Layla Claire Martin Osley and Milton J. Flick, Trustee v. Doris Jacqueline Naylor ( 2018 )


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  •                                Fourth Court of Appeals
    San Antonio, Texas
    MEMORANDUM OPINION
    No. 04-17-00372-CV
    Layla Claire Martin OSLEY and Milton J. Flick, Trustee,
    Appellants
    v.
    Doris Jacqueline NAYLOR,
    Appellee
    From the 343rd Judicial District Court, McMullen County, Texas
    Trial Court No. M-14-0035-CV-C-1
    Honorable Starr Boldrick Bauer, Judge Presiding
    Opinion by:       Patricia O. Alvarez, Justice
    Sitting:          Marialyn Barnard, Justice
    Patricia O. Alvarez, Justice
    Irene Rios, Justice
    Delivered and Filed: August 22, 2018
    AFFIRMED
    This is an oil and gas deed construction case. Appellants Layla Claire Martin Osley and
    Milton J. Flick (collectively Osley) contend the deed conveyed only the portion of the grantor’s
    interest in the NPRIs for wells produced from two conveyed tracts, not on all the lands to which
    the NPRIs originally applied. The trial court disagreed with Osley’s view and granted Naylor’s
    motion for summary judgment; this appeal ensued. Because the plain language of the deed shows
    the NPRIs apply to all the lands, we affirm the trial court’s judgment.
    04-17-00372-CV
    BACKGROUND
    The NPRIs at issue here trace their origins from documents generated by Osley’s ancestors
    to a 1990 Guardian’s Deed from Osley to Appellee Doris Jacqueline Naylor. We briefly review
    the relevant facts.
    A.         Florence Martin NPRI
    Osley’s great-grandmother Florence Martin divided 2,440 acres of land into three tracts of
    812 acres each. 1 In her will, Florence devised one tract each in fee simple to three of her
    descendants: Osley’s grandfather and two others.                          Florence reserved an undivided,
    nonparticipating 1/8 royalty interest on the entire 2,440 acres with the undivided NPRI (the
    Florence Martin NPRI) to be owned jointly by her three devisees, including Osley’s grandfather.
    When Osley’s grandfather died, he devised his 812-acre tract and his interest in the Florence
    Martin NPRI to his wife Jeanette (Osley’s grandmother).
    B.         Jeanette Martin Term NPRI
    When Jeanette died, she owned a 1/3 interest in the Florence Martin NPRI; she also owned
    the 812-acre tract, and an additional 238 acres, for a total of 1,050 acres of land. In 1988, to settle
    a contest to Jeanette’s will, the parties executed a partition deed. Its “THIRD” provision granted
    Osley two tracts of land: Tract D, 101 acres; and Tract E, 112 acres. Its “SEVENTH” provision
    created a twenty-year term 1/8 NPRI on all of Jeanette’s 1,050 acres (the Jeanette Martin NPRI).
    Osley received “an equal undivided one-eighth (1/8) interest in” the Jeanette Martin NPRI. Tract
    D, which had been part of Florence’s 2,440 acres, was burdened by the Florence Martin NPRI and
    the Jeanette Martin NPRI. Tract E, which had not been part of Florence’s 2,440 acres, was not
    burdened by the Florence Martin NPRI but was burdened by the Jeanette Martin NPRI.
    1
    The acreage numbers are approximate. A five-acre homestead is included in the total acreage calculation.
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    04-17-00372-CV
    C.         Guardian’s Deed
    In 1990, while Osley was still a minor, her guardian executed the deed at issue in this
    appeal: the Guardian’s Deed. The Guardian’s Deed conveyed to Naylor some of Osley’s property
    and interests. The parties agree that Osley conveyed the following:
    •   Tracts D and E (the Property),
    •   less a reservation of one half of the mineral estate for the Property,
    •   one half of Osley’s interest in the Florence Martin NPRI, and
    •   one half of Osley’s interest in the Jeanette Martin NPRI.
    The parties disagree on what lands the NPRIs apply to.
    Osley argues she conveyed one half of her interest in the NPRIs for wells producing from
    only the Property (Tracts D and E).
    Naylor argues Osley conveyed one half of her entire interest in the NPRIs, meaning for
    wells produced anywhere on the Florence Martin 2,440 acres or the Jeanette Martin 1,050 acres. 2
    Osley and Naylor filed competing motions for partial summary judgment. The trial court
    denied Osley’s motion and granted Naylor’s motion. The trial court declared, in effect, that the
    NPRIs are not limited to wells producing only from the Property. The trial court’s severance order
    made its summary judgment for Naylor final, and Osley appeals.
    D.         Standard of Review
    A trial court may render summary judgment when “there is no genuine issue as to any
    material fact and the moving party is entitled to judgment as a matter of law on the issues
    [presented].” TEX. R. CIV. P. 166a(c); accord Lightning Oil Co. v. Anadarko E&P Onshore, LLC,
    
    520 S.W.3d 39
    , 45 (Tex. 2017); Provident Life & Acc. Ins. Co. v. Knott, 
    128 S.W.3d 211
    , 215–16
    (Tex. 2003). We review a trial court’s summary judgment de novo. Lightning 
    Oil, 520 S.W.3d at 2
        As previously noted, 812 of Jeanette Martin’s 1,050 acres were part of Florence Martin’s 2,440 acres.
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    04-17-00372-CV
    45; Merriman v. XTO Energy, Inc., 
    407 S.W.3d 244
    , 248 (Tex. 2013). “When both parties move
    for summary judgment and the trial court grants one motion and denies the other, we review all
    the summary judgment evidence, determine all issues presented, and render the judgment the trial
    court should have.” 
    Merriman, 407 S.W.3d at 248
    ; accord Valence Operating Co. v. Dorsett, 
    164 S.W.3d 656
    , 661 (Tex. 2005).
    E.       Deed Construction
    “The construction of an unambiguous deed is a question of law for the court.” Wenske v.
    Ealy, 
    521 S.W.3d 791
    , 794 (Tex. 2017) (quoting Luckel v. White, 
    819 S.W.2d 459
    , 461 (Tex.
    1991)). “The primary duty of a court when construing such a deed is to ascertain the intent of the
    parties from all of the language in the deed by a fundamental rule of construction known as the
    ‘four corners’ rule.” 
    Luckel, 819 S.W.2d at 461
    ; accord 
    Wenske, 521 S.W.3d at 794
    . We must
    “(1) . . . focus on the intent of the parties, expressed by the language within the four corners of the
    deed, and (2) harmoniz[e] all parts of an instrument, even if particular parts appear contradictory
    or inconsistent.” 
    Wenske, 521 S.W.3d at 795
    ; see Altman v. Blake, 
    712 S.W.2d 117
    , 118 (Tex.
    1986).
    In cases where “we can ascertain the parties’ intent . . . by careful examination of the entire
    deed, [a]pplying default rules or other mechanical rules of construction to determine the deed’s
    meaning is . . . both unnecessary and improper.” 
    Wenske, 521 S.W.3d at 796
    (citation omitted);
    accord Hysaw v. Dawkins, 
    483 S.W.3d 1
    , 13 (Tex. 2016) (reiterating that a proper analysis is “a
    holistic approach aimed at ascertaining intent from all words and all parts of the conveying
    instrument”). “If [a deed] is so worded that it can be given a certain or definite legal meaning or
    interpretation, then it is not ambiguous and [we] will construe the [deed] as a matter of law.” See
    Coker v. Coker, 
    650 S.W.2d 391
    , 393 (Tex. 1983); accord 
    Wenske, 521 S.W.3d at 794
    .
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    04-17-00372-CV
    ANALYSIS
    The parties’ dispute centers on the geographic scope of the Florence Martin and Jeanette
    Martin NPRIs based on some limiting language in the paragraphs conveying the NPRIs.
    A.      Osley’s Argument
    Osley argues the “insofar as” language in the Guardian’s Deed limits the grant in each
    NPRI to the geographic limits of the Property—the 213 acres. She points to the deed’s nine
    instances of “insofar as” language as evidence that the deed’s intent is to limit the geographic
    bounds of the NPRIs to the Property. Osley contends that under a four corners analysis, “[t]he
    only reasonable result . . . [is] that the ‘insofar’ clause does not limit the royalties outstanding but
    reaches up to the front part of [the granting language] and limits the grant in each NPRI to the
    Property.”
    B.      Naylor’s Argument
    Naylor argues Osley conveyed one half of whatever interest she (Osley) owned in the
    Jeanette Martin and Florence Martin NPRIs, and the interest conveyed applies to all 1,050 acres
    of the Jeanette Martin lands and all 2,440 acres of the Florence Martin lands. Naylor insists the
    deed’s plain language shows the “insofar as” clauses apply only to the reversionary rights, and the
    clauses appropriately acknowledge that the grantor does not warrant title against preexisting
    burdens.
    C.      NPRI Grants
    After the Guardian’s Deed conveys the two tracts of land, it conveys interests in the NPRIs
    in two separate paragraphs.
    For the same consideration recited above, Grantor does further grant and
    convey unto Grantee, the following:
    (1) An undivided one-half (1/2) interest in and to all of Grantor’s interest in and
    to the non-participating term royalty interest in all of the oil, gas, . . . and all other
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    04-17-00372-CV
    minerals . . . that may be produced from 1050.55 acres of land more fully described
    in the Partition Deed and Agreement and awarded to Grantor under the terms and
    provisions of the Order of Partition and Paragraph SEVENTH of the [1988]
    Partition Deed and Agreement, together with one-half (l/2) interest in and to
    Grantor’s reversionary rights and interests therein insofar and only insofar as
    Grantor’s reversionary rights and interest pertain to the Property; the interest hereby
    granted and conveyed to Grantee, however, shall bear and be reduced by its
    proportionate one-half (1/2) part of (i) the royalties committed to the non-
    participating term royalty pooling agreement created under the order of Partition
    and Paragraph SEVENTH of the [1988] Partition Deed and Agreement, insofar
    only as the same covers and pertains to the Property, (ii) the royalty interest which
    was not partitioned and divided among the parties to the [1972] Partition Deed . . . ,
    insofar only as the same covers and pertains to the Property, and (iii) any
    outstanding interest in the oil, gas and mineral estate in the Property, if any there
    be.
    (2) An undivided one-half (1/2) interest in and to all of Grantor’s interest in and
    to a non-participating royalty interest equal to an undivided one-eighth (1/8) of all
    oil, gas, . . . and all other minerals . . . in and to all of the lands partitioned in the
    Estate of Floren[c]e Martin . . . ; the interest hereby granted and conveyed to
    Grantee, however, shall bear and be reduced by its proportionate one-half (1/2) part
    of (i) the royalties committed to the non-participating term royalty pooling
    agreement created under the order of Partition and Paragraph SEVENTH of the
    [1988] Partition Deed and Agreement, insofar only as the same covers and pertains
    to the Property, (ii) the royalty interest which was not partitioned and divided
    among the parties to the [1972] Partition Deed . . . , insofar only as the same covers
    and pertains to the Property, and (iii) any outstanding interest in the oil, gas and
    mineral estate in the Property, if any there be. (emphasis added).
    D.     Jeanette Martin NPRI Grant
    The Guardian’s Deed addresses the Jeanette Martin term NPRI in paragraph (1).
    Paragraph (1) consists of three main components: a term NPRI grant, a reversion grant,
    and burdens imposed. The two grants appear first, terminated by a semicolon; the burdens follow,
    terminated by a period. See Criswell v. European Crossroads Shopping Ctr., Ltd., 
    792 S.W.2d 945
    , 948 (Tex. 1990) (recognizing that while “the words contained in the instrument, and not the
    punctuation, should be the controlling guide in construing the instrument, [p]unctuation aids in
    construing the words used in the instrument,” and a semicolon may indicate a phrase is intended
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    04-17-00372-CV
    to have independent significance (citation omitted)). We begin by reviewing the two grants,
    starting with the term NPRI grant.
    1.      Paragraph (1)
    The geographic scope of paragraph (1)’s grant of an “undivided one-half (1/2) interest in
    and to all of [Osley]’s interest in and to the non-participating term royalty interest in all of the
    [minerals] . . . that may be produced from 1050.55 acres of land” is certain and definite: it covers
    all 1,050 acres. See 
    Coker, 650 S.W.2d at 393
    ; see also 
    Wenske, 521 S.W.3d at 794
    .
    The remaining question for paragraph (1) is whether—as Osley argues—the insofar as
    language “reaches up to the front part of [the granting language] and limits the grant in each NPRI
    to the Property.” The deed’s plain language unambiguously demonstrates that it does not.
    2.      Paragraph (1) Term NPRI, Reversion Grants
    The first component of paragraph (1) grants Naylor one half of Osley’s interest in the
    Jeanette Martin term NPRI. The second component grants a reversion. Separating the term NPRI
    grant from the reversion grant by the phrase “together with,” paragraph (1) grants Naylor one half
    of Osley’s reversionary interest in the Jeanette Martin NPRI, but “insofar and only insofar as
    Grantor’s reversionary rights and interest pertain to the Property.”
    The “together with” language is a logical break; it indicates that what follows—the
    reversionary interest—is different from what was just recited—the one-half interest in the term
    NPRI. The “insofar and only insofar as Grantor’s reversionary rights and interest pertain to the
    Property” language limits the granted reversionary interest to the Property. Considering this
    phrase in the context of the term NPRI grant for the full 1,050 acres and the reversionary interest
    limited to the Property, the meanings are plain and complete. Given the two related but separate
    types of interests—a term NPRI and a reversion—the deed’s word choices and sentence structure
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    04-17-00372-CV
    yield a certain meaning: the “insofar as” language refers to the reversionary interest, not the term
    NPRI. See 
    Coker, 650 S.W.2d at 393
    ; see also 
    Wenske, 521 S.W.3d at 794
    .
    3.      Paragraph (1) Burdens
    The third component imposes burdens; it requires Naylor’s interest to “bear and be reduced
    by its proportionate one-half (1/2) part of” three preexisting burdens:
    (i) the royalties committed to the nonparticipating term royalty pooling agreement
    . . . insofar only as the same covers and pertains to the Property, (ii) the royalty
    interest which was not partitioned and divided among the parties to the [1972]
    Partition Deed . . . , insofar only as the same covers and pertains to the Property,
    and (iii) any outstanding interest in the oil, gas and mineral estate in the Property,
    if any there be.
    The words used and the sentence structure show that each of these provisions (i.e., (i), (ii), and
    (iii)) has limiting language that operates within the confines of its separate provision.
    Provisions (i) and (ii) reduce Naylor’s interest in the Jeanette Martin term NPRI in
    accordance with the pooling agreement and any unpartitioned royalty interest “insofar only as [the
    pooling agreement or the unpartitioned royalty] covers and pertains to the Property.”
    Similarly, provision (iii) reduces Naylor’s interest in the Jeanette Martin term NPRI by
    “any outstanding interest in the oil, gas and mineral estate in the Property.”
    In each Roman numeral provision, the words used, the sentence structure, and the limiting
    language placement all indicate the limitations apply to the burdens, not to the geographic scope
    of the term NPRI. See 
    Wenske, 521 S.W.3d at 794
    ; 
    Criswell, 792 S.W.2d at 948
    .
    4.      Paragraph (1)’s Limiting Language Reach
    Considering the three components of paragraph (1) separately, and paragraph (1) as a
    whole, we note that nothing in the words used, the sentence structure, or the paragraph’s structure
    indicates that the limiting language reduces the geographic scope of the Jeanette Martin term NPRI
    grant. We necessarily conclude that the limiting language in each component applies within its
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    04-17-00372-CV
    respective component; the limiting language does not reach up to the beginning of paragraph (1)
    to restrict Naylor’s interest in the term NPRI to only those wells produced from the Property.
    E.       Florence Martin NPRI Grant
    The Guardian’s Deed addresses the Florence Martin NPRI in paragraph (2).
    Paragraph (2) has two main components: a perpetual NPRI grant, and burdens imposed.
    Like paragraph (1), the NPRI grant appears first, terminated by a semicolon. See 
    Criswell, 792 S.W.2d at 948
    . The geographic scope of paragraph (2)’s grant of an “undivided one-half (1/2)
    interest in and to all of [Osley]’s interest in and to a non-participating royalty interest . . . in and to
    all of the lands partitioned in the Estate of Floren[c]e Martin, Deceased” is also certain and definite:
    it covers all 2,440 acres of the Florence Martin lands. See 
    Coker, 650 S.W.2d at 393
    ; see also
    
    Wenske, 521 S.W.3d at 794
    .
    The remaining question for paragraph (2) is whether—as Osley argues—the insofar as
    language limits the Florence Martin NPRI grant to only those wells produced from the Property.
    1.     Paragraph (2) NPRI Grant
    The first component of paragraph (2) grants Naylor one half of Osley’s interest in the
    Florence Martin NPRI; the grant expressly covers all the Florence Martin lands—the entire 2,440
    acres.
    2.     Paragraph (2) Burdens
    Using identical language as paragraph (1), the second component of paragraph (2) imposes
    burdens; it requires Naylor’s interest in the Florence Martin NPRI to “bear and be reduced by its
    proportionate one-half (1/2) part of” three preexisting burdens:
    (i) the royalties committed to the non-participating term royalty pooling agreement
    . . . insofar only as the same covers and pertains to the Property, (ii) the royalty
    interest which was not partitioned and divided among the parties to the [1972]
    Partition Deed . . . , insofar only as the same covers and pertains to the Property,
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    04-17-00372-CV
    and (iii) any outstanding interest in the oil, gas and mineral estate in the Property,
    if any there be.
    The words used and the sentence structure show that each of these provisions (i.e., (i), (ii), and
    (iii)) operate on the Florence Martin NPRI just as the identical provisions in paragraph (1) operated
    on the Jeanette Martin term NPRI. For each of paragraph (2)’s Roman numeral provisions, the
    words used, the sentence structure, and the limiting language placement all indicate the limitations
    apply to the burdens, not to the geographic scope of the NPRI.
    3.      Paragraph (1)’s Limiting Language Reach
    Examining the two components of paragraph (2) separately and paragraph (2) as a whole,
    we note that nothing in the words used, the sentence structure, or the paragraph’s structure
    indicates that the limiting language reduces the geographic scope of the Florence Martin NPRI
    grant to the Property. We necessarily conclude that the limiting language in paragraph (2)’s second
    component applies only within the second component; the limiting language does not reach up to
    the beginning of paragraph (2) to restrict Naylor’s interest in the NPRI to only those wells produced
    from the Property.
    F.     Subject-To Provision
    Towards its end, the Guardian’s Deed includes this provision:
    This conveyance is made and accepted subject to the following:
    (a) The terms and provisions of the non-participating term royalty pooling
    agreement created under the Order of Partition and Paragraph SEVENTH of the
    Partition Deed and Agreement.
    (b) All presently valid and subsisting (i) oil, gas and/or mineral or mining leases
    covering the Property, or any, portion thereof, and appearing of record in the
    office of the County Clerk of McMullen County, Texas, (ii) rights-of-way and
    easements covering the Property, or any portion thereof, and appearing of
    record in the office of the County Clerk of McMullen County, Texas, and (iii)
    visible and apparent easements affecting the Property, or any portion thereof,
    the existence of which do not appear of record.
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    04-17-00372-CV
    (c) The terms, conditions and provisions of the Order of Partition and the
    Partition Deed and Agreement to the extent such terms, conditions and
    provisions apply to Property hereby conveyed.
    (d) The terms, conditions and provisions of the Partition Deed between Hazel
    Marlin Martin, et al, and J.E. Martin, et al, dated May 2, 1972, and recorded in
    Vol 111, 119, Page 260 of the Deed Records of McMullen County, Texas, to
    the extent such terms, conditions and provisions apply to the Property hereby
    conveyed.
    We agree with Osley that the subject-to provision applies to the entire conveyance and is
    intended to protect Osley from title warranty breaches. See Teal Trading & Dev., LP v. Champee
    Springs Ranches Prop. Owners Ass’n, 
    432 S.W.3d 381
    , 391, 393 (Tex. App.—San Antonio 2014,
    pet. denied).
    But we disagree with Osley’s assertion that “in limiting those warranty protections to [the
    Property], the subject-to clause unmistakably expresses the intention to limit the NPRI interests
    conveyed to [the Property].”
    Subparagraphs (a)–(d) put Naylor on notice of restrictions or encumbrances that do or may
    apply. See 
    id. at 391
    (quoting Smith v. Second Church of Christ, Scientist, Phoenix, 
    351 P.2d 1104
    ,
    1109 (Ariz. 1960) (“[I]t is in the interest of the grantors that the conveyance be made subject to
    every restriction or encumbrance which not only does apply to such property but also may apply.”).
    Nothing in subparagraphs (a)–(d) expressly or implicitly overrides the geographic scope for the
    NPRI interests that were specifically stated in the granting language. The plain language of the
    subject-to provision does not support Osley’s position. See 
    Wenske, 521 S.W.3d at 794
    ; 
    Hysaw, 483 S.W.3d at 13
    .
    G.     Construing the Deed as a Whole
    We have reviewed the Guardian’s Deed in its entirety including the initial definitions and
    declarations, the grants for the two tracts, the grant for the Jeanette Martin term NPRI, the grant
    for the Florence Martin NPRI, the grant for the rights-of-way and easements, the mineral estate
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    04-17-00372-CV
    reservations, future lease requirements, the subject-to provision, the warranties, the consideration,
    and the other provisions. See 
    Wenske, 521 S.W.3d at 795
    ; 
    Hysaw, 483 S.W.3d at 13
    . We have
    examined paragraphs (1) and (2) carefully, and we construe them in the context of the Guardian’s
    Deed as a whole. See 
    Wenske, 521 S.W.3d at 794
    ; 
    Hysaw, 483 S.W.3d at 13
    .
    We conclude there is only one reasonable interpretation for the NPRI grants: Naylor’s
    interest in the Jeanette Martin term NPRI includes all of the 1,050 acres, and her interest in the
    Florence Martin NPRI includes all of the 2,440 acres. Because we have been able to ascertain the
    parties’ intent from the deed’s plain language, we do not consider parol evidence or resort to rules
    of construction. See 
    Wenske, 521 S.W.3d at 794
    , 795–96; 
    Luckel, 819 S.W.2d at 461
    .
    OTHER ISSUES
    Osley argues that the trial court erred by refusing to rule on her objections to Naylor’s
    summary judgment evidence. Because we do not consider the objected-to evidence, we need not
    address this point. See TEX. R. APP. P. 47.1; Lance v. Robinson, 
    543 S.W.3d 723
    , 740 (Tex. 2018)
    (“Rule 47.1 requires only that the court of appeals address issues necessary to dispose of the
    appeal.”).
    Osley also asks that if this court affirms the trial court’s judgment, we reform the judgment
    to “track[] the precise rights and obligations set forth in the Guardian Deed.” But Osley has not
    shown that she preserved her complaint for appellate review by bringing this matter to the trial
    court’s attention, contra TEX. R. APP. P. 33.1(a); G.T. Leach Builders, LLC v. Sapphire V.P., LP,
    
    458 S.W.3d 502
    , 516 (Tex. 2015) (referring to “our well-established error-preservation rules,
    which preclude a party from seeking appellate review of an issue that the party did not properly
    raise in the trial court”), and she failed to provide any citations to the record or authorities to
    support her point, contra TEX. R. APP. P. 38.1(i); Gonzalez v. VATR Const. LLC, 
    418 S.W.3d 777
    ,
    784 (Tex. App.—Dallas 2013, no pet.) (“[A] party asserting error on appeal still must put forth
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    04-17-00372-CV
    some specific argument and analysis showing that the record and the law support [her]
    contention.”). For her complaint about the trial court’s alleged technical errors in its judgment,
    Osley has presented nothing for appellate review. See 
    Gonzalez, 418 S.W.3d at 784
    .
    CONCLUSION
    We have read the entire Guardian’s Deed, examined it closely, and construed it as a whole.
    The deed’s plain language reveals the parties’ intent that Naylor’s interest in the Jeanette Martin
    term NPRI includes all 1,050 acres of the Jeanette Martin lands and that Naylor’s interest in the
    Florence Martin NPRI includes all 2,440 acres of the Florence Martin lands. The trial court did
    not err in its rulings on Osley’s and Naylor’s respective motions for partial summary judgment.
    We overrule Osley’s issues and affirm the trial court’s judgment.
    Patricia O. Alvarez, Justice
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