NO. 12-15-00170-CV

                       IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                 TYLER, TEXAS

LINDA ANN PARRISH RICHARDSON          §   APPEAL FROM THE 145TH
AND GARY BRUCE RICHARDSON, CO-
TRUSTEES OF THE M.C. PARRISH, JR.
TESTAMENTARY TRUST; JUDY
CLEVELAND HUPPERT; JAMES COOKE
WILSON, INDIVIDUALLY, AS CO-
INDEPENDENT EXECUTOR OF THE
ESTATE OF BETTY VIRGINIA KILEY
WILSON, DECEASED, AND AS TRUSTEE
OF ALL TRUSTS CREATED UNDER THE
WILL OF BETTY VIRGINIA KILEY
WILSON; MARGARET WILSON
RECKLING, INDIVIDUALLY, AS CO-        §   JUDICIAL DISTRICT COURT
INDEPENDENT EXECUTRIX OF THE
ESTATE OF BETTY VIRGINIA KILEY
WILSON, DECEASED, AND AS TRUSTEE
OF ALL TRUSTS CREATED UNDER THE
WILL OF BETTY VIRGINIA KILEY
WILSON; RANSOM CLARK LUMMIS;
JANIE GRANGER SPICER; THOMAS S.
DAVISON; FREDERICK R. LUMMIS II;
PALMER BRADLEY LUMMIS; LINDA
ANN PARRISH RICHARDSON AND
GRAY BRUCE RICHARDSON, AS CO-
TRUSTEES OF THE M.C. PARRISH, JR.     §   NACOGDOCHES COUNTY, TEXAS
TESTAMENTARY TRUST; ROBERT L.
BRADLEY, JR.; WILLIAM R. LUMMIS,
JR.; CLYTIE HARRIS THOMAS PHELPS;
MARY GAIL THOMAS CAMPBELL;
JOHN K. HARDY; AND JOHN TURNER
NEVITT, APPELLANTS
V.

DONALD ROGER MILLS, RHONDA
MILLS, AND BEVERLY MILLS POOL,
APPELLEES
                           OPINION ON REHEARING
        The heirs, devisees, and assigns of Robert Lindsay and June C. Harris 1 (Appellants) filed a
motion for rehearing.          We grant the motion, withdraw our December 30, 2016 opinion and
judgment, and substitute the following opinion and a corresponding judgment in their place.
        This suit involved the construction of a 1906 instrument pertaining to the minerals under
certain property and a 1908 release. The trial court determined that Donald Roger Mills, Rhonda
Mills, and Beverly Mills Pool (Appellees) owned an undivided one-half interest in the oil, gas, and
other minerals described in the 1906 instrument and that Appellants take nothing. Appellants raise
four issues on appeal. We reverse and render.


                                                   BACKGROUND
        For years, Appellees had received royalty payments for one-half of the oil, gas, and other
minerals of the subject property. When those royalty payments abruptly stopped in October 2010,
Appellees filed suit against Appellants, seeking to have the payments resumed.2 Appellees’ dispute
with Appellants revolves around the construction of two instruments. First, they contend that the
following instrument recorded in Volume 64, Page 64 of the Deed Records of Nacogdoches
County, Texas, and recorded on July 23, 1906, is an oil and gas lease and not a mineral deed.


        S A Mills et al                                         Volume 64 Page 64
        to                                                      Deed Records of Nacogdoches County
        Robert Lindsey et al

        The State of Texas

        County of Nacogdoches

        Know all men by these presents: That we, S.A. Mills, Sophronia Mills, wife of S.A. Mills, R.E. Mills,
        Mary Ann Mills, wife of R.E. Mills, Thos Mills and wife Z.A. Mills parties of the first part are the
        owners of the several tracts of land hereinafter described, and there exists upon said land evidences in
        the way of surface indications which have moved said parties of the first part to believe that oil,
        [g]as[,] and mineral[s] of other kinds exist in quantities of greater or lesser proportions underneath the
        surface, and whereas said parties desire to have the title to their lands examined, abstracted, and


        1
          The heirs, devisees, and/or assigns of Robert Lindsay and June C. Harris are Judy Cleveland Huppert; James
Cooke Wilson, Individually, as Co-Independent Executor of the Estate of Betty Virginia Kiley Wilson, Deceased, and
as Trustee of all Trusts Created under the Will of Betty Virginia Kiley Wilson; Margaret Wilson Reckling, Individually,
as Co-Independent Executrix of the Estate of Betty Virginia Kiley Wilson, Deceased, and as Trustee of all Trusts
Created under the Will of Betty Virginia Kiley Wilson; Ransom Clark Lummis; Janie Granger Spicer; Thomas S.
Davison; Frederick R. Lummis II; Palmer Bradley Lummis; Linda Ann Parrish Richardson and Gray Bruce Richardson,
as Co-Trustees of the M.C. Parrish, Jr. Testamentary Trust; Robert L. Bradley, Jr.; William R. Lummis, Jr.; Clytie
Harris Thomas Phelps; Mary Gail Thomas Campbell; John K. Hardy; and John Turner Nevitt.
        2
           Appellees contend only that they own one-half of the minerals of the subject property. They recognize that
their predecessors-in-interest conveyed the remaining one-half mineral interest in 1962.


                                                            2
perfected if any defects exist, and desire to have certain indebtedness existing against the premises in
the shape of notes for the purchase money for said land paid off and concentrated into the hands of the
parties of the second part, and desire to have investigations, tests[,] and demonstrations made in order
to ascertain whether or not oil, gas[,] and other minerals aboun[d] in, under[,] and upon said land, and
to have the property managed and controlled so as to bring results beneficial to them either by
development and operation of said property for oil, gas or other mineral[s], or by selling said property
if deemed best in their [j]udgment at such enhanced value as may result from the test,
demonstration[,] and investigations to be made by said parties of the second part, and whereas said
parties of the second part have agreed to perform the work of testing, demonstrating[, and]
investigating the oil upon said premises, and to generally handle the property for the best interest of
all parties concerned by doing and performing such necessary things in the premises as will enhance
the value of said property, - making it more salable, valuable and desirable by such usual proper and
practical means as in the [j]udgment of the parties may seem best, and have agreed to abstract the title
to said property to thoroughly examine and investigate said titles, and to do such things as are proper
and necessary to perfect said titles, and have agreed to perform such other and further things as may
seem necessary and proper to carry out the purposes and intent of this agreement.

Therefore in consideration of the premises, the services rendered and to be rendered by said parties of
the second part, as hereinbefore specified and set forth, we, the said S.A. Mills, Saphronia [sic] Mills,
R.E. Mills, Mary Ann Mills, Thos Mills and Z.A. Mills have bargained, sold and conveyed, and by
these presents do grant, bargain, sell and convey unto Robert Lindsey and June C. Harris, the parties
of the second part, an undivided one half interest in the oil, gas, and other minerals which do or may
exist, in, under and upon the several tracts of land hereinafter described, with the rights of ingress and
egress, and such other and further rights and privileges as are necessary and proper for the
performance of the work of prospecting, testing, demonstrating, developing and operating for oil, gas
or other minerals, the land and premises are described as follows:

[property description omitted]

To have and to hold the above described premises, together with all and singular the rights and
appurtenances thereto in anywise belonging unto the said Robt. Lindsey and June c. Harris, their heirs
and assigns forever, and we do hereby bind ourselves, our heirs, executors and administrators to
warrant and forever defend all and singular the said [p]remises unto the said Robt Lindsey and June
C. Harris, their heirs and assigns against every person whomsoever lawfully claiming or to claim the
[s]ame or any part thereof.
Witness our hands at Nacogdoches, this the 9 day of July A.D. 1906.

         June C. Harris              S.A. Mills
         Robt. Lindsey               R.E.Mills
                                     M.A. Mills
                                     Sophronia Mills
                                     T.B. Mills
                                     Z.A. Mills


[acknowledgements omitted]

Filed for record July 23, 1906 at 12 o’clock m

                                                        P.M. Sanders County Clerk




                                                    3
        Appellees, as part of their suit, also contend that the following release dated January 18,
1908, and recorded on April 5, 1927, in Volume 15, page 92 of the Oil and Gas Lease Records of
Nacogdoches County, Texas, released the 1906 instrument.3


        RELEASE LEASE
        JUNE C. HARRIS ET AL

                 TO
                                            THE STATE OF TEXAS                   §
        R. E. MILLS ET AL
                                            COUNTY OF NACOGDOCHES §

                  WHEREAS on the 9th day of July A. D. 1907, R. E. Mills, Tom Hills and Sam Mills
        executed and delivered to the Nacogdoches Land Company, a firm composed of Robt Lindsey and
        June C. Harris, a certain contract or lease covering land described in said contract or lease, a part of
        the John Cooper, T. J. Cooper and the M. J. Mills surveys in Nacogdoches County, Texas, providing
        for the development and exploitation of said property for oil and other mineral, and

                 WHEREAS by the terms of said contract or lease the time for said development has expired
        rendering null and void said lease.

                  THEREFORE this is to acknowledge a full and complete release and relinquishment of my
        right or claim held or claimed by said Nacogdoches Land Co., Robt. Lindsey or June C. Harris by
        virtue of said contract, lease or agreement, and the same is hereby declared to be extinguished and of
        no further force or effect.

                 WITNESS our hands at Nacogdoches, Texas, this the 18th day of January A D 1908.
                                                                   JUNE C. HARRIS
                                                                   ROBT. LINDSEY

        [acknowledgements omitted]

        Filed, April 5, 1927, at 11 o’clock A. M.
        Recorded, April 5, 1927, at 4 o’clock P. M.

                          W. R. Bailey, Clerk, County Court,
                          Nacogdoches County, Texas.


        After a bench trial, the trial court issued findings of fact and conclusions of law in which it
found that the 1908 release was intended to, and did in fact, release the 1906 instrument. It
concluded that the two instruments were ambiguous when construed together, and that extrinsic
evidence was admissible to determine the parties’ true intent. The trial court alternatively found
that the 1906 instrument was released when Lindsey and Harris did not perform their obligations as
described in the 1906 instrument within a reasonable time. The trial court concluded further that the
1906 instrument was a contract containing executory promises by Harris and Lindsay, the

        3
           The release is recorded in Volume 137, Page 576, of the Deed Records of Nacogdoches County, Texas, on
July 14, 1934.


                                                           4
instrument did not have an express term for time of performance, the law would supply a term that
their promises were to be performed within a reasonable time, and that a reasonable time for
performance had passed. The trial court also found that Appellants failed to meet their burden of
proof on their affirmative defenses. Therefore, the trial court determined that the one-half mineral
interest had reverted to the Millses, who were Appellees’ predecessors. Accordingly, the trial court
signed a judgment that Appellees take one-half of the oil, gas, and other minerals under the subject
property and that Appellants take nothing. Appellants filed a motion for new trial, which was
overruled by operation of law, and this appeal followed.


                      CONSTRUCTION OF THE 1906 AND 1908 INSTRUMENTS
       In their first issue, Appellants argue that the trial court erred in its determination of the legal
construction and effect to be given to the 1906 instrument and the 1908 release.
Standard of Review
       Whether a written instrument is ambiguous is a question of law for the court.                J.M.
Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); Coker v. Coker, 650 S.W.2d 391,
394 (Tex. 1983). Therefore, we review the trial court’s decision de novo. See Kachina Pipeline
Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). When conducting a de novo review, we exercise
our own judgment and redetermine each issue while according no deference to the trial court’s
decision. Hausser v. Cuellar, 345 S.W.3d 462, 467 (Tex. App.—San Antonio 2011, pet. denied).
If, after we apply the relevant rules of construction, the written instrument can be given a definite
legal meaning or interpretation, it is not ambiguous. Frost Nat’l Bank v. L & F Distribs., Ltd., 165
S.W.3d 310, 312 (Tex. 2005) (per curiam), R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc. 596
S.W.2d 517, 519 (Tex. 1980). We review an unambiguous instrument without considering parol
evidence. See Stewman Ranch, Inc. v. Double M. Ranch, Ltd., 192 S.W.3d 808, 810 (Tex. App.—
Eastland 2006, pet. denied).
Applicable Law
       Our primary duty when construing an unambiguous deed is to ascertain the intent of the
parties from all of the language in the deed by applying a fundamental rule of construction known
as the “four corners” rule. See Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). We discern the
parties’ intent from the entirety of the deed’s language without reference to matters of mere form,
relative position of descriptions, technicalities, or arbitrary rules. See Stribling v. Milligan DPC
Partners, L.P., 458 S.W.3d 17, 20 (Tex. 2015). No single provision taken alone will be given


                                                   5
controlling effect. SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005) (per curiam).
We consider the entire writing and attempt to harmonize and give effect to all of its provisions by
analyzing those provisions with reference to the document as a whole. See Frost Nat’l Bank, 165
S.W.3d at 312. We must assume the parties to the instrument intended every clause to have some
effect; therefore, the language of the deed should be interpreted so that no clause is rendered
meaningless. Union Pac. R.R. Co. v. Ameriton Prop., Inc., 448 S.W.3d 671, 678 (Tex. App.–
Houston [1st Dist.] 2014, pet. denied).
Characterization of the 1906 Instrument
       During the bench trial, Appellees contended that the 1906 instrument is ambiguous and that
the trial court should consider parol evidence in determining its meaning. Appellants argued that
the 1906 instrument is unambiguous and that the trial court should construe it under the “four
corners” rule. See Luckel, 819 S.W.2d at 461. We will therefore conduct a de novo review to
determine whether the 1906 instrument is ambiguous. See Hausser, 345 S.W.3d at 467.
       In the first paragraph of the instrument, the Millses state why they are entering into an
agreement with Robert Lindsey and June C. Harris.          They explain that, based upon “surface
indications,” they believe oil, gas, and other minerals exist underneath the surface of their land.
Because of that belief, they specify certain actions they want Harris and Lindsey to take. First, they
want them to examine and abstract their title to the property and cure any defects. Second, they
want Harris and Lindsey to pay off any purchase money indebtedness existing against the property.
Third, they “desire” to have “investigations, tests[,] and demonstrations made” to determine
whether oil, gas, and other minerals are under the subject property. Fourth, they want Harris and
Lindsey to manage and control the property in such a way that it will be developed for oil, gas, and
other minerals, or alternatively to sell it if it has an enhanced value as a result of their “tests,
demonstrations[,] and investigations.”
       The paragraph provides further that Harris and Lindsey will perform the following services:
(1) testing, demonstrating, and investigating the possibility of oil on the premises, (2) doing
whatever is necessary to make the land more valuable, (3) examine title to the land and do whatever
is necessary to perfect said title, and (4) do other things needed to carry out the purpose and intent
of the parties’ agreement.
       It is significant in reviewing the recitals in the instrument that Harris and Lindsay may have
a right to develop the oil, gas and other minerals under the land, but no duty to do so. It is also




                                                  6
important that neither the Millses nor Harris and Lindsey specify a time period within which the
enumerated actions must be taken.
       The second paragraph begins with a statement that the consideration for the agreement is the
services rendered and to be rendered by Harris and Lindsey. The second sentence of the paragraph
is the granting clause of the instrument. The purpose of the granting clause is to define and
designate the estate conveyed. Gibson v. Watson, 315 S.W.2d 48, 54 (Tex. Civ. App.—Texarkana
1958, writ ref’d n.r.e.). The granting clause in the 1906 instrument specifies that the Millses “grant,
bargain, sell and convey . . . an undivided one-half interest in the oil, gas and other minerals” to
Harris and Lindsey.
       The third paragraph of the instrument, which follows the legal description, begins with an
habendum clause. The habendum clause in Texas deeds delineates the extent of the interests being
granted and any conditions affecting the grant. Anadarko Petrol. Corp. v. BNW Prop., Co., 393
S.W.3d 846, 851 n.6 (Tex. App.—El Paso 2012, pet. denied). We believe it is significant that the
habendum clause here includes the word “forever.” That means there is no limitation or condition
upon the one-half mineral interest being conveyed to Harris and Lindsey.
       A warranty clause follows the habendum clause in the third paragraph of the instrument.
The purpose of the warranty clause is to warrant that neither the same estate nor any right, title, or
interest therein has been conveyed to any person other than the grantee and that the property is free
from encumbrances. Stewman Ranch, Inc., 192 S.W.3d at 811. As with the habendum clause, it is
significant that the word “forever” is used in the warranty clause. That means the Millses did not
limit their warranty of the one-half mineral interest being conveyed.
       Appellees contend that the 1906 instrument was only a contract between the parties
requiring Harris and Lindsey to develop the subject property for oil, gas, and other minerals. We
disagree. As we have noted, there is no time specified in the instrument for any development.
Further, the language in the instrument presents no requirement for Harris and Lindsey to actually
develop the property. However, Appellees contend that there was an implied covenant that Harris
and Lindsey would develop the property for oil, gas, and other minerals. This is the same argument
made by the landowners in Danciger Oil & Refining Co. of Tex. v. Powell, 154 S.W.2d 632 (Tex.
1941). There, the Texas Supreme Court held that there is no implied covenant for development
when there is language of an unconditional conveyance and the instrument is silent about whether
the grantee is required to either explore the land for oil and gas or develop it in any manner after the




                                                   7
discovery thereof. Id. at 636. The holding in Powell applies here. Therefore, the 1906 instrument
does not include an implied covenant for development.
       An oil and gas lease is a fee simple determinable estate. See Jupiter Oil Co. v. Snow, 819
S.W.2d 466, 468 (Tex. 1991). This means that when it terminates, the mineral estate reverts to the
grantors of the lease, their heirs, or assigns. Id. In contrast, a mineral deed does not contain such
limitations or qualifications on the mineral interest conveyed. See Loomis v. Gulf Oil Corp., 123
S.W.2d 501, 504 (Tex. Civ. App.—Eastland 1938, writ ref’d). In this case, based on the language
of the 1906 instrument, there were no limits on the one-half mineral interest being conveyed by the
Millses to Harris and Lindsey. To construe the instrument any other way would have the effect of
rewriting it, which we are not authorized to do. See Consol. Petroleum, Partners, I, LLC v. Tindle,
168 S.W.3d 894, 899 (Tex. App.—Tyler 2005, no pet.).
       Appellees also contend that the 1906 instrument was a contract for exploitation of minerals
and that the conditions described in the first paragraph of the instrument weigh in favor of its being
classified as a mineral lease rather than a mineral deed. See Cont’l Royalty Co. v. Marshall, 239
S.W.2d 837, 838 (Tex. Civ. App.—Texarkana 1951, no writ). In that case, an instrument entitled
“Contract” stated that the landowners “do hereby bargain, sell and convey unto the Continental
Royalty Company, a Corporation, an undivided one-half interest in and to all mineral rights, in and
under the following described tract of land . . . .” Id. However, the contract further stated that the
sale of mineral rights was conditioned on a good and merchantable title to said property and that
following delivery of such, the contract would have to be approved by the board of directors of the
Continental Royalty Company. Id. at 839. According to the evidence at trial, the landowners never
took the steps necessary to show that they had a good and merchantable title to the real property and
the Continental Royalty Company’s board of directors never approved the sale described in the
contract. Id. at 840.    The Texarkana court determined that even though there were words of
conveyance used, the instrument was not a deed. Id. at 840. The court stated that “if from the
whole instrument it is manifest that further conveyances were contemplated by the parties, it will be
considered an agreement to convey and not a conveyance.” Id. at 840-41.
       In the instant case, there were no further conveyances contemplated in the instrument.
Harris and Lindsey were to perform future services as part of the consideration. Performance of the
services was not a condition to the transfer of the minerals to them. The 1906 instrument is much
more similar to the instrument reviewed by the Fort Worth court of civil appeals in Crumpton v.
Scott, 250 S.W.2d 953 (Tex. Civ. App.—Fort Worth 1952, writ ref’d n.r.e.). In that case, the


                                                  8
landowners conveyed one-third of their mineral interest to an attorney for services he was to
perform regarding the land. Id. at 954. The landowners’ successors in interest contended that the
instrument was merely an executory contract and that the attorney never performed the services
described in the mineral deed. Id. The Fort Worth court held that the instrument was valid on its
face and therefore was effective to pass title to one-third of the minerals owned by the grantors on
the date of its execution. Id. at 955. The court went on to say that the landowner had the right to
set aside the deed if the attorney had failed to perform his services but no such suit had been
pursued. Id. at 956. In reaching its ultimate conclusion, the court reasoned that the law favors a
rule of construction requiring an interpretation under which a deed will be valid and operative in
preference to one that will nullify it. Id.
        In the case before us, the 1906 instrument includes a number of recitals regarding the
services to be performed by Harris and Lindsey. The record does not reflect that the Millses made
any attempt to set aside the 1906 instrument for failure of consideration. This further supports that
the 1906 instrument was not a mineral lease.
        Based upon the foregoing analysis, we hold that the 1906 instrument is an unambiguous
mineral deed by which the Millses conveyed a one-half interest in the minerals under the subject
property to Harris and Lindsey. We likewise hold that the trial court erred in concluding that the
1906 instrument was an executory contract. Moreover, we hold that the trial court erred when it
concluded that the law supplied a term in the 1906 instrument that Harris and Lindsey’s alleged
obligations must be performed within a reasonable time, that a reasonable time for performance had
passed, and that the mineral interest therefore reverted to Appellees.
Effect of the 1908 Release
        Appellants contend that the 1908 release refers to an unrecorded oil and gas lease.
Appellees argue that the release related back to the 1906 instrument, which we have construed to be
a mineral deed.
        When an instrument connects itself with a prior conveyance through its recitals, the two
conveyances are to be construed together to determine the intention and effect of the instruments.
Tate v. Sartain, 793 S.W.2d 45, 47 (Tex. App.—Texarkana 1990, writ denied). We must look
within the “four corners” of the release to determine whether it connects itself with the 1906
mineral deed or an unrecorded instrument. See Luckel, 819 S.W.2d at 461; see also Stribling, 458
S.W.3d at 20. Appellees argue that the only document recorded and in their chain of title that the
1908 release could possibly connect to is the 1906 instrument. A purchaser is bound by every


                                                   9
recital, reference, and reservation contained in or fairly disclosed by any instrument that forms an
essential link in the chain of title under which the purchaser claims. See Westland Oil Dev. Corp. v.
Gulf Oil, 637 S.W.2d 903, 908 (Tex. 1982).             Appellants respond that it is not unusual for
instruments relating to the exploration of oil, gas, and other minerals to be unrecorded. See id.
        The 1908 release states that it is releasing an instrument dated July 9, 1907. The 1906
mineral deed was executed on July 9, 1906. The 1908 release specifically refers to the document
being released as a “contract” or “lease,” but never describes it as a “deed.” The release specifically
states that “by the terms of said contract or lease the time for said development has expired
rendering null and void said lease.” The 1906 mineral deed includes no language specifying a time
period for the development of oil, gas, or other minerals. The 1908 release states that the “contract
or lease” was delivered to the Nacogdoches Land Company, a firm composed of Robert Lindsey
and June C. Harris. No reference to “the Nacogdoches Land Company” appears in the 1906
mineral deed. Only three of the six grantors in the 1906 mineral deed are mentioned as having
signed the “contract or lease.” None of the three wives listed in the 1906 mineral deed are listed as
having joined in the 1907 instrument. Further, it appears the same three men signed both the 1907
instrument and the 1906 mineral deed. However, only initials or nicknames are used to refer to
those who executed the 1907 instrument rather than the more formal first names used in the 1906
instrument. Finally, although it is not within the four corners of the 1908 release, we think it is
significant that the recording information for the 1906 mineral deed is omitted from the 1908
release. Generally, the recording information for the instrument to be released is specified in the
release itself.
        Appellees contend there is a latent ambiguity in the 1908 release that can be properly
explained by parol evidence, which would connect the 1908 release to the 1906 instrument. A
latent ambiguity arises when a contract that is unambiguous on its face is applied to the relevant
subject matter and an ambiguity appears by reason of some collateral matter. Ludwig v. Oncor
Med., L.P., 191 S.W.3d 285, 290 (Tex. App.—Austin 2006, pet. denied). If a latent ambiguity
arises from this application, extrinsic evidence is admissible for the purpose of ascertaining the true
intention of the parties as expressed in the agreement. Id. Appellees contend that “1907” was
mistakenly placed in the 1908 release when, in fact, the drafters meant “1906.”
        A latent ambiguity exists when the contract appears to convey a sensible meaning on its
face, but it cannot be carried out without further clarification. Id. A latent ambiguity does not
readily appear in the language of a document, but instead arises from a collateral matter once the


                                                  10
document’s terms are applied or executed and two or more possible meanings arise. See Latent
Ambiguity, BLACK’S LAW DICTIONARY (10th ed. 2014). Here, the 1908 release refers to a “contract
or lease” executed in 1907 that has expired under its own terms. In contrast, the 1906 instrument is
a conveyance of a mineral interest by deed without limitation. The numerous differences we
described between the 1906 mineral deed and the “contract or lease” described by the 1908 release
lead to the conclusion that the release of a 1907 contract or lease is not simply a mistaken date
reference. The 1906 mineral deed and the 1908 release are unambiguous on their face. Applying
both of them to the relevant subject matter, as expressed in the language of the documents, results in
the conclusion that the 1908 release refers to some instrument other than the 1906 mineral deed,
such as an unrecorded oil and gas lease. In other words, the reference to a 1907 instrument in the
1908 release does not create a latent ambiguity when applied to the 1906 mineral deed.
       Similarly, Appellees contend in a short paragraph in their brief that the error was one of
mutual mistake, and that extrinsic evidence is admissible to show the parties’ true intent. Appellees
did not allege this theory in their pleadings or argue it in the trial court. But even if they had, we
have concluded that both instruments are unambiguous on their face, and that given the numerous
differences in the terms of the instruments, they are unconnected and no latent ambiguity is created
when construing them. Parol evidence cannot be used to create an ambiguity in an unambiguous
instrument. See Kachina Pipeline Co., Inc. v. Lillis, 471 S.W.3d 445, 450 (Tex. 2015).
       Appellees also argue that the parol evidence rule does not prohibit the admission of evidence
to contradict a false recital regarding the date a contract was signed. See Carr v. Christie, 970
S.W.2d 620, 625 (Tex. App.—Austin 1998, pet. denied). Carr involved the allegation of fraud by
one of the signatories to an employment contract. The respondent to a summary judgment motion
attempted to show that the employment contract had been signed on a different date than the one
stated. Id. at 622-24. When fraud is alleged, parol evidence is admissible to vary the terms of a
contract or deed. See Lindsey v. Clayman, 254 S.W.2d 777, 780 (Tex. 1952). Here, Appellees did
not allege fraud in the execution of the release.
       As further argument that parol evidence may be used to show the date listed in the 1908
release was incorrect, Appellees cite us to Maupin v. Chaney, 163 S.W.2d 380 (Tex. 1942). In that
case, a foreclosure sale was challenged based on the property description in a deed of trust. Id. at
383. The deed of trust stated that the property described was the same property conveyed by two
named grantors to two named grantees on April 18, 1929. Id. Parol evidence showed that the only
deed involving those grantors and grantees was actually dated April 9, 1929. Id. The court allowed


                                                    11
the use of parol evidence, holding that if there appears in the instrument enough information to
enable one by pursuing an inquiry based upon the information to identify particular property to the
exclusion of others, the description will be held sufficient. Id. The court repeated the general rule
that a description is adequate when it refers to another instrument that contains a proper description
of the property. Id.
         Those facts are distinguishable from the instant case. Here, all parties with knowledge of
the transactions who could have testified are deceased, and in any event, as we have concluded, the
instruments are unambiguous. Moreover, the parol evidence offered by Appellees consists of
testimony from an attorney who had reviewed the 1906 mineral deed and 1908 release. He offered
possible explanations as to why the release included the “1907” date rather than “1906.” Such
opinion testimony of a witness more than one hundred years after the document was signed can
only be conclusory or speculative. Opinion testimony that is conclusory or speculative is not
relevant evidence, because it does not tend to make the existence of a material fact “more probable
or less probable.” City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (citing TEX. R.
EVID. 401).       This testimony could not be considered to vary the terms of an unambiguous
instrument.
         We hold that the 1908 release is unambiguous and that it does not have a connection to the
1906 mineral deed. Consequently, the trial court erred in determining otherwise and considering
extrinsic evidence to construe the instruments.
         Appellants’ first issue is sustained. Because we have sustained Appellants’ first issue, we
need not address their second, third and fourth issues. See TEX. R. APP. P. 47.1.


                                                    STIPULATION
         Finally, the parties made a stipulation that applies if we hold that Harris and Lindsey
acquired the mineral interest in the 1906 instrument unaffected by the 1908 release. This is the
conclusion we have reached on appeal, and accordingly, the stipulation applies. In essence, the
parties stipulated that Appellees nevertheless own a small percentage of the disputed interest that is
the subject of this appeal. Specifically, the parties stipulated as follows:4

         4
           The “Parrish Trust Parties” and “Lummis Parties” identified in the Stipulation are Appellants. The “Mills
Parties” are Appellees. The “Disputed Interest” was defined as follows:

         that undivided one-half of the oil, gas and other minerals which Parrish Trust Parties and Lummis
         Parties have asserted in this lawsuit was conveyed by the 1906 Instrument to June C. Harris and Robt.
         Lindsey and which the Mills Parties have asserted either was not conveyed by the 1906 Instrument or


                                                          12
         The interest, if any, of June C. Harris and Robt. Lindsey, the grantees in the 1906 Instrument, in and
         to the Disputed Interest is currently vested in and owned by the following:

                 a. Parrish Trust Parties collectively own an undivided 83.3334% of such interest;

                 b. Lummis Parties collectively own an undivided 12.5000% of such interest; and

                  c. as a result of acquisitions from Thomas L. Husbands, Robbie V. Russell, and Triple Crown
         Acquisitions, LLC, the Mills Parties collectively own an undivided 4.1666% of such interest.

         The chain of title out of June C. Harris and Robt. Lindsey into such current owners is reflected and
         disclosed by the instruments in the attached Exhibit “C.”


         After trial, Appellants filed a motion to reopen the evidence and a motion for trial
amendment to correct the stipulation. They believe that the supporting documents in Exhibit “C”
show that Appellees own only half of the stipulated percentage, or 2.0833%, and that Appellants
erred in stipulating to 4.1666%. The trial court overruled the motions. Appellants specifically
stated in their brief and response to Appellees’ prior motion for rehearing that they have not
appealed the orders overruling those motions. Rather, they “elected to limit this appeal to the final
judgment,” and took this course of action “in favor of focusing on the main issues, being
construction of the 1906 Deed and 1908 Release.”
         A stipulation is a binding contract between the parties and the court. McCuen v. Huey, 255
S.W.3d 716, 726 (Tex. App.—Waco 2008, no pet.). The contents of a stipulation constitute judicial
admissions, are conclusive on the issues addressed, and estop the parties from claiming to the
contrary. See Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex.1998). A stipulation of fact is also
binding on the reviewing court. M.J.R.’s Fare of Dallas, Inc. v. Permit & License Appeal Bd. of
Dallas, 823 S.W.2d 327, 330 (Tex. App.—Dallas 1991, writ denied). Although the trial court has
the power to modify or set aside a stipulation, if it is not set aside, it is conclusive as to the facts
stipulated. Guerrero v. Smith, 864 S.W.2d 797, 801 (Tex. App.—Houston [14th Dist.] 1993, no
writ).
         Accordingly, the parties are bound by their stipulation. Appellants specifically explained
that they do not challenge the trial court’s orders overruling their motions to reopen the evidence
and for trial amendment to correct the stipulation. Because Appellants expressly waived our
consideration of that issue, yet now ask that we address it for the first time on rehearing, we decline

         was reconveyed to the grantors of the 1906 Instrument by the 1908 Release, being the interest at issue
         in this lawsuit.



                                                          13
to address the denial of their motions. See Cameron Cnty. v. Velasquez, 668 S.W.2d 776, 784
(Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.) (argument about judicial admission raised for
first time in motion for rehearing was waived). Consequently, we hold that Appellees own an
undivided 4.1666% of the disputed undivided one-half mineral interest in accordance with the
parties’ stipulation.


                                                    DISPOSITION
         We have sustained Appellants’ first issue, which is dispositive. Accordingly, we reverse the
trial court’s judgment and render judgment that Appellees take nothing, and that they have no
interest in the undivided one-half of the oil, gas, and other minerals in, to, and under the 160 acre
M. J. Mills Survey, A-407, Nacogdoches County, Texas, which was conveyed by the mineral
conveyance recorded in Volume 64, Page 64 of the Deed Records of Nacogdoches County, Texas,
save and except, in accordance with the parties’ stipulation, an undivided 4.1666% of such
undivided one-half mineral interest in, to, and under such 160 acre M. J. Mills Survey.


                                                                   JAMES T. WORTHEN
                                                                      Chief Justice




Opinion delivered February 8, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                     (PUBLISH)



                                                              14
                       COURT OF APPEALS

   TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                             JUDGMENT

                            FEBRUARY __, 2017


                            NO. 12-15-00170-CV


  LINDA ANN PARRISH RICHARDSON AND GARY BRUCE RICHARDSON, CO-
     TRUSTEES OF THE M.C. PARRISH, JR. TESTAMENTARY TRUST; JUDY
   CLEVELAND HUPPERT; JAMES COOKE WILSON, INDIVIDUALLY, AS CO-
   INDEPENDENT EXECUTOR OF THE ESTATE OF BETTY VIRGINIA KILEY
WILSON, DECEASED, AND AS TRUSTEE OF ALL TRUSTS CREATED UNDER THE
 WILL OF BETTY VIRGINIA KILEY WILSON; MARGARET WILSON RECKLING,
INDIVIDUALLY, AS CO-INDEPENDENT EXECUTRIX OF THE ESTATE OF BETTY
   VIRGINIA KILEY WILSON, DECEASED, AND AS TRUSTEE OF ALL TRUSTS
 CREATED UNDER THE WILL OF BETTY VIRGINIA KILEY WILSON; RANSOM
CLARK LUMMIS; JANIE GRANGER SPICER; THOMAS S. DAVISON; FREDERICK
      R. LUMMIS II; PALMER BRADLEY LUMMIS; LINDA ANN PARRISH
RICHARDSON AND GRAY BRUCE RICHARDSON, AS CO-TRUSTEES OF THE M.C.
PARRISH, JR. TESTAMENTARY TRUST; ROBERT L. BRADLEY, JR.; WILLIAM R.
    LUMMIS, JR.; CLYTIE HARRIS THOMAS PHELPS; MARY GAIL THOMAS
          CAMPBELL; JOHN K. HARDY; AND JOHN TURNER NEVITT,
                               Appellants
                                   V.
    DONALD ROGER MILLS, RHONDA MILLS, AND BEVERLY MILLS POOL,
                                Appellees


                     Appeal from the 145th District Court
              of Nacogdoches County, Texas (Tr.Ct.No. C1127605)
                   THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this Court that there was error in the
judgment as entered by the trial court below and that the same should be reversed and judgment
rendered.
                   It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court in favor of Appellees, DONALD ROGER MILLS, RHONDA MILLS, AND
BEVERLY MILLS POOL, be, and the same is, hereby reversed, and judgment is rendered
that Appellees, DONALD ROGER MILLS, RHONDA MILLS, AND BEVERLY MILLS
POOL, take nothing, and that they have no interest in the undivided one-half of the oil, gas, and
other minerals in, to, and under the 160 acre M. J. Mills Survey, A-407, Nacogdoches County,
Texas, which was conveyed by the mineral conveyance recorded in Volume 64, Page 64 of the
Deed Records of Nacogdoches County, Texas, save and except, in accordance with the parties’
stipulation, an undivided 4.1666% of such undivided one-half mineral interest in, to, and under
such 160 acre M. J. Mills Survey.
                   All costs in this cause expended both in this Court and the trial court below
be, and the same are, adjudged against the Appellees, DONALD ROGER MILLS, RHONDA
MILLS, AND BEVERLY MILLS POOL, for which let execution issue; and that the decision
be certified to the court below for observance.
                   James T. Worthen, Chief Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.