                           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




                                             7
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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