                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                 In the United States Court of Appeals
                                                                       August 17, 2005
                           For the Fifth Circuit
                                                                   Charles R. Fulbruge III
                        _________________________                          Clerk

                                No. 04-10031

                        _________________________

ANN TENISON HEREFORD WEBB; LIZANN TENISON WEBB; BYRON JAMES WEBB;
CAMILLE ELIZABETH WEBB SEWELL,

                                    Plaintiffs - Appellants,

versus

CITY OF DALLAS, TEXAS; CITY OF DALLAS PARKS AND RECREATION
DEPARTMENT; CITY OF DALLAS PARKS AND RECREATION BOARD; PAUL DYER,
DIRECTOR, CITY OF DALLAS PARKS AND RECREATION DEPARTMENT,

                                    Defendants - Appellees.

                        _________________________

             Appeal from the United States District Court
                  For the Northern District of Texas
                       _________________________

Before HIGGINBOTHAM, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Plaintiffs Ann Tenison Hereford Webb, Lizann Tenison Webb,

Byron James Webb, and Camille Elizabeth Webb Sewell (collectively

the “Webbs”) appeal the district court’s take-nothing judgment with

respect to their claims against the City of Dallas.                  The Webbs

asserted that the City violated a condition contained in deeds

conveying property to the City which provided that the property

would revert to the grantors “or their heirs” if the property ceased


         *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
 should not be published and is not precedent except under the limited
 circumstances set forth in 5TH CIR. R. 47.5.4.
to be used as a public park.          The Webbs alleged that they were heirs

under the deeds.          A jury found to the contrary, and the district

court entered judgment based on this finding.               We now affirm.

                                           I

     We set forth the factual background of this case at length in

our prior opinion, and will not retrace it here.1               Following remand

to the district court, the case was tried to a jury.                    The court

submitted a series of special interrogatories to the jury.               Question

One inquired whether the Webbs “prove[d] that in the Tenison Deeds,

the grantors, Edward O. and Annie M. Tenison, clearly intended to

refer to the [Webbs] by the use of the word ‘heirs’?”                   The court

instructed the jury to answer “Plaintiffs did prove,” or “Plaintiffs

did not prove.”        In the event that the jury chose the latter answer,

they were instructed to stop and answer no further questions.

Following several days of deliberations, the jury answered Question

One by marking “Plaintiffs did not prove.”               Upon consideration of

the verdict, the court entered a take-nothing judgment against the

Webbs.       The Webbs filed a timely notice of appeal.

                                          II

     Of the eight points of error raised by the Webbs on appeal,

only one merits discussion: whether the district court erred when it

submitted Question One to the jury.             Specifically, the Webbs argue

that the question of whether they were heirs under the deeds was not



         1
             See Webb v. City of Dallas, 314 F.3d 787, 788-90 (5th Cir. 2002).

                                           2
properly before the district court and, in the alternative, that

this question was one of law to be resolved by the court.                    We

address these arguments in turn.

                                       A

       The Webbs argue that the meaning of the word “heirs” as used in

the deeds was not properly before the district court because (1) it

was conclusively answered in our prior opinion, and (2) it is a

question of state law that must be answered in a separate heirship

proceeding before a state court. These arguments are without merit.

       First, our prior decision did not conclusively adjudicate the

question of whether the Webbs are “heirs” under the Tenison deeds.

Rather, we were called upon to determine whether the Webbs claimed

an interest in the property transferred by the deeds sufficient to

satisfy the jurisdictional injury-in-fact requirement of Article

III.    Looking to the pleadings, we determined that the Webbs had

averred facts adequate to meet constitutional standing requirements.2

Importantly, we noted that the “Webbs may ultimately fail to prove

ownership or any property interest entitlement to the Tenison



        2
         See Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 529 (5th
 Cir. 1996) (“‘At the pleading stage, general factual allegations of injury
 resulting from the defendant’s conduct may suffice, for on a motion to dismiss
 we presum[e] that general allegations embace those specific facts that are
 necessary to support the claim.’” (quoting Lujan v. Defenders of Wildlife, 504
 U.S. 555, 561 (1992)); Cramer v. Skinner, 931 F.2d 1020, 1025 (5th Cir. 1991)
 (“When a court considers standing on a motion for a 12(b) dismissal, it must
 accept the allegations in the pleadings as true.”); see also Barrett Computer
 Servs., Inc. v. PDA, Inc., 884 F.2d 214, 219 (5th Cir. 1989) (“[I]n cases in
 which the merits of the claims asserted are intertwined with the jurisdictional
 issue of standing, challenges to standing are frequently resolved in summary
 judgment proceedings . . . or at a trial on the merits.” (emphasis added)).

                                       3
property.”3      It is clear from this statement and our analysis that

we did not render a final ruling on the meaning of the word “heirs”

as used in the deeds.

     Second,      the    Webbs   argue      that       it   was   unnecessary   for   the

district court to determine whether they would take as heirs under

the deeds; that this question should have been answered in a

separate state heirship proceeding following a determination of

whether the property had reverted under the deeds.                     Under Texas law,

persons claiming to be entitled to property in a decedent’s estate

may initiate an heirship proceeding to determine “who are the

heirs . . . and their respective shares and interests.”4                              Such

proceedings      are    appropriate        when    a    decedent     dies   “intestate.”5

Whether the Webbs are entitled to bring an heirship proceeding is

irrelevant to the present suit, in which the Webbs seek to establish

an interest in the property via the deeds.                        In order to ascertain

whether the Webbs were entitled to take under these inter vivos

conveyances, the district court was required to interpret the

language of the deeds.

     In short, we conclude that the question of whether the Webbs

were “heirs” under the deeds was properly before the district court.

                                             B


       3
           Webb, 314 F.3d at 791.
       4
         TEX. PROB. CODE ANN. § 48(a) (Vernon 2003); see TEX. PROB. CODE ANN. § 49(a)
 (Vernon 2003); TEX. PROB. CODE ANN. § 54 (Vernon 2003).
       5
           TEX. PROB. CODE ANN. § 48(a).

                                             4
     The     Webbs   also   contend    that   the   district   court   erred   by

submitting a purely legal question of deed construction to the jury.

They claim that the unambiguous language of the deeds created an

executory interest in the property which would vest in the lineal

descendants of the Tenisons alive when the deed conditions were

violated.      The Webbs did not object to the submission of Question

One to the jury; accordingly, our review is for plain error only.6

“For an appellant to prevail under the plain error standard, it must

show 1) that an error occurred; 2) that the error was plain, which

means clear or obvious; 3) the plain error must affect substantial

rights; and 4) not correcting the error would seriously impact the

fairness, integrity, or public reputation of judicial proceedings.”7

     Under Texas law, both the interpretation of an unambiguous deed

and the determination of whether a deed is ambiguous are questions

of law for the court.8          If the court determines that a deed is

ambiguous, it may submit the deed to a jury for resolution of the

ambiguity.9     The court need not make an express finding of ambiguity




       6
           See Septimus v. Univ. of Houston, 399 F.3d 601, 606-07 (5th Cir. 2005).

       7
           Id. at 607.
       8
         See Dell Computer Corp. v. Rodriguez, 390 F.3d 377, 384 (5th Cir. 2004);
 Propulsion Techs., Inc. v. Attwood Corp., 369 F.3d 896, 900 (5th Cir. 2004);
 Temple-Inland Forest Prods. Corp. v. United States, 988 F.2d 1418, 1421 (5th Cir.
 1993).

       9
           See Exxon Corp. v. W. Tex. Gathering Co., 868 S.W.2d 299, 302 (Tex.
 1993).

                                         5
in order to do so; if the court submits the issue to the jury, we

may presume that the court found the deed ambiguous.10

     When seeking to determine whether a deed is ambiguous, Texas

courts look to the intent of the contracting parties as expressed

within the “four corners” of the document.11              “The four corners rule

requires the court to ascertain the intent of the parties solely

from all of the language in the deed.”12                    If the court cannot

determine the intent of the parties from the plain language of the

deed, the court may apply “applicable rules of construction.”13                  If,

after the application of the rules of construction, the language of

the deed is still ambiguous, the court may admit and consider

extrinsic evidence to assist it in its interpretive task.14                      “An

instrument is ambiguous only when the application of these rules

leaves it unclear which of two reasonable meanings is the correct

one.”15

     The deeds at issue here provide that if the property is not

used by the City as a public park, the City ceases to use the


          10
         Id. (“While the trial court here never made an express finding that the
 contract was ambiguous, such a determination was necessary to its submission of
 a jury question inquiring into the [interpretation of the contract].”).
       11
          Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 353 (Tex. App.--Texarkana
 2000, no pet.) (citing Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991)).
          12
         Id. (citing Concord Oil Co. v. Pennzoil Exploration & Prod. Co., 966
 S.W.2d 451, 465 (Tex. 1998)).

          13
               Id.
          14
               Id. (citing Stauffer v. Henderson, 801 S.W.2d 858, 863 (Tex. 1990)).
          15
               Id.

                                            6
property for park purposes, or the name of the park is changed, the

City’s title to the property shall cease, “and said property . . .

shall at once revert to and vest in us [the Tenisons] or our heirs,

and it shall be lawful for us or our heirs to re-enter upon, take,

repossess and enjoy all and singular the property hereby granted as

in our former estate.”          Looking to the deed as a whole, it is

apparent that the Tenisons sought by this language to grant to the

City a fee simple interest in the land subject to a condition

subsequent that the City maintain the property as a public park.16

This   property      interest   was   passed   from   the   Tenisons   to   their

surviving children by operation of the residuary clauses of their

wills.        Importantly, these wills did not transfer the right of re-

entry to the Webbs’ ancestor who predeceased the Tenisons.

       In addition to the creation of a right of re-entry, the Webbs

urge that the deeds conveyed to the “heirs” an executory interest in

the property.        Under this theory, the word “heirs” in the deeds

refers to all lineal descendants of the Tenisons living at the time

the deed conditions were violated. This conveyance is impermissible

as it contravenes the rule against perpetuities, which provides that

“no interest is valid unless it must vest, if at all, within twenty-

one years after the death of some life or lives in being at the time




         16
         See Lawyers Trust Co. v. City of Houston, 359 S.W.2d 887, 890 (Tex.
 1962) (holding that nearly identical language in a conveyance created a fee
 simple subject to a condition subsequent).

                                        7
of the creation of the interest.”17         When the deeds were executed,

the City could have maintained the land as a public park for an

indefinite period of time.          Thus, it was possible at the time the

deeds were made that the lineal descendants of the Tenisons alive

when the City ceased using the property as a public park would not

be determined until well after the perpetuities period ended.             Under

Texas law, if a deed is equally open to two constructions, “effect

will be given to the construction which renders the agreement valid

rather than void.”18         Thus, the Webbs’ proffered interpretation of

the deed must be rejected.          Further, no alternative interpretation

of the deeds that would vest rights in the Webbs is available.

     Because the word “heirs” in the deeds cannot, as a matter of

law, refer to the Webbs, the district court committed plain error by

submitting Question One to the jury.         However, the district court’s

take-nothing judgment is correct as a matter of law for this very

reason.     Further, to the extent that the court omitted any necessary

factual issue in the jury instructions, we deem the court to have

made such a finding in accord with the judgment.19            Accordingly, we

conclude that the district court’s submission of Question One to the


       17
         Hamman v. Bright & Co., 924 S.W.2d 168, 171 (Tex. App.-Amarillo 1996),
 vacated pursuant to settlement, 938 S.W.2d 718 (Tex. 1997) (citing Peveto v.
 Starkey, 645 S.W.2d 770, 772 (Tex. 1982); Foshee v. Republic Nat’l Bank of
 Dallas, 617 S.W.2d 675, 677 (Tex. 1981)).
       18
         Conquistador Petroleum, Inc. v. Chatham, 899 S.W.2d 439, 442 (Tex. App.-
 -Eastland 1995, writ denied) (citing Kelly v. Womack, 268 S.W.2d 903, 906 (Tex.
 1954)).
       19
            FED. R. CIV. P. 49(a)

                                        8
jury,   while   erroneous,    did   not    affect   the   Webbs’   substantial

rights.20

                                     III

     For the foregoing reasons, the judgment of the district court

is AFFIRMED.




        20
         See Hobart Bros. Co. v. Malcolm T. Gilliland, Inc., 471 F.2d 894, 905
 (5th Cir. 1973) (applying harmless error analysis to errors in a jury charge in
 a civil case).

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