Opinion filed June 9, 2016




                                      In The


        Eleventh Court of Appeals
                                    __________

                             No. 11-14-00133-CV
                                    __________

     LAMAR ADVANTAGE HOLDING COMPANY, Appellant
                                         V.
 THE CITY OF STEPHENVILLE AND MARK KAISER, IN HIS
 OFFICIAL CAPACITY AS CITY ADMINISTRATOR, Appellees


                     On Appeal from the 266th District Court
                              Erath County, Texas
                        Trial Court Cause No. CV-31132

                      MEMORANDUM OPINION
      This is a trespass to try title suit filed against the City of Stephenville and
Mark Kaiser, in his official capacity as city administrator. The City owns a tract of
property upon which Lamar Advantage Holding Company maintains billboards.
Lamar contends that it has a right to possess the property where the billboards are
located by virtue of a ten-year lease it executed in 2007 with the heir of the City’s
predecessor in interest. Conversely, the City contends that Lamar’s leasehold
interest expired in 2011.
        Acting in his official capacity, Kaiser sent a letter on behalf of the City on
February 16, 2011, demanding that the billboards be removed by June 1, 2011. In
response, Lamar filed a declaratory judgment action against the City seeking a
declaration of the parties’ rights under the 2007 lease. Lamar subsequently amended
its pleadings to allege additional causes of action against the City, including a claim
for trespass to try title, and to include Kaiser as a defendant in his official capacity.
The City filed a plea to the jurisdiction and a motion for summary judgment. The
City and Kaiser subsequently filed a supplemental plea to the jurisdiction. The trial
court held a hearing on April 10, 2014. The trial court granted the plea to the
jurisdiction and the supplemental plea to the jurisdiction and entered judgment that
Lamar take nothing.1 In one issue on appeal, Lamar challenges the trial court’s
granting of Kaiser’s plea to the jurisdiction. We affirm.
                                           Background Facts
        Minta Hutchinson owned real property located within the City of Stephenville
for a number of years. Sometime prior to 1989, billboards were erected on the
property. In this regard, Hutchinson apparently entered into a lease with B.Y.O. Inc.
for the operation and maintenance of the billboards. The appellate record does not
include a copy of the lease between B.Y.O. and Hutchinson. Thus, the terms of the
lease are unknown.



        1
          At the hearing on the plea to the jurisdiction, Lamar stated that it was no longer seeking affirmative
relief from the City of Stephenville. However, the trial court granted the City’s plea to the jurisdiction in
the same order in which it granted Kaiser’s plea to the jurisdiction. Therefore, we include the City in the
style of this appeal as a party to this appeal.


                                                       2
      In 1989, Hutchinson conveyed the property to Thomas Christopher Weir. The
deed to Weir contained a section entitled “RESERVATIONS FROM AND
Exceptions to Conveyance and Warranty.” In addition to several easements of
record, this section included language as follows: “Unrecorded lease to B.Y.O. Inc.
for billboards.”   The granting clause of the deed provided that Hutchinson’s
conveyance to Weir was subject to the “reservations from and exceptions to
conveyance and warranty.”
      In 1990, Weir conveyed the property to John Rocka through a warranty deed
under which Rocka assumed Weir’s indebtedness to Hutchinson. Nearly a year later,
on April 18, 1991, Rocka sold the billboards on the property to Big-Tex Advertising
and also entered into a ground lease agreement with Big-Tex for a term of twenty
years for the billboard locations. Big-Tex subsequently purchased all of B.Y.O.’s
interests in the billboards and lease agreements in May 1991. Lamar purchased the
billboards from Big-Tex’s successor in interest in 2001.
      In August 1991, Hutchinson reacquired the property from Rocka by warranty
deed. Hutchinson subsequently conveyed the property by warranty deed to the City
of Stephenville in 1992. This warranty deed conveyed the property subject to any
and all reservations and exceptions of record. This deed made no reference to leasing
rights for the billboard locations.
      On February 16, 2011, Kaiser sent written notice on behalf of the City that the
twenty-year lease that Rocka executed in April 1991 for the billboard locations
would expire in April 2011 and that the billboards must be removed by June 1, 2011.
In response, Lamar advised the City that it had obtained a new ten-year lease in
August 2007 from Hutchinson’s daughter and successor in interest, Marion Jo
Hutchinson McAlister.       Lamar further advised the City that it believed that
Hutchinson and her successor in interest had retained the right to lease the billboard


                                          3
locations on the property as well as the right to receive all future rental income from
the billboards.
      The hearing on the plea to the jurisdiction focused on Lamar’s trespass to try
title claim against Kaiser in his official capacity. As noted previously, Lamar
acknowledged that it was no longer seeking any affirmative relief from the City.
See Parker v. Hunegnaw, 364 S.W.3d 398, 405 (Tex. App.—Houston [14th Dist.]
2012, no pet.) (noting that suit for recovery of title to and possession of land may be
asserted against governmental officials but not against the governmental entity
(citing State v. Lain, 349 S.W.2d 579, 581–82 (Tex. 1961))); see also State v.
Beeson, 232 S.W.3d 265, 271 n.5 (Tex. App.—Eastland 2007, pet. dism’d) (stating
that, in a trespass to try title action, “state officials named as defendants are not
entitled to defeat the court’s subject matter jurisdiction by asserting sovereign
immunity”). Lamar asserted that Kaiser and the City did not possess the legal right
to require the removal of the billboards from the property. Lamar’s attorney
identified the issue as follows at the hearing: “Lamar also views this case as pretty
straightforward, coming down to whether or not the previous landowner that
conveyed the property to the City of Stephenville held onto the rights to lease that
same property for billboard purposes.”
                                        Analysis
      In one issue on appeal, Lamar asserts that the trial court improperly granted
pleas to the jurisdiction. Lamar contends that there is a fact question concerning the
viability of its trespass to try title claim that precluded the trial court from granting
the pleas to the jurisdiction. Whether a court has subject-matter jurisdiction is a
question of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004); Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855
(Tex. 2002). If a plea to the jurisdiction challenges the existence of jurisdictional


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facts, we consider relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues raised, as the trial court is required to do. Miranda,
133 S.W.3d at 227. In a case in which the jurisdictional challenge implicates the
merits of the plaintiff’s cause of action and the plea to the jurisdiction includes
evidence, the trial court reviews the relevant evidence to determine if a fact issue
exists. Id. If the evidence creates a fact question regarding the jurisdictional issue,
then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be
resolved by the factfinder. Id. at 227–28. However, if the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issue, the trial court
rules on the plea to the jurisdiction as a matter of law. Id. at 228. In order to prevail
on the plea to the jurisdiction, Kaiser was required to prove that the City had superior
title as a matter of law. See Parker, 364 S.W.3d at 410.
      A trespass to try title action is a procedure by which claims to title or the right
of possession may be adjudicated. Martin v. Amerman, 133 S.W.3d 262, 265 (Tex.
2004). The plaintiff in a trespass to try title action must recover, if at all, on the
strength of its own title and not on the weakness of the defendant’s title. Id.;
Adams v. Rowles, 228 S.W.2d 849, 853 (Tex. 1950). The plaintiff has the burden to
establish superior title by showing that it has (1) title emanating from the sovereignty
of the soil, (2) a superior title in itself emanating from a common source to which
the defendant claims, (3) title by adverse possession, or (4) title by earlier possession
coupled with proof that possession has not been abandoned. Martin, 133 S.W.3d at
265; Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964). Lamar contends that its
claim of possession is based on a chain of title dating back to the sovereign and also
on a superior title from a common source.            Specifically, Lamar asserts that
Hutchinson’s deed to Weir contained a reservation in favor of Hutchinson of the
right to lease the property for billboard purposes.            Lamar also states that


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Hutchinson’s and McAlister’s subsequent actions evidenced Hutchinson’s intent to
reserve the right to lease the property for billboard purposes or at least raised a fact
question that Hutchinson reserved this right. Conversely, Kaiser argues that, as a
matter of law, Hutchinson did not reserve the right to lease the property for future
billboard purposes.
      Both parties contend that the Weir deed is unambiguous. The construction of
an unambiguous deed is a question of law that we review de novo. Matagorda Cty.
Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex. 2006); Luckel v. White, 819
S.W.2d 459, 461 (Tex. 1991). When construing a contract, we must ascertain the
true intentions of the parties as expressed in the writing itself. Italian Cowboy
Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333–34 (Tex. 2011).
We begin our analysis with the contract’s express language. Id. at 334; see also
Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) (“If the written instrument is so
worded that it can be given a certain or definite legal meaning or interpretation, then
it is not ambiguous and the court will construe the contract as a matter of law.”).
Where the parties have entered into an unambiguous written contract, the instrument
alone will be deemed to express the intent of the parties because it is the objective
intent, not the subjective intent, that controls. Matagorda Cty. Hosp. Dist., 189
S.W.3d at 740.
      As correctly noted by the parties, the primary, and in this case, dispositive
question in this appeal is whether or not Hutchinson—in the deed to Weir—reserved
the right to lease the property in the future for billboard purposes. Lamar contends
that Hutchinson reserved this right in the deed to Weir and that Hutchinson
continued to possess that right after reacquiring the property from Rocka and




                                           6
subsequently conveying the property to the City.2 The relevant portion of the Weir
deed simply provided as follows: “RESERVATIONS FROM AND Exceptions to
Conveyance and Warranty: . . . . Unrecorded lease to B.Y.O. Inc. for billboards.”
We must decide whether this reference to a single, existing lease—“Unrecorded
lease to B.Y.O. Inc. for billboards”—constitutes a reservation of the right to lease
the property for billboards in the future.
        We conclude that this reference in the Weir deed to a single lease does not
constitute a reservation of future leasing rights. While the reference is contained
within a section of the deed entitled “RESERVATIONS FROM AND Exceptions to
Conveyance and Warranty,” it does not purport to reserve anything further from the
conveyance in favor of the grantor. To the contrary, this provision merely states that
an unrecorded lease to B.Y.O. exists. Thus, this provision is in the nature of an
exception to the conveyance rather than a reservation. See Bright v. Johnson, 302
S.W.3d 483, 488 (Tex. App.—Eastland 2009, no pet.) (explaining the distinction
between a “reservation” and an “exception”). Furthermore, the remaining items
included in this section of the deed also refer to other items excepted from the interest
conveyed by the deed. These include various easements and prior conveyances of
record. The deed’s description of the property conveyed includes the entirety of the
property, and nowhere does the deed purport to reserve from the conveyance any
future right to lease the property for billboard purposes.
        Lamar cites no authority, and we have found none, where similar language
created a reservation of a right to lease property in the future. In contrast, we have
found numerous cases where courts have held that, in order to reserve property from


        2
          In light of our holding, we do not reach the City’s and Kaiser’s argument that, if Hutchinson
reserved the right to lease the property for billboard purposes in the Weir deed, she subsequently conveyed
it to the City in 1992 under the doctrine of merger. See Flag–Redfern Oil Co. v. Humble Expl. Co., 744
S.W.2d 6, 9 (Tex. 1987).


                                                    7
a conveyance, there must be an expressed, clear intent to do so. See, e.g., Lesley v.
Veterans Land Bd. of the State of Tex., 352 S.W.3d 479, 487 (Tex. 2011) (noting
that the “exception did not withdraw the executive right from the conveyances in the
lot owners’ deeds but merely subjected the exercise of the right to the covenant’s
limitations”); Reeves v. Towery, 621 S.W.2d 209, 212 (Tex. Civ. App.—Corpus
Christi 1981, writ ref’d n.r.e.) (“It is fundamental that a general warranty deed
conveys all of the interest that a grantor has in the land described therein unless there
is language in the instrument which clearly shows an intention to convey a lesser
interest, and there is not reserved to the grantor any interest in the land conveyed,
absent a clear and unequivocal intent to do so which is expressed in the deed itself.”
(emphasis added)). Accordingly, Hutchinson did not reserve a right to lease the
property for billboard purposes under the express terms of the deed to Weir.
      Lamar additionally argues that the parties’ conduct after the conveyance to
Weir and the conveyance of the property to the City raises a fact question that
Hutchinson intended to reserve the right to lease the property for billboard purposes
in the future. Specifically, Lamar relies on the fact that it and its predecessors in
interest continued to deal with Hutchinson and McAlister regarding the billboards
and on the fact that the City acquiesced in the billboard companies’ continuing to
deal with Hutchinson and McAlister after the City acquired the property. We
disagree. Our construction of the Weir deed is controlled by the parties’ objective
intent as expressed in the document, not their subjective intent. See Matagorda Cty.
Hosp. Dist., 189 S.W.3d at 740 (“In the usual case, the instrument alone will be
deemed to express the intention of the parties . . . .” (quoting City of Pinehurst v.
Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968))).
      Lamar premised its trespass to try title claim on the contention that
Hutchinson, in the deed to Weir, reserved the right to lease the property for billboard


                                            8
purposes. We conclude as a matter of law that Hutchinson did not reserve this right
in the Weir deed. Thus, the City and Kaiser conclusively established superior title
and the right to possess the property, thereby negating the jurisdictional basis for
Lamar’s claim. See Lain, 349 S.W.2d at 582; Parker, 364 S.W.3d at 409–10.
Accordingly, the trial court did not err when it granted the City’s and Kaiser’s pleas
to the jurisdiction. We overrule Lamar’s sole issue on appeal.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


June 9, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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