T.P., 251 

S.W.3d 212, 215 (Tex. App.—Dallas 2008, no 

pet.).

 The judgment purports to identify the 

parties' respective mineral interests in the entire 

one-hundred acres partitioned in 1983. A review 

of the deeds in this case revealed that tracts one, 

three, and six are the 24.68 acre tracts owned by 

the other three parties to the 1983 partition. 

Tract two in the judgment is the 24.68 acre tract 

that was owned by Hermis after the 1983 

partition. Tracts four and five described in the 

judgment are the tracts conveyed to Dupnik by

Hermis in the 1991 and 1994 deeds. In 

accordance with the 1998 deed, the judgment 

properly provides that Hermis has an undivided 

25% interest in the minerals under tracts one and 
Dupnik v. Hermis (Tex. App., 2013)

 - 6 -

three. The judgment also correctly provides that 

Dupnik has an undivided 25% mineral interest in 

tracts four and five.

 It appears, however, that the trial court's 

judgment confused tracts two and six and 

incorrectly excepted Dupnik's mineral interest in 

tracts four and five from Hermis's mineral 

interest in tract six instead of tract two. The 

judgment should reflect that Hermis has an 

undivided 25% mineral interest in tract six with 

no exception. The judgment should also reflect 

that Hermis has an undivided 25% mineral 

interest in tract two, save and except Dupnik's

Page 11

undivided 25% mineral interest in tracts four and 

five (described as tracts A and B in the incorrect 

portion of the judgment excepting these tracts 

from Hermis's undivided 25% mineral interest in 

tract six). Accordingly, we modify the judgment 

to reflect these changes.

CONCLUSION

 We conclude the four-year statute of 

limitations applies and the discovery rule does 

not prevent its accrual in this case. 

Consequently, we affirm the judgment of the 

trial court as modified to reflect the parties' 

actual interests in the one-hundred acres.

 Catherine Stone, Chief Justice

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Notes:

 

1. This appears to be the correct approach in all 

cases where the title dispute originates from a 

conveyance (as opposed to adverse possession), 

despite its characterization as a suit for trespass to try 

title, a suit to quiet title, or a suit to remove cloud on 

title. See Ford v. Exxon Mobil Chem. Co., 235 

S.W.3d 615, 618 (Tex. 2007) (approving of this 

approach for suits to quiet title/remove cloud on 

title); Slaughter v. Qualls, 162 S.W.2d 671, 674 (Tex. 

1942) (applying this standard in a trespass to try title 

suit).

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