Patch Energy LLC; Candlewood Resources, LLC; And Prelly Minerals LLC v. Indio Minerals, LLC; Gunner Investments, LLC; Gunner Oil Series, LLC; Madaket Energy LLC

Opinion filed November 21, 2024

In The

Eleventh Court of Appeals
__________

No. 11-22-00280-CV
__________

PATCH ENERGY LLC; CANDLEWOOD RESOURCES, LLC;
AND PRELLY MINERALS LLC, Appellants
V.
INDIO MINERALS LLC; GUNNER INVESTMENTS, LLC;
GUNNER OIL SERIES, LLC; AND MADAKET ENERGY LLC,
Appellees

On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CV57378

OPINION
This appeal concerns competing claims to a portion of a royalty interest that
had been reserved in a 1930 conveyance of the mineral interest in land located in
Midland County. At the center of the dispute is a will that had been sitting on deposit
in Macon County, Illinois since 1974 when the testator died. The will was probated
in Illinois in 2020, filed of record in Texas in 2021, and admitted to ancillary probate
in Texas in 2022. The appeal focuses on the effect of the belated Illinois probate,
and the subsequent actions in Texas.
Appellees, Indio Minerals LLC, Gunner Investments, LLC, Gunner Oil
Series, LLC, and Madaket Energy LLC (collectively Indio) claim superior title to
the disputed portion of the interest under Texas probate law regarding foreign wills,
asserting that the will was timely probated in Illinois in 2020 and Texas in 2021 and
2022.
Appellants, Patch Energy LLC, Candlewood Resources, LLC, and Prelly
Materials LLC (collectively Patch) claim superior title to the disputed portion of the
interest, asserting that, because the will was admitted to ancillary probate in Texas
after Patch acquired title from the intestate heirs, it could not effectively convey title
to Indio.
After the parties filed cross-motions for summary judgment, the trial court
granted Indio’s motion, denied Patch’s motion, and entered a final judgment
declaring Indio as the party with superior title.
In three issues, Patch asserts that the trial court erred when it (1) granted
Indio’s motion for summary judgment and denied Patch’s cross-motion for summary
judgment, (2) held that all Appellants were not bona fide purchasers of the disputed
interest at issue, and (3) denied Patch’s motion for new trial. We affirm.
Background Facts
In 1930, Viola Hoots Ash and her husband, T.C. Ash, conveyed by warranty
deed their mineral interest in the northwest quarter of Section 21, Block 38,
Township 4-South, Texas & Pacific Railway Company Survey, Midland County,
Texas, to Joseph R. Vandeventer, but reserved an undivided one-eighth royalty
interest in and to all oil, gas, and other minerals in, on, and under the property. We
will refer to the reserved royalty interest as the Ash Interest. Viola died in Macon
County, Illinois in 1974. Viola and her husband did not have children, and Viola’s
2
husband predeceased her. Viola’s will devised the Ash Interest to her sister, Mary
Shock Henard.
Appellants describe themselves as “separate entities [that] work together to
identify, purchase, and sell mineral and royalty interests throughout Texas.” Patch
discovered the Ash Interest in the tax rolls of Midland County in February 2020.
Interested in acquiring the Ash Interest, Patch began researching Viola’s estate in an
attempt to identify her heirs. Patch inspected various databases, the real property
records of Midland County, and the real property and probate records of several
counties in Illinois, including Macon County. Christian Patry, the founder of Patch
Energy LLC, stated in his affidavit that:
[D]espite [a] diligent search, my team and I were unable to find any
Last Will and Testament or administration of estate attributable to Viola
Ash. As such, and based on my years of experience searching such
records and locating mineral owners, I determined that Viola Ash had
died without a will and sought to acquire the Ash Interest from Viola
Ash’s intestate heirs.
Christian contacted Viola’s living heirs in the spring of 2020 and was able to
purchase the interests of thirty-nine out of the forty-four heirs Patch identified.1
When Patch contacted four of Henard’s heirs in March 2020 to discuss potentially
purchasing their interests, Patch was informed that Indio Minerals had already
offered to purchase their interests. Patch later learned that Indio Minerals
successfully purchased the four heirs’ interests.
Appellees describe themselves as “affiliated companies that acquire and hold
oil-and-gas interests.” Christopher Sheffey, a partner of Indio Minerals, stated in his
affidavit that he learned about the Ash Interest in February 2020. After inspecting
the Midland County Real Property records and various websites/databases, Sheffey

1
In 1974, Viola was survived by Henard and the children of Viola’s five predeceased siblings. The
1974 heirs had since passed, but Patch was able to locate Viola’s living heirs via public records and
“conversations . . . with many heirs of Viola Ash.”

3
learned that Viola had lived in Macon County, Illinois. After finding Viola’s death
certificate in the Macon County clerk records, Sheffey e-mailed the Macon County
Circuit Court clerk on March 3, 2020, to see if Viola or her husband had a probated
estate. The clerk informed Sheffey that the only thing she found was Viola’s will,
which had been deposited with the Macon County Circuit Court clerk’s office three
days after Viola’s death in 1974.
After hiring Illinois counsel, Indio learned that, “because Viola’s will was
timely established in Macon County, it could be probated.”2 Sheffey researched
Henard and learned that she died in 1979. Henard’s will devised her real property
to Ruth Shock Nielsen, Lois Shock Wood, and Letha Fae Major. After Sheffey
concluded that each of Henard’s devisees had passed, Sheffey determined that
(1) the heir of Ruth Shock Nielsen is Beverly Marie Norton; (2) the heirs of Lois
Shock Wood are Curtis Allen Thomas, David C. Thomas, Jennifer M. Bauer, and
Randy W. Bauer; and (3) the heirs of Letha Fae Major are Maurine Joyce Gregory
and William Randolph Major. Indio was able to purchase the interests of Curtis
Allen Thomas, Jennifer M. Bauer, Randall W. Bauer, and Beverly Marie Norton.
Patch had purchased the interests of William Randolph Major, David Clark Thomas,
and Maurine Joyce Gregory.
Curtis Allen Thomas filed a Small Estate Affidavit in Midland on April 27,
2020. Thomas initiated the probate of Viola’s will in Macon County in August 2020,
and Viola’s will was subsequently admitted to probate in Macon County. Viola’s
probated will was filed in the deed records of Midland County on February 26, 2021.
See TEX. EST. CODE ANN. § 503.001 (West 2020). Finally, Viola’s probated will
was admitted to ancillary probate in Midland County in 2022. See generally EST.
Ch. 501.

2
An explanation of the relevant Illinois probate law is included in the “Analysis” section of this
opinion.
4
In his affidavit, Christian stated that he became aware of the Illinois probate
proceedings in “late 2020,” but believed that the probate “had no effect on the
disposition of the Ash Interest in Texas, so [they] continued to try and purchase the
remaining Ash Interest from Indio.” Christian stated that Patch and Indio attended
a meeting on January 25, 2021, but Patch was unsuccessful in purchasing Indio’s
interest because “Indio insisted the probate action in Illinois dictated ownership of
the Ash Interest and they felt they owned more than half of it.”
Patch filed suit against Indio on February 3, 2021, asserting that Patch owned
88% of the Ash Interest and Indio owned 9% of the interest. Patch sought (1) a
declaratory judgment that the Ash Interest passed under intestacy law, that Patch
was a bona fide purchaser of the Ash Interest, that the filed Small Estate Affidavit
had no effect on the distribution of real property, and that Patch owned 88% of the
Ash Interest; (2) a removal of the cloud on title caused by Indio’s recording of a
Small Estate Affidavit and “claiming by recorded instruments a greater percentage
of the Ash Interest than allowed by Texas law”; and (3) damages for financial injury
to Patch caused by Indio’s filing of fraudulent instruments, including the mineral
and royalty deeds from Henard’s heirs and the Small Estate Affidavit.
Indio counterclaimed, asserting that it owned 56% of the Ash Interest and
Patch owned 44% of the interest. Indio sought (1) a declaratory judgment that Patch
is not a bona fide purchaser of the Ash Interest because Patch took via quitclaim
deed, and (2) a removal of a cloud on their title stemming from Patch’s claimed
ownership of the disputed portion of the Ash Interest. Patch filed an answer to
Indio’s counterclaim, reasserting that Viola did not die testate because “no valid Will
of Ash was timely probated or filed under Texas law to dispose of Texas real
property.”
In the summer of 2021, the parties filed cross-motions for summary judgment
based on the pleadings. The trial court denied both motions after a hearing.
5
On May 26, 2022, Indio subsequently took the deposition of Preston Patry,
the owner of Prelly Materials LLC. In his deposition, Preston confirmed that he had
sent an e-mail to the Macon County clerk regarding Viola’s estate and learned on
February 26, 2020, that Viola had a will on deposit and that the will had not been
probated. Preston further confirmed that he created a “flowchart” on February 28,
2020, which included the information that Viola died with a will that had not been
probated, and that he provided that flowchart to Christian “as [Christian] was
purchasing the interest.”3
Both parties filed second motions for summary judgment. Indio asserted in
its motion that (1) Viola’s interest passed through testacy to her devisees as a matter
of law; (2) Patch is not a bona fide purchaser of Viola’s interest because Patch had
knowledge of the existence of Viola’s will when it acquired deeds from Viola’s heirs
at law and because Patch took via quitclaim deed; (3) Patch’s claim to remove cloud
on title failed as a matter of law because Viola’s will passed through testacy and
Patch is not a bona fide purchaser; and (4) there was no evidence that Indio
fraudulently filed instruments of record and no genuine issue of material fact on
Patch’s fraudulent-filing claim.
The relevant grounds in Patch’s motion for summary judgment were: (1) the
ancillary probate of Viola’s will in Midland acted as a conveyance, and the ancillary
probate did not affect conveyances that occurred before it; (2) Patch was not charged
with notice of Viola’s will until it was probated in Midland; and (3) no genuine issue
of material fact existed in the case and Patch was entitled to judgment as a matter of
law. 4

Both the e-mail exchange between Preston and the Macon County clerk and the flowchart Preston
3

created are attached as exhibits to Indio’s motion for summary judgment.
4
Patch does not appeal the trial court’s dismissal of its fraudulent-filing claim.

6
In its response to Patch’s motion for summary judgment, Indio asserted that
Patch’s motion was “nothing more than a smokescreen designed to distract the Court
from the only real issue in the case—is Patch a bona fide purchaser under Texas
Estates Code § 256.003(c)?”5 In turn, Patch responded to Indio’s motion for
summary judgment—specifically Indio’s contention that the probate of Viola’s will
in Illinois is dispositive of the case—by asserting that “[t]he probate laws of Illinois
have no bearing on the transfer of real property in Texas” because, under Texas law,
probate actions must commence within four years of a testator’s death.
The trial court granted Indio’s motion for summary judgment and entered a
final judgment holding that Patch take nothing because it was not a bona fide
purchaser of any interest that did not arise under Viola’s will. The trial court further
denied any of Patch’s remaining claims and ordered that each party was responsible
for paying its own attorney’s fees and that Patch was responsible for paying taxable
costs incurred by Indio.
Patch filed a motion for new trial and motion to modify judgment contending,
among other things, that Indio’s claims were barred by judicial estoppel. Patch
asserted that its subsequent discovery of a Reeves County lawsuit in which Indio had
taken “the complete opposite position” to its argument in the present case constituted
newly discovered evidence. The motion was overruled by operation of law.
Analysis
The Date that a Foreign Will is Admitted to Ancillary Probate in Texas does
not Determine when Title Vests
In its first issue, Patch contends that the trial court erred when it granted
Indio’s motion for summary judgment and denied Patch’s motion for summary
judgment because Patch acquired its interest before Viola’s will was admitted to

Conversely, Patch asserted that “this case is not about whether Patch is a bona fide purchaser under
5

Texas law.”
7
ancillary probate in Midland, thus making Patch the party with superior title to the
disputed interest. As we noted previously, Patch contends that until the will was
admitted to ancillary probate in Texas, it was ineffective to pass title. This
contention is incorrect.
We review the trial court’s grant of summary judgment de novo. Lujan v.
Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). When the parties file competing
motions for summary judgment and the trial court grants one and denies the other,
“we consider the summary judgment evidence presented by both sides, determine
all questions presented, and if the trial court erred, render the judgment the trial court
should have rendered.” Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 583 (Tex.
2015). In reviewing traditional summary judgments, we consider the evidence in
the light most favorable to the nonmovant, indulging every reasonable inference in
favor of the nonmovant and resolving any doubts against the movant. Merriman v.
XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); City of Keller v. Wilson, 168
S.W.3d 802, 824 (Tex. 2005).
A party moving for traditional summary judgment bears the burden of proving
that there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508
S.W.3d 254, 257 (Tex. 2017). To be entitled to a traditional summary judgment, a
defendant must conclusively negate at least one essential element of the cause of
action being asserted or conclusively establish each element of an affirmative
defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
Evidence is conclusive only if reasonable people could not differ in their
conclusions. City of Keller, 168 S.W.3d at 816. If the movant initially establishes a
right to summary judgment on the issues expressly presented in the motion, then the
burden shifts to the nonmovant to present to the trial court any issues or evidence
8
that would preclude summary judgment. See City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).
Patch does not dispute that Viola’s will was timely probated in Illinois in
accordance with Illinois law, or that it was timely admitted to ancillary probate in
Texas. Rather, Patch asserts that (1) a foreign will has no effect on the passage of a
real property interest unless and until it has been admitted to ancillary probate in
Texas; and (2) a foreign will acts as a conveyance and vests title in a testator’s
devisees as of the date it is recorded in Texas, and not before. Thus, Patch contends
the only way Indio could have acquired superior title to the disputed portion of the
Ash Interest is if Viola’s will was probated or recorded in Midland County before
Patch obtained its deeds from Viola’s heirs at law.
Section 101.001 of the Estates Code provides that, if a person dies leaving a
lawful will, “all of the person’s estate that is devised by the will vests immediately
in the devisees.” EST. § 101.001 (West 2020). However, Patch asserts that “the
estates code has carved out an exception to that rule for foreign wills,” as evidenced
by Section 503.051, which states that:
A copy of a foreign will or other testamentary instrument . . . (1) take[s]
effect and [is] valid as a deed of conveyance of all property in this state
covered by the instrument; and (2) ha[s] the same effect as a recorded
deed or other conveyance of land beginning at the time the instrument
is delivered to the clerk to be recorded.
EST. § 503.051 (emphasis added). Patch contends that the language of
Section 503.051 necessarily means that title to the Ash Interest did not pass
until Viola’s will was probated in Midland County, since the will could only “take
effect” upon delivery to the Midland County court clerk.
Patch cites Slaton v. Singleton, 9 S.W. 876, 878 (Tex. 1888) in support of its
interpretation. In Slaton, the Texas Supreme Court addressed a former version of
Section 503.051. The former version states that:

9
Every . . . will and testament, or testamentary instrument, and its
probate, which shall be attested and proven as provided in section 1 of
this act, and delivered to the clerk of the proper court to be recorded,
shall take effect and be valid and effectual as a deed of conveyance of
said property, and the record thereof shall have the same force and
effect as the record of deeds, and other conveyances to land, from the
time when such instrument was delivered to such clerk to be recorded,
and from that time only.
Id. at 878. However, that statute was one of many analyzed in order to determine
the root issue in Slaton: whether an innocent buyer could be charged with notice of
a will that had been probated in Tennessee, but not in Texas. Id. at 878–79.
Ultimately, the Slaton court held that:
Inasmuch as the foreign probate of a will gives no validity to such will
until certified to and registered in some county within the state, we may
conclude that such foreign probate proceedings are not chargeable as
notice upon the purchaser of lands affected thereby, within the state,
until after such registration.
Id. at 878 (emphasis added). Therefore, Slaton did not hold that a foreign will vests
title in a testator’s devisees at the time the will is probated in Texas. Rather, the
Slaton court held that a bona fide purchaser could not be charged with notice of a
foreign will that had not been probated in Texas.
Patch additionally asserts that it has superior title to the disputed portion of
the Ash Interest because Viola was presumed to have died intestate at the time Patch
purchased its interests. Patch cites Section 71.003 of the Texas Property Code in
support of its contention, which states: “An individual is presumed to have died
intestate if, on or before the seventh anniversary of the date of the individual’s death,
the individual’s will has not been recorded or probated in the county where the
individual’s property is located.” See TEX. PROP. CODE ANN. § 71.003 (West 2023).
However, Chapter 71 of the Property Code is titled “Escheat of Property,” and
discusses when the State may initiate escheatment proceedings. See generally,
PROP. Ch. 71.
10
Patch is correct in noting that the San Antonio Court of Appeals cited
Section 71.003 in holding that a decedent with a purported will was presumed to
have died intestate after seven years. See Radcliffe v. Tidal Petroleum, Inc., 521
S.W.3d 375, 379–81 (Tex. App.—San Antonio 2017, pet. denied). In Radcliffe, the
court cited the escheat statute’s presumption of intestacy in a case where the
decedent’s will was not timely offered as summary judgment evidence. Thus,
Radcliffe is distinguishable because the court had no evidence of a will to consider.
See id. Unlike the situation in Radcliffe, Viola’s will was a part of the summary
judgment evidence in this case. We conclude that Section 71.003’s presumption of
intestacy is inapplicable to the case before us because this is not an escheat
proceeding, and we have evidence of Viola’s will.
Indio asserts that a foreign will that has been probated in Texas has the same
effect as a domestic will and transfers title to real property to the testator’s devisees
on the date of the testator’s death. Indio cites two cases in support of its proposition:
Bruni v. Vidaurri and Long v. Shelton. See Bruni v. Vidaurri, 166 S.W.2d 81, 93
(Tex. 1942); Long v. Shelton, 155 S.W. 945, 948 (Tex. App.—Texarkana 1913, writ
ref’d).
In Bruni, the supreme court rejected the argument that title under a foreign
will does not vest in a testator’s devisee until the will has been admitted to probate
in Texas and held that:
[T]he title of a devisee under a foreign will duly probated, like that
under a domestic will, becomes effective, or vests, as of the date of the
testator’s death, the probate in the foreign state and the record in Texas
being ‘legal formalities required to evidence and give full effect to that
right.’
Bruni, 166 S.W.2d at 93 (quoting Haney v. Gartin, 113 S.W. 166, 168 (Tex. Civ.
App. 1908, writ ref’d) (holding that a will is not “subject to the objection that it
conferred an after-acquired title because recorded in Texas after the institution of the

11
suit” and that “[t]he will conferred the right upon [a devisee] upon the death of the
testator.”))
In Long, the Texarkana Court of Appeals discussed a prior version of
Section 503.051 and held that:
The language used [in the statute] was not intended to fix the event or
the time when the title to the property devised should vest in the
devisee, but to prescribe certain requirements as conditions precedent
to the use of the foreign will as evidence of title and notice of its
existence . . . when [a foreign will] has been probated, the title of the
devisee relates back to the death of the testator, and becomes effective
from that date. March v. Huyter, 50 Tex. 243; Ryan v. Railway Co., 64
Tex. 239. The same legal effect should be given a foreign will, subject,
however, to the rights of supervening purchasers without notice.
Long, 155 S.W. at 948 (emphasis added) (internal citations omitted).
In its reply brief, Patch asserts that Bruni and Long are distinguishable from
the case before us. Patch contends that the courts in Bruni and Long held that title
vested in the devisees at the time of the testator’s death because the foreign wills in
those cases were probated outside of Texas “well prior” to the time the title disputes
arose. Thus, Patch asserts, Bruni and Long support Patch’s contention that probating
Viola’s will “gave effect to the terms of the Will only after the date it was probated
and recorded in Midland.” But, as stated in Bruni, the foreign probate and the
recording of the will in Texas were “legal formalities required to evidence and give
full effect” to a devisee’s title. 166 S.W.2d at 93 (internal quotations and citations
omitted). Similarly, Long explains that:
An estate by devise takes effect immediately upon the death of the
testator unless otherwise directed, and the property then passes to the
devisee. The different legal requirements as to probating and recording
wills are merely designed as means to substantiate, preserve, and give
notice of such instruments as evidences of title.

12
Long, 155 S.W. at 948. Therefore, both Bruni and Long held that the probate of a
foreign will in Texas vests title in a testator’s devisees, effective as of the date of the
testator’s death. See Bruni, 166 S.W.2d at 93; Long, 155 S.W. at 948.
The San Antonio Court of Appeals subsequently addressed Bruni and Long in
Sun Operating Ltd. Partnership v. Oatman, 911 S.W.2d 749, 754–55 (Tex. App.—
San Antonio 1995, writ denied). The court described the holding in Bruni as follows:
In Bruni the court ruled that a deed for land in Zapata County executed
by the devisee in 1928 was valid, because title had vested in the devisee
upon the owner’s death in 1889 and the will had been duly probated in
Mexico, even though the will was not placed in the records of Zapata
County until 1930.
Id. (citing Bruni, 166 S.W.2d at 92–93). The court in Oatman cited Long for the
proposition that:
[U]nder the general rule, when a will has been probated, the title of the
devisee relates back to the death of the testator and becomes effective
from that date. The same legal effect should be given a foreign will,
subject, however, to the rights of supervening purchasers without notice
following reasonable inquiry.
Id. at 755 (citing Long, 155 S.W. at 948). Thus, under Bruni and Long, the death of
the testator is the event that vests title in the devisee of a foreign will, rather than the
ancillary probate of the will in Texas. See id.
Because neither the Estates Code nor established case law support Patch’s
assertion that a devisee’s interest under a foreign will does not vest until the foreign
will has been admitted to ancillary probate in Texas, the trial court did not err by
denying Patch’s motion for summary judgment simply because Patch purchased its
interest before Viola’s will was admitted to ancillary probate in Midland County.
However, the question of whether the trial court erred in granting Indio’s motion for
summary judgment based on its contention that Patch was not a bona fide purchaser
of its interest remains. See id.

13
Patch’s Status as a Bona Fide Purchaser
We must initially address Indio’s claim of briefing waiver by Patch. Indio
asserts that we must affirm the trial court’s judgment because Patch did not address
on appeal the possibility that the trial court could have ruled in favor of Indio based
on Indio’s assertion that Patch was not a bona fide purchaser since it took via
quitclaim deed. Indio cites McCoy v. Rogers in support of its proposition. See 240
S.W.3d 267, 272 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (holding that a
court of appeals “must affirm when a judgment may have been rendered, whether
properly or improperly, on a ground not challenged on appeal.”). However, we
construe briefs liberally, so as to avoid waiver. See Lion Copolymer Holdings,
LLC v. Lion Polymers, LLC, 614 S.W.3d 729, 732 (Tex. 2020) (citing Horton v.
Stovall, 591 S.W.3d 567, 569 (Tex. 2019) (per curiam)). “While it is preferred that
parties independently brief distinct legal theories, certain claims and theories can be
‘inextricably entwined,’ or the evidence and nature of claims may contain
overlapping legal theories.” See id. at 732–33 (internal citations omitted).
Patch’s primary theory is that its status as a bona fide purchaser is irrelevant
under its interpretation of the law, and that the correct inquiry is whether Patch had
statutory notice of Viola’s will when purchasing its interest. Accordingly, Patch has
addressed the possibility that the trial court could have ruled in Indio’s favor under
its quitclaim theory by asserting that Patch’s status as a bona fide purchaser is
irrelevant and would thus be incorrect to rely upon.
The proper questions before us are (1) whether Patch’s status as a bona fide
purchaser is relevant; and (2) if so, whether the trial court could have properly
granted Indio’s motion for summary judgment based on its contention that Patch was
not a bona fide purchaser of its interest because it took via quitclaim deed.
Patch cites two sections of the Estates Code in support of its proposition that
its status as a bona fide purchaser is irrelevant: (1) Section 252.151, which states that
14
depositing a will is for purposes of safekeeping and that, “[f]or purposes of probate,
a will deposited . . . may not be treated differently than a will that has not been
deposited”; and (2) Section 252.153, which states that the deposit of a will “does not
constitute notice, constructive or otherwise, to any person as to the existence or the
contents of the will.” Patch contends that, regardless of its bona fide purchaser
status, it did not have statutory notice of Viola’s will when it acquired its portion of
the Ash Interest because Viola’s will was only on deposit in Illinois at the time.
There is a flaw in Patch’s argument—Viola’s will was on deposit in Illinois,
not Texas. While Patch is generally correct in its assertion that Texas law controls
the disposition of Texas lands, it is clear that the Texas Estates Code’s provisions
regarding the deposit of a will only pertain to the deposit of a will in Texas. As we
have already explained, the proper portion of the Texas Estates Code to follow is
that regarding foreign wills; and, as Section 501.001 states,
The written will of a testator who was not domiciled in this state at the
time of the testator’s death may be admitted to probate at any time in
this state if: (1) the will would affect any property in this state; and
(2) proof is presented that the will stands probated or otherwise
established in any state of the United States[.]
See EST. § 501.001. Thus, the ancillary probate of a foreign will in Texas necessarily
depends upon whether the will was properly probated in the foreign state, meaning
the foreign state’s probate laws are relevant.
Texas imposes time limits upon when a Texas will may be admitted to
probate. EST. §256.003. But no such time limit exists in Illinois:
Some states have a statute which limits the period following a testator’s
death in which a will may be admitted to probate. There is no such
statute in Illinois. Accordingly, any otherwise valid will may be filed
and admitted to probate, regardless how long the period that has
elapsed.
Robert S. Hunter, Time Limit for Filing the Will, 18 Ill. Prac., Estate Planning &
Admin. § 104:8 (4th ed.). Illinois treats the deposit of a will as the first step in the
15
probate process. See id. (Illinois law requires that an Illinois will must be “filed
promptly if it is found.”); see also 755 ILCS 5/6-1, 6-2. Thus, Patch’s argument that
Viola’s will being on deposit in Illinois could not provide Patch with notice of the
will under Sections 252.151 and 252.153 is incongruent with Section 501.001, which
allows foreign wills that have been properly probated outside Texas to be probated
in Texas at any time if the will had been validly probated elsewhere.
Moreover, Patch’s assertion that its status as a bona fide purchaser is irrelevant
is misplaced under both case law and Section 256.003(c) of the Estates Code. The
court in Long held that for foreign wills, “the title of the devisee relates back to the
death of the testator, and becomes effective from that date.” 155 S.W. at 948.
However, “supervening purchasers” are protected if they purchased their interest
without notice. Id.; see Oatman, 911 S.W.2d at 755. Thus, the question of whether
Patch is a bona fide purchaser is relevant. See Oatman, 911 S.W.2d at 755; Long,
155 S.W. at 948.
Additionally, Section 256.003(c) suggests6 that Patch’s status as a bona fide
purchaser is relevant to our inquiry. The statute provides that:
A person who for value, in good faith, and without knowledge of the
existence of a will purchases property from a decedent’s heirs after the
fourth anniversary of the decedent’s death shall be held to have good
title to the interest that the heir or heirs would have had in the absence
of a will, as against the claim of any devisee under any will that is
subsequently offered for probate.
See EST. § 256.003(c) (emphasis added). While the statute references a four-year
limit after the death of the testator for the probate of a will, it also contains an
exception for foreign wills. Id. at § 256.003(a). Thus, it appears that the four-year

6
For reasons that are not expressed, the court in Oatman did not reference Section 256.003 in its
analysis. Oatman, 911 S.W.2d at 755. Instead, the court cited case law for the proposition that “[a] bona
fide purchaser is one who buys property in good faith for valuable consideration and without actual or
constructive notice of outstanding claims.” Id. (citing Equitable Tr. Co. v. Roland, 721 S.W.2d 530, 534
(Tex. App.—Corpus Christi–Edinburg 1986, writ ref’d n.r.e.).
16
limit is inapplicable to a foreign will that is properly admitted to probate in another
state or foreign nation. Id.; see EST. § 501.001; 74 TEX. JUR. 3d Wills § 362 Time to
Commence Probate, Generally; Four-Year Limit to Probate Will (2024) (“With the
exception of foreign wills, a will may not be admitted to probate after the fourth
anniversary of the testator’s death.”).
Indio presents two different assertions that Patch had knowledge of the
existence of Viola’s will. The first is that Patch judicially admitted that it had
knowledge of Viola’s will in its motion for summary judgment. Patch’s motion for
summary judgment, referring to the three Appellant entities as the collective
“Patch,” states the following two facts:
4. In the course of its research, Patch learned a Last Will and Testament
for Ash was deposited with the Macon County, Illinois clerk for safe
keeping but that it had never been probated. Exhibit F at 90:10-92:24
(including Deposition Exhibit P2), 113:1-19.
5. Based on years of experience as registered landmen, and having
located no probated will for Ash in any state, Patch continued pursuing
purchases of the Ash Interest from Ash’s heirs at law.
Indio contends that these facts are a judicial admission that Patch had knowledge of
Viola’s will before purchasing its interest.
A judicial admission must be a clear, deliberate, and unequivocal statement.
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000); House of
Yahweh v. Johnson, 289 S.W.3d 345, 352 (Tex. App.—Eastland 2009, no pet.); see
also Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001).
Because the motion for summary judgment continuously refers to all three Appellant
entities as “Patch” throughout its statement of facts, it is clear that the motion was
referring to all three Appellant entities as the collective “Patch” in Paragraphs 4 and
5, especially considering the Patch group also referred to themselves as “experienced
landmen” in Paragraph 5. (Emphasis added).

17
Further, in Paragraph 4, Patch cited to the portion of Preston’s deposition
where he confirms that the Macon County clerk informed him on February 26, 2020
that Viola had a will on file. Patch attached the portion of Preston’s deposition as
an exhibit to its motion for summary judgment. One would assume that Patch would
have clarified that it was referring only to Preston admitting that he had knowledge
of Viola’s will if it had intended to do so, or that it would not have cited to the portion
of Preston’s deposition confirming that the Macon County clerk e-mailed him on
February 26, 2020 advising him of the existence of Viola’s will, if Patch had wanted
to assert that all three Appellant entities became aware of the will at a later date.
Therefore, we conclude that Patch clearly, deliberately, and unequivocally judicially
admitted to its knowledge of Viola’s will in its motion for summary judgment. See
Holy Cross Church of God in Christ, 44 S.W.3d at 568.
A Party that Takes an Interest by a Quitclaim Deed Cannot be a Bona Fide
Purchaser
Indio correctly asserts that a party cannot be a bona fide purchaser of an
interest if it took via quitclaim deed. As the Amarillo Court of Appeals stated in
Jackson v. Wildflower Production Company,
Since 1871, courts of this State have considered it “settled law” that a
party receiving a quitclaim deed to land cannot avail himself of the
defense of an innocent purchaser for value without notice. Because the
grantee in a quitclaim deed receives only whatever right, title, interest,
or claim the grantor had, “[a] quitclaim deed conveys upon its face
doubts about a grantor’s interest and a buyer is necessarily put on notice
as to those doubts.” As such, the grantee under a quitclaim deed is
deemed to be on notice of all legal or equitable claims, recorded or
unrecorded, existing in favor of a third-party at the time the quitclaim
deed was delivered. The question is not one of being merely put on
inquiry; the notice is absolute and conclusive as to all claims. Simply
stated, as a matter of law, the grantee under a quitclaim deed takes the
property subject to all adverse legal and equitable claims affecting title
to the property and cannot be an innocent purchaser because the deed

18
itself places the grantee on notice that there may be superior claims to
title.

505 S.W.3d 80, 91 (Tex. App.—Amarillo 2016, pet. denied) (internal citations
omitted).
What typically distinguishes a deed from a quitclaim deed is that “the granting
clause in a deed purports to grant and convey the described property, whereas the
granting clause in a quitclaim deed only purports to grant and convey whatever
‘right, title, and interest’ the grantor has in that property at the time the instrument is
executed and delivered.” Id. at 88–89 (quoting Cook v. Smith, 174 S.W. 1094, 1095
(Tex. 1915); Chicago Title Ins. Co. v. Cochran Investments, Inc., 602 S.W.3d 895,
901 (Tex. 2020); Geodyne Energy Income Prod. P’ship I-E v. Newton Corp., 161
S.W.3d 482, 486–87 (Tex. 2005); Enerlex, Inc. v. Amerada Hess, Inc., 302 S.W.3d
351, 354 (Tex. App.—Eastland 2009, no pet.). A quitclaim deed, on its own, does
not establish any title in the grantee; it merely conveys any interest the grantor may
have. Jackson, 505 S.W.3d at 89 (citing Rogers v. Ricane Enters., 884 S.W.2d 763,
769 (Tex. 1994)). “Quitclaim deeds are commonly used to convey ‘interests of an
unknown extent or claims having a dubious basis.’” Geodyne, 161 S.W.3d at 487
(quoting Porter v. Wilson, 389 S.W.2d 650, 654–55 (Tex. 1965)).
Patch used two different deed forms when making its purchases—one titled
“Quit Claim Deed” and one titled “Mineral and Royalty Deed.” In its motion for
summary judgment, Indio asserted that both forms only convey the grantor’s rights
and not the property itself.
In the deeds titled “Quit Claim Deed,” Indio points to the language that the
grantor conveys “all right, title, and interest to all of the surface and oil, gas and
other minerals . . . that Grantor may own,” and that the grantor “grants, sells and quit
claims to Grantee . . . without express or implied warranty.” The “Quit Claim Deed”
forms contain the key language of a quitclaim deed and only purports to convey
19
whatever title the grantor may own. See Jackson, 505 S.W.3d at 88–89. And
notably, the deeds themselves are titled “Quit Claim Deed.”
In the deeds titled “Mineral and Royalty Deed,” Indio points to the language
that the grantor grants “all right, title, and interest to all of the oil, gas and other
minerals . . . that Grantor may own” and the portion that provides that, “It being the
intent of this Mineral Deed to convey all interest in and to all of the oil, gas and other
minerals owned by the Grantor.” Indio asserts that conveying only the right, title,
and interest that the Grantor may own and the intent of the Grantor being to convey
his or her interest in the property, rather than title, makes the Mineral and Royalty
deeds quitclaim deeds, as well. Again, these forms only intend to convey the
Grantor’s interest, whatever that may be, to Patch. The qualifier of “may own” is
particularly indicative of a quitclaim deed. See Jackson, 505 S.W.3d at 89; Geodyne,
161 S.W.3d at 487 (citing Porter, 389 S.W.2d at 654–55). Accordingly, Indio
correctly asserts that Patch is not a bona fide purchaser of its interest because it took
via quitclaim deeds.
The trial court did not err in granting Indio’s motion for summary judgment
and declaring Indio as the party with superior title because (1) Indio acquired its
interest from Viola’s devisees under her duly probated will and (2) Patch was not a
bona fide purchaser of its interest. We overrule Patch’s first issue.
Collective Status of Appellants as Bona Fide Purchasers
In its second issue, Patch asserts that, in the “unlikely event” we find that
Preston had statutory notice under Section 503.001 of the Estates Code, the trial
court still erred in granting Indio’s motion for summary judgment because Indio did
not present evidence to support a finding that Patch Energy or Candlewood
Resources were not bona fide purchasers of their interest. Specifically, Patch asserts
that Preston was the only person in the e-mail conversation with the Macon County
clerk regarding Viola’s will and that Indio presented no evidence demonstrating that
20
Preston’s knowledge could be imputed to Christian Patry or Candlewood prior to
Patch’s purchase of their portion of the Ash Interest.
We have already determined that statutory notice under Section 503.001 is
the incorrect inquiry to determine whether Appellants were bona fide purchasers of
their interest. Further, we have already determined that Appellants were not bona
fide purchasers of their interest because they all judicially admitted that they had
knowledge of Viola’s will in their motion for summary judgment and because they
took via quitclaim deeds.
Because we have already determined that Patch was not a bona fide purchaser
of its interest, we need not determine whether the evidence Indio provided in its
motion for summary judgment proved as a matter of law that Preston’s knowledge
of Viola’s will could be imputed to Christian Patry and Candlewood. We overrule
Patch’s second issue.
Motion for New Trial
In its third issue, Patch asserts that the trial court erred in denying its motion
for new trial because Patch invoked the doctrine of judicial estoppel and presented
newly discovered evidence of Indio making “wholly inconsistent arguments” in a
separate Reeves County suit to terminate a receivership. Patch asserts that Indio’s
inconsistent positions have “run afoul of the legal and equitable tenets on which our
system is based,” citing Davis v. Wakelee, 156 U.S. 680, 689 (1895) in support of
its proposition. Indio asserts that Patch’s judicial-estoppel argument is not preserved
because it was not a ground in Patch’s motion for summary judgment and that, even
if the point of error was preserved, Indio has not made any inconsistent arguments
between the two lawsuits.
“Judicial estoppel is a common law doctrine that prevents a party from
assuming inconsistent positions in litigation.” Perryman v. Spartan Tex. Six Cap.
Partners, Ltd., 546 S.W.3d 110, 117 (Tex. 2018) (quoting Kane v. Nat’l Union Fire
21
Ins., 535 F.3d 380, 385 (5th Cir. 2008)). Assuming without deciding that Patch has
a properly preserved claim of judicial estoppel, there is no inconsistent argument
between the case before us and the Reeves County receivership termination.
In its motion for new trial, Patch described Indio’s “inconsistent position” as
follows:
In the Reeves County case, Indio claims it rightfully acquired mineral
interests from L.E. Wilson’s intestate heirs despite having knowledge
of the existence of his unprobated will on file in Cook County, Illinois
. . . yet it represented to the Reeves County court that its purchase from
intestate heirs entitled it to funds in the court registry. Indio’s position
in Reeves County that the probate of a will is the operative fact and/or
that it is a bona fide purchaser is wholly inconsistent with its position
in this case.
On appeal, Indio’s response to Patch’s arguments is that different facts lead
to different conclusions. As stated in Indio’s brief: “The law is the same in each
lawsuit—a probated will in Texas can change who is in the chain of title. It is just
that, in one, there is a probated will while in the other, there is not.” Indio’s
distinction tracks our earlier holding that a foreign will that has been probated in
Texas vests title in the testator’s devisees as of the testator’s time of death—not as
of the time of probate in Texas—subject to the claims of bona fide purchasers who
purchased their interests in the interim period of the testator’s death and the probate
of the testator’s will in Texas. See Long, 155 S.W. at 948 (holding that, once a
foreign will has been probated, “the title of the devisee relates back to the death of
the testator, and becomes effective from that date”); see also Bruni, 166 S.W.2d at
93; Oatman, 911 S.W.2d at 755.
Therefore, Indio is correct in its assertion that the two lawsuits apply the same
law in different contexts and that Indio has not taken inconsistent legal positions

22
between the two matters.7 Accordingly, the trial court did not err in denying Patch’s
motion for new trial based upon Patch’s judicial-estoppel claim. We overrule
Patch’s third issue.
This Court’s Ruling
We affirm the judgment of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

November 21, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

We also note that, had the Reeves County decedent’s will been probated, Indio could claim that it
7

was a bona fide purchaser of the intestate heirs’ interests.
23