author: Chief Justice JEFFERSON Justice HECHT, Justice OWEN, joined by Justice MEDINA

text:
    J. HIRAM MOORE, LTD., Petitioner, v. Mary GREER, Respondent.
    No. 02-0455.
    Supreme Court of Texas.
    Argued Oct. 29, 2008.
    Concurring Opinion of Judge Hecht Dec. 31, 2004.
    Dissenting Opinion by Judge Owen Dec. 31, 2004.
    Decided May 20, 2005.
    Emily Harrison Liljenwan, Schoenbaum Curphy & Scanlan, P.C., San Antonio, Amicus Curiae pro se.
    George S. Christian, Austin, for Amicus Curiae Texas Civil Justice League.
    Stuart C. Hollimon, Strasburger & Price, LLP, Dallas, for Amicus Curiae Texas Oil & Gas Association.
    John A. “Jad” Davis Jr., Turner & Davis, Brandy R. Manning, Turner Davis & Gerald, P.C., Midland, Edwin P. Horner, Waco, for J. Hiram Moore, Ltd.
    Randy M. Clapp, Duckett, Bouligny Collins, L.L.P., El Campo, for Mary Greer.
    Craig W. Hathway, El Campo, for Ami-cus Curiae Mauritz & Couey.
    David L. Kundysek, Dallas, Amicus Curiae pro se.

      Terry E. Hogwood, Houston, for Amicus Curiae CSM Partners, L.C., M. L. Ruck-man, L.C. and Sara Izod.
    Jerry David Hall, Austin, for Amicus Curiae The Oil <& Gas Clients of Scott, Douglass & McConnico, L.L.P. and Tit-leX.com.
    James L. Gosdin, Houston, for Stewart Title Guaranty Company.
    William B. Burford, Hinkle Hensley Shanor & Martin, L.L.P., Midland, Amicus Curiae pro se.
    George A. Snell III, Amarillo, Amicus Curiae pro se.
    Peter E. Hosey, Jackson Walker, L.L.P., San Antonio, Amicus Curiae pro se.
   Chief Justice JEFFERSON

delivered the opinion of the Court,

in which Justice HECHT, Justice O’NEILL, Justice WAINWRIGHT, and Justice BRISTER joined.

We deny the motion for rehearing. We withdraw our opinion of December 31, 2004 and substitute the following in its place.

Mary Greer, her three sisters, and their widowed mother partitioned an 80-acre tract into four 20-acre tracts, designated 1 through 4. The land is all in the I. & G.N. R.R. Survey No. 6, A-232 (“the Railroad Survey”), in Wharton County. Each sister received title to the surface and minerals in one tract and one-fourth of a non-participating royalty interest in each of the other three tracts. Greer received Tract 3.

In 1988, the two sisters who owned Tracts 1 and 2 leased their minerals to Larry K. Childers. The SixS Freís # 1 Well was completed on an adjacent 106-acre tract in the Wm. Barnard Survey No. 14, A-801 (“the Barnard Survey”), and in 1991 that tract was pooled with Tracts 1 and 2 and four other tracts, at a specified horizon, to form the 350-acre SixS Freís Gas Unit. The following schematic drawing depicts Tracts 1-4 and the SixS Freís Gas Unit:

After 1991, Greer was thus entitled to receive 1/4 of the royalty for each of Tracts 1 and 2 from the SixS Freís #1 Well. There was no production — hence no royalty due Greer — with respect to Tracts 3 and 4.

In May 1997, Greer and her sister leased the minerals in Tracts 3 and 4, respectively, to J. Charles Holliman, Inc. The following September, Greer executed a royalty deed to Steger Energy Corp. At the time, there was still no production with respect to Tracts 3 and 4, and despite her lease to Holliman four months earlier, Greer was unaware of any drilling activity planned for the future. Greer’s royalty deed to Steger consisted of nine numbered paragraphs in small print on a single page. The first paragraph conveyed all mineral royalties—

that may be produced from the following described lands situated in the County of Wharton, State of Texas, to wit:
All of that tract of land out of the AB 801 SEC 14/W M BARNARD #14 SURVEY, Wharton County, Texas known as the MEDALLION OIL — • SIXS FRELS UNIT. Grantor agrees to execute any supplemental instrument requested by Grantee for a more complete or accurate description of said land. Reference is made to this unit(s) for descriptive purposes only and shall not limit this conveyance to any particular depths or wellbores. In addition to the above described lands, it is the intent of this instrument to convey, and this conveyance does so include, all of grantors [sic] royalty and overriding royalty interest in all oil, gas and other minerals in the above named county or counties, whether actually or properly described herein or not, and all of said lands are covered and included herein as fully, in all respects, as if the same had been actually and properly described herein.

The first quoted sentence, a specific grant, describes land “known as the ... SIXS FRELS UNIT” in the Barnard Survey. As already noted, the SixS Freís unit comprised tracts in both the Barnard Survey and the adjacent Railroad Survey, but Greer owned no interests in the Barnard Survey. Greer’s only royalty interests in the SixS Freís unit were in Tracts 1 and 2, both of which were in the Railroad Survey. But the fourth sentence, a general grant, refers to all Greer’s interests in Wharton County, thus including not only her royalty interests in Tracts 1 and 2 in the SixS Freís Unit, but her interests in Tracts 3 and 4 as well.

During September and October, Steger acquired other royalty interests in Wharton County, and in December it sold twenty-five such interests, including the one acquired from Greer, to J. Hiram Moore, Ltd. for $360,000, which was market value. At that time, there was no production from Greer’s Tract 3, nor was it pooled with any producing property.

Two years later, in December 1998, Kaiser-Francis Oil Co., successor to the working interest in Tract 3 that Greer conveyed to Holliman, pooled about 313 acres, including Tracts 1-4, at a different horizon than the SixS Freís Gas Unit, for production from the Greer # 1 Well which had been completed in Tract 3. Moore claimed all royalties with respect to the interests partitioned to Greer in Tracts 1-4, and when Greer disputed the claim, Kaiser-Francis suspended payments for those tracts.

Moore sued Greer to determine their respective rights, and Greer counterclaimed for declaratory relief as well as rescission and reformation based on mutual mistake and fraud. Moore moved for summary judgment, contending that it had acquired all of Greer’s royalty interests in Wharton County by purchasing her royalty deed to Steger. Greer responded that she had intended to convey to Steger only her interests in the SixS Freís Unit in the Barnard Survey. In her supporting affidavit, she stated: “I did not intend to convey any other property. I specifically did not intend to convey any of my interest in the I&GNRR Co. Survey No. 6, Abstract 232 Wharton County, Texas.” The trial court granted Moore’s motion for summary judgment and severed Greer’s claims for rescission and reformation. Those claims remain pending.

The court of appeals reversed the summary judgment with this explanation:

Here the question is not whether the property [claimed by Moore] was described specifically enough [in Greer’s royalty deed to Steger], but whether the “catch-all” language is sufficient to effect a conveyance of a significant property interest that Greer contends she had no intention of conveying by this deed. Jones v. Colle[, 727 S.W.2d 262 (Tex.1987) ] sets forth the longstanding rule in Texas that a clause, like the one at issue here, can only convey small interests that are clearly contemplated within the more particularly described conveyance, and they are not effective to convey a significant property interest not adequately described in the deed or clearly contemplated by the language of the conveyance. Because the interest in Tract 3 was a substantial one, we hold that the rule disallowing such “cover-all” clauses to effectively convey a substantial property interest is the controlling law in this case.

72 S.W.3d 436, 441.

We granted the petition for review to determine the extent of the interest conveyed in the deed. 46 Tex. Sup.Ct. J. 793 (June 19, 2003).

We may construe the deed as a matter of law only if it is unambiguous. See Westwind Exploration, Inc. v. Homestate Sav. Ass’n, 696 S.W.2d 378, 381 (Tex.1985). Citing Holloway’s Unknown Heirs v. Whatley, 133 Tex. 608, 131 S.W.2d 89, 92 (Com.App.1939), Moore argues that the deed is unambiguous and that the general description establishes that the parties intended the deed to convey all of Greer’s royalty interests in the county. Pointing to a line of cases in which our courts have recognized the validity of geographic grants, Moore contends that the general description falls into that category of conveyances and thus enlarges the specific grant. See, e.g., Holloway’s Unknown Heirs, 131 S.W.2d at 90.

Greer, on the other hand, contends that she intended a specific conveyance only. She argues that the second grant does not enlarge the first. Citing Jones v. Colle, 727 S.W.2d 262 (Tex.1987), and Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608 (1957), she argues, and the court of appeals agreed, that the language following the specific grant was intended to convey only small unleased strips of land adjacent to the described property. 72 S.W.3d at 441.

In Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608, 611 (1956), we held that a deed was ambiguous when its general description conveyed a significantly greater interest (surface and minerals in land included within the specific description) than the specific grant (minerals only) and when the amount paid for that conveyance appeared to relate only to the mineral interest specifically described. Accordingly, we noted that “the deed under question contain[ed] material inconsistent provisions that rendered] it uncertain as to the property conveyed.” Smith, 301 S.W.2d at 612. We noted:

The deed grants 1/2 of the minerals in two specifically described sections, and although the granting clause, habendum clause, and warranty clause confine the conveyance to minerals, yet, the general description fails to limit the conveyance to minerals in the northeast 1/4 and Sections 123 and 145. These recitations clearly indicate an inconsistency between the general description and the descriptive matter identifying the particular tracts described and mentioned in the deed.

Id. Because the deed was ambiguous, it was correctly submitted to the jury, and we affirmed the judgment on that verdict. Id. at 615.

We face a similar problem here. The specific description in Greer’s deed points to a survey in which Greer apparently owns no interest. The deed purports to convey “[a]ll of that tract of land out of the AB 801 SEC 14/W M BARNARD # 14 SURVEY,... known as the MEDALLION OIL — SIXS FRELS UNIT.” As previously noted, Greer owns a 1/4 nonparticipating royalty interest in Tracts 1 and 2, which were pooled in the SixS Freís Unit; however, neither tract is in the W M Barnard Survey. Therefore, the specific description either does not describe any royalty interests owned by Greer, or it incorrectly describes her royalty interests in Tracts 1 and 2 that are part of the SixS Freís Unit by stating that they are in the W M Barnard Survey instead of the I. & G.N. R.R. Survey. The general description conveys “all of grantors [sic] royalty and overriding royalty interest in all oil, gas and other minerals in the above named county or counties, whether actually or properly described herein or not, and all of said lands are covered and included herein as fully, in all respects, as if the same had been actually and properly described herein.” The deed in effect states that Greer conveys nothing, and that she conveys everything. We cannot construe this deed as a matter of law.

Given the deed’s ambiguity, the trial court erred in granting summary judgment. A jury should therefore hear evidence and determine the parties’ intent. See Columbia Gas Transmission Corp. v. New Ulm Gas, 940 S.W.2d 587, 589 (Tex.1996). Accordingly, we affirm the court of appeals’ judgment and remand to the trial court for further proceedings consistent with this opinion.

Justice HECHT filed a concurring opinion.

Justice OWEN filed a dissenting opinion, in which Justice Medina joined.

Justice GREEN and Justice JOHNSON did not participate in the decision.

Justice HECHT,

concurring.

The dissent discerns no principle in the Court’s decision, but there is one, and a very venerable one at that: hard cases make bad law. The specific grant of royalty interests in Mary Greer’s deed to Steger Energy Corp. described property in a survey she did not own. One might suppose that the wrong survey was referenced by mistake, but no, Greer now tells us under oath: the specific grant conveyed nothing, which is “specifically” her word what she intended. Her purpose all along, if she can be believed, was to take Steger’s money and convey nothing in return. Steger’s successor in interest, J. Hiram Moore, Ltd., who bought royalty interests at market value, including Greer’s deed, argues that by the literal terms of the general grant in that deed, it acquired all of Greer’s royalty interests in Wharton County. Those interests substantially exceeded the interest she would have conveyed had the deed referenced the adjoining survey. If Moore is right, the record does not reflect whether it still paid market value for all of Greer’s interests, as it says it did for every other interest it bought.

Moore argues that general grants must always be read literally, or land titles will become uncertain, and chaos will descend. Greer argues that general grants can never include more than small strips adjacent specifically described property, or unsophisticated, perhaps careless, grantors will be duped out of property they never intended to convey. We have squarely rejected Greer’s argument in two cases, and the argument is at least inconsistent with three others. But we stopped short of endorsing Moore’s argument in Smith v. Allison There the grantor specifically conveyed a mineral interest in two adjoining quarter-sections — 320-aeres then-added, with this general language:

any and all other land and interest in land owned or claimed by the Grantor in said survey or surveys in which the above described land is situated or in [sic] adjoining the above described land.

As it happened, the grantor owned the surface and minerals in 1,440 acres adjoining the two specifically described quarter-sections. We held that the general grant did not unambiguously convey all of the grantor’s interest in the 1,440 acres and affirmed a judgment on a jury verdict finding that it was not her intent to do so.

The dissenting opinion argues that the general grant was not given effect in Smith because it literally included the surface estate as well as the minerals and was therefore repugnant to the rest of the deed that conveyed only mineral interests. The argument is certainly a reasonable one, but I doubt seriously that Smith would have been decided differently if the general grant had read, “any and all other mineral interest”. The inclusion of the surface estate in the general grant was troublesome, but so, too, was the inclusion of the mineral interest in two-and-one-quarter sections that could have been described as easily as the two quarter-sections in which interests were specifically conveyed if the parties had ever had the remotest notion that the additional acreage was to be part of the transaction.

Situations in which general grants cannot be given effect have not arisen frequently. The Court in Jones v. Colle thought that it presented such a situation, but I agree with the dissenting opinion that Jones misread Smith and that in any event the result in Jones is not inconsistent with our other decisions. But while it only rarely happens that general grants cannot be given literal effect, I am not prepared in the unusual circumstances of this case to adopt a rigid rule that always construes general grants literally. The dissent poses five situations in which, I agree, a general grant should be construed according to its terms, but it is just as easy to pose other circumstances in which it will seem highly unlikely that the parties fully intended what they actually said, and unjust to hold one of them to it. We should not use this case to make bad law. As long as a rule that gives effect to general grants with a few exceptions seems to manage the cases that arise, I would not change it simply because it could, possibly, prove unworkable. Smith did not destabilize land titles. Neither will this case.

With these few additional thoughts, I join in the Court’s opinion.

Justice OWEN, joined by Justice MEDINA

dissenting.

The granting clause of the royalty deed at issue says that it conveys:

all of the oil royalty, gas royalty, overriding royalty and royalty in casinghead gas, gasoline, and royalty in other minerals ... that may be produced from the following described lands situated in the County of Wharton, State of Texas, to wit:
All of that tract of land out of the AB 801 SEC 14/W M BARNARD #14 SURVEY, Wharton County, Texas known as the MEDALLION OIL— SIXS FRELS UNIT. Grantor agrees to execute any supplemental instrument requested by Grantee for a more complete or accurate description of said land. Reference is made to this unit(s) for descriptive purposes only and shall not limit this conveyance to any particular depths or wellbores. In addition to the above described lands, it is the intent of this instrument to convey, and this conveyance does so include, all of grantors [sic] royalty and overriding royalty interest in all oil, gas and other minerals in the above named county or counties, whether actually or properly described herein or not, and all of said lands are covered and included herein as fully, in all respects, as if the same had been actually and properly described herein.

This grant is unambiguous. It purports to grant Greer’s interest in a specific section of a specific survey, and it also purports to grant all of Greer’s royalty interests in Wharton County, whether described in the deed or not. As it turns out, Greer does not own what she purported to convey in the specific grant. But she does own royalty interests in Wharton County, and she unequivocally conveyed all those royalty interests in the general granting section of this deed. I would give effect to this grant unless and until the deed is reformed or rescinded.

The Court’s reasoning for failing to enforce the deed as written boils down to this and only this: “The deed in effect states that Greer conveys nothing, and that she conveys everything. We cannot construe this deed as a matter of law.” But the deed itself contemplated that the specific grant might not “actually and properly describe[ ]” the royalty interests that Greer owned in Wharton County, and therefore, the deed expressly provided that Greer was conveying all her royalty interests in Wharton County “whether actually or properly described herein or not, and all of said lands are covered and included herein as fully, in all respects, as if the same had been actually and properly described herein.”

If the Court were to faithfully apply our precedent which is considerable it would give effect to what the written words unmistakably say in this royalty deed. This Court’s decision in Smith v. Allison does not support the result reached today. The general clause in Smith v. Allison purported to convey fee simple title to all land adjoining the parcels specifically described, while the specific descriptions as well as the habendum clause and warranty clause limited the conveyance to minerals only. The general grant was therefore in conflict with and repugnant to the specific grant, and we have long held that when that occurs, the specific grant “will ordinarily control.”

I have several questions for the Court: Would the Court hold that the deed in this case, including the general grant of all royalty interests in Wharton County, is ambiguous if:

1)a metes and bounds description of the land in which royalty interests were conveyed had been used as the specific description, but the description did not close;
2) there were three tracts of land specifically described in which royalty interests were granted, and all were effective, but there was one other royalty interest in Wharton County, not specifically described, that Greer owned;
3) there were three tracts of land specifically described in which royalty interests were granted, but one failed because Greer owned no interest in that one tract;
4) there were 100 tracts of land specifically described in which royalty interests were granted, but one failed because Greer owned no interest in that one tract; or
5) there were 100 tracts of land specifically described in which royalty interests were granted, and all were effective, but there were three other royalty interests in Wharton County, not specifically described, that Greer owned?

What principle of law does the Court announce today that will give stability and predictability in construing deeds, wills, oil and gas leases, liens, and deeds of trust? I can discern none. We are told only that when there is at least one specific grant and it fails, an unambiguous general grant is rendered ambiguous. Accordingly, there will be trials, sometimes years after the grantors and grantees have passed on, to determine what a conveyance meant.

We have received a number of amicus briefs in this case. The Texas Oil & Gas Association, the Texas Civil Justice League, the law firm of Scott, Douglass & McConnico, L.L.P., on behalf of its client titleX.com, and David Kundysek tell us that the failure to give effect to the plain meaning of the deed before us will lead to severe adverse consequences including the failure of previously certain titles and security interests and a proliferation of litigation that can only be resolved by a trial to determine the meaning of “ambiguous” instruments. I fear that these amici are correct in their assessment of the damage today’s decision will inflict on the stability and predictability of titles. Geographic grants are commonly used in large acquisitions as well as small, personal transactions in which individuals cannot afford to have deed records scoured and legal descriptions prepared and reviewed by lawyers. But all lay people know what they mean when they say, “I intend to convey all the royalty interests I own in Wharton County.” Because the Court does not give effect to the intent that is plainly and directly expressed in the deed before us, I dissent.

I

Our jurisprudence has given effect to geographic grants for more than 100 years. In 1890, this Court construed a deed that granted all “ ‘land by me inherited ... from my deceased parents’ ” as well as “ ‘all right that I now have ... to any estate or property ... in this county or State.’ ” We concluded that the latter phrase “was intended to enlarge, rather than to limit, the grant. It was not intended as a more particular designation of the property.” Similarly, this Court gave full effect to a conveyance of all leases and royalties “‘located anywhere within the United States, most of which are located within the States of New Mexico, Kansas, Oklahoma, Louisiana and Texas.’ ”

As early as 1886, this Court held in Witt v. Harlan that a general geographic grant would be given effect even though there were other tracts specifically described. The general granting language of the deed said “ ‘[d]o hereby bargain, sell, alien, and convey unto the said Harlan, his heirs and assigns, forever, the entire and undivided one-half of all my lands in Texas.’ ” The deed then said “ ‘[s]ome of which are described as follows,’” and several tracts were specifically described. Following the specific descriptions, the deed said, “ ‘[a]s well as all my lands, or right to lands, of every kind and description, whether legal or equitable, in the state of Texas, or in any of the counties of said state.’ ” We held that the grantor’s one-half interest in all lands, not just those specifically described, was conveyed. We also held that the phrase following the specific descriptions, when read in context, conveyed a one-half interest in all lands, but not a 100 percent interest in all lands.

The decision in Holloway’s Unknown Heirs v. Whatley perhaps gives us the most guidance in construing the deed at issue today. Holloway had conveyed fee simple title in three tracts in Liberty County, reserving an undivided one-half mineral interest. Subsequently, Holloway conveyed fee simple title in three other tracts in Liberty County to another purchaser, Baldwin, specifically describing the tracts. In the paragraph describing the third tract, there appeared a general granting clause:

“Third tract being 30 acres a part of the Moses Donohoe League, being all that part of said league the title to which now stands in my name. If there is any other land owned by me in Liberty County, Texas, or any land, the title to which stands in my name, it is hereby conveyed, the intention of this instrument being to convey all land owned by me in said County.”

After Holloway and Baldwin had died, a dispute erupted over whether the one-half undivided mineral interest in the three tracts that were the subject of Holloway’s first deed had passed to Baldwin under the general granting clause of the second deed, even though neither the mineral interest nor the three tracts in which Holloway had retained the one-half mineral interest were specifically referenced in the second deed. First, this Court rejected the argument that a conveyance of “land” should exclude a previously severed mineral interest unless the severed mineral estate was clearly identified as a mineral estate.

We then examined the general granting clause, which said, “ *[i]f there is any other land owned by me in Liberty, County, Texas, or any land, the title to which stands in my name, it is hereby conveyed, the intention of this instrument being to convey all land owned by me in said County.’ ” Greer’s deed in the case before us today similarly says: “In addition to the above described lands, it is the intent of this instrument to convey, and this conveyance does so include, all of grantors [sic] royalty and overriding royalty interest in all oil, gas and other minerals in the above named county or counties, whether actually or properly described herein or not, and all of said lands are covered and included herein as fully, in all respects, as if the same had been actually and properly described herein.”

This Court held in Holloway that the general grant conveyed the one-half mineral interest. We reasoned that the general geographic grant “has no restrictive effect with respect to the quantum of land intended to be conveyed. Unless its purpose is to enlarge the grant described in the immediately preceding language, it has no purpose at all.” The same is true of Greer’s deed. It says “[i]n addition” to the specifically described property, she intended to convey all her royalty interest in Wharton County.

It is also significant in analyzing Greer’s deed that this Court said in Holloway that if there were any uncertainty in what was to be conveyed, the general granting language rendered the meaning certain:

If it should be admitted that there is any uncertainty inhering in any portion of the language employed by Holloway to describe the land intended to be conveyed, the language in its entirety is rendered certain by the concluding statement of the description that it was the grantor’s intention to convey all of the land owned by him in Liberty County.

In Greer’s deed, she did not own what was specifically described, but any uncertainty about her intent to convey all her royalty interest in Wharton County was removed by the geographic grant.

In refusing to give effect to the geographic grant in Greer’s deed, the Court relies heavily on Smith v. Allison. But that decision is consistent with Holloway, even though the Holloway decision is not cited in Smith. Smith presented the reverse of the situation in Holloway because in Smith, all the specific grants were limited to mineral interests while the general grant purported to convey fee simple interests not only in the specifically described tracts, but in adjoining tracts as well. Holloway stands for the well-settled proposition that a general grant of “land and interests in land” includes mineral interests and that it can enlarge another specific grant of land and interests in land. But the reverse is not necessarily true; a general grant of fee simple interests does not necessarily enlarge specific grants of nothing more than mineral interests. Smith stands for the proposition that a deed which otherwise clearly indicates that only mineral interests are being conveyed is rendered ambiguous by the inclusion of a general grant purporting to convey fee simple interests. We have no such conflict in the Greer deed. Throughout, it consistently reflects Greer’s intent to convey only royalty interests.

The Smith deed specifically described an undivided one-half interest in the oil, gas, and other minerals in the southeast l/4th and the northwest l/4th of Section 124, Block 25. In addition to the specific conveyances of the mineral interests in these two parcels, the deed said

“The parties however intend this deed to include and the same is hereby made to cover and include not only the above described land, but also any and all other land and interest in land owned or claimed by the Grantor in said survey or surveys in which the above described land is situated or in [sic] adjoining the above described land. Should the foregoing particular description for any reason prove incorrect or inadequate to cover the land intended to be conveyed as above specified grantor agrees to execute such instrument or instruments that may be necessary to correct such particular description.”

The grantor also owned the northeast l/4th of Section 124, as well as all of Sections 123 and 145, which adjoined section 124, but none of those interests were specifically described in the Smith deed.

This Court held that the Smith deed was ambiguous because the specific granting clause, the habendum clause, and the warranty clause all referred only to mineral interests, while the general granting language purported to convey not only mineral interests, but fee simple title to the tracts specifically described as well as the fee simple interest in tracts that were not specifically described. We said the deed was ambiguous for two reasons:

(1) To adopt the contention of the petitioners-respondents, Allison and others, the deed, even though they now only claim an undivided 1/2 of the minerals in the northeast 1/4 of Section 124, would convey the full fee simple title to Mrs. Neely.
(2) Even though the petitioners-respondents, Allison and others, assert they are not claiming any interest in Sections 123 and 145, the fact remains that the general description does not limit the conveyance to minerals in Section 124, but conveys the land. The granting clause, the habendum clause, and the warranty clause refer only to minerals.

We concluded that “the deed under question contains material inconsistent provisions that render it uncertain as to the property conveyed.” This did not, however, constitute a holding that a general grant renders a specific grant ambiguous when both deal with estates of the same character. Importantly, the Smith decision discusses and approves of the holding in Lauchheimer v. Saunders In Saunders, a deed of trust described “certain parcels and tracts of land” and also had a general clause that said “it was the intention of Saunders to convey all of his real estate in Coryell county, whether described or not, except his homestead.” The court of appeals gave effect to this geographic grant, and in Smith, this Court agreed “that there was no repugnancy” between the specific and the general grants at issue in Lauchheimer, We recognized “‘the grantor’s evident intention to convey the particular tracts mentioned, and also all other lands.’ ” The Smith decision then explained, once again, the reason for the repugnancy in the Smith deed: “In the present case we are unable to reconcile recitations of a conveyance of fee simple title to land by general description with a conveyance of only the minerals in the land particularly described.” The rationale of Smith does not support the Court’s conclusion today that when a specific grant of a mineral interest fails because the owner did not own what she purported to own, the general grant of a mineral interest is rendered ambiguous.

This Court explained in Sun Oil Co. v. Bums when there is a conflict between general and specific grants and when there is not. A conflict can exist when the “general description and the particular description were repugnant when they were applied to the ground.” But, we explained, there is no conflict between the general and the specific when a convey-anee clearly shows the grantor intended to grant “not only the land particularly described, but also other land coming within the terms of the general description”:

There is no occasion to determine which shall prevail, the particular or the general description, unless there is a conflict or repugnance. And, of course, there is no conflict or repugnance between the general and the particular description if the deed or lease clearly shows, as does the lease here, the intention of the grantor or lessor to grant or lease, not only the land particularly described, but also other land coming within the terms of the general description. An oil and gas form lease was at issue in

Sun Oil Co. v. Burns. A typewritten metes and bounds description of about 100 acres was included, followed by a pre-printed general grant:

“It being the intention, however, of lessor to include within the terms of this lease not only the above described land, but also any and all other land owned or claimed by lessor in said survey or surveys in which the above described land is situated or in adjoining surveys and adjoining the above described land.”

We held that this general grant included a 3.736-acre tract that adjoined the specifically described acreage. In Sun Oil Co. v. Bennett, decided the same day, the same printed-form lease contained a typewritten metes-and-bounds description of two tracts, one 34 acres and the other 42 acres. Following the pre-printed language just quoted above, typewritten language excepted from the general grant two other tracts of 50 acres and 72 acres “ ‘now under lease.’ ” We held that the general grant included in the lease a 2.59-acre tract adjoining the specifically described 42-acre tract.

In Gulf Production Co. v. Spear, decided two weeks after Bums and Bennett, the lease contained a typewritten metes-and-bounds description of a four-sided tract said to contain six acres, but the description omitted the course of the boundary on one side. The lessor argued that the description did not include an adjoining 1.81-acre tract; the lessee argued that it did, or else that the tract was embraced by this general language: “ ‘it being the intention to include all land owned or claimed by Lessor in said survey or surveys.’” We held that the specific description was unclear, and that the general language was less clear than the general grants in Bums and Bennett because it did not use their “not only ... but also” construction. But we nevertheless held that the general grant included the tract adjoining the one specifically described in the lease.

The Greer deed says “[i]n addition to the above described lands, it is the intent of this instrument to convey” all royalty interests in Wharton County. That grant should be given effect, just as this Court gave effect to the general grants in Holloway, Burns, Bennett, and Spear’s, and other cases cited above.

The court of appeals concluded that Jones v. Colle controls this case. In Jones v. Colle, Winifred Curry owned a 68.72-acre tract and a 28.84-acre mineral interest in it. He also owned an adjoining 49.34-acre tract and 20.7-acre mineral interest in that tract. He accordingly owned a total of 49.54 mineral acres in the two adjoining tracts. Jack Colle knew about both tracts but prepared a receivership lease for court approval to himself specifically describing ‘[a]n undivided 49.54 mineral acres out of 68.72 mineral acres’ ” without mentioning the 49.34-acre tract. The lease also contained the following general grant:

“This lease also covers and includes, in addition to that above described, all land, if any, contiguous or adjacent to or adjoining the land above described and (a) owned or claimed by lessor by limitation, prescription, possession, reversion or unrecorded instrument or (b) as to which lessor has a preference right of acquisition.”

The Court rejected Colle’s claim that the lease covered Curry’s mineral interest in both tracts, stating that in Smith v. Allison

the court held that a Mother Hubbard clause would only serve to cover property not described in the deed when that other property consists of small un-leased pieces or strips of land which may exist without the knowledge of one or both of the parties. We hold that is a correct statement of the law which controls the situation in this case. Our holding in Smith precludes Colle from using the Mother Hubbard clause to secure title to the minerals in the 49.34 acre adjoining tract, the existence of which was known to both parties at the time the lease was executed.

This characterization of Smith, which held only that a particular deed before the Court was ambiguous, is plainly wrong. Further, the rationale in Jones v. Colle was unnecessary, given that Colle did not contend that Curry owned or claimed the second tract only by limitation, prescription, possession, reversion, unrecorded instrument, or preference right of acquisition. The general grant, read literally, did not lease any interest in the 49.34-acre tract to Colle. With respect to the inaccuracy of the specific description, which referred to a larger mineral interest in the 68.72-acre tract than Curry owned, the Court seems to have been influenced by the fact that Colle knew of both tracts when he prepared the lease and yet referred only to the one.

Jones relied solely on Smith, and while it misread that case, the result was not inconsistent with a correct reading of Smith or any other decision of this Court. Under these circumstances, dicta in Jones cannot fairly be read to change the consistent rule applied by Texas courts for a century. In any event, this Court construed the lease in Jones v. Colle as a matter of law. The Court did not find the lease ambiguous.

Because the Court does not give effect to a direct, unambiguous grant, I dissent.

      . We do not address whether, via pooling, Greer may have owned some interest in the Barnard Survey, as Moore stipulated below that "Greer owns no interest in the W.M. Barnard No. 14 Survey.”

      . In doing so, we express no opinion on the court of appeals’ holding that "a clause, like the one at issue here, can only convey small interests that are clearly contemplated within the more particularly described conveyance, and they are not effective to convey a significant property interest not adequately described in the deed or clearly contemplated by the language of the conveyance.” 72 S.W.3d at 441 (citing Jones v. Colle, 727 S.W.2d 262 (Tex.1987)).

      . Northern Sec.Co. v. United States, 193 U.S. 197, 400, 24 S.Ct. 436, 48 L.Ed. 679 (1903) (Holmes, J., dissenting) ("Great cases, like hard cases, make bad law.”); Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 172 n. 1 (Tex.1989) (Hecht, J., dissenting).

      . Holloway's Unknown Heirs v. Whatley, 133 Tex. 608, 131 S.W.2d 89, 90-92 (1939); Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442, 445, 446-447 (1935) (quoting Lauchheimer v. Saunders, 27 Tex.Civ.App. 484, 65 S.W. 500, 501 (1901, no writ)).

      . Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447 (1935); Gulf Prod. Co. v. Spear, 125 Tex. 530, 84 S.W.2d 452 (1935); Strong v. Garrett, 148 Tex. 265, 224 S.W.2d 471 (1949); see also Texas Consol. Oils v. Bartels, 270 S.W.2d 708, 712 (Tex.Civ.App.-Eastland 1954, writ ref’d); Smith v. Westall, 76 Tex. 509, 13 S.W. 540 (1890); Witt v. Harlan, 66 Tex. 660, 2 S.W. 41 (1886).

      . 157 Tex. 220, 301 S.W.2d 608 (1956).

      . Id. at 610.

      . Id. at 611.

      . Id. at 613-615.

      . 727 S.W.2d 262 (Tex.1987).

      . Post at 623.

      . Post at 617.

      . 172 S.W.3d at 614.

      . Smith v. Westall, 76 Tex. 509, 13 S.W. 540 (1890); Witt v. Harlan, 66 Tex. 660, 2 S.W. 41 (1886); Holloway’s Unknown Heirs v. Whatley, 133 Tex. 608, 131 S.W.2d 89 (1939); Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442 (1935); Tex. Consol. Oils v. Bartels, 270 S.W.2d 708 (Tex.Civ.App.-Eastland 1954, writ ref’d).

      . 157 Tex. 220, 301 S.W.2d 608 (1957).

      . Id. at 610.

      . Burns, 84 S.W.2d at 446.

      . Amicus briefs have been submitted by CSM Partners, L.C. and others; David L. Kundy-sek, pro se; Mauritz & Couey, a Texas Partnership; the law firm of Schoenbaum, Cur-phy & Scanlan, P.C.; the Texas Civil Justice League; the Texas Oil & Gas Association; and the law firm of Scott, Douglass & McCon-nico, L.L.P., on behalf of titleX.com.

      . Smith, 13 S.W. at 540.

      . Id.

      . Tex. Consol. Oils v. Bartels, 270 S.W.2d 708, 710 (Tex.Civ.App.-Eastland 1954, writ ref'd).

      . 66 Tex. 660, 2 S.W. 41, 41-42 (1886).

      . Id. at 41.

      . Id.

      . Id.

      . Id. at 42.

      . 133 Tex. 608, 131 S.W.2d 89 (1939).

      . Id. at 90 (emphasis in original).

      . Id. at 91.

      . Id.

      . Emphasis added.

      . 131 S.W.2d at 92.

      . Id. at 91.

      . Id. at 92.

      . 157 Tex. 220, 301 S.W.2d 608 (1956).

      . 131 S.W.2d at 92 (holding that to construe the grant of land and interests in land to exclude severed mineral interests "would be tantamount to holding that a mineral estate, when constructively severed from the surface by apt words of description, is not ‘land.’ Such a holding would be in the teeth of such cases as Texas Company v. Daugherty ....”).

      . 301 S.W.2d at 610.

      . Id.

      . Id. at 611.

      . Id.

      . Id.

      . Id. at 612.

      . 27 Tex.Civ.App. 484, 65 S.W. 500, 501 (1901, no writ).

      . Id.

      . Smith, 301 S.W.2d at 612.

      . Id. (quoting Lauchheimer, 65 S.W. at 501).

      . Id.

      . 125 Tex. 549, 84 S.W.2d 442, 446-47 (1935).

      . Id. at 446.

      . Id. at 447.

      . Id. at 443.

      . 125 Tex. 540, 84 S.W.2d 447, 448 (1935).

      . Id.

      . Id. at 449.

      . 125 Tex. 530, 84 S.W.2d 452, 453-54 (1935).

      . Id.

      . Id. at 454-55.

      . Id. at 457.

      . 727 S.W.2d 262 (Tex.1987).

      . 72 S.W.3d at 440.

      . Jones, 727 S.W.2d at 262.

      . Id. at 262-63.

      . Id.

      . Id. at 263.


source: Caselaw Access Project

author: Opinion by PHYLIS J. SPEEDLIN, Justice.

license: Public Domain

text:
    KARNES CITY, Texas, Appellant, v. Alger H. KENDALL, Jr., and Wife, Royaline N. Kendall, Appellees.
    No. 04-04-00308-CV.
    Court of Appeals of Texas, San Antonio.
    May 4, 2005.
    Rehearing Overruled May 23 and June 14, 2005.
    Charles S. Frigerio, Hector X. Saenz, Law Office of Charles S. Frigerio, P.C., San Antonio, for appellant.
    Ricky J. Poole, Law Office of Ricky J. Poole, San Antonio, for appellees.

      Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by PHYLIS J. SPEEDLIN, Justice.

Karnes City appeals from a final judgment rendered against it in a suit for damages brought by Alger and Royaline Kendall. Because we conclude that liability on a public nuisance claim brought under the Texas Constitution requires a finding of intentional conduct, we reverse the judgment of the trial court and render a take nothing judgment on the Kendalls’ claims against Karnes City.

Background

Alger and Royaline Kendall purchased a residence and approximately six acres of land from William and Doris White in 1996. After purchasing the property and moving into the home, the Kendalls learned that Karnes City claimed to have a sewer line easement across the property. The sewer line had been in place since 1962, but had never been properly recorded, and the Kendalls maintained it was not disclosed to them by the Whites prior to their purchase of the property.

Shortly after moving onto the property, the Kendalls began experiencing problems with the sewer line. They claimed that on several occasions the man-hole located on their property overflowed during periods of heavy rain, causing raw sewage to be discharged onto their property. In 1997, the Kendalls contacted the Texas Natural Resources Conservation Committee, the state agency charged with oversight of waste water issues, and voiced complaints about the situation. Mr. Kendall also claims to have notified the City about the overflow problem as early as 1997.

The Kendalls initially filed suit against the Whites, alleging fraud and misrepresentation regarding the sale of the property. The Kendalls then filed a separate suit against Karnes City in January 2000, alleging that the City’s placement of the sewer line across their property without a recorded easement constituted an unconstitutional taking of their private property for public use in violation of article I, § 17 of the Texas Constitution. The Kendalls also alleged that the periodic overflows from the sewer line constituted a public nuisance, reducing the value and their enjoyment of the property. Karnes City initially filed only a general denial in response to the Kendalls’ claims. Then, in May 2003, the City filed a traditional and no-evidence summary judgment motion denying the Kendalls’ claims of nuisance and unconstitutional taking, and raising the affirmative defenses of governmental immunity, no waiver of immunity, discretionary powers defense, failure to provide notice of claims, and statute of limitations bar. The trial judge denied the City’s motion for summary judgment.

The Kendalls subsequently settled their suit against the Whites. Their suit against Karnes City proceeded to jury trial in October 2003. After three days of trial, the case was submitted to the jury on special issues. With respect to the takings claim, the jury was asked whether Karnes City held an easement by prescription. The jury answered “No,” and found that the Kendalls were entitled to no damages for the presence of the sewer line across their property. The nuisance claim was submitted to the jury on two alternative theories. The jury was asked whether the operation of the sewer line by the City created an “intentional nuisance” on the Kendall’s property (Question No. 2), and, alternatively, whether the operation of the sewer line by the City created a “grossly negligent nuisance” on the Kendall’s property (Question No. 3). The jury answered “No” as to an “intentional nuisance,” but ‘Tes” as to a “grossly negligent nuisance.” The jury awarded the Kendalls $50,000 in damages for the reduction in the reasonable market value of their property and $25,000 for past and future discomfort and annoyance in the use and enjoyment of their property. Based on these jury findings, the trial court entered judgment against the City and awarded the Kendalls $101,530.05 in total damages and pre-judgment interest. This appeal followed.

Discussion

On appeal, Karnes City seeks reversal of the trial court’s judgment. Essentially, the City contends that the jury’s finding that it created a “grossly negligent nuisance” on the Kendall’s property does not constitute a finding of the intentional conduct required to recover for a nuisance claim under Article I, § 17 of the Texas Constitution. In response, the Kendalls urge us to affirm the judgment arguing that any “non-negligent” conduct, including a finding of gross negligence, will support liability against a governmental entity based on intentional conduct. Because we conclude that governmental liability on a nuisance claim under the Texas Constitution requires a finding of intentional conduct, and may not be based on a finding of gross negligence, we reverse and render a take nothing judgment in favor of the City.

Standard of Review

We review a takings claim under the Texas Constitution using a bifurcated standard of review. Whether particular facts are sufficient to establish a takings claim presents a question of law that we review de novo, while deferring to the jury’s resolution of the underlying disputed facts. Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004).

Nuisance Claims Under the Texas Constitution

To recover on a nuisance claim against a governmental entity when the sole waiver of governmental immunity arises under Article I, § 17 of the Texas Constitution, a claimant must establish that the nuisance rises to the level of a constitutional taking. City of Dallas v. Jennings, 142 S.W.3d 310, 316 (Tex.2004) (nuisance liability arises only when governmental immunity is clearly and unambiguously waived by statute, or when the governmental entity manifests the requisite intent to be held liable for a constitutional taking). In Jennings, as in this case, the homeowners brought two claims, unconstitutional taking and nuisance, against the City of Dallas for damage to their property that resulted from the City’s efforts to unclog a sewer line. Id. at 311. In affirming the trial court’s grant of summary judgment in favor of the City, the Supreme Court determined that the City was not liable because there was no evidence the City “possessed the knowledge required to establish an intentional taking,” and without the “requisite intent to be held hable under Article I, Section 17 of the Texas Constitution,” the City would also be immune from the homeowner’s nuisance claim. Id. at 315-316.

In reaching its decision, the Supreme Court focused on the type of “intent” necessary to establish a takings claim under the Texas Constitution. Id. at 313-314. The Court rejected the homeowner’s argument that “any” intentional act can give rise to liability because “[wjhen damage is merely the accidental result of the government’s act, there is no public benefit and the property cannot be said to be ‘taken or damaged for public use.’ Id. (emphasis in original). The Court also rejected the City’s contention that it must necessarily intend to damage the property, stating, “if the government knows that the specific damage is substantially certain to result from its conduct, then takings liability may arise even when the government did not particularly desire the property to be damaged.” Id.

Ultimately, the Court set forth a standard in Jennings that comports with the definition of “intent” found in the Restatement of Torts. See Restatement (Second) of ToRts § 8A (1965). The Court held that a governmental entity may be liable for an unconstitutional taking when it “(1) knows that a specific act is causing identifiable harm; or (2) knows that the specific property damage is substantially certain to result from an authorized government action — that is, that the damage is ‘necessarily an incident to, or necessarily a consequential result of the government’s action.” Jennings, 142 S.W.3d at 314. The Court held that there was no evidence in Jennings that the City knew, when it undertook to unclog the sewer line, that its actions would cause damage or that damage was substantially certain to result. Id. at 315. The Court held that without the requisite knowledge, the affirmative action taken by the City was insufficient to establish an intentional taking, and, therefore, insufficient to supply the requisite intent for a nuisance claim under the Texas Constitution. Id.

In their brief on appeal, the Ken-dalls contend the charge properly instructed the jury that they could make an affirmative finding on the nuisance claim by finding the City engaged in “non-negligent conduct” based on either intentional (Question No. 2) or grossly negligent (Question No. 3) conduct. The Kendalls cite several court of appeals cases decided before Jennings that define a public nuisance as the “non-negligent” performance of a governmental function. “Non-negligence” in this context is defined as “beyond negligence, as in gross negligence or an intentional act.” See, e.g., Tarrant County v. English, 989 S.W.2d 368, 374 (Tex.App.-Fort Worth 1998, pet. denied). The Kendalls further argue that even though the jury found no intentional conduct in response to Question No. 2, a finding of any non-negligent conduct by the City, including grossly negligent conduct, will support their public nuisance claim. We disagree.

Nuisance liability of a governmental entity arises only when governmental immunity is clearly and unambiguously waived by statute, or when the nuisance rises to the level of a constitutional taking. Jennings, 142 S.W.3d at 316; see Tex. Civ. PRAC. & Rem.Code Ann. § 101.021 (Vernon 1997); City of La Porte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995); City of Abilene v. Downs, 367 S.W.2d 153, 159 (Tex.1963). The Kendalls pled their claims only under the Texas Constitution and state repeatedly in the record that they are not claiming any other waiver of immunity such as through the Texas Tort Claims Act. Accordingly, it was the Kendalls’ burden to establish that the City physically damaged their private property with the intent necessary to establish a constitutional taking under the Jennings’ standard. Jennings, 142 S.W.3d at 316. The jury found no intentional conduct by Karnes City in response to Question No. 2. Therefore, we must determine whether the only affirmative jury finding that exists, that of “grossly negligent nuisance,” supplies the requisite intent under Jennings.

Question No. 3 asked the jury the following:

Does the operation of the sewer line by KARNES CITY create a grossly negligent nuisance on the KENDALLS’ property for which the KENDALLS are entitled to compensation from KARNES CITY?
To constitute a nuisance, the condition must substantially interfere with a person’s use and enjoyment of land by causing unreasonable discomfort or annoyance to the user’s ordinary sensibilities. “Gross Negligence” means more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission in question was the result of actual conscious indifference to the rights, welfare, or safety of the persons affected by it.

We conclude that the jury’s finding of gross negligence does not meet the requirements of Jennings for several reasons. First, the jury’s affirmative response to the above quoted question on “grossly negligent nuisance” establishes, at most, that the City acted with conscious indifference. Acting with “conscious indifference” to a known risk is not equivalent to acting with the intent or desire to cause identifiable harm or with the knowledge that harm is substantially certain to result. Id. at 314 (citing Restatement (Second) of ToRts § 8A (1965)).

In addition, it seems clear that based on the language and reasoning of Jennings, our Supreme Court meant to limit governmental liability for a constitutional taking to intentional conduct. See Jennings, 142 S.W.3d at 314-15; see also Restatement (Second) of ToRts § 500 cmt. f. (1965). In fact, the Supreme Court pointed out in the Gragg case, a case decided the same day as Jennings, that the cases involving com-pensable takings claims reflect the Court’s concern about the need to establish a line between mere negligence and an unconstitutional taking. Gragg, 151 S.W.3d at 554. The Court noted that its objective has been to “avoid what would be an anomalous result if the State, an entity otherwise generally entitled to immunity for negligence, were subject to liability for something less than intentional behavior.” Id. (emphasis added).

Furthermore, both the Restatement and well-respected commentators characterize grossly negligent conduct as something less than intentional conduct. The Restatement, for example, makes a distinction between the concepts of negligence, recklessness, and intent based on the degree of risk associated with one’s conduct. Negligence is defined to include conduct which falls below a standard of care established to protect others against the unreasonable risk of harm. Restatement (Second) of ToRts § 282 (1965). Recklessness, the concept most closely resembling “gross negligence,” includes the intentional failure to do an act that it is one’s duty to do, knowing that the resulting risk to others is greater than the risk associated with mere negligent conduct. See Restatement (Second) of ToRts § 500 (1965). Intent, on the other hand, means “that the actor desires to cause [the] consequences of his act” or “believes that the consequences are substantially certain to result” from the act. Restatement (Second) of Torts § 8A (1965) (emphasis added). Gross negligence is considered by most courts to fall short of recklessness, and to differ from ordinary negligence only in degree. See W. Page Keeton et al., Prosser and Keeton on The Law of Torts 212 (W. Page Keeton ed., 5th ed.1984).

Finally, we acknowledge that this court has previously relied on language from other courts of appeals cases involving inverse condemnation claims which state that “non-negligence means beyond negligence, as in gross negligence or an intentional act.” See, e.g., City of San Antonio v. Pollock, 155 S.W.3d 322, 327 (Tex.App.San Antonio 2004, pet. filed) (quoting Tarrant County v. English, 989 S.W.2d 368, 374 (Tex.App.-Fort Worth 1998, pet. denied)). Quoting that language in Pollock, this court held that evidence that the City intentionally failed to test for benzene gas from a landfill, despite its awareness that benzene was a suspected carcinogen and was present, was sufficient to support the Pollocks’ claim of an intentional taking under the Texas Constitution. See id. at 327-28. We believe the present case is distinguishable from Pollock because here the jury found no intentional conduct by Karnes City; rather, the jury found only grossly negligent conduct, which we consider to be less than the intentional conduct required to establish a constitutional taking.

For the foregoing reasons, we hold that a finding of gross negligence does not supply the requisite intent to sustain liability of a governmental entity for a constitutional takings claim. Accordingly, we reverse the judgment of the trial court and render a take nothing judgment on the Kendalls’ claims against Karnes City.

      . The Kendalls had previously rented the home for approximately 11 months in 1985-86. Although the Kendalls were aware at the time of their purchase that the home had sewer service, they deny being aware that the sewer line bisected their property — a condition which prevented certain use of the land.

      . Both suits were later consolidated.

      . Karnes City raises two issues on appeal: (1) whether the trial court erred in denying Karnes City’s motion for summary judgment; and (2) whether the trial court erred in denying Karnes City’s motion for judgment notwithstanding the verdict, or, in the alternative, motion for new trial. The grounds asserted by the City as a basis for disregarding the jury’s findings include, among others, that there is no recognized cause of action for "grossly negligent nuisance” in Texas. The Ci1y also argued in its motion for judgment n.o.v., and contends on appeal, that the gross negligence question should not have been submitted to the jury because the Kendalls never pled a claim for negligence. See Tex.R. Civ. P. 278; Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663 (Tex.1999). However, the record before us does not establish that the City made a specific objection to the jury question on grossly negligent nuisance prior to the charge being read to the jury; therefore, the City has waived any objection to the charge itself. Tex.R. Civ. P. 274, 278; Tex.R.App. P. 33.1.

      . The Supreme Court noted in City of Dallas v. Jennings, that the term "taking” is used as shorthand to refer to all three distinct claims for the "taking,” "damaging,” and "destruction” of properly for public use that may arise under Article I, § 17, of the Texas Constitution. City of Dallas v. Jennings, 142 S.W.3d 310, 313 n. 2 (Tex.2004). We similarly use the phrase "takings claim” to refer to the Kendalls’ nuisance claim.

      . We note that the present suit was tried before the Jennings case had been decided by the Supreme Court.

      . "Intentional” was defined in the charge as follows:
      One acts intentionally, or with intent, with respect to the nature of one’s conduct or to a result of one’s conduct when it is one’s conscious objective or desire to engage in the conduct or cause the result.

      . Gross negligence is not defined in the Restatement (Second) of Torts. The commentators Prosser and Keeton note that gross negligence has been described by courts as, "a failure to exercise even that care which a careless person would use,” and as requiring "willful, wanton, or reckless misconduct, or such utter lack of all care as will be evidence thereof.” W. Page Keeton et al., Prosser and Keeton on The Law of Torts 212 (W. Page Keeton ed., 5th ed.1984).


author: ADELE HEDGES, Chief Justice.

text:
    Douglas WOHLFAHRT, M.D. and Lynn Wohlfahrt, Appellants, v. John H. HOLLOWAY, Appellee. John H. Holloway, Appellant, v. Douglas Wohlfahrt, M.D. and Lynn Wohlfahrt, Appellees.
    Nos. 14-03-01084-CV, 14-03-01130-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 2, 2005.
    Rehearing Overruled Aug. 18, 2005.

      Levon G. Hovnatanian, Raul Herman Suazo, Kevin Graham Cain, Houston, for appellants.
    John Howard Holloway, Houston, pro se.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and EDELMAN.
   OPINION

ADELE HEDGES, Chief Justice.

Douglas Wohlfahrt, M.D. and Lynn Wohlfahrt appeal from the trial court’s judgments favoring John Holloway on Holloway’s quantum meruit and debt causes of action and the Wohlfahrts’ Deceptive Trade Practices Act counterclaims. In three issues, the Wohlfahrts contend that the trial court erred in (1) granting judgment on the quantum meruit claim, (2) disregarding the jury’s DTPA violation findings, and (3) calculating interest on the debt claims. Holloway brings a separate appeal from the taxation of costs in an earlier appeal in this case. We reverse and render on Holloway’s quantum meruit cause of action, reverse and remand on the Wohlfahrts’ DTPA causes of action, affirm on Holloway’s debt causes of action, and dismiss Holloway’s appeal regarding the taxation of appellate costs.

I. Background

There is considerable dispute in the record and on appeal regarding the nature of the relationship between Holloway and the Wohlfahrts. Holloway is an attorney specializing in medical malpractice cases. Douglas Wohlfahrt is a medical doctor. It is uncontroverted that Holloway handled various legal matters for the Wohlfahrts between 1983 and 1992. It is also uncon-troverted that during this time Dr. Wohlf-ahrt reviewed medical files for Holloway related to Holloway’s legal practice, although the number and value of such reviews was hotly contested.

The Wohlfahrts testified that they had a bartering arrangement with Holloway, under which Holloway exchanged his legal services for Dr. Wohlfahrt’s review of files. Holloway testified that there was no such arrangement and that the Wohlfahrts owed him for his legal services.

It is further undisputed that for certain of his services Holloway billed the Wohlf-ahrts and the Wohlfahrts paid him, but for other services, Holloway did not bill (until March 1992 when suit was filed) and the Wohlfahrts did not pay. Holloway filed the present lawsuit seeking recovery of his fees for services rendered over the years and for recovery of a loan he made to the Wohlfahrts. The Wohlfahrts counterclaimed alleging DTPA violations, among other things.

This is the second appeal in this lawsuit. After the first trial, the trial court ruled that the Wohlfahrts’ DTPA counterclaims were barred by either section 16.069 of the Civil Practice and Remedies Code, which requires counterclaims to be filed within 30 days of the date the answer is due, or the two-year statute of limitations for DTPA claims. Tex. Bus. & Com.Code Ann. § 17.565 (Vernon 2002); Tex. Civ. PRAC. & Rem.Code Ann. § 16.069 (Vernon 1997). On appeal, the First Court of Appeals reversed, holding that the counterclaims were not barred. Wohlfahrt v. Holloway, No. 01-99-00205-CV, 2001 WL 84212 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (not designated for publication). The First Court awarded appellate costs against Holloway but remanded to the trial court for a determination of the costs for two portions of the reporter’s record.

In the second trial, the jury received a voluminous charge that included 32 separately numbered questions, requiring as many as 161 separate answers. In the parts relevant to this appeal, the jury found that (1) there was no bartering agreement between the parties; (2) there was no attorney-client agreement between the parties; (3) Holloway loaned money to the Wohlfahrts, and the Wohlfahrts paid some of it back; (4) Holloway knowingly engaged in a false, misleading, or deceptive act or practice that caused damages to the Wohlfahrts; and (5) Holloway knowingly engaged in an unconscionable action or course of action that caused damages to the Wohlfahrts. The jury also provided amounts for the “reasonable attorney’s fee[s]” for the services rendered by Holloway for the Wohlfahrts, for the “reasonable value” of Dr. Wohlfahrt’s review of medical files for Holloway, and for the “necessary services” of the Wohlfahrts’ attorneys in the present lawsuit.

Post — verdict, the trial court ruled that (1) Holloway was entitled to judgment on his pled quantum meruit claim for the services he provided to the Wohlfahrts; (2) Holloway was entitled to judgment on his debt claims; and (3) the Wohlfahrts’ counterclaims, including the DTPA claims, were time-barred. The court entered judgment accordingly, awarding Holloway $99,776 plus pre- and post — judgment interest on the fees and $16,162.22 plus pre— and post — judgment interest on the debt.

On appeal, Holloway initially contends that the Wohlfahrts waived their appeal by failing to file a proper notice of appeal. The Wohlfahrts contend that the trial court erred in granting judgment on the quantum meruit claim, disregarding the jury’s DTPA violation findings, and calculating interest on the debt claim. Holloway also complains of the taxation of costs in the earlier appeal.

II. Notice of Appeal

Holloway initially argues that the Wohlfahrts’ appeal should be dismissed because they failed to provide a proper notice of appeal. The trial court signed a number of final judgments in the case below. Some of the judgments superceded earlier judgments. Holloway asserts that the Wohlfahrts’ notice of appeal was invalid because it was taken from earlier, superseded judgments and was not amended to indicate the correct final judgments. However, the Texas Rules of Appellate Procedure make it clear that the Wohlf-ahrts were not required to file a new notice of appeal when the trial court signed new final judgments. Under Rule 25.1(a), an appeal is perfected when a notice of appeal is filed with the trial court clerk. Tex.R.App. P. 25.1(a). Further, Rule 27.3 states that

After an order or judgment in a civil case has been appealed, if the trial court modifies the order or judgment, or if the trial court vacates the order or judgment and replaces it with another ap-pealable order or judgment, the appellate court must treat the appeal as from the subsequent order or judgment and may treat actions relating to the appeal of the first order or judgment as relating to the appeal of the subsequent order or judgment.

Tex.R.App. P. 27.3. Thus, by operation of Rules 25.1 and 27.3, the Wohlfahrts provided a proper notice of appeal. Consequently, Holloway’s argument is without merit.

III. Quantum Meruit

A. The Charge

The Wohlfahrts first contend that the trial court erred in rendering judgment for Holloway on his quantum meruit claim. The parties initially dispute whether the quantum meruit claim was submitted to the jury. See Tex.R. Crv. P. 279 (providing that all independent grounds of recovery not submitted or requested in the charge are waived unless conclusively proven). We find that it was not.

Quantum meruit is an equitable remedy based upon an implied promise to pay for benefits received. Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992). Myrex Indus., Inc. v. Ortolon 126 S.W.3d 548, 550 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). In order to prove quantum meruit, a party must show that (1) valuable services were rendered or materials furnished; (2) for the person sought to be charged; (3) which services and materials were accepted by the person sought to be charged and used and enjoyed by him; (4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged. Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex.1990); Clear Lake City Water Auth. v. Kirby Lake Dev., Ltd., 123 S.W.3d 735, 753 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).

Holloway maintains that the claim was submitted in Question Two “A,” which asked: “What do you find to be a reasonable attorney’s fee for the necessary services rendered by John H. Holloway in handling each of the following legal matters, stated in dollars and cents?” Question Two “A” also included an instruction that

[i]n determining what is a “reasonable attorney’s fee” for legal services and time expended by an attorney for the use and benefit of a client in legal matters, you are instructed that you should consider the following factors in deciding the “reasonableness” of the amount of attorney’s fees to be awarded....

The instruction then listed the factors required by the Texas Supreme Court to be submitted for the jury’s consideration when awarding attorney’s fees. Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex.1997); see also Comm, on PatteRn JURY Charges, State Bar of Tex., Texas Pattern Jury Charges— Business, Consumer, Insurance & Employment PJC 110.43 cmt. (2003). Lastly, the question listed forty — four items or legal matters, and after each, the jury placed a dollar figure.

There are three reasons why this question should not be read as presenting a quantum meruit claim: (1) it does not include the required elements, (2) its placement in the charge suggests that it is part of a breach of contract submission, and (3) at trial, Holloway denied that he was seeking recovery under a quantum meruit theory. We shall discuss each in turn.

First, Question Two “A” does not include all of the required elements for quantum meruit; indeed, it does not appear to include any of the required elements in proper form. See Vortt Exploration, 787 S.W.2d at 944; Clear Lake City Water Auth., 123 S.W.3d at 753; PJC 101.42. Holloway argues that the court’s instruction on reasonable attorney’s fees satisfies the elements of quantum meruit; however, he provides no explanation for this assertion, and, at a minimum, nothing in the instruction required the jury to consider the fourth element of quantum meru-it, ie., that services were rendered under such circumstances as reasonably notified the person sought to be charged that the plaintiff was expecting to be paid. See Vortt Exploration, 787 S.W.2d at 944; Clear Lake City Water Auth., 123 S.W.3d at 753.

Second, the question’s placement in the charge makes it clear that it was a submission regarding contract damages. As explained above, the voluminous charge was divided into question groupings related to specific causes of action. Question Two asked whether the parties “agree[d] to enter into an attorney-client relationship whereby the Wohlfahrts were to pay John Holloway for his reasonable and necessary legal services?” Question Two “B” asked whether “the Wohlfahrts breach[ed] this agreement with John Holloway?” Thus, it is clear that these three questions (Two, Two “A,” and Two “B”) should be read together as a breach of contract submission, and Question Two “A” should not be read separately as a quantum meruit submission.

Third, at trial, Holloway denied that he was seeking recovery under quantum meruit. During a discussion of the relevance of certain evidence, the Wohlf-ahrts’ counsel suggested Holloway was seeking quantum meruit, and Holloway, who was representing himself, responded, “I am not ever doing that.... Iam just on the attorney’s fees agreement pure and simple.” Later, during the charge conference, when the Wohlfahrts’ attorney offered a proposed submission on Holloway’s quantum meruit claim, the judge said to Holloway, ‘You don’t want quantum meru-it?” Holloway replied, “I don’t really care,” and the judge said, “All right. Then I will leave it out.” These exchanges demonstrate that Holloway waived submission of the quantum meruit theory in the jury charge.

Because Question Two “A” did not include all the required elements for a quantum meruit submission, its placement in the charge suggests that it was part of a breach of contract submission, and Holloway expressly denied that he was seeking recovery under quantum meruit, we hold that the charge did not submit Holloway’s quantum meruit claim to the jury.

B. Conclusive Proof?

However, Holloway would still be entitled to judgment on his quantum meru-it claim if he conclusively proved it. See Tex.R. Civ. P. 279. “An issue is conclusively established when the evidence is such that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.” Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982); Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 749 n. 6 (Tex.App.-El Paso 2000, no pet.).

The first three elements of quantum meruit appear to be well established in the record: it is undisputed that (1) Holloway rendered valuable services for (2) the Wohlfahrts and that (3) the Wohlf-ahrts accepted these services and used and enjoyed them. See Vortt Exploration, 787 S.W.2d at 944 (providing elements of quantum meruit recovery). However, the evidence was strongly contested regarding the fourth element: whether the circumstances were such that the Wohlfahrts were reasonably notified that Holloway expected to be paid. See id.

Holloway points to his own testimony that the Wohlfahrts knew he expected to be paid and to the fact that he requested payment for certain services and the Wohlfahrts paid for those services. But the Wohlfahrts themselves testified repeatedly and consistently that they did not believe Holloway expected to be paid except on the few occasions when he told them that a particular service had costs out of the ordinary. On those occasions, he told them how much it was going to cost, and they paid the amount. Contrary to Holloway’s assertion, the evidence that he sometimes told the Wohlfahrts that he expected to be paid and got paid is inferential evidence that on other occasions, when he did not tell them that there were extraordinary costs, he did not expect to be paid. Holloway’s services for the Wohlfahrts occurred over a nine — year period; that Holloway did not submit a bill for services and demand payment until after the parties had a falling out and suit was filed is further evidence that Holloway did not expect to be paid at the time services were rendered. At a minimum, it suggests that the Wohlfahrts could have reasonably believed that Holloway did not expect to be paid. Thus, there was some evidence negating the fourth element of quantum meruit. See id. Accordingly, Holloway did not conclusively establish his quantum meruit cause of action, and the trial court erred in entering judgment in his favor on that claim. See Tex.R. Civ. P. 279; Triton Oil & Gas, 644 S.W.2d at 446. We sustain the Wohlfahrts’ first issue.

IV. “Time-Barred” DTPA Claims

The Wohlfahrts next contend that the trial court erred in holding that their DTPA counterclaims were time-barred. In response to questions “13” and “13A,” the jury found that Holloway knowingly engaged in both (1) false, misleading, or deceptive acts or practices and (2) an unconscionable action or course of action that caused damages to the Wohlfahrts. In response to Question “13B,” the jury found that Holloway’s conduct caused the Wohlf-ahrts $4,469 in monetary damages, and in response to “13D,” the jury found $100 in mental anguish damages. The court did not submit, and the parties did not request, any question regarding the accrual of the Wohlfahrts’ DTPA causes of action or the application of the discovery rule. However, in its judgment, the trial court held that the Wohlfahrts’ DTPA counterclaims were time — barred.

Holloway’s arguments (in the trial court and on appeal) regarding whether the DTPA counterclaims were time-barred break down into two categories: (1) those based on section 16.069 of the Civil Practice and Remedies Code, which requires counterclaims to be filed within 30 days of the date the answer is due, and (2) those based on the running of the two-year statute of limitations for DTPA claims. Tex. Bus. & Com.Code Ann. § 17.565; Tex. Civ. Peac. & Rem.Code Ann. § 16.069.

A. Section 16.069

In the prior appeal, the First Court of Appeals addressed Holloway’s argument pertaining to section 16.069, holding that the DTPA counterclaims related back to the first filed counterclaim and thus were not time — barred under that section. Wohlfahrt, 2001 WL 84212, at *4 (citing Tex. Civ. Peac. & Rem.Code Ann. § 16.068 (Vernon 1997)). Holloway contends that the First Court was “simply wrong” in holding that the counterclaims were not time-barred. However, under the law of the case doctrine, we are bound to follow the prior ruling unless there was a change of issues or facts in the re-trial. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986). Holloway offers no argument regarding changed issues or facts between the first and second trials in regard to the application of section 16.069, and our review of the record reveals no such changes. Thus, the First Court’s prior ruling that section 16.069 does not bar the Wohlfahrts’ DTPA counterclaims still stands.

B. Statute of Limitations

Also in the prior appeal, after finding section 16.069 did not bar the counterclaims, the First Court considered whether the DTPA statute of limitations barred the claims. Tex. Bus. & Com.Code Ann. § 17.565 (providing two-year limitations period for DTPA claims); Wohlfahrt, 2001 WL 84212, at *4. Considering the issue in a pre-trial context, the First Court held that limitations did not bar the claims. Wohlfahrt, 2001 WL 84212, at *4. The court based this decision in part on the fact that Holloway had not provided any evidence to show when the Wohlfahrts discovered their cause of action. See id. at *3^i. The First Court’s opinion, however, did not prevent the parties from offering evidence regarding limitations on remand.

Holloway initially argues that in the live pleadings for the retrial the Wohlfahrts failed to plead the discovery rule as a defense to his limitations pleading. Holloway is simply incorrect. Although, as Holloway points out, the Wohlfahrts did not include the discovery rule in their live answer for the retrial, the Wohlfahrts did plead the discovery rule in their live counterclaim pleading. See Wohlfahrt, 2001 WL 84212, at *4 (holding that the Wohlf-ahrts pleaded the discovery rule). Since Holloway raised his limitations defense in regard to the counterclaims, the most logical place for the Wohlfahrts to raise the discovery rule would have been in their pleadings concerning the counterclaims. They did so; consequently, Holloway’s arguments to the contrary are without merit.

In the re-trial, the DTPA counterclaims were submitted as questions to the jury. Holloway contended in the trial court, and contends in the present appeal, that the Wohlfahrts waived their discovery rule defense because they failed to prove and secure jury findings on it, citing Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex.1988). However, as the supreme court pointed out in Woods, the burden to prove and secure findings on the discovery rule arises only once the accrual of a cause of action has been established and limitations has been shown to have run. 769 S.W.2d at 517-18; see also Tex. Am. Corp. v. Woodbridge Joint Venture, 809 S.W.2d 299, 303 (Tex.App.-Fort Worth 1991, writ denied); Wingate v. Acree, No. 14-01-00851-CV, 2003 WL 1922569, at *2 (Tex.App.-Houston [14th Dist.] April 24, 2003, no pet.) (mem.op.). In other words, “[t]he defendant ... bears the initial burden to plead, prove, and secure findings to sustain its plea of limitations.” Woods, 769 S.W.2d at 517. Here, Holloway did not request or obtain a jury finding regarding the accrual of the cause of action or the running of the statute of limitations; he also made no argument in the trial court or in his appellate brief that he had established either issue as a matter of law. Thus, the Wohlfahrts were never required to request an issue or present evidence regarding the discovery rule; the burden of production never shifted to them because Holloway never met his initial burden. Id. at 517-18. Accordingly, the Wohlfahrts’ alleged failure to offer proof and obtain jury findings regarding the discovery rule is of no consequence.

Because we find that the trial court erred in granting a jnov on the DTPA counterclaims on the basis of the claims being time-barred, we sustain the Wohlfahrts’ second issue and reverse and remand for consideration of Hollo-ways additional arguments regarding the counterclaims.

Y. Interest

The Wohlfahrts lastly contend that the trial court erred in its calculation of post-judgment interest on the debt award to Holloway. Specifically, on appeal, the Wohlfahrts contend that under changes passed in 2003, section 304.003 of the Texas Finance Code required the trial court to set post-judgment interest at 5%, not the 10% set by the trial court in its judgment. Tex. Fin.Code Ann. § 304.003 (Vernon Supp.2004). However, in the trial court, the only argument the Wohlfahrts raised regarding post-judgment interest was that under section 304.103, it should have been set at 6%, the same rate that the court used for prejudgment interest in the judgment. Id. § 304.103. To have preserved error, a party’s argument on appeal must comport with its argument in the trial court. E.g., Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 621 & n. 21 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). The Wohlfahrts’ objection in the trial court did not apprise the court of the alleged error that the Wohlfahrts now complain about on appeal. See Tex.R.App. P. 33.1. Accordingly, we find that the Wohlfahrts waived their objection to the court’s calculation of post-judgment interest by not making it in the trial court. See Hachar v. Hachar, 153 S.W.3d 138, 145 (Tex.App.-San Antonio 2004, no pet. h.) (holding that party waived argument regarding post-judgment interest rate by not making it in the trial court); El Paso Dev. Co. v. Berryman, 769 S.W.2d 584, 592 (Tex.App.-Corpus Christi 1989, writ denied) (holding that party waived argument regarding compounding of post-judgment interest by not making it in the trial court). The Wohlfahrts’ third issue is overruled.

VI. Holloway’s Appeal: Taxation of Costs

We turn now to Holloway’s appeal pertaining to taxation of costs in the earlier appeal to the First Court of Appeals. As mentioned, Holloway won in the first trial in this case, but the First Court reversed that judgment and assessed costs against Holloway. Of the four court reporters who prepared portions of the record for the appeal, only two filed cost certificates; thus, the First Court’s mandate indicated that the costs for the other two reporters was “unknown.” The First Court then ordered the trial court to determine and assess the costs for those two reporters. The trial court heard evidence regarding costs in two hearings. The trial court then ordered that the First Court’s mandate be reformed to include as costs the amounts claimed by the remaining two reporters.

In his appeal, Holloway primarily contends that upon receiving the mandate the trial court should have determined and assessed the reasonable and necessary costs and not simply the actual costs assessed by the reporters and paid by the Wohlfahrts. Holloway argues both that the court reporter’s fees are unreasonable and that portions of the record brought on appeal were not necessary for the appeal. In response, the Wohlfahrts filed a motion to dismiss and an appellees’ brief asserting, respectively, that the Fourteenth Court of Appeals does not have jurisdiction over the taxation issues from the first appeal and that the trial court was not authorized to consider the reasonableness and necessity of the costs. We agree with the former contention and hold that we are without jurisdiction to consider Holloway’s appeal.

We begin by noting that this area of law is somewhat murky. The Texas Supreme Court has held that a request to “retax” costs must be made in the court in which the costs were incurred. E.g., Reaugh v. McCollom Exploration Co., 167 S.W.2d 727, 727-28, 140 Tex. 322, 324-25 (1943) (dismissing complaint regarding taxation of costs for want of jurisdiction); Southland Life Ins. Co. v. Statler, 170 S.W.2d 714, 715, 141 Tex. 110, 112 (1943) (orig.proeeeding); see also Pitts v. Dallas County Bail Bond Bd., 23 S.W.3d 407, 417 (Tex.App.-Amarillo 2000, pet. denied) (“Correction of errors in specific items of costs is sought by a motion to retax costs.”); Lopez v. Cent. Plains Reg’l Hosp., 859 S.W.2d 600, 607 (Tex.App.-Amarillo 1993, no writ) (considering taxation of costs issue raised as cross-point). The supreme court further held that the cost of a reporter’s record for use in perfecting an appeal to a court of appeals is cost accruing in that court of appeals. E.g., Reaugh, 167 S.W.2d at 727, 140 Tex. at 324; Southland Life Ins., 170 S.W.2d at 715, 141 Tex. at 112.

However, in City of Ingleside v. Stewart, 554 S.W.2d 939, 948 (Tex.App.-Corpus Christi 1977, writ refd n.r.e.), the Corpus Christi Court of Appeals suggested that statutory changes have rendered the holdings in Reaugh and Southland Life no longer valid. Specifically, the Corpus Christi Court held that, because section 52.047 of the Government Code (formerly article 2324 of the Texas Revised Civil Statutes) states that a district court is to determine the reasonableness of a reporter’s fee when objected to, a motion to retax is no longer permissible in a court of appeals. Tex. Gov’t Code Ann. § 52.047 (Vernon 1998); Stewart, 554 S.W.2d at 948. Even if the Corpus Christi Court is correct in regard to the reasonableness of the fee charged, a matter we need not decide at this juncture, the court of appeals still appears to be the correct venue for arguments regarding the necessity of portions of the appellate record. See Lopez, 859 S.W.2d at 607 (addressing cost issue raised in cross-point); Planet Plows, Inc. v. Evans, 600 S.W.2d 874, 877 (Tex.Civ.App.-Amarillo 1980, no writ) (addressing cost issue raised in motion for rehearing and motion to retax costs); Perkins Constr. Co. v. Ten-Fifteen Corp., 545 S.W.2d 494, 501-02 (Tex.Civ.App.-San Antonio 1976, no writ) (addressing cost issue raised by appellant).

Notwithstanding the unsettled nature of this area of law, the proceedings about which Holloway complains were part and parcel of the first appeal in this case; they played no role in the second trial or in the second appeal brought by the Wohlfahrts. Holloway’s appeal is not from a motion to retax costs filed in the trial court. See Holloway v. Butler, 828 S.W.2d 810, 811 (Tex.App.-Houston [1st Dist.] 1992, writ denied) (considering appeal from district court’s denial of motion to retax); see also Price v. State, 856 S.W.2d 226, 227 (Tex.App.-Fort Worth 1993, writ refd) (noting that appeal was from judgment and not from the overruling of the motion to retax). The record does not reflect that any such motion was filed in the trial court. The trial court held hearings and made its rulings strictly pursuant to the First Court’s specific directive regarding costs. The trial court then assessed costs pursuant to the First Court’s order. If Holloway wished to assert error in the First Court’s order, he could have filed a motion for rehearing in the First Court or a petition for review or for writ of mandamus in the Texas Supreme Court. See Tex.R.App. P. 49.1 (permitting motions for rehearing in courts of appeals); 52.1-52.11 (governing original proceedings in Texas Supreme Court); 53.1-56.5 (governing petitions for review to the Texas Supreme Court). Holloway cites no authority, and we are aware of none, that permits a wholly new appeal to be taken from such a procedure (whether the appeal is assigned to the First Court or the Fourteenth). Accordingly, we grant the Wohlfahrts’ motion and dismiss Holloway’s appeal for want of jurisdiction.

VII. Conclusion

Based on the foregoing, we reverse and render the portions of the trial court’s judgments awarding Holloway recovery on his quantum meruit cause of action, we reverse and remand the portions holding that the Wohlfahrts’ DTPA causes of action were time-barred, and we affirm the portions awarding Holloway recovery on his debt claims. We dismiss Holloway’s appeal regarding the taxation of appellate costs for want of jurisdiction.

      . The questions were grouped into related blocks such as "Two,” "Two 'A,' ” and "Two 'B.' ” Several questions also had subparts, mostly, but not strictly, related to damages elements. Many of the questions went unanswered because of the jury’s responses to other related questions.

      . There were three cause numbers below, which were combined for trial. The original final judgments for these cause numbers were signed on June 26, 2003. The Wohlfahrts filed their notice of appeal on September 24, 2003. The trial court then signed new final judgments on September 24, 2003, and again on October 29, 2003.

      .Under Rule 279, if a ground of recovery consists of more than one element and one or more elements is submitted and one or more is omitted, then the omitted elements are deemed found if supported by factually sufficient evidence. Tex.R. Civ. P. 279. However, the rule further requires that for any elements of a ground of recovery to be considered submitted, the elements must be "necessarily referable thereto.” Id.; see also Clayton W. Williams, Jr., Inc. v. Olivo, 912 S.W.2d 319, 327 (Tex.App.-San Antonio 1995) (explaining that the "necessarily referable” requirement is designed to give fair notice and that if the elements are not necessarily referable to the ground of recovery urged then the ground is waived), aff d in relevant part, 952 S.W.2d 523 (1997). As will be explained in the text following this, even if the instruction on attorney’s fees could be read as including elements common to a claim of quantum meruit, the structure of the charge indicates that these elements are not necessarily referable to that cause of action. They are instead integral parts of a breach of contract submission. Because the court did not necessarily submit any elements of quantum meruit, we need not deem any remaining elements in support of the theory. Clayton W. Williams, Jr., Inc., 952 S.W.2d at 529.

      . For example, the submission on the Wohlf-ahrts' DTPA causes of action included Question 13, asking about false, misleading, or deceptive acts; Question 13A, asking about unconscionable actions; Question 13B, asking about damages caused; Question 13C, asking whether the conduct was committed knowingly; and Question 13D, asking about mental anguish.

      . Question Two "A” is not expressly contingent on a positive answer to Question Two. This apparently lead the jury to ask during deliberations whether Two "A” was contingent on their answer to Two. The judge who presided over the trial and submitted the charge was a visiting judge and was not on the bench when the jury asked this question. After conferring with the parties (who disagreed as to whether the one question should be contingent on the other), the sitting judge replied to the jury that they should just answer the charge as submitted.
      Earlier, during the charge conference, the visiting judge initially conditioned Two "A” on Two but subsequently removed the condition when Holloway objected. Holloway did not mention quantum meruit in making his objection.

      . Holloway points out that at the beginning of the charge conference the judge indicated that he intended to charge the jury on both breach of contract and quantum meruit; however, this statement clearly occurred before the exchange detailed above in which Holloway expressed ambivalence toward a quantum meruit submission, and the court stated that it was leaving such submission out of the charge.

      . Whether this was due to the alleged, but not found, bartering arrangement, the social relationship between the parties, or some other motive of Holloway is not clear or necessary to establish in order to defeat the quantum meruit claim.

      . Holloway additionally contends that the Wohlfahrts waived any argument regarding the trial court’s time-bar finding by not expressly attacking the trial court's grant of his motion for judgment notwithstanding the verdict either in the trial court or on appeal. Although Holloway may be correct that the Wohlfahrts did not attack the grant of his motion by specifically identifying the motion, he is incorrect in suggesting the Wohlfahrts have not attacked the trial court’s action. The Wohlfahrts asserted with specificity both in the trial court and on appeal that the trial court erred in disregarding the jury’s DTPA liability findings on the basis that they were time-barred. Accordingly, they have not waived these arguments. See TexR.App. P. 33.1(a), 38.1(h).

      . Under the law of the case doctrine, a court considering a subsequent appeal is ordinarily bound by a prior decision in the case. See Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.2003). This is true unless there is a substantial change of issues or fact in the retrial. Hudson, 711 S.W.2d at 630. The court in Briscoe identified another exception to the doctrine: when the appellate court determines that its first decision was clearly wrong. 102 S.W.3d at 716-17. However, the court’s explanation of this exception specifically contemplates that the second appeal is to the same court. Id. Although a court can always reconsider its own prior holdings, see id., one intermediate court of appeals is not authorized to overrule the holdings of another intermediate court of appeals. Long v. State, 820 S.W.2d 888, 890 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd); see also Thomas v. Collins, 860 S.W.2d 500, 502 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (adopting prior holding by sister court without reanalyzing issue). The proper venue for complaining that a court of appeals ruled erroneously is by motion for rehearing to that court or by petition for review or mandamus to the Texas Supreme Court.

      . Indeed, there appear to be no significant changes regarding the discovery rule between the live pleadings in the first trial and the live pleadings in the second trial.

      . In Woods, the defendant met its burden by establishing that the plaintiffs cause of action was barred as a matter of law; however, the plaintiff then failed in his subsequent burden to plead, prove, and secure findings on the discovery rule. 769 S.W.2d at 517-18.

      . The only argument Holloway made in the trial court was that because the Wohlfahrts’ pleadings acknowledged that all legal matters he handled for them were closed by 1992, the counterclaim filed in 1995 was beyond the two-year limitations period. However, the First Court clearly held that the 1995 DTPA counterclaim related back to the original counterclaims filed in 1993; thus, the DTPA counterclaims were not barred by limitations based on the Wohlfahrts’ pleadings alone. Wohlfahrt, 2001 WL 84212, at *4 (citing Barraza v. Koliba, 933 S.W.2d 164, 167-68 (Tex.App.-San Antonio 1996, writ denied) (holding that counterclaim amended to include DTPA claim related back to timely filed counterclaim because it arose from the same transaction)). Because nothing has changed in regard to this issue between the first and second appeals, we are bound by the First Court's prior ruling as the law of the case. See Briscoe, 102 S.W.3d at 716; Hudson, 711 S.W.2d at 630; supra n. 10.

      .Section 304.103 states in its entirety: "The prejudgment interest rate is equal to the post-judgment interest rate applicable at the time of judgment.” Tex Fin.Code Ann. § 304.103.

      . The First Court specifically ordered the trial court "to hold a hearing to determine the costs of the items designated as 'Unknown' [in the First Court’s mandate] and to then assess costs as set forth in the judgment and mandate of this Court.”

      . The Wohlfahrts filed a motion to strike certain items from the appendix attached to Holloway’s reply brief. This motion was also taken with the case. Because we hold that we do not have jurisdiction to consider Holloway’s appeal, we overrule this motion as moot.