in Re Estate of J.B. Wells Jr. ( 2019 )

NUMBER 13-18-00161-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI–EDINBURG
IN RE ESTATE OF J.B. WELLS JR., DECEASED
On appeal from the County Court
of Gonzales County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Perkes
This is an accelerated appeal concerning whether the trial court had jurisdiction
over appellee Austin Presbyterian Theological Seminary’s (Seminary) claims against
appellants, the City of Gonzalez (the City), its mayor Connie L. Kacir, and city council
member Gary Schroeder. Seminary filed suit seeking to enforce its reversionary interest
in property that was conditionally deeded to the City for use as a public park. Seminary
alleged causes of action for inverse condemnation, trespass-to-try-title as to the individual
appellants only, and declaratory relief. The City, Kacir, and Schroeder filed a plea to the
jurisdiction, which the trial court denied.
By four issues, which we construe as three, appellants argue the trial court erred
in denying their plea to the jurisdiction because: (1) the inverse condemnation claim
against the City is not viable because no constitutional taking occurred; (2) the trespass-
to-try-title claim against the city council members is barred by the City’s governmental
immunity because the officials were sued in their official capacity; and (3) Seminary’s
request for declaratory relief is also barred by the City’s governmental immunity. We
affirm.
I. BACKGROUND
In 1961, J.B. Wells Jr. conditionally bequeathed 123 acres of land “for public park
purposes” to the City in his will and trust, as follows:
(2) I direct my trustees to grant and convey the 123 acre tract of land
known as the Santa Anna tract located around my Santa Anna Mound Deer
Park and bounded by Highway 183 and the right of way of the former State
Highway No. 29 with the exception of a twenty-three acre triangular shaped
parcel of land cut off by a partition fence in the corner of said tract nearest
the Guadalupe River Bridge, the remainder of that portion of said 311 acre
Santa Anna Mound tract of land on the same side of the relocated Highway
No. 183, as the Santa Anna Mound and Deer Park and containing 123 acres
of land, more or less, to the City of Gonzales, Texas, for public park
purposes, subject to the conditions herein set out.
....
(a) Said land shall forever be used for the purpose of establishing,
operating and maintaining a public park therein, and for such purpose only
and shall never be sold.
(b) Said land and grounds shall always be known as “Wells Park” it being
my wish to establish the park as a permanent memorial to my father, Jim
Bailey Wells, and my mother, Josephine Henry Wells, both pioneer citizens
of Gonzales County, Texas.
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(c) Such grant and conveyance shall reserve to my ancestors the right
to create and maintain on said land, at the expense of my estate, a suitable
monument or monuments to the memory of my father and mother. . . .
(d) My camp lodge and its fenced grounds shall be maintained in good
condition, and the beautiful live oak tree on the grounds and the shrubbery
and trees shall be well cared for. The building shall be maintained in good
repair and shall be used as a museum for my various collections of guns,
revolvers, pistols, fishing reels, fishing rods, hunting knives, etc., and many
other items of like nature and shall be used for this purpose only. These
collections and items shall be kept on display there.
(e) My Santa Anna Mound Deer Park shall be maintained in its natural
condition of natural woodland and shall never be cleared of trees and
shrubs. It shall be kept clean of dead timber and necessary replacements
shall be trees and shrubs native to this section of Texas. It shall be kept
as a game sanctuary for native Texas white tail deer, of which a few shall
be kept in the park.
This land shall be deeded or transferred to the City of Gonzales under the
provision that it may not be sold or transferred under any condition
whatsoever.
....
If the City of Gonzales . . . should sell all or any part of the real estate
hereinabove devised to them in the final settlement of my estate, then the
purchase money shall immediately revert to and become the property of the
Austin Presbyterian Theological Seminary or its successor. In the event
that the City of Gonzales . . . should use income bequeathed to [it] in the
final settlement of my estate for purposes other than those designated in
my will, then, and in such event, such income shall immediately revert to
and become the property of the Austin Presbyterian Theological Seminary
or its successor until such practice is corrected.
Wells’s will and trust was admitted into probate on November 25, 1963. Subject to
certain life estates, the property at issue was not conveyed to the City until August 27,
1999, when Wells’s trustees executed the deed. The deed makes continuous reference
to Wells’s will, adding:
It is recognized, however, that grantee, until funds are available and
improvements are made the above described property cannot be used for
a public park and that this will take time; and grantors herein, while
expecting due diligence in converting the property hereby conveyed into a
public park, will consider that there is no lack thereof if by January 1, 2002,
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detailed plans and specifications have been drafted and approved by the
City of Gonzales for conversion to park use of the property hereby
conveyed, construction has been initiated and substantial progress made
and the funds by grant and match are then fully available to complete the
work.
The most stringent condition under which the conveyance is made is that
grantee shall use the property hereby conveyed as . . . “a public park
thereon, and for such purpose only and shall never be sold.”
....
[S]hould grantee fail to establish a park on said land within the time specified
herein, or should such park be established as required by the terms of the
trust and thereafter cease to be operated or maintained by grantee as such,
then grantee shall be obligated, in either such event, to promptly sell all or
that portion not converted to or abandoned as a park for its fair market value
and pay the purchase money to Austin Presbyterian Theological Seminary.
In 2001, the Texas Parks & Wildlife Department approved the City’s request for a
$500,000 grant, with monies earmarked for a rodeo arena, playground, sand and
volleyball courts, picnic tables, R.V. campsites, and additional amenities at the subject
property. To date, there is neither a playground nor sand and volleyball courts; however,
the City has built a 25,000-square-foot exposition center, 90,000-square-foot sports
arena, and R.V. campground with 442 spaces on the property. The City charges the
public for use of said park attractions. Seventeen acres of the 123 acres remain as an
“undeveloped deer preserve.” The City built a monument to Wells’s parents, per Wells’s
request, but there is a fact question regarding whether the City maintained Wells’s camp
lodge as a museum or kept it “in good repair.”1
1 Wells’s will further provided that in the event that the camp lodge was “destroyed by fire or
otherwise,” the camp lodge “shall be rebuilt from insurance on the buildings or from funds of the estate.”
An article from the town newspaper Gonzales Inquirer, dated February 22, 2018, was attached as an exhibit
in the record and described Wells’s lodge:
Very little of the roof remains, the walls are leaning, windows are missing, screens are torn,
doors are either gone or dangling by a lone hinge, the floor is overgrown with vegetation
and caked in mud and leaves, scrap lumber litters the premises, rooms are unrecognizable-
save an abandoned toilet in what must have been the bathroom and a rusting stove and
overturned refrigerator in what was probably the kitchen. . . . The grounds of the camp
lodge . . . are choked with 8-to 10-foot-tall weeds. . . . Collecting near the camp lodge are
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Following the deed in 1999, Wells’s trustees also “granted, sold and quitclaimed
all of the minerals, and royalties, so reserved therefrom and any and all other property
and interests in property . . . claimed by the [trust] lying and being situated west of U.S.
Highway No. 183 in Gonzales County, Texas” to the City. The interest conveyance
included the subject property, and the City thereafter entered into an oil and gas lease.
However, according to the City, there has been no exploration, development, or
production of oil, gas, or minerals on the subject property.
Seminary filed suit, arguing that the City, Kacir, and Schroeder failed to observe
the limited use of the property for “preservation and nature-oriented activity,” using the
property instead for “rodeo competitions, trade shows, fundraisers, concerts, casino
nights, gala dinners, and private events.” Seminary claims multiple causes of action,
including inverse condemnation, trespass-to-try-title of surface and minerals, and will
construction declaratory relief.
Appellants filed a plea to the jurisdiction, denying that the City breached the terms
of the deed. The City first refuted Seminary’s inverse condemnation and constitutional
taking claims, interpreting the relevant deed language and restrictions to allow for the
subject property to be used for “general park and recreation purposes”—as the City
alleges it has done. The City distinguishes the deed’s requirements for the “Santa Anna
Mound Tract” and the requirements for the “Santa Anna Mound Deer Park,” with only the
latter imposing a restriction for use as a natural habitat and wildlife preserve. With
respect to Seminary’s trespass-to-try-title claim, the individual appellants argue that they
do not retain or exercise an ownership interest or occupy the property, therefore there
several pieces of rusting street maintenance equipment (some bearing City of Gonzales
logos).
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can be no basis for a trespass-to-try-title claim.2 Finally, the City argues its immunity
insulates it from declaratory judgment relief. The trial court denied appellants’ plea to
the jurisdiction, and appellants appealed. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(a)(8) (permitting immediate appeal of interlocutory order denying a plea to the
jurisdiction by a governmental unit); Nueces County. v. Ferguson, 97 S.W.3d 205, 214
(Tex. App.—Corpus Christi–Edinburg 2002, no pet.) (noting that a suit against a
government official in his or her official capacity is, in actuality, a suit against the
government unit).
II. APPLICABLE LAW AND ANALYSIS
A plea to the jurisdiction to assert governmental immunity “implicates courts’
subject-matter jurisdiction.” Harris County v. Annab, 547 S.W.3d 609, 612 (Tex. 2018)
(citing Rusk State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex. 2012)). Whether a court has
subject matter jurisdiction, and whether a pleader has alleged facts that affirmatively
demonstrate a trial court’s subject matter jurisdiction, are questions of law reviewed de
novo. Id. at 612 (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004)).
When a plea to the jurisdiction challenges the pleadings, “we construe the
pleadings liberally in favor of the plaintiffs.” Miranda, 133 S.W.3d at 226–27. The
plaintiff bears the burden to allege facts that affirmatively demonstrate the trial court’s
jurisdiction to hear a case. Id. at 228. A challenge to jurisdictional facts permits the
reviewing court to consider relevant evidence submitted by the parties. Id. at 227. “If
the evidence creates a fact question regarding the jurisdictional issue, then the trial court
2 Although appellants’ brief includes an argument disputing the viability of a claim of trespass-to-
try-title against the City, that claim was not pled by the plaintiffs against the City. It is therefore, not at issue
on appeal.
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cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact
finder.” Chambers-Liberty Ctys. Navigation Dist. v. State, No. 17-0365, __ S.W.3d __,
__ 2019 WL 2063575, at *4 (Tex. May 10, 2019) (citing Miranda, 133 S.W.3d at 227).
The Texas Supreme Court has long recognized that the “jurisdictional inquiry may
unavoidably implicate the underlying substantive merits of the case.” Id.
A. Inverse Condemnation Claim Against the City
In their first issue, appellants argue that the trial court erred in dismissing their plea
to the jurisdiction regarding Seminary’s inverse condemnation claim against the City.
They contend that no constitutional taking of Seminary’s property rights occurred because
the property has been used as a public park.
The Texas Constitution provides that “[n]o person’s property shall be taken,
damaged, or destroyed for or applied to public use without adequate compensation being
made, unless by the consent of such person.” TEX. CONST. art. I, § 17; Tex. Parks &
Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 390 (Tex. 2011). Similarly, the United
States Constitution provides that private property shall not “be taken for public use,
without just compensation.” U.S. CONST. amend. V. A reversionary interest is a future
interest in property which is compensable under the Fifth Amendment Takings Clause.
El Dorado Land Co., L.P. v. City of McKinney, 395 S.W.3d 798, 803 (Tex. 2013).
Although a municipal government largely enjoys immunity from suit, a claim
predicated upon a viable allegation of inverse condemnation, or constitutional taking,
waives that immunity. City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014).
To plead inverse condemnation, a plaintiff must allege an intentional government act that
resulted in the uncompensated taking of private property. Id.; see also McKinney, 395
S.W.3d at 801 (“[T]he Texas Constitution waives governmental immunity for the taking,
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damaging or destruction of property for public use.”) (internal citations omitted). The
alleged “taking” can be in the form of “acquisition, damage, or destruction of property via
physical or regulatory means.” Carlson, 451 S.W.3d at 830.
Seminary alleges that the City failed to maintain Wells’s camp lodge and grounds
per the trust and deed requirements. Seminary also alleges the City inappropriately
used the subject property for “rodeo competitions, trade shows, fundraisers, concerts,
casino nights, gala dinners, and private events.” The City does not dispute this use of
the property, reasoning that their uses are sanctioned by the will and deed, and it asks
us to review section (2)(e) of the will independently from section (2)(a).3
We decline to engage in a will construction analysis, or to provide an opinion on
the viability of Seminary’s claim on these particular facts, because Seminary alternatively
pled facts on its inverse condemnation claim that went unanswered by the City. See
Carlson, 451 S.W.3d at 830; Sawyer Tr., 395 S.W.3d at 803; see also Cameron County
v. Tompkins, 422 S.W.3d 789, 798 (Tex. App.—Corpus Christi–Edinburg 2013, pet.
denied). In particular, Seminary pled facts indicating: (1) the City failed to comply with
section (2)(d), requiring the maintenance of Wells’s camp lodge and fenced grounds; and
(2) this failure triggered the reversion clause in the will and deed, resulting in a taking of
Seminary’s reversionary interest in the property. See Carlson, 451 S.W.3d at 830. In
pleading the facts required to establish an inverse condemnation claim, Seminary has
effectually pled facts to waive the City’s immunity. See id.
3 Section (2)(e) requires the City to keep the “Santa Anna Mound Deer Park” property “maintained
in its natural condition of natural woodland and shall never be cleared of trees.” To this point, the City
argues the “Santa Anna Mound Deer Park” is separate from the “Santa Anna Mound.” Although the City
is responsible for both, the City argues the will only prescribes “natural condition” maintenance for the
former.
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Construing the pleadings liberally in Seminary’s favor and looking toward the
intent, we hold that Seminary has alleged sufficient facts to affirmatively demonstrate the
district court’s jurisdiction. See id.; see also Tex. Ass’n of Bus. v. City of Austin, 565
S.W.3d 425, 435–36 (Tex. App.—Austin 2018, pet. filed). We overrule appellants’ first
issue.
B. Trespass-to-Try-Title Claim Against Individual Appellants
By their second issue, appellants contend that Kacier and Schroder are entitled to
derivative governmental immunity from Seminary’s trespass-to-try-title claim because
Seminary sued Kacier and Schroder “in their official capacities only.”
With one exception,4 “a suit against a government employee in his official capacity
is a suit against his government employer.” See Franka v. Velasquez, 332 S.W.3d 367,
382–83 (Tex. 2011). Appellants do not acknowledge, however, that Seminary amended
its pleading to make clear that it named Kacier and Schroder in their individual capacity—
not official capacity. See id. at 383 (“[A] suit may be brought against a government
employee in his individual capacity.”) (footnotes omitted); see also Nueces County v.
Ferguson, 97 S.W.3d 205, 213–14 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.)
(“[C]laims against governmental employees or officials in their official capacities are
separate and distinct from claims against them in their individual capacities.”).
Because Kacier and Schroder have been sued in their individual capacities only,
they may not assert governmental immunity. See Ferguson, 97 S.W.3d at 215 (“Persons
sued in their individual capacities, on the other hand, may not rely on sovereign immunity
4 “‘To fall within this ultra vires exception,’ however, ‘a suit must not complain of a government
officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without
legal authority or failed to perform a purely ministerial act.’” Hous. Belt & Terminal Ry. Co. v. City of
Houston, 487 S.W.3d 154, 161 (Tex. 2016) (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 371 (Tex.
2009)).
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protections for claims against them in that capacity, although they may assert the defense
of official immunity.”) (citing Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex. App.—El
Paso 1993), writ dism’d w.o.j., 907 S.W.2d 443 (Tex.1995) (per curiam)). The trial court
therefore did not err in its denial of appellants’ plea to the jurisdiction. Appellants’ second
issue is overruled.
C. The City’s Immunity from Declaratory Judgment
In its last issue on appeal, appellants argue that the City retains immunity against
Seminary’s Uniform Declaratory Judgments Act (the UDJA) claim.
The UDJA generally permits a person who is “interested in a deed, will, written
contract, . . . or whose rights, status, or other legal relations are affected by a statute” to
obtain relief in the form of a declaration of rights, status, or other legal relations. TEX.
CIV. PRAC. & REM. CODE ANN. § 37.004(a). The UDJA does not, however, unilaterally
enlarge the trial court’s jurisdiction. Tex. Dept. of Tranp. v. Sefzik, 355 S.W.3d 618, 621–
22 (Tex. 2011) (citing Sawyer Tr., 354 S.W.3d at 388). Rather, the underlying action for
which declaratory judgment is sought must be an action for which immunity has been
expressly waived. See id.; see also City of El Paso v. Heinrich, 284 S.W.3d 366, 371
(Tex. 2009) (“Where statutory or constitutional provisions create an entitlement to
payment, [suits seeking] compl[iance] with the law are not barred by immunity merely
because they compel the state to make those payments.”).
In its live pleadings, Seminary requests a judgment declaring:
a. the parties’ rights, status, and legal relations under the Will, Codicil(s),
and 1999 Deed given the City’s past and present use of the Subject
Property;
b. whether the City and [Individual Appellants] have acted in excess of
their authority under the granting language of the Will, Codicil(s), and 1999
Deed;
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c. whether the Subject Property does not belong to the City due to the
City’s current use and the reversionary rights of Petitioner;
d. whether the Subject Property, or part of it, and any income, or part of it,
not used according to the terms of J.B. Wells’s will, has reverted to
Petitioner such that Petitioner has or should have possession of that
property or income;
e. whether the City and [Individual Appellants] have acted and are acting
in excess of their authority in renting, leasing, or otherwise using the Subject
Property’s surface or minerals for purposes other than granted in the Will,
Codicil(s), and 1999 Deed; and
f. the amount of and possession of rights to any income generated from
the Subject Property, surface or minerals, used in a manner other than for
“public park purposes” as set forth in the Will, Codicil(s), and 1999 Deed.
Seminary’s requested declaratory relief is a restatement of relief sought through
its inverse condemnation claim. We have already determined the City is not immune
from Seminary’s condemnation claim, therefore, Seminary has alleged sufficient facts to
demonstrate the trial court jurisdiction. See Carlson, 451 S.W.3d at 830. We overrule
appellant’s third issue. See Sefzik, 355 S.W.3d at 621–22.
III. CONCLUSION
We affirm the trial court’s order.
GREGORY T. PERKES
Justice
Delivered and filed the
13th day of June, 2019.
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