XTO Energy Inc. AND Tommy J. Madewell, Patricia Madewell, Violet Joyce Renfro Kivimaki, Gary W. Yount, Shirley K. Stephens, Gregory Doyle Moseley, Sharlet Yvonne Holamon, and Viola D'Ann Madewell AND NASA Energy Corporation AND Edith McCurrin v. Leonard Nikolai and Sandy Nikolai

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-09-00299-CV

XTO ENERGY INC., TOMMY J. APPELLANTS
MADEWELL, PATRICIA
MADEWELL, VIOLET JOYCE
RENFRO KIVIMAKI, GARY W.
YOUNT, SHIRLEY K. STEPHENS,
GREGORY DOYLE MOSELEY,
SHARLET YVONNE HOLAMON,
VIOLA D‘ANN MADEWELL, NASA
ENERGY CORPORATION, EDITH
MADEWELL MCCURRIN, TOMMY
ROESSLER, DEBBIE MADEWELL,
THE UNKNOWN HEIRS OF
ARTHUR FRED MADEWELL,
THE UNKNOWN HEIRS OF GENE
ROESSLER, THE UNKNOWN
HEIRS OF W.R. MADEWELL,
MATILDA JONES MADEWELL,
AND PAULA SIMON MADEWELL

V.

LEONARD NIKOLAI AND SANDY APPELLEES
NIKOLAI

AND
LEONARD NIKOLAI AND SANDY APPELLANTS
NIKOLAI

V.

XTO ENERGY INC., TOMMY J. APPELLEES
MADEWELL, PATRICIA
MADEWELL, VIOLET JOYCE
RENFRO KIVIMAKI, GARY W.
YOUNT, SHIRLEY K. STEPHENS,
GREGORY DOYLE MOSELEY,
SHARLET YVONNE HOLAMON,
VIOLA D‘ANN MADEWELL, NASA
ENERGY CORPORATION, EDITH
MADEWELL MCCURRIN, TOMMY
ROESSLER, DEBBIE MADEWELL,
THE UNKNOWN HEIRS OF
ARTHUR FRED MADEWELL,
THE UNKNOWN HEIRS OF GENE
ROESSLER, THE UNKNOWN
HEIRS OF W.R. MADEWELL,
MATILDA JONES MADEWELL,
PAULA SIMON MADEWELL,
WINNIFRED M. IMBODEN,
ESTATE OF OUILDA MARIE
MADEWELL BAIRD (DECEASED),
WILSON OIL & GAS COMPANY,
SHERON LANELLE MITCHELL,
MATTHEW KIRK MILLER,
PATRICIA SUE MCNEW FINCH,
DEBRA KAY MYRICK, WILLIAM
JAY MCNEW, WANDA ANN
TUBBS, BEVERLY ANN MCNEW
THOMPSON, PETE MITCHELL,
GLENNES GEROME LANGFORD,
WILLIAM DON MADEWELL,
NORMAN EDGAR MCNEW, AND
BEVERLY E. MCNEW SMITHIE

2
 ------------

FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

------------

OPINION

------------

In three issues, the appellants that are listed above, other than Leonard

and Sandy Nikolai, argue that the trial court erred by denying their motions for

summary judgment and by granting the Nikolais‘ motion for summary judgment.1

The Nikolais contend that the trial court‘s summary judgment decision on the

merits of their title and declaratory judgment claims was proper, but they argue in

three issues that the trial court erred by not granting summary judgment on

additional grounds, by making erroneous rulings on their objections to XTO‘s

summary judgment evidence, and by failing to award attorney‘s fees. We affirm

in part, reverse and render in part, and reverse and remand in part.

Background Facts

In 1882, Albert Shields ostensibly conveyed the following land to William

Pippin through a deed (the ―Shields Deed‖):

1
All of the appellants, except the Nikolais, have adopted or restated the
arguments made by XTO Energy Inc. (XTO). See Tex. R. App. P. 9.7. Where
appropriate, to increase the readability of this opinion, we will use ―appellants‖
and ―XTO‖ interchangeably to refer to the parties whose positions are adverse to
the Nikolais‘ positions.

3
 92½ acres of land situated in the County of Denton and 8 miles
South of the city of Denton and being a part of the J.L. Rose 160
acre survey[2] beginning at a pile of Rock in the south B line of 160
acre survey made for Richard Knight dec‘d 450 varas[3] East from
his S.W. corner, from which a Post Oak brs North 38° W. 4½ varas[.]
Thence west passing said Knight‘s S.W. corner 1418 varas to a
stake in the . . . East B. line of a 320 acre survey made for William
Gibson from which Post oak brs North 42° W. 20 varas. Post oak
bears South 55° W. 8½ varas on the said line 637 varas to a Post
oak blazed on four sides, from which a Post oak bears North 41½°
East 6 varas Post Oak bears S. 72° E. 6½ varas. Thence East 1418
varas, a stake from which a post oak brs S 32° East 14 var[a]s a
Post oak brs north 20° E. 5¼[.] Thence North 637 varas to the place
of beginning, to contain 92½ acres of the East end of said 160 acre
survey.

In 1904, W.R. and Matilda Madewell signed a deed (the ―Madewell Deed‖) that

purported to convey land that was adjacent to the property subject to the Shields

Deed. The Madewell Deed described the land that the Madewells attempted to

convey to J.L. Goff as

all that certain lot track or parcel of land in Denton County Texas,
and being all that part of the JL Rose 160 acre preemption survey
lying west of 92½ acres off the East part of said survey deeded to
Wm Pippin by Albert Shields on Nov 28th 1882, the part here
conveyed being 67½ acres more or less of land off the west part of
said Rose survey.[4] It being expressly understood that grantors
reserve any and all minerals that may be in said land as well as the
right to mine same, said grantors being responsible to grantees for

2
The J.L. Rose survey was prepared in the 1850s, and it was patented in
1862.
3
In Texas, one vara is equal to 33.33 inches. City of Carrollton v. Duncan,
742 S.W.2d 70, 71 n.1 (Tex. App.—Fort Worth 1987, no writ).
4
Thus, it is clear that the Shields Deed and the Madewell Deed intended to
convey different parts of the 160 acres of land described by the J.L. Rose survey.

4
 any damage done to said lands by reason of mining on same.
[Emphasis added.]

In 1922, Lon and Pearla Speer conveyed the same 67½ acre tract to E.M.

Madewell (through the ―Speer Deed‖).5 The Speer Deed recited, ―It is thoroughly

understood that the Mineral Rights upon this tract of land are not transferred by

this instrument, same having been retained by W.R. Madewell in deed to J.L.

Goff said deed dated Oct. 5 1904, recorded in . . . Deed Records of Denton

County, Texas.‖ In 1953, E.M. and Essie Madewell conveyed the same land to

W.V. and Elizabeth Pippin. In 1971, the Pippins deeded the land to James

Brockie (through the ―Pippin Deed‖). In its description of the property that was

being transferred, the Pippin Deed expressly relied on the Speer Deed, which the

Speers had executed almost fifty years earlier. The next year, Brockie conveyed

the land to Rodney A. Williams (through the ―Brockie Deed‖). The Brockie Deed

also relied on the Speer Deed.

In 1981, Williams conveyed 36.653 acres out of the same land to Leonard

Nikolai (through the ―Williams Deed‖). The Williams Deed described the property

being conveyed as a part of land ―described in a deed from [Brockie] to [Williams]

on the 11th day of February, 1972.‖ The contract by which Leonard bought the

property stated, ―Purchaser to receive all oil, gas, coal[,] and mineral rights on the

5
Goff and his wife transferred the land to W.A. Johnson in 1917; Johnson
and his wife conveyed it to Z.W. Smith in 1921; and Smith and his wife
transferred it to Lon A. Speer in 1922.

5
property described herein.‖6 Leonard subsequently conveyed an undivided one-

half interest in the 36.653 acres to Sandy.7

According to the Nikolais‘ pleading, in 2004, XTO contacted the Nikolais to

express an interest in entering a lease concerning the minerals under the

Nikolais‘ land. In 2005, however, XTO told the Nikolais that XTO had discovered

the mineral reservation in the Madewell Deed and that the Nikolais did not own

the minerals. In March 2007, a representative of Joint Resources Company

(JRC) appeared on the Nikolais‘ property and informed them that JRC had a

lease on the property‘s minerals and intended to drill a gas well there. In April

2007, JRC‘s attorney gave the company a title opinion stating that several

individuals other than the Nikolais owned or had legally enforceable interests in

the mineral estate on the property. The next month, the Nikolais‘ attorney sent

6
The Nikolais state that they purchased the property in reliance upon
representations by the seller and their title insurance company that the property
included both the surface and the minerals.
7
The Nikolais recognize that they are ―assigns of the grantee of the
Madewell Deed.‖ To summarize, the conveyances of the Nikolais‘ surface estate
occurred by way of the Madewell Deed (to Goff) in 1904, deeds that successively
transferred the land from Goff to the Speers between 1904 and 1922, the Speer
Deed (to E.M. Madewell) in 1922, a deed from E.M. and Essie Madewell to the
Pippins in 1953, the Pippin Deed to Brockie in 1971, the Brockie Deed to
Williams in 1972, the Williams Deed to Leonard Nikolai in 1981, and a deed from
Leonard to Sandy in 1987. The exact acreage of the land conveyed differs
between some of the deeds in the Nikolais‘ chain of title, but XTO‘s expert said
that such discrepancies are common when surveyors examine land using
different methods or technologies. The Nikolais do not contend on appeal that
the discrepancies in the amount of acreage conveyed affect the validity of the
mineral reservation in the Madewell Deed.

6
an e-mail to JRC to explain the Nikolais‘ contention that they owned the mineral

estate and to warn the company that if it drilled a well on the property, the

Nikolais could seek legal action. JRC responded to the Nikolais‘ e-mail by

sending the Nikolais‘ attorney a letter that stated in part that the company was

disturbed to learn, after months of attempting to accommodate
Mr. Nikolai with an acceptable surface use agreement before
exercising its legal right to drill a well on the oil and gas leases it
owns, that Mr. Nikolai is now claiming to own not just the surface of
the Subject Land, but the minerals as well, and accordingly is also
claiming . . . that the actual mineral owners of the minerals under the
Subject Land, after being treated as owning the minerals by all
persons in the chain of title to this property for over 100 years, own
nothing.

Mr. Nikolai‘s claims are false. . . .

....

Mr. Nikolai, by his unfounded claims, is slandering our client‘s
title to its oil and gas leases, which leases our client is currently
attempting to sell . . . .

XTO, which apparently acquired the leases from JRC, agreed with JRC‘s position

that the Nikolais do not own the minerals.8

In November 2007, the Nikolais sued XTO to quiet title, alleging that XTO‘s

leases were invalid. They asked the trial court to declare that they owned, in fee

8
XTO‘s brief states that the company obtained ―numerous oil and gas
leases‖ from the other appellants in this appeal, who are ―successors-in-title to
the Madewell Reservation.‖ The Nikolais refer to appellants as the purported
heirs and assigns of W.R. Madewell. XTO admits that it has drilled a producing
well on the Nikolais‘ land, and the Nikolais contend that XTO has damaged the
land in various ways. The Nikolais‘ third amended petition sought relief based on
a common law trespass claim. The trial court severed this claim, however, so the
claim is not subject to this appeal.

7
simple and without reservations, the 36.653 acre tract because Leonard had

acquired the property through a warranty deed, and the Nikolais had exclusively

possessed the property since 1981.9 The Nikolais also contended that the

Shields Deed and Madewell Deed were void for inadequately describing the

property that they attempted to convey (therefore, the Nikolais asked the trial

court to declare void a deed that is in their chain of title). Thus, the Nikolais

argued that the mineral reservation contained in the Madewell Deed was

ineffective and that their surface and mineral estates remained unsevered until

Leonard acquired the land.10

XTO filed an answer that contained a general denial. Later, XTO filed a

motion to abate and compel the joinder of other parties who allegedly had legal

interests in the minerals beneath the Nikolais‘ land.

After the Nikolais amended their petition to add several defendants, some

of the parties listed above filed answers. XTO amended its answer to raise two

counterclaims: a suit to quiet title and an action under the UDJA that asked the

9
―Fee simple title is an estate over which the owner has unlimited power of
disposition in perpetuity without condition or limitation.‖ Hawkins v. Ehler, 100
S.W.3d 534, 548 (Tex. App.—Fort Worth 2003, no pet.). While the Nikolais‘
original petition sought declaratory relief generally, their third amended petition,
which was their live pleading at the time of the trial court‘s summary judgment
decision, expressly invoked the Uniform Declaratory Judgments Act (UDJA).
See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001–.011 (West 2008).
10
The Nikolais sued the other parties listed above at later times. They also
brought various claims against their title company, and those claims remain
pending in a Denton County district court.

8
trial court to declare the validity of the Madewell Deed. XTO also contended that

the Nikolais‘ claims were barred by estoppel. The trial court appointed an

attorney ad litem, Scott Alagood, for parties who had been served by publication

but had not answered the Nikolais‘ amended petition.

XTO eventually filed a motion for summary judgment on the Nikolais‘

claims and on its own counterclaims on the grounds that the mineral reservation

in the Madewell Deed satisfies the statute of frauds and the statement about the

reservation in the Speer Deed, which is in the Nikolais‘ chain of title, estops them

from denying the validity of the reservation. XTO‘s expert, Rickey Lynn Hickman

(a registered professional land surveyor), opined in an affidavit that the Madewell

Deed‘s description, when considered with the J.L. Rose survey and the Shields

Deed (both of which preceded the Madewell Deed and were expressly

referenced within that deed), allowed the property that it attempted to convey to

be identified with reasonable certainty. Hickman located the ―pile of rocks‖

mentioned in the J.L. Rose survey.

The Nikolais likewise filed a motion for summary judgment, contending that

the Madewell Deed is void because it fails to comply with the statute of frauds,

that there was never a valid mineral reservation, and that the surface and mineral

estates therefore have remained unsevered. The Nikolais attached excerpts

from Hickman‘s deposition to cast doubt on his determination that the Madewell

9
Deed describes identifiable property. In the deposition, Hickman said, among

other things, that

although he opined in his report that the ―East boundary of the [Shields
Deed‘s] 92½ acre tract is equal to the entire length of the East boundary of
the 160 acre J.L. Rose Survey,‖ the Shields Deed does not explicitly state
that the land it conveys matches the entire east boundary of the survey or
that it conveys land in the east half of the survey; instead, it says only that
the 92½ acres are in the ―east end‖ of the 160 acres described by the
survey;

it is mathematically possible to fit 92-and-a-half acres onto the ―east end‖
of the survey without necessarily using the entire east line of the survey;
and

his opinion, therefore, that the 1882 Shields Deed provides a complete
description of the property it conveys depends on also fitting the property
described in the 1904 Madewell Deed into the 160-acre survey.

The Nikolais also filed a response to appellants‘ motions for summary

judgment; the response listed several objections to the evidence that appellants

had presented. XTO‘s reply to the Nikolais‘ response addressed some of the

Nikolais‘ evidentiary contentions. The trial court sustained some of the

objections and overruled others.11

11
For example, the court sustained the Nikolais‘ objections to the
admission of the Madewell Deed to the extent that XTO relied on the deed to aid
in identifying the property described by the preceding Shields Deed, the
admission of deeds executed later than the Madewell Deed and Shields Deed to
the extent that they were offered to support the sufficiency of those two deeds,
and part of one page of Hickman‘s affidavit that concerned his composition of
worksheet plats based on deeds executed after the Shields Deed and Madewell
Deed. The trial court also sustained objections to the entirety of some motions
for summary judgment of parties opposing the Nikolais because the motions
were untimely filed. See Tex. R. Civ. P. 166a(c) (―Except on leave of court, with
notice to opposing counsel, the motion and any supporting affidavits shall be filed
and served at least twenty-one days before the time specified for hearing.‖).

10
 The trial court announced that it would grant the Nikolais‘ summary

judgment motion and deny appellants‘ summary judgment motions. Before the

trial court signed its judgment, XTO argued that the Nikolais were not entitled to

attorney‘s fees because the Nikolais had, in effect, prevailed on a trespass to try

title claim for which attorney‘s fees are unavailable, even though they had pled a

related claim under the UDJA, in which fees are generally authorized. In the trial

court‘s final judgment, it decreed, in summary, that (1) the Shields Deed and

Madewell Deed (including the mineral reservation) are void under the statute of

frauds; (2) the Nikolais ―are the rightful owners of the Property in fee simple,

including both the surface and mineral estate, pursuant to their Warranty Deed‖

(the 1981 deed from Williams to Leonard); and (3) only the Nikolais have

authority to lease the minerals on the property. [Emphasis added.] The trial

court denied the Nikolais‘ claim for attorney‘s fees.

Our Standard for Reviewing Summary Judgments

In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

11
 We take as true all evidence favorable to the nonmovant, and we indulge

every reasonable inference and resolve any doubts in the nonmovant‘s favor.

20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We consider the

evidence presented in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant if reasonable jurors could and disregarding

evidence contrary to the nonmovant unless reasonable jurors could not. Mann

Frankfort, 289 S.W.3d at 848. We must consider whether reasonable and fair-

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

presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.

2006); City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).

The summary judgment motion should be granted if the movant conclusively

proves all essential elements of the movant‘s cause of action or affirmative

defense as a matter of law. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex.

2008); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.

1979).

When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both parties‘

summary judgment evidence and determine all questions presented. Mann

Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,

300 S.W.3d 746, 753 (Tex. 2009). The reviewing court should render the

12
judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d

at 848.

Estoppel by Deed

XTO sought summary judgment on the Nikolais‘ claims on the ground that

the Nikolais were estopped by a deed in their chain of title from denying the

validity of the mineral reservation. In its second issue, XTO contends that the

trial court erred by denying its motion for summary judgment that was based on

its affirmative defense of estoppel by deed. See Gutierrez v. Rodriguez, 30

S.W.3d 558, 560 (Tex. App.—Texarkana 2000, no pet.) (describing estoppel by

deed as an affirmative defense).

―The law does not lightly disregard the delivery of a deed and the recitals

therein.‖ Jones v. Jones, 181 S.W.2d 988, 991 (Tex. Civ. App.—Dallas 1944,

writ ref‘d w.o.m.); see Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 345,

114 S.W.2d 226, 234 (1938) (―A recital of one deed, in another, binds the parties,

and those who claim under them by matters subsequent.‖). Therefore, ―all

parties to a deed are bound by the recitals therein, which operate as an estoppel,

working on the interest in the land if it be a deed of conveyance, and binding both

parties and privies; privies in blood, privies in estate, and privies in law.‖

Freeman v. Stephens Prod. Co., 171 S.W.3d 651, 654 (Tex. App.—Corpus

Christi 2005, pet. denied) (quoting Wallace v. Pruitt, 1 Tex. Civ. App. 231, 234,

20 S.W. 728, 728–29 (Houston 1892, no writ)); see Angell v. Bailey, 225 S.W.3d

13
834, 841–42 (Tex. App.—El Paso 2007, no pet.) (―Estoppel by deed . . .

precludes parties to a valid instrument from denying its force and effect.

Although estoppel by deed operates most commonly against a grantor, a grantee

is similarly a party to the deed and bound by the recitals, reservations, and

exceptions therein.‖) (citation omitted); Moore v. Energy States, Inc., 71 S.W.3d

796, 800 (Tex. App.—Eastland 2002, pet. denied) (―[T]he deed conveying the

land from the Johnstons to Sears stated that the public road ‗lies immediately

south‘ of the railroad right-of-way. Thus, the Johnstons and their successors in

interest are estopped from denying that the public road lies immediately south of

the railroad right-of-way . . . .‖).

A ―recital‖ in a deed is a ―statement . . . that is used to explain the reasons

upon which the transaction is based. The recital of facts binds both the parties to

the deed and their privies.‖ Angell, 225 S.W.3d at 842 (citation omitted); see also

Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex. 1982) (―It is

well settled that ‗a purchaser is bound by every recital, reference and reservation

contained in or fairly disclosed by any instrument which forms an essential link in

the chain of title under which he claims.‘‖); Williams v. Hardie, 85 Tex. 499, 506,

22 S.W. 399, 401 (1893) (―A recital or allegation in a deed . . . which is certain in

its terms, and relevant to the matter in hand, will . . . be conclusive between the

parties in any controversy growing out of . . . the transaction in which it was

executed.‖); Kimbro v. Hamilton, 28 Tex. 560, 567 (1866) (explaining that a

14
recital in a deed ―is not offered as secondary but as primary evidence, which

cannot be averred against, and which forms a muniment of title‖). ―The doctrine

of an estoppel by deed is . . . founded upon the theory that the parties have

contracted upon the basis of the recited facts.‖ Williams, 85 Tex. at 506, 22 S.W.

at 401.

Estoppel by deed precludes parties from alleging title ―in derogation of the

deed [or] deny[ing] the truth of any material fact asserted in it.‖ Surtees v.

Hobson, 4 S.W.2d 245, 246 (Tex. Civ. App.—El Paso 1928), aff’d, 13 S.W.2d

345 (Tex. Comm‘n App. 1929). The doctrine of estoppel by deed is of ―universal

recognition.‖ Woldert v. Skelly Oil Co., 202 S.W.2d 706, 709 (Tex. Civ. App.—

Texarkana 1947, writ ref‘d n.r.e.). The doctrine does not validate something that

is otherwise invalid; rather, it figuratively ―closes the mouth of the complainant.‖

See Spence v. State Nat’l Bank of El Paso, 5 S.W.2d 754, 756 (Tex. Comm‘n

App. 1928).

Seventy years ago, in Greene v. White, the Texas Supreme Court resolved

a dispute about the ownership of minerals contained within a 133-acre tract in

Cass County. 137 Tex. 361, 364, 153 S.W.2d 575, 577 (1941) (op. on reh‘g).

Greene had executed a deed in 1910 that purported to transfer a surface estate

to Alex Garrett but to reserve the minerals in Greene‘s favor. Id. at 365, 153

S.W.2d at 578. Garrett later claimed to own the minerals by adverse possession.

15
Id. Among other issues in the case, the supreme court considered the effect of

the deed on the ownership of the minerals:

What effect is to be given to the deed from F. M. Greene to
Alex Garrett, executed March 2, 1910? . . . The deed contains the
following reservation: ‗It is agreed and understood that the pine
timber 8 inches in diameter and larger, and that all minerals on and
under said land, is reserved in this conveyance and remains the
property of the said F. M. Greene. By mineral is meant all oil, gas,
coal, lignite, glass, sand, iron ore and all other minerals of every kind
and description‘. . . .

While Alex Garrett did not sign the deed, he was a party to it
as grantee . . . . The terms, provisions and obligations of the deed
are in our opinion . . . binding upon both of the parties to it.
The instrument is contractual in nature, representing and setting
forth the agreement of the grantor and the grantee as to what the
interests, rights and obligations of said parties shall thereafter be
with respect to the land. . . .

The general rule is that the grantee in a deed accepted by him
is a party to the deed, even though he does not sign it, and that he is
concluded by recitals in the deed and by reservations contained
therein in favor of the grantor. ‗The obligations undertaken by the
parties to a deed are binding contractually; and where the
conveyance is by way of deed poll—that is, one executed by the
grantor alone—obligations are enforceable against the grantee by
virtue of his acceptance of the deed.‘ . . . The recitals which give the
surface estate to Garrett and reserve the mineral estate to Greene
are . . . contractual. The[y] define the character and extent of the
ownership and interests of the parties in the land affected by the
deed.

It is held that the recital of one deed in another binds the
parties to the deed containing the recital, and those who claim under
them, and may take the place of a deed and thus form a muniment
of title.

....

The argument is made that the deed from Greene to Garrett
neither conveyed the surface to Garrett nor reserved the minerals to

16
 Greene, because Greene had no title either to the land or to the
minerals, the title being in Garrett by virtue of adverse possession
and the land not being in [a specified] survey. . . . [T]he question
presented is not whether Greene had good title and conveyed good
title to the surface to Garrett and reserved or excepted to himself
good title to the minerals. It is: Are the parties to the deed and
those claiming under them bound, as between themselves, by the
recitals and provisions of the deed?

....

. . . [S]ince the parties to the Greene-Garrett deed are bound
by the terms of their contract, it was not necessary, in order to make
the reservation in the deed effective in favor of Greene and those
holding under him and against Garrett and those holding under him,
that good title to the land be shown in Greene at the time when the
deed was executed. The deed, as between the parties to it, having
worked a severance of the mineral estate from the surface estate,
such possession of the surface as was exercised by Garrett, and
those claiming under him, after the execution of the deed was not
adverse possession of the minerals.

Id. at 374–79, 153 S.W.2d at 583–85 (emphasis added) (citations omitted).

More recently, in Angell, the El Paso Court of Appeals considered the

effect of a 1936 deed that recited that it was conveying 320 acres ―save and

except,‖ among other tracts, a ten-acre tract that had been conveyed to Jack

Ellison and a two-acre tract ―sold to S.A. Bailey.‖ 225 S.W.3d at 837. There

were no recorded deeds related to the Ellison or Bailey tracts, and neither Ellison

nor Bailey ever made use of the property. Id. at 838. Angell, the granddaughter

of E.D. Warner, the 1936 deed‘s grantee, brought suit to remove a cloud on the

property‘s title created by the Ellison and Bailey interests, but the trial court ruled

that Angell was estopped to deny Ellison‘s and Bailey‘s titles. Id. at 837–38.

On appeal, Angell contended that the exceptions were void for lack of a sufficient

17
description and that the twelve acres had passed to her grandfather. Id. at 838.

The El Paso court disagreed, reasoning,

While the exceptions listed in the E.D. Warner deed did not
create (or convey) any interest in the property which Bailey and/or
Jack Ellison did not already possess, the exceptions are still
effective to prevent Angell from denying their existence. ―Estoppel
by deed stands for the general proposition that ‗all parties to a deed
are bound by the recitals therein, which operate as an estoppel,
working on the interest in the land if it be a deed of conveyance, and
binding both parties and privies; privies in blood, privies in estate,
and privies in law.‘‖ . . .

....

The E.D. Warner deed unambiguously recites that, within the
southeastern-most forty acres of the land covered thereby, ten acres
had previously been conveyed to Jack Ellison and two acres had
been previously . . . conveyed to Bailey. Angell is a decedent of the
grantee in the deed, privy to its language by her family relationship
to both the grantors and the grantee. She is bound by the recitals,
just as her grandfather was. There has been no argument that this
deed is invalid in any way. The deed recites that the exceptions
were made because the acres had already been transferred to the
parties referenced, including Jack Ellison and Bailey. Angell is
estopped to deny the truth of the recitals in the instrument and
therefore cannot deny the Jack Ellison and Bailey interests.

Id. at 841–42 (emphasis added) (citations and footnotes omitted).

The Nikolais‘ chain of title, by which the trial court determined that they

owned the surface and mineral estates in their tract, contains the Speer Deed,

which recites, ―It is thoroughly understood that the Mineral Rights upon this tract

of land are not transferred by this instrument, same having been retained by

W.R. Madewell in deed to J.L. Goff said deed dated Oct. 5 1904, recorded in . . .

Deed Records of Denton County, Texas.‖ Two other deeds in the Nikolais‘ chain

18
of title, the Pippin Deed and the Brockie Deed, rely on the Speer Deed in their

descriptions of the conveyed property. The Nikolais recognize that ―[r]ecitals in a

deed of particular facts constitute prima facie proof of those facts.‖ ―[W]here a

deed refers to another deed, or a map, or a survey, it has the effect to

incorporate such deed, map or survey into the description, the same as if copied

into the deed itself, and what is therein described will pass.‖ Brown v. Chambers,

63 Tex. 131, 135 (1885); see Dixon v. Amoco Prod. Co., 150 S.W.3d 191, 194

(Tex. App.—Tyler 2004, pet. denied) (―[I]t is a well settled rule of law that in the

construction of written instruments, all instruments in a chain of title, when

referred to in a deed . . . will be read into it.‖); Klein v. Humble Oil & Ref. Co., 67

S.W.2d 911, 918–19 (Tex. Civ. App.—Beaumont 1934) (holding that a lease‘s

reference to a deed incorporated the deed into the lease and into the description

of the property), aff’d, 126 Tex. 450, 86 S.W.2d 1077 (1935).

Thus, for the reasons explained in the cases cited above, we conclude that

the Nikolais, who are in privity with E.M. Madewell (the grantee of the Speer

Deed),12 Pippin, and Brockie, and who claim title under the deeds involving those

parties, are bound by the recitation of the mineral reservation in the Speer Deed

and are estopped from denying it.

We recognize that estoppel by deed ―is the product of a good and valid

deed.‖ Masgas v. Anderson, 310 S.W.3d 567, 571 (Tex. App.—Eastland 2010,
12
The successive conveyances of property establish privity. See Inwood
N. Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d 632, 635 (Tex. 1987).

19
pet. denied) (citing Angell, 225 S.W.3d at 842). The Nikolais argue that estoppel

by deed cannot apply here because the Madewell Deed is void for lack of a

sufficient description of the land it conveys. The Nikolais rely, in part, on a case

in which our supreme court held that estoppel by deed did not apply to an

instrument that was signed in blank, without including any description of the

property that the instrument related to. See Republic Nat’l Bank of Dallas v.

Stetson, 390 S.W.2d 257, 260–61 (Tex. 1965). But XTO did not base its

estoppel by deed defense on the Madewell Deed. Rather, XTO based its

defense on the subsequent deeds described above, in particular the Speer Deed,

and the Nikolais never challenged the sufficiency of the property descriptions in

those deeds.

For all of these reasons, we sustain XTO‘s second issue, and we hold that

the trial court erred by granting summary judgment for the Nikolais on their quiet

title and UDJA claims. Likewise, we hold that the trial court erred by denying

XTO‘s motion for summary judgment on its estoppel by deed defense.

Because we hold that the Nikolais are estopped from denying the mineral

reservation that is recited by deeds in their chain of title, we need not decide

whether the trial court correctly ruled that the Madewell Deed and Shields Deed

are void for containing legally insufficient descriptions of the property that they

conveyed under the statute of frauds. See Greene, 137 Tex. at 376, 153 S.W.2d

at 584 (―[T]he question presented is not whether Greene had good title and

20
conveyed good title . . . . It is: Are the parties to the deed and those claiming

under them bound, as between themselves, by the recitals and provisions of the

deed?‖) (emphasis added). Thus, we do not need to decide whether the trial

court erred by denying XTO‘s motion for summary judgment on its counterclaim

that sought a declaration of the validity of the Madewell Deed for purposes of

showing that the Nikolais did not own the mineral estate to the property.

Although XTO labeled its other counterclaim as a suit to ―quiet title,‖ XTO has not

sought a judgment regarding the status of its own title.13 Instead, XTO asked the

trial court to decree only that the Nikolais did not own the mineral estate beneath

their property.14 Our holding regarding XTO‘s estoppel by deed defense resolves

13
Generally, a plaintiff in a suit to quiet title must ―prove, as a matter of law,
right, title, or ownership in himself with sufficient certainty to enable the court to
see that he has a right of ownership and that the alleged adverse claim is a cloud
on the title that equity will remove.‖ Hahn v. Love, 321 S.W.3d 517, 531 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). During oral argument, XTO‘s
counsel, speaking on behalf of all appellants, stated that XTO did not seek to
have ownership or title rendered to itself as a result of this suit.
14
The Nikolais contend that neither XTO nor the other appellants produced
evidence in the trial court of their interest in the mineral estate that flows from the
reservation that the Speer Deed recognized. For reasons stated below, we
disagree, although we recognize that the evidence was not attached to a
summary judgment motion or response. We note that the Nikolais brought
appellants into this litigation through their pleadings, recognizing that appellants
asserted an interest that was contrary to the Nikolais‘ claims. Although the
Nikolais concisely contend that appellants‘ alleged failure to prove an ownership
interest in the disputed minerals means that they may not have standing, the
Nikolais have not cited authority establishing that appellants were required to
prove their own title to raise an estoppel by deed defense to the Nikolais‘ claims
against them. Cf. State & Cnty. Mut. Fire Ins. Co. ex rel. S. United Gen. Agency
of Tex. v. Walker, 228 S.W.3d 404, 406, 412 (Tex. App.—Fort Worth 2007, no
pet.) (holding that by joining a defendant in a UDJA action, the plaintiff waived

21
that issue, so we need not address whether XTO would otherwise be entitled to

relief on the elements of a quiet title claim.15

Since the Nikolais cannot deny the reservation, we conclude that the

dispute about the original validity of the reservation based on the 1904 Madewell

Deed, which relates to XTO‘s first and third issues, is moot.16 See Tex. R. App.

P. 47.1; Doe v. Tex. Ass’n of Sch. Bds., Inc., 283 S.W.3d 451, 464–65 (Tex.

App.—Fort Worth 2009, pet. denied). We overrule XTO‘s first and third issues on

that basis.

The Nikolais’ Issues

Adverse possession and prior possession

In their first issue, the Nikolais argue that the trial court erred by not

granting summary judgment on the ground of title by adverse possession or prior

possession. XTO contends in part that the Nikolais did not provide any evidence

of these claims because its objection to Leonard Nikolai‘s affidavit should have

been sustained. We agree.

any argument that the defendant did not have standing to challenge the plaintiff‘s
claims).
15
Therefore, nothing in this opinion should be construed as an adjudication
of the validity of appellants‘ interest, if any, in the minerals underneath the
Nikolais‘ land.
16
Although the Nikolais attacked the validity of the Madewell Deed to
contend that its mineral reservation was ineffective, no party has directly
challenged the Nikolais‘ ownership of their surface state, which is chained to that
deed.

22
 Leonard‘s affidavit stated, ―I have read Plaintiffs’ Motion for Summary

Judgment and Plaintiffs’ Second Amended Petition and attest that all facts

recited therein are true and correct to the best of my knowledge . . . .‖

The Nikolais‘ brief indicates that they rely solely on this statement as evidence for

their adverse possession and prior possession claims. XTO objected to the

statement on the grounds that it ―constitute[d] an inadmissible conclusory

statement that [was] not supported by any other factual statements in Mr.

Nikolai‘s Affidavit,‖ but the trial court overruled that objection.

In its opening brief, XTO stated, ―To the extent the subject of XTO‘s

objection [to Leonard‘s affidavit] may be introduced by the Appellees, the trial

court erred in overruling XTO‘s objection, and XTO reurges its objection before

this Court.‖ The Nikolais then argued as part of their appeal, in their opening

brief, that the trial court erred by not granting summary judgment on their adverse

possession and prior possession claims, and the Nikolais expressly relied on

Leonard‘s affidavit in that argument. XTO expressly contended in response that

the trial court erred by overruling its objection to Leonard‘s affidavit. Contrary to

the Nikolais‘ assertion in their reply brief, therefore, we conclude that we may

properly consider XTO‘s objection. Moreover, contrary to the Nikolais‘

contention, a party is not required, under rule of appellate procedure 25.1(d), to

list every interlocutory order in a notice of appeal to appeal the ruling on that

23
order. See Tex. R. App. P. 25.1(d); Gunnerman v. Basic Capital Mgmt., Inc., 106

S.W.3d 821, 824–25 (Tex. App.—Dallas 2003, pet. denied).

We review a trial court‘s evidentiary rulings related to a motion for

summary judgment for an abuse of discretion. Reynolds v. Murphy, 188 S.W.3d

252, 259 (Tex. App.—Fort Worth 2006, pet. denied) (op. on reh‘g), cert. denied,

549 U.S. 1281 (2007). Many cases state that pleadings and motions for

summary judgment are not competent summary judgment evidence, even if they

are sworn to or verified within the pleading or motion. See, e.g., Hidalgo v. Sur.

Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971); Garner v. Long, 106

S.W.3d 260, 268 (Tex. App.—Fort Worth 2003, no pet.); Campbell v. Fort Worth

Bank & Trust, 705 S.W.2d 400, 402 (Tex. App.—Fort Worth 1986, no writ).

We cannot conceive any logical reason, therefore, to conclude that the facts

contained in such pleadings and motions should be competent evidence if they

are sworn to or verified by a different, independent document, such as an

affidavit. See Keenan v. Gibraltar Sav. Ass’n, 754 S.W.2d 392, 394 (Tex. App.—

Houston [14th Dist.] 1988, no writ); Loomis v. City of Dallas, 472 S.W.2d 809,

811 (Tex. Civ. App.—Dallas 1971, writ ref‘d n.r.e.) (―An affidavit which simply

adopts the pleadings in a case is insufficient either to support or defeat a motion

for summary judgment.‖) (citing Duffard v. City of Corpus Christi, 332 S.W.2d

447, 449 (Tex. Civ. App.—San Antonio 1960, no writ)); see also Tex. R. Civ. P.

166a(f) (stating that a summary judgment affidavit ―shall set forth such facts as

24
would be admissible in evidence‖). We hold that the trial court abused its

discretion by overruling XTO‘s objection to Leonard‘s affidavit because, as

asserted in the trial court by XTO, the affidavit was not supported by its own

factual statements but instead impermissibly relied on facts contained in a

pleading and a motion. We conclude, therefore, that the Nikolais did not present

any competent evidence to support their adverse possession or prior possession

claims.

Moreover, regardless of whether the Nikolais properly presented evidence

on those claims, our holding above that the Nikolais are estopped from denying

the validity of the mineral reservation forecloses the Nikolais‘ contention that they

adversely possessed the minerals. Adverse possession is an ―actual and visible

appropriation of real property, commenced and continued under a claim of right

that is inconsistent with and is hostile to the claim of another person.‖ Tex. Civ.

Prac. & Rem. Code Ann. § 16.021(1) (West 2002); see Turner v. Mullins, 162

S.W.3d 356, 367 (Tex. App.—Fort Worth 2005, no pet.) (explaining that the

possession ―must be actual, visible, continuous, notorious, distinct, hostile, and of

such character as to indicate unmistakably an assertion of a claim of exclusive

ownership in the occupant‖). ―Where minerals have been severed, the surface

owner cannot claim adverse possession of the minerals by possession of the

surface, but he must take actual possession of the minerals for the statutory

period.‖ Smoot v. Woods, 363 S.W.2d 798, 801 (Tex. Civ. App.—Fort Worth

25
1962, writ ref‘d n.r.e.); see Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d

188, 193 (Tex. 2003) (―[C]ourts across the country including Texas courts have

said that in order to mature title by limitations to a mineral estate, actual

possession of the minerals must occur. In the case of oil and gas, that means

drilling and production of oil or gas.‖) (citations and footnotes omitted).

The Nikolais conceded in their second amended petition that they have

never leased the mineral rights on their property and that prior to the facts

relevant to this suit, ―no one ha[d] ever taken any action to excavate, drill for, or

produce any oil, gas, or other minerals in the Property.‖ The Nikolais did not

present evidence contradicting this concession. Thus, they cannot establish that

they adversely possessed the mineral estate.

For all of these reasons, we overrule the Nikolais‘ first issue.

Rulings on evidentiary objections

In their second issue, the Nikolais argue that the trial court made several

erroneous rulings on their objections to XTO‘s summary judgment evidence.

The rulings that the Nikolais challenge, however, would not affect our disposition

of the appeal under the reasons set forth in this opinion even if we were to hold

that the trial court erred by making the rulings.17 Thus, we overrule the Nikolais‘

second issue as moot. See Tex. R. App. P. 47.1; Doe, 283 S.W.3d at 464–65.

17
For example, the Nikolais argued in the trial court that deeds executed
after the Madewell Deed were inadmissible to show that the Madewell Deed
contained an adequate property description. As stated, however, we need not
address the adequacy of the Madewell Deed‘s property description.

26
The Nikolais’ request for attorney’s fees

In their third issue, the Nikolais argue that the trial court erred by denying

their request for an award of attorney‘s fees. The Nikolais contend that they

were entitled to recover attorney‘s fees under the UDJA. See Tex. Civ. Prac. &

Rem. Code Ann. § 37.009 (―In any proceeding under this chapter, the court may

award costs and reasonable and necessary attorney‘s fees as are equitable and

just.‖). In XTO‘s motion for entry of a final judgment, it contended that as a

matter of law, the Nikolais were not entitled to attorney‘s fees because although

they had pled a claim under the UDJA, they had essentially brought a trespass to

try title suit. The trial court did not specify its reason for denying fees.

Contrary to the Nikolais‘ argument, we conclude that XTO preserved its

objection to the Nikolais‘ recovery of attorney‘s fees by filing the motion for entry

of a final judgment (which contained a section titled, ―Motion to Deny Attorney‘s

Fees‖) and by contending in a later hearing that the Nikolais were not entitled to

such fees. XTO filed the motion at a time when the trial court had not ruled on

the attorney‘s fees issue. See Tex. R. App. P. 33.1(a); cf. Krabbe v. Anadarko

Petroleum Corp., 46 S.W.3d 308, 320–21 (Tex. App.—Amarillo 2001, pet.

denied) (holding that an appellant waived an objection to the award of attorney‘s

fees under the UDJA because the appellant did not urge in the trial court that the

appellee could not recover the fees on the ground that the suit was, in substance,

a trespass to try title suit). We also note that during the hearing on XTO‘s motion

27
for entry of a final judgment, XTO stated that it had withdrawn any claim for

attorney‘s fees.

Section 22.001 of the property code ―expressly provides that it is ‗the

method for determining title to . . . real property.‘‖ Martin v. Amerman, 133

S.W.3d 262, 267 (Tex. 2004); see Tex. Prop. Code Ann. § 22.001(a) (West

2000). In a case similar to this appeal, we recently explained,

A declaration under the UDJA is appropriate ―to settle and
afford relief from uncertainty and insecurity with respect to rights,
status, and other legal relations.‖ However, a party may not recover
attorneys‘ fees under the UDJA when the only issues, aside from
attorneys‘ fees, concern clearing of title or trespass to try title. ―Any
suit that involves a dispute over the title to land is, in effect, an action
in trespass to try title, whatever its form.‖ Because a claim for
declaratory relief is ―merely incidental to the title issues,‖ the UDJA
will not supplant a suit to quiet title by allowing attorneys‘ fees under
such circumstances.

Here, Poag brought a declaratory action seeking to ―quiet title
and/or acquire title to property.‖ In his prayer, Poag sought a
judgment ―[d]eclaring that the oil and gas lease executed by
Defendant [Flories] is invalid and unenforceable, ordering it removed
from the title of the properties made the subject of this litigation, and
quieting title in [Poag]‖.

In substance, Poag‘s claim for declaratory relief is a claim to
quiet title. Although Poag couches his declaratory action in terms of
a request for a declaration, everything he requests of the court is
necessary to, and a component of, the ultimate relief he seeks,
which is to clear the title on the two tracts of land he purchased from
Anson. When the essence of the suit is in trespass to try title,
attorneys‘ fees are not recoverable. Thus, as a matter of law, Flories
was not entitled to an award of attorneys‘ fees under the UDJA.

Poag v. Flories, 317 S.W.3d 820, 828–29 (Tex. App.—Fort Worth 2010, pet.

denied) (citations omitted); see Martin, 133 S.W.3d at 267 (holding that a dispute

28
regarding the boundary of property was a trespass to try title suit, which

foreclosed the plaintiffs‘ ability to collect attorney‘s fees under the UDJA);

cf. Roberson v. City of Austin, 157 S.W.3d 130, 136–37 (Tex. App.—Austin 2005,

pet. denied) (holding that a dispute over an easement was not a trespass to try

title claim and could therefore be brought under the UDJA because an easement

is a nonpossessory property interest).18

The Nikolais‘ second amended petition asked the trial court to decree that

they were the ―rightful owners of the Property in fee simple, including both the

surface and mineral estate.‖ The trial court‘s judgment declared the Nikolais as

the owners and stated that the ―cloud on [their] title created by [appellants‘] claim

to the mineral estate is removed and quieted.‖ And the Nikolais have recognized

on appeal that their suit is based primarily on their claim for legal title.

Thus, under our reasoning in Poag, although this suit concerns the validity of a

deed, which may otherwise be a proper subject for a UDJA claim, we are

compelled to hold that the essence of the Nikolais‘ suit was to obtain a

declaration of title and that, as a matter of law, they were not entitled to attorney‘s

fees under the UDJA. 317 S.W.3d at 828–29; see also Aguillera v. John G. &

Marie Stella Kenedy Mem’l Found., 162 S.W.3d 689, 697–98 (Tex. App.—

Corpus Christi 2005, pet. denied) (holding that attorney‘s fees were unavailable
18
―A mineral fee owner has a possessory estate in the land. As such he
has the exclusive power to lease the land to another for mineral development or
to develop the minerals himself.‖ Dearing Inc. v. Spiller, 824 S.W.2d 728, 732
(Tex. App.—Fort Worth 1992, writ denied).

29
because although the suit concerned the validity of a land document, it was

ultimately a title dispute); Hawk v. E.K. Arledge, Inc., 107 S.W.3d 79, 84 (Tex.

App.—Eastland 2003, pet. denied) (―The reality in this lawsuit is that it involves

the issue of title. Attorney‘s fees are not recoverable when the real essence of

the suit is one in trespass to try title.‖).

XTO also contended in the trial court that the Nikolais were not entitled to

fees because they were neither reasonable nor necessary under the UDJA in this

case. XTO argued that its ―role in this case was simply defending its record title

to interests it expended great sums of money to develop. Whether XTO

ultimately prevailed, it would be inequitable and unjust to punish XTO for simply

defending its interests against [the Nikolais‘] claims.‖ Finally, XTO opined that

the mistake ―that put the parties in their current positions was that of [the

Nikolais‘] title company,‖ which the Nikolais have sued.

When a statute states that a trial court ―may‖ award attorney‘s fees, such

an award is reviewable for an abuse of discretion. Smith v. McCarthy, 195

S.W.3d 301, 304 (Tex. App.—Fort Worth 2006, pet. denied) (op. on reh‘g);

see Street v. Skipper, 887 S.W.2d 78, 83 (Tex. App.—Fort Worth 1994, writ

denied). To determine whether a trial court abused its discretion, we must

decide whether the trial court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or

unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).

30
We cannot conclude that a trial court abused its discretion merely because we

would have ruled differently in the same circumstances. E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

For the reasons argued by XTO in its motion for entry of a final judgment,

we hold that the trial court could have reasonably concluded that requiring XTO

to pay the Nikolais‘ attorney‘s fees was not equitable or just even though the trial

court ultimately concluded that the Nikolais owned the minerals associated with

their property. Thus, for those reasons, and in light of our conclusion that deeds

in the Nikolais‘ chain of title estop them from succeeding on their quiet title or

UDJA claims, we hold that even if the Nikolais‘ request for attorney‘s fees was

not precluded as a matter of law, the trial court did not abuse its discretion in

denying an award of attorney‘s fees.

We overrule the Nikolais‘ third issue.

The Effect of Our Decisions Explained Above on the Other Appellants and
Appellees and on all of the Trial Court Defendants

The parties whose interests are aligned with XTO have responded to the

Nikolais‘ suit in the trial court and on appeal in different ways. Specifically,

XTO Energy Inc. answered the Nikolais‘ suit by filing a general denial,
asserting the affirmative defense of estoppel by deed, and asserting
counterclaims for declaratory judgment and to quiet title (which asked for a
decree that the Nikolais do not have a claim to the mineral estate in their
property);

eight individual defendants, who were all represented by Ronald Holman
(the ―Holman Defendants‖) responded to the suit in the same way as XTO;

31
 NASA Energy Corporation and an individual defendant filed general
denials and raised statute of limitations affirmative defenses but did not
raise estoppel by deed defenses;

some individual defendants only generally denied the Nikolais‘ claims, and
other defendants did not expressly answer the claims;

XTO Energy Inc. and the Holman Defendants sought summary judgment
on their estoppel by deed affirmative defenses;

some defendants, including defendants represented by Alagood (the
―Alagood Defendants‖) who had not pled estoppel by deed, attempted to
join other motions for summary judgment by the parties who had pled the
defense;19 and

only some of the defendants in the trial court appealed the trial court‘s
judgment.

Based on these facts, the Nikolais argue that we should affirm the trial

court‘s judgment at least as to the defendants who failed to appeal or properly

respond to the Nikolais‘ claims in the trial court. In a typical case, we would

agree. XTO contends, however, that because the claims of all of the defendants

are interwoven and dependent, we should reverse the trial court‘s judgment as to

all parties.

As explained by the supreme court,

While it is generally the rule that non-appealing parties are
excluded from relief upon appeal,[20] this court has held that reversal
19
The trial court sustained the Nikolais‘ objections to some of the joinders
on the grounds that they were not timely filed and that they were not affirmative
requests for summary judgment.
20
See Tex. R. App. P. 25.1(c) (―The appellate court may not grant a party
who does not file a notice of appeal more favorable relief than did the trial court
except for just cause.‖).

32
 of a trial court order may extend to non-appealing parties ―when the
rights of the appealing parties are so interwoven or dependent on
each other as to require a reversal of the entire judgment.‖ Plas-
Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 446 (Tex. 1989)
(citing Turner, Collie & Braden v. Brookhollow, Inc., 642 S.W.2d 160,
166 (Tex. 1982)). This exception to the general rule is applied on a
case-by-case basis.

Ex parte Elliot, 815 S.W.2d 251, 251–52 (Tex. 1991) (reversing an expunction

order as to a district clerk and sheriff although only the district attorney appealed

the order).

Based on evidence submitted in the trial court, the rights of the defendants

with respect to the minerals located on the Nikolais‘ land appear to be interwoven

and dependent. In XTO‘s motion to abate, it alleged that the parties later added

to the lawsuit by the Nikolais‘ first amended petition were lessors that executed

oil and gas leases in favor of XTO or XTO‘s predecessors in interest,

nonoperating working interest owners of the minerals on the property subject to

the suit, persons claiming to have a nonparticipating royalty interest in the

minerals, and unleased alleged owners of the minerals that the Nikolais claimed

to own. In essence, XTO asked the trial court to join all parties who could claim

to have an interest in the minerals at issue that was inconsistent with the

Nikolais‘ claim of ownership. See Tex. R. Civ. P. 39(a). XTO referred to these

parties collectively as the ―Madewell Parties,‖ and XTO attached an affidavit to its

motion (by Ryan Skelly, an XTO landman) that recites that each of the Madewell

Parties ―own[s] an interest in the mineral estate beneath the surface estate

owned by Leonard and Sandy Nikolai.‖

33
 It would seem to be unreasonable and chaotic for the Nikolais to be

estopped from denying the mineral reservation as to some of the Madewell

Parties, and therefore have no rights to execute a mineral lease or otherwise

claim any interest in any of the minerals as related to those parties, but not

estopped as to the others, and therefore nonetheless have the ability to take

these actions. Similarly, it would be inconsistent and unworkable for the Nikolais

to have obtained rights to the minerals by adverse possession or prior

possession as to some parties but not as to others. It is also reasonable to infer

from Skelly‘s affidavit and other parts of the record that affirming the trial court‘s

judgment as to nonappealing defendants would affect XTO‘s interest through

leases that have been executed by those defendants.21

To provide the appealing and prevailing parties with ―full and effective

relief,‖ therefore, we conclude that we must reverse the entire judgment as to all

of the defendants in the trial court. See Turner, 642 S.W.3d at 166 (reversing an

entire judgment because the ―possibility of . . . inconsistent results is intolerable‖).

21
A common oil or gas lease creates in the lessee a fee simple
determinable interest in the mineral estate, while the lessor retains a possibility of
reverter. Jupiter Oil Co. v. Snow, 819 S.W.2d 466, 468 (Tex. 1991).

34
 Alagood’s Request for Attorney’s Fees

In July 2009, the trial court signed an agreed order that approved payment

of $12,070.33 for ad litem fees to Alagood. The fees were taxed as a cost

against XTO Energy Inc. The order, however, did not provide for appellate fees

for Alagood. A year later, during the pendency of this appeal, Alagood filed an

application in the trial court to be paid $21,163.64 in additional fees and

expenses that related to appellate representation of his clients. The trial court

dismissed the application for want of jurisdiction. Alagood sought to appeal from

the dismissal.

In response, on September 21, 2010, we issued an order indicating that

we would remand the appellate fee issue to the trial court upon resolution of this

appeal. See Cahill v. Lyda, 826 S.W.2d 932, 933 (Tex. 1992) (remanding a case

to the trial court for the limited purpose of determining the reasonable attorney‘s

fees and expenses of the attorney ad litem for his services on appeal). Under

the rationale stated in that order, we will remand this case to the trial court so that

the trial court may determine reasonable attorney‘s fees for Alagood and which

party the fees should be taxed against. See id.; Harris Cnty. Children’s

Protective Servs. v. Olvera, 971 S.W.2d 172, 176 (Tex. App.—Houston [14th

Dist.] 1998, pet. denied) (op. on reh‘g) (agreeing that Cahill authorizes an

appellate court to remand the issue of ad litem appellate attorney‘s fees).

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 Conclusion

Based on our conclusions that the trial court erred by granting the Nikolais‘

motion for summary judgment and by denying XTO‘s motion for summary

judgment, we reverse the trial court‘s judgment with respect to the court‘s

determinations that (1) the mineral estate of the property was never validly

reserved or severed from the surface estate, (2) a mineral lease on the property

may only be made by the Nikolais, (3) the Nikolais are the owners of the property

in fee simple, including both the surface and mineral estate, pursuant to their

warranty deed, and (4) the cloud on the Nikolais‘ title created by appellants‘ claim

to the mineral estate is removed and quieted. We render judgment, instead, in

favor of all of the trial court defendants that the Nikolais are estopped by deed

from claiming that they own any interest in the minerals beneath the surface of

their property. We also affirm the trial court‘s judgment to the extent that it

denied the Nikolais‘ claim for attorney‘s fees, and we remand this case to the trial

court for the limited purpose of resolving issues related to Alagood‘s ad litem

attorney‘s fees.

TERRIE LIVINGSTON
CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: August 30, 2011

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