Doyle Wells, Sea Oats Investments I, L.P. F/K/A Lamkin Properties Limited Partnership and Quixote Dunes, Inc. v. Texas Department of Transportation ( 2016 )

NUMBER 13-15-00501-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DOYLE WELLS, SEA OATS INVESTMENTS I, L.P.
F/K/A LAMKIN PROPERTIES LIMITED PARTNERSHIP
AND QUIXOTE DUNES, INC., Appellant,
v.
TEXAS DEPARTMENT OF TRANSPORTATION, Appellee.
On appeal from the 138th District Court of
Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Longoria
Appellant landowners Doyle Wells, Sea Oats Investments I, L.P., f/k/a Lamkin
Properties Partnership, and Quixote Dunes, Inc. (collectively, “appellants”) filed suit
seeking damages for inverse condemnation against the Town of South Padre Island (the
“Town”) and the Texas Department of Transportation (“TXDOT”).1 Appellants claim the
trial court erred by granting TXDOT’s motion to dismiss for lack of jurisdiction. We affirm.
I. BACKGROUND
In a subdivision plat submitted to and approved by Cameron County on June 19,
1956, Jonathan Conrow (the appellants’ predecessor-in-interest) purportedly dedicated
to the public certain “street and roadway easements,” including an easement for Ocean
Boulevard, which later became State Park Road 100 (“Road 100”), which is a road located
on the north end of South Padre Island. However, on June 18, 1956, the day before
Conrow submitted his plat, Gilbert Kerlin deeded certain land to Conrow. In the deeds,
Kerlin expressly excluded certain land from the deed and reserved it for himself. Road
100 was part of the land that Kerlin reserved for himself and later dedicated to the State
of Texas and Cameron County.
To this day, Road 100 is operated and maintained by TXDOT. However, the area
surrounding the road is void of development and the accumulation of sand from various
sources requires TXDOT to periodically remove sand from the road to allow for safe
passage by travelers. TXDOT was contacted by the Town of South Padre requesting
help in the Town’s beach re-nourishment program. The Town had already received the
appropriate approval from the U.S. Army Corps of Engineers to permit beach re-
nourishment via transporting sand from one area of South Padre to another. On February
28, 2008, TXDOT began removing sand from Road 100 in conjunction with the Town’s
1 The Town of South Padre Island is not a party to this appeal.
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re-nourishment program. The sand removed from Road 100 was loaded onto large trucks
and hauled to various areas of beaches that suffered from erosion.
On March 6, 2008, appellants filed their amended petition for inverse
condemnation damages against the Town and TXDOT for the sand removed from the
road. On April 1, 2008, TXDOT filed a plea to the jurisdiction. Appellants filed a second
amended petition and motion for interlocutory summary judgment. The trial court granted
the plea to the jurisdiction and the appellants appealed. In a memorandum opinion, this
Court reversed the trial court’s dismissal of appellants’ inverse-condemnation claim, but
affirmed the dismissal of appellants’ declaratory judgment claim. Wells v. Tex. Dep’t of
Transp., No. 13-11-00795-CV, 2013 WL 3326558, at *1 (Tex. App.—Corpus Christi June
27, 2013, no pet.) (mem. op.). We further dismissed appellants’ appeal of the trial court’s
denial of their motion for summary judgment. See id.
On September 9, 2013, appellants filed a third amended petition, asserting claims
under the Texas Government Code and seeking attorney’s fees. On August 4, 2014,
TXDOT filed a motion to dismiss appellants’ inverse condemnation claim for lack of
jurisdiction on grounds that it allegedly discovered from county deed records that
appellants did not own fee title to Road 100. In its motion, TXDOT challenged both the
pleadings and the existence of jurisdictional facts.
On August 7, 2014, the parties were ordered to attend mediation. All parties
reached and signed a settlement agreement. According to the settlement, the appellants
were to dismiss the lawsuit after TXDOT paid appellants $45,000. The trial court granted
TXDOT’s motion dismissing the government code claims and attorney’s fees claims on
September 3, 2015. Over the next months, all three appellants withdrew their consent
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from the settlement agreement and alleged that their consent to the settlement agreement
was not made knowingly and was the result of undue influence from their attorney of
record. In March of 2015, the trial court denied TXDOT’s motion to enforce the settlement
agreement but granted the Town’s motion to sever the claims against it from the claims
against TXDOT. In September of 2015, the trial court granted TXDOT’s motion to dismiss
for lack of jurisdiction. This appeal followed.
II. MOTION TO DISMISS FOR LACK OF JURISDICTION
In their only issue on appeal, appellants argue that the trial court erred by granting
TXDOT’s motion to dismiss for lack of jurisdiction. More specifically, appellants argue
that TXDOT failed to meet its burden of showing that the trial court lacked jurisdiction.
A. Standard of Review
A trial court must have jurisdiction to adjudicate the subject matter of a cause of
action. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–28 (Tex. 2004).
Whether the trial court possesses jurisdiction is a question of law that is reviewed de
novo. See id. at 228. Subject matter jurisdiction cannot be waived and may be raised at
any time. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.
1993). If a plea to the jurisdiction challenges the pleadings, the court must determine
whether the pleader has alleged facts that affirmatively demonstrate the court’s
jurisdiction. See Miranda, 133 S.W.3d at 227. When necessary, we consider relevant
evidence submitted by the parties to resolve jurisdictional issues. See id. “If the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing the plaintiffs an opportunity to amend.” Id. Courts do not
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possess subject matter jurisdiction over cases brought by parties without standing. See
Tex. Ass'n of Bus., 852 S.W.2d at 444.
B. Applicable Law
To have standing to sue for inverse condemnation, the plaintiff must have a
property interest in the property at the time of the alleged taking. See Tex. S. Univ. v.
State St. Bank & Trust Co., 212 S.W.3d 893, 903–04 (Tex. App.—Houston [1st Dist.]
2007, pet. denied). Thus, to recover under the constitutional takings clause, a court must
first determine an ownership interest in the property taken. See Tex. Dep’t of Transp. v.
A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013); see also TEX. CONST. art. I,
§ 17; Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 644 (Tex. 2004).
To interpret what estate a deed conveys, a court must ascertain the intent of the
parties as expressed in the instrument. See Winegar v. Martin, 304 S.W.3d 661, 665
(Tex. App.—Fort Worth 2010, no pet.). “In determining the legal effect of a deed, whether
as to grant, exception, reservation, consideration, or other feature, the inquiry is not to be
determined alone from a single word, clause, or part but from every word, clause, and
part that is pertinent.” Id. (citing Zephyr Oil Co. v. Cunningham, 265 S.W.2d 169, 174
(Tex. Civ. App.—Fort Worth 1954, writ ref'd n.r.e.)). If the language is unambiguous, the
court may construe the deed as a matter of law. See id.
C. Discussion
It is undisputed that appellants own tracts of land alongside Road 100. 2 These
tracts were created by the subdivision plat submitted by Conrow on June 19, 1956. It is
2 In their live pleading, appellants claim that TXDOT’s actions damaged appellants’ adjacent
property and vegetation. However, in their appellate brief, appellants focus solely on the issue of ownership
of the land underneath the easement. Appellants only mention in passing on appeal that “TXDOT damaged
their dunes” and “the dunes owned by [appellants] were damaged by the taking of the sand by TXDOT.”
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further undisputed that TXDOT has an express easement to build and maintain Road
100. However, appellants argue that they own fee title to the land underlying TXDOT’s
Road 100 right-of-way. Thus, appellants argue that they have standing to bring this suit
because they are the successors-in-interest to the land under Road 100.
Conversely, TXDOT argues that the appellants do not own any fee interest in the
land under Road 100. TXDOT provided evidence showing that the day before Conrow
submitted his plat, Kerlin deeded the property described in the plat to Conrow. The deeds
contained the following language:
To have and to hold the above described premises, together with all and
singular rights and appurtenances thereto in anywise belonging, unto the
said Jonathan H. Conrow, his heirs and assigns, forever, subject, however,
to the following exclusions which are reserved by Grantor and are expressly
not conveyed:
...
(b) The several roads or rights of way running through the said property
from north to south, all as more specifically shown and described on a
certain map or plat of said area, executed by grantee herein, and approved
for record by the Commissioners’ Court of Cameron County, Texas, on the
_____ day of June, 1956, which said roads or rights of way as shown on
said plat are hereby dedicated to the State of Texas and the County of
Cameron for use as public roads[.]
(emphasis added). According to the included maps, the area described as “reserved”
and “not conveyed” indisputably includes Road 100. Appellants do not contest this fact.
Thus, according to TXDOT, the ownership interest in Road 100 resides with Kerlin and
his heirs, not with appellants. Appellants argue that the deeds did not include the phrase
“save and except”; thus, Road 100 was not actually reserved and all the land was deeded
to Conrow. However, we agree with TXDOT: the language is clear and unambiguous in
We find that any issues related to damage to appellants’ adjacent property are inadequately briefed. See
TEX. R. APP. P. 38.1(i). Therefore, we will not address those issues.
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stating Kerlin’s intention of reserving Road 100 for himself. See Winegar, 304 S.W.3d at
665. Appellants cite no case law, and we find none, for the proposition that the specific
phrase “save and except” is required to make a valid reservation. Looking at the whole
instrument and the pertinent language, we find that Kerlin clearly stated that Road 100
was reserved by Kerlin and was “expressly not conveyed” to Conrow. Thus, we conclude
that the deed unambiguously reserved Road 100 to Kerlin and his successors. See id.
Because the appellants do not own or have any vested interest in the underlying land
from which the sand was collected and removed, appellants do not have a vested interest
in the sand taken. See City of Sunset Valley, 146 S.W.3d at 644. And appellants have
not claimed any damage to sand dunes other than those within the right of way on Road
100. Without a vested interest in the sand, appellants have no standing to bring the
inverse condemnation suit. See A.P.I. Pipe, 397 S.W.3d at 166. Without standing, it was
not an error for the trial court to grant TXDOT’s motion to dismiss for lack of jurisdiction.
See Miranda, 133 S.W.3d at 227.
Appellants additionally argue that Road 100 was never properly dedicated to
TXDOT. However, TXDOT argues that such an argument is completely irrelevant to the
issue of standing, and we agree. Whether Road 100 was effectively dedicated is
immaterial to appellants’ lack of a vested property interest in the land comprising the
easement at stake. Furthermore, TXDOT does not claim fee title to Road 100; rather,
TXDOT asserts that under the clear and express language of the Kerlin deeds, ownership
in Road 100 never transferred to appellants but instead remained with Kerlin and his
heirs. Thus, appellants have no standing because they have no vested interest in Road
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100 and the case should be dismissed regardless of whether Road 100 was properly
dedicated to the State. See id. We overrule appellants’ sole issue.3
III. CONCLUSION
We affirm the trial court’s judgment.
Nora L. Longoria
Justice
Delivered and filed the
8th day of December, 2016.
3 In the alternative, by one issue on cross-appeal, TXDOT asserts that the trial court erred in
denying its motion to enforce the mediated settlement agreement. However, we need not address TXDOT’s
alternative argument because we overrule appellants’ sole issue on appeal. See TEX. R. APP. P. 47.1.
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