WIGGINS v. CADE

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Court of Appeals of Texas,Tyler.

Charles R. WIGGINS and R. Zachary Tonroy, Appellants v. Glen S. CADE, Appellee.

No. 12-08-00329-CV.

Decided: January 29, 2010

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J. Frank R. Parish, for Charles R. Wiggins and R. Zachary Tonroy. Daryl L. Derryberry, for Glen S. Cade.

OPINION

Both Appellants, Charles R. Wiggins and R. Zachary Tonroy, and Appellee, Glen S. Cade, claim title to the same 1/64 nonparticipating royalty interest in the oil and gas produced and saved from a gas well in Rusk County. Cade filed a petition for declaratory judgment and to quiet title. By summary judgment, the trial court determined that Cade is the owner. Wiggins and Tonroy contend in two issues that the trial court erred. We reverse and remand for further proceedings.

Background

On September 28, 2004, Dale Resources (East Texas), L.L.C. filed an application for appointment of a receiver for the 1/32 nonparticipating royalty interest jointly owned by B.F. Crook and Mildred Andrene Crook Higginbotham Goad because it could not find Crook and Goad.1 In “an Agreed Order Determining Ownership of Mineral Interest Under Judgment Approved by the Court and Distribution of Funds Held by the Registry of the Court for Glen Cade,” signed February 1, 2006, the court determined that William Thomas Crook and Edward Howard Stewart had inherited Goad's 1/64 interest. Further, the court determined that Stewart's interest had been inherited by David E. Rinehart, and then Crook's and Rinehart's interest had been transferred to Cade. The order was signed and agreed as to form by Cade, Dale Resources, and a guardian ad litem who was also designated as attorney for the absent purported property owners, Crook and Goad.

The record shows further that between the time Dale Resources filed its application for a receiver and the time the court entered its order determining ownership, the heirs had not only executed mineral deeds naming Cade as grantee, but had also executed royalty deeds naming Wiggins as grantee.

On October 16, 2004, William Thomas Crook executed a royalty deed to Wiggins. This deed was recorded on October 20, 2004. On November 16, 2004, David E. Rinehart executed a royalty deed to Wiggins. This deed was recorded two days later on November 18. Nonetheless, on January 20, 2006, William Thomas Crook executed a mineral, royalty, and overriding royalty deed purporting to convey the same interest to Cade. This deed stated that the “effective date of this Deed is 1-20-04,” and was recorded three days later on January 23. Rinehart executed a mineral, royalty, and overriding royalty deed to Cade on January 23, 2006, which stated that the “effective date of this Deed is 2-20-04.” The deed was recorded on January 24, 2006, just one week before the trial court entered its February 1, 2006 order determining ownership in the receivership proceeding.

Thereafter, in a suit entirely separate from the receivership, Cade filed a petition for declaratory judgment and to quiet title asserting that Wiggins and Tonroy did not have a valid claim to the royalty interest.2 Cade later filed a motion for summary judgment based on two legal theories. First, he claimed that the royalty deeds from Crook and Rinehart to Wiggins violated the statute of frauds because they contained an insufficient legal description and were therefore void. Second, Cade claimed that the ownership of this 1/64 nonparticipating royalty interest had been litigated in the receivership action and that the doctrine of collateral estoppel precluded it from being litigated again. The trial court granted summary judgment for Cade without specifying which legal theory provided the basis for its ruling. Wiggins and Tonroy timely filed this appeal.

Standard of Review

We review the trial court's decision to grant a summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n, 253 S.W.3d 184, 192 (Tex.2007). The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). To prevail on a summary judgment, a plaintiff must conclusively prove all elements of his cause of action as a matter of law. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). An appellate court reviewing a summary judgment must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex.2007). If the trial court's order does not specify the grounds on which it granted summary judgment, we affirm if any of the grounds specified in the motion are meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003).

Statute of frauds

In their first issue, Wiggins and Tonroy contend that the trial court erred in granting summary judgment based on the statute of frauds. They assert that there is a question of fact regarding whether the description in their royalty deeds was legally sufficient.

Summary Judgment Evidence

The royalty deeds from Crook and Rinehart, in October and November of 2004 respectively, contained the same legal description as follows:

BEGINNING at an offset corner, same being the northwest corner of a tract of 45 acres of land formerly owned by Mrs. Kate Crook;

THENCE South with East boundary line of the Seelbach tract 335 varas to southeast corner of said Seelbach tract on North boundary line of J.H. White 119 acre tract;

THENCE East with north line of said White tract 268 varas to Northeast corner of same, a stake for corner;

THENCE South 10 deg. 1160 varas to corner on North boundary line of G.W. Coats 150 acre tract to the northeast corner of same;

THENCE North 3 deg. West 1031 varas to a corner at a fence, same being the West boundary line of land owned by Tipps and Rogers;

THENCE West with an old fence 110 varas to corner at an old fence;

THENCE North 10 deg. West with an old fence 487 varas to the Northeast corner of Mrs. Kate Crook's 45 acre tract;

THENCE West with the North boundary line of said 45 acre tract, 756 varas to the place of beginning, containing 169.31 acres of land, more or less.

As part of his summary judgment evidence, Cade offered the affidavit of R.E. (Bob) Peyton, Jr., a registered professional land surveyor who had twenty-four years of experience in Texas. Peyton stated that he could not locate the property on the ground with reasonable certainty based on the legal description in the deeds because it contained neither the name of the survey or the abstract number in which the property was situated.

Wiggins and Tonroy filed an affidavit by Donald R. “Tex” Tonroy, a petroleum landman, in response to Cade's summary judgment motion. In his affidavit, Tonroy stated that he had been a petroleum landman for more than thirty years in Texas and had been licensed to practice law in Texas for fourteen years. During that time, he examined public records for the purpose of determining mineral, royalty, and working interest ownership. He stated that by using the description in the two royalty deeds and by examining the public records of the county clerk of Rusk County, Texas, he determined that the forty-five acres formerly owned by Mrs. Kate Crook was located in the M.V. Peña Survey, A-27, of Rusk County, Texas. He stated that he was able to determine this information from a search for Kate Crook in the grantor/grantee indices of the Rusk County clerk's office. He stated that this was the only forty-five acre tract that Kate Crook ever owned in Rusk County and that therefore he was able to locate the land described in the two royalty deeds with reasonable certainty.

Applicable Law

The sufficiency of the legal description in any instrument transferring a property interest is a question of law and subject to a de novo review. Dixon v. Amoco Prod. Co., 150 S.W.3d 191, 194 (Tex.App.-Tyler 2004, pet. denied). An instrument conveying land must contain a sufficient legal description or the instrument is void under the statute of frauds. Id. A property description is sufficient if the writing furnishes within itself or by reference to some other writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty. AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex.2008). A recital of ownership in a deed may be used as an element of description and may serve as a means, together with some other element, of identifying the land with reasonable certainty. Broaddus v. Grout, 152 Tex. 398, 402, 258 S.W.2d 308, 310 (1953). Where the deed contains some data susceptible of being connected, by parol testimony, with some definite land, the description is in law sufficient. Ehlers v. Delhi-Taylor Oil Corp., 350 S.W.2d 567, 573 (Tex.Civ.App.-San Antonio 1961, no writ.). A deed is not void for uncertainty unless on its face the description cannot, by extrinsic evidence, be made to apply to any definite land. Jamison v. City of Pearland, 489 S.W.2d 636, 641 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref'd n.r.e.). If enough information appears in the description so that a party familiar with the locality can identify the premises with reasonable certainty, it will be sufficient. Gates v. Asher, 154 Tex. 538, 541, 280 S.W.2d 247, 248-49 (1955).

Analysis

Peyton's affidavit stated the legal description was insufficient to locate the property on the ground because it did not contain the survey name and abstract number. Tonroy showed in his affidavit that by searching the grantor/grantee indices located in the office of the Rusk County clerk for the name of Kate Crook, whose name appeared in the legal description as the former owner of a forty-five acre tract bordering the land at issue, he found documents identifying the subject property's survey name and abstract number. With this data, he was then able to identify the land described in the two royalty deeds from Crook and Rinehart to Wiggins with reasonable certainty.

Cade contends that Tonroy's affidavit was not sufficient evidence to defeat his motion for summary judgment. He asserts that a deed must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty. He argues that the deeds here do neither. He further argues that the generic reference to Kate Crook's land cannot be used to identify the land at issue. We disagree. An individual can use parol evidence to connect data described in the instrument, such as the name of a land owner, to establish the sufficiency of a legal description. See Ehlers, at 568-573. This is just what the Tonroy affidavit explained. We hold that Cade did not meet his burden to establish as a matter of law the insufficiency of the legal description in the two royalty deeds of October and November 2004 from Crook and Rinehart to Wiggins. See Swilley, 488 S.W.2d at 67. We sustain Wiggins and Tonroy's first issue.

Collateral Estoppel

In their second issue, Wiggins and Tonroy assert that the trial court erred in granting summary judgment for Cade on the basis of collateral estoppel. Wiggins and Tonroy contend that the doctrine of collateral estoppel does not apply to the facts of this case. We agree.

Applicable Law

The doctrine of collateral estoppel precludes relitigation of ultimate issues of fact actually litigated and essential to the judgment in a prior suit. Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 801 (Tex.1992). To invoke the doctrine of collateral estoppel, a party must establish “(1) the facts sought to be litigated in the first action were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action.” Eagle Prop., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex.1990).

Mutuality is not required for the invocation of the doctrine of collateral estoppel; rather it is only necessary that the party against whom the plea of collateral estoppel is being asserted be a party or in privity with a party in the prior litigation. Id. There is no general definition of privity, and the determination of who are privies requires a careful examination into the circumstances of each case. Tex. Capital Sec. Mgmt. v. Sandefer, 80 S.W.3d 260, 265 (Tex.App.-Texarkana 2002, no pet.). Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right. Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex.1971).

Analysis

We will focus on the privity element of collateral estoppel described above. The summary judgment record shows that Wiggins and Tonroy were not parties to the receivership. Cade contends that the guardian ad litem for Goad represented Wiggins and Tonroy's title interest during the receivership. Therefore, we look at what interest the ad litem was representing when he signed the agreed order in the receivership to determine whether Wiggins and Tonroy had an identity of interest with Goad or the guardian ad litem. See id.

To reiterate, the receivership was filed on September 28, 2004. When Cade took the deeds for the 1/64 nonparticipating royalty interest from Crook and Rinehart in January 2006, he made the effective dates of those deeds January 20, 2004 and February 20, 2004, respectively. For Crook and Rinehart to have owned an interest in the 1/64 nonparticipating royalty interest on those dates, the only logical inference is that Goad was deceased and they had already inherited those interests from her on or before those dates. The only logical conclusion we can draw then is that when the ad litem was appointed for Goad, he was representing someone who no longer had an interest in the 1/64 nonparticipating royalty interest at issue here. Goad owned no interest in the 1/64 nonparticipating royalty interest on September 28, 2004 when the receivership was filed, or on February 1, 2006 when the trial court entered its order determining ownership. Therefore, indulging every reasonable inference in favor of Wiggins and Tonroy, we determine that there could be no privity between Goad and the ad litem on one hand and Wiggins and Tonroy on the other hand in the receivership proceeding. See Mayes, 236 S.W.3d at 756; Benson, 468 S.W.2d at 363. We hold the doctrine of collateral estoppel does not apply in this suit. See Scharbauer, 807 S.W.2d at 721. Accordingly, Cade did not show his entitlement to summary judgment as a matter of law on the basis of collateral estoppel, and the trial court could not properly grant Cade's motion for summary judgment on that ground. See Swilley, 488 S.W.2d at 67. We sustain Wiggins and Tonroy's second issue.

Conclusion

Having determined that the trial court erred in granting summary judgment based on both of Cade's asserted grounds, the statute of frauds and collateral estoppel, we reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.

FOOTNOTES

1.  The interest of B.F. Crook is not a part of this proceeding and will not be discussed further. There is no dispute between the parties in this matter that this dispute involves a 1/64 nonparticipating royalty interest.

2.  Wiggins had conveyed part of his interest to Tonroy.

JAMES T. WORTHEN, Chief Justice.

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