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Bupp v. Bishop

Court of Appeals of Texas, Fourth District, San Antonio

January 3, 2018

Frances M. BUPP, Martha King Berglund, Evelyn Seydler Martin, Andrea Lee Castillo, Mary C. Forister, Shirley Dixon, and Cindy Forister, Appellants
v.
Harold Joe BISHOP, Jr., Individually and as Trustee of the Bishop Management Trust, General Partner of J & K Bishop Partnership, LTD, and as Executor of the Estate of Melanie Kay Bishop, Appellees

          From the 81st Judicial District Court, Karnes County, Texas Trial Court No. 15-01-00011-CVK Honorable Donna S. Rayes, Judge Presiding

          Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Rebeca C. Martinez, Justice

         In the underlying cause, the appellees, who are the grantees or the successors of the grantees under a warranty deed dated December 17, 2009, sued the appellants, who are the grantors or the successors of the grantors, seeking a declaration that the deed did not reserve or except any royalty interests in favor of the grantors. The appellees also asserted alternative claims for breach of contract, fraudulent inducement, fraud by nondisclosure, and fraud in a real estate transaction. The trial court determined the deed conveyed all royalty interests owned by the grantors to the grantees and granted summary judgment in favor of the appellees. The trial court also denied appellants' motion for summary judgment which sought a declaration in their favor and also asserted the appellees' alternative claims were barred by limitations. We reverse the trial court's judgment and render judgment that the deed excepted the grantors' royalty interests from the conveyance. We remand the cause to the trial court for further proceedings on appellees' alternative claims.

         Background

         Martha Forister owned 100% of the surface and 100% of the mineral interests in several tracts of real property. In her will, Martha devised specific tracts to each of her four children subject to a reservation of "all of the oil royalties, gas royalties, and royalties in other minerals" which she then devised in equal shares to the four children.

         In December of 2009, the successors to the interests of two of Martha's children executed a deed conveying a 136.69 acre tract of land to Harold Joe Bishop, Jr. and Melanie Kay Bishop. The deed conveyed all of the grantors' interest in the property "subject to the reservations from and exceptions to conveyance and warranty" set out in the deed as follows:

         Reservations from and Exceptions to conveyance and Warranty:

a. Any visible and/or apparent roadway and/or easement over or across the subject property the existence of which does not appear of record.
b. Rights of Parties in Possession.
c. Terms, conditions, and stipulations of Oil, Gas and Mineral Lease from Anita Forister to Hawthorn Energy Partners, L.L.C., dated May 4, 2007, and recorded in Volume 857, Page 242, of the Official Records of Karnes County, Texas.
d. Royalty interest, the royalties, and all other rights in connection with said royalty rights, described in the Will of Martha Forister, and recorded in Cause No. 3656 of the Probate Records of Karnes County, Texas, reference to which instrument is here made fro [sic] all purposes.

          On January 16, 2015, the appellees filed the underlying cause. As previously noted, the trial court granted summary judgment in favor of the appellees on their declaratory judgment claim. The trial court's judgment states the deed "conveyed all royalty interests owned by the Grantors/Defendants to the Grantees/Plaintiffs."

         Standard ...


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