                            NUMBER 13-08-00199-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOHN SCOTT FLEMING,                                                            Appellant,

                                            v.

JERRY PATTERSON, LAND COMMISSIONER
OF THE STATE OF TEXAS AND CITY OF
CORPUS CHRISTI,                                                                Appellees.


                      On appeal from 214th District Court
                          of Nueces County, Texas.



                                  OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
                    Opinion by Justice Benavides
      John Scott Fleming, appellant, appeals from the trial court’s order granting pleas to
the jurisdiction in favor of appellees, Jerry Patterson, Land Commissioner of the State of
Texas (“Patterson”), and the City of Corpus Christi (the “City”). We affirm.
                                             I. BACKGROUND
        Fleming initially sued the State of Texas and the City asserting ownership of certain
lots on Mustang Island near Corpus Christi, Texas. The lots were included in land the
State leased to the City. Fleming claimed that the State and the City, as the State’s
lessee, had no rights to the property at issue and asked the trial court to issue a
declaratory judgment clarifying the parties’ rights to the property. Additionally, Fleming
asked the trial court to both try and quiet title “as appropriate.” Both the State and the City
filed pleas to the jurisdiction asserting sovereign immunity and governmental immunity,
respectively.1
        On April 4, 2007, the trial court held a hearing on the State’s plea to the jurisdiction.2
The same day, Fleming filed a “Supplemental Petition” adding as defendants in their official
capacities: (1) the “State Land Commissioner;” and (2) “all Officials through which the
State of Texas acts.” At the April 4, 2007 hearing, the State presented evidence, including
the testimony of its surveyor, asserting its title and right of possession to the property. The
testimony confirmed that Fleming’s asserted title conflicts with the State’s. The hearing
exclusively involved evidence presented on behalf of the State, and no evidence was
presented on behalf of any state officials. During Fleming’s cross-examination of the
State’s surveyor, counsel for the State reiterated that, at the time of the hearing, Fleming
“has sued the State of Texas, and we’re here on behalf of the State of Texas . . . and no
state official is really a party . . . .” Fleming later stated that “as soon as we add the names
of [the State officials], the court will clearly have additional jurisdiction under [Lain].” See
State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 581-82 (1961).


        1
        The City also filed a no evidence m otion for sum m ary judgm ent to which Flem ing filed a response.
However, the trial court never ruled on the City’s m otion.

        2
           There is som e uncertainty in the record regarding the date of the hearing. The reporter’s record for
the hearing declares the date to be April 4, 2006, yet Flem ing did not file his lawsuit until Novem ber 2006.
Flem ing asserted that, on April 4, 2007, in open court, he served on the defendants his “Supplem ental
Petition,” in which he nam ed the “State Land Com m issioner,” am ong other officials, as defendants. In
response to the supplem ental petition, Patterson filed his original answer and plea to the jurisdiction stating
that a hearing had been held on April 4, 2007 to discuss the State’s plea to the jurisdiction. W e believe that
the date on the reporter’s record is a typographical error and that the hearing was on April 4, 2007.

                                                       2
       On September 20, 2007, Fleming filed his “Second Supplemental Petition and
Partial Nonsuit,” in which he nonsuited all parties except for the City and specifically named
as the defendant “Jerry Patterson as Chairman of the School Land Board and as
Commissioner of the General Land Office.” That same day, the trial court held a hearing
on Patterson’s plea to the jurisdiction. Patterson offered the same evidence admitted on
the State’s behalf during the April 4, 2007 hearing. That evidence was admitted into the
record of the September 20, 2007 hearing. Fleming did not introduce any evidence at this
hearing.
       On November 5, 2007, the trial court granted Patterson’s plea to the jurisdiction.
On January 30, 2008, the trial court granted the City’s plea to the jurisdiction. Fleming
appealed.
                                   II. JERRY PATTERSON

A.     Standard of Review
       A plea to the jurisdiction challenges the court’s subject-matter jurisdiction and
comprises a question of law which we review de novo.               See Tex. Natural Res.
Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Bland Indep. Sch. Dist.
v. Blue, 54 S.W.3d 547, 554 (Tex. 2000). A court lacks subject-matter jurisdiction over a
governmental defendant when that defendant is immune from suit. Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).

       To determine subject-matter jurisdiction, we begin with the pleadings. Tex. Dep’t
of Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The plaintiff must plead facts
affirmatively demonstrating the court’s subject-matter jurisdiction. Tex. Air Control Bd., 852
S.W.2d at 446. We are to construe the pleadings liberally, look to the pleader’s intent, and
accept the pleader’s factual assertions as true. See Miranda, 133 S.W.3d at 226, 228.
When the plea to the jurisdiction challenges the existence of jurisdictional facts, we resolve
the jurisdictional facts by considering the evidence presented by the parties. Bland, 54
S.W.3d at 555.



                                              3
       When the evidence presented creates a fact issue, the plea to the jurisdiction must
be denied and the fact question answered by the fact finder. Miranda, 133 S.W.3d at 227-
28. “[I]f 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. This standard is similar to that of a traditional motion for summary judgment.
Id. “[A]fter the state asserts and supports with evidence that the trial court lacks subject[-
]matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits
and subject[-]matter jurisdiction are intertwined, to show that there is a disputed material
fact regarding the jurisdictional issue.” Id.

B.     Analysis
       In his plea to the jurisdiction, Patterson argued that a suit against him as a
government official is a suit against the State, and that, absent a waiver of sovereign
immunity, the State, and therefore Patterson, is immune from Fleming’s lawsuit. While we
affirm the order of the trial court dismissing Patterson, due to the nature of the underlying
lawsuit, we do not agree with Patterson’s assertion.
       1.         Nature of the Suit
       The parties disagree as to the nature of Fleming’s lawsuit: Fleming asserts that he
is merely seeking a declaration that “the State of Texas and its lessee have no rights in the
property . . . ,” and Patterson claims that the action is one of trespass to try title. We
conclude that the action is a trespass to try title action under section 22.001(a) of the
property code. See TEX . PROP. CODE ANN . § 22.001(a) (Vernon 2000).
       In his original petition, Fleming sought declaratory relief3 and asked the trial court
“to both try title and quiet title as appropriate to establish title to these lots . . . .” Fleming



       3
           In his original petition, Flem ing stated:

                  [t]he Court should enter declaratory judgm ent that the State of Texas and its lessee
       have no rights in the property at issue described in the attached deed. The State of Texas
       and its lessee purport to derive title from sources without title who fraudulently claim to have
       title. A judgm ent exists confirm ing the fraud with respect to m ost of the lots but not these
       lots . . . .

                                                        4
then concluded that the court “should grant all requested relief.” Fleming continued to seek
this relief through his first and second supplemental petitions. The Texas Legislature has
mandated that “[a] trespass to try title action is the method of determining title to lands,
tenements, or other real property.” Id.; see Martin v. Amerman, 133 S.W.3d 262, 264-65
(Tex. 2004). Therefore, we conclude that Fleming’s action is one of trespass to try title and
not one merely seeking a declaratory judgment. See State v. BP Am. Prod. Co., 290
S.W.3d 345, 352, 361, 363 (Tex. App.–Austin 2009, pet. filed) (holding that sovereign
immunity bars a declaratory judgment claim wherein the plaintiff sought a declaration
establishing title to property also claimed by the State) (citing Tex. A&M Univ. Sys. v.
Koseoglu, 233 S.W.3d 835, 839-40 (Tex. 2007)).
       2.      Effect of Sovereign Immunity on Trespass to Try Title Suit
       Patterson argues that Fleming failed to demonstrate that sovereign immunity has
been waived in trespass to try title suits brought against State officials acting in their official
capacity. Fleming, however, asserts that under Lain, among other cases, sovereign
immunity does not bar his claim against Patterson in his official capacity. See 349 S.W.2d
at 581-82. Patterson attempts to rebut this argument by citing cases, including IT-Davy,
which hold that a suit against a government official acting within the scope of his authority
is a suit against the State. See 74 S.W.3d at 855-56. Patterson states that “if a State
official asserts the State’s title to such property, in the exercise of his discretion, then
immunity bars the lawsuit and the plaintiff must go to the [l]egislature for permission to
have the suit tried in court.” We disagree with Patterson’s interpretation of how the law
applies in this specific case.
       Our sister court, the Austin Court of Appeals, dealt with this same issue in BP Am.
Prod. Co., 290 S.W.3d at 352, 354. In determining that sovereign immunity does not bar
a trespass to try title claim against a governmental official acting in his official capacity, the
Austin Court stated that “[s]ome of the conceptual underpinnings of Lain are not easily
reconciled with contemporary Texas sovereign immunity jurisprudence. Nonetheless, the
Texas Supreme Court has never overruled Lain, and it remains squarely controlling

                                                5
precedent that we are bound to apply here unless and until the high court tells us
otherwise.” Id. at 356-57 (internal citations omitted). We agree that Lain is still controlling
precedent, and we must follow it here. See Petco Animal Supplies, Inc. v. Schuster, 144
S.W.3d 554, 565 (Tex. App.–Austin 2004, no pet.) (“As an intermediate appellate court,
we are not free to mold Texas law as we see fit but must instead follow the precedents of
the Texas Supreme Court unless and until the high court overrules them or the Texas
Legislature supersedes them by statute.”).
       The supreme court noted in Lain that “[w]hen suit for recovery of title to and
possession of land, filed without legislative consent, is not against the state itself, but is
against individuals only, the mere assertion by pleading that the defendants claim title or
right of possession as officials of the state and on behalf of the state, will not bar
prosecution of the suit.” Lain, 349 S.W.2d at 582. This is so because:
              [o]ne who takes possession of another’s land without legal right is no
       less a trespasser because he is a state official or employee, and the owner
       should not be required to obtain legislative consent to institute a suit to oust
       him simply because he asserts a good faith but overzealous claim that title
       or right of possession is in the state and that he is acting on behalf of the
       state.

Id. at 581; see BP Am. Prod. Co., 290 S.W.3d at 357-58 (noting that “[t]he central holding

of Lain . . . is that sovereign immunity does not bar a plaintiff from suing a state official in

possession of property that plaintiff claims to determine, as between those parties, which

party has the superior title or right of possession” and to recover possession if plaintiff

prevails); see also State v. Beeson, 232 S.W.3d 265, 271 n.5 (Tex. App.–Eastland 2007,

pet. abated) (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”).




                                               6
        3.       Duties of the Trial Court

        For cases such as the one before us, the supreme court laid out the duties of the

trial court:

        When in this state the sovereign is made a party to a suit for land without
        legislative consent, its plea to the jurisdiction of the court based on sovereign
        immunity should be sustained in limine. But the cited cases clearly
        recognize that when officials of the state are the only defendants, or the only
        remaining defendants, and they file a plea to the jurisdiction based on
        sovereign immunity, it is the duty of the court to hear evidence on the issue
        of title and right of possession and to delay action on the plea until the
        evidence is in. If the plaintiff fails to establish his title and right of
        possession, a take nothing judgment should be entered against him as in
        other trespass to try title cases.[4] If the evidence establishes superior title
        and right of possession in the sovereign, the officials are rightfully in
        possession of the sovereign’s land as agents of the sovereign and their plea
        to the jurisdiction based on sovereign immunity should be sustained. If, on
        the other hand, the evidence establishes superior title and right of
        possession in the plaintiff, possession by officials of the sovereign is wrongful
        and the plaintiff is entitled to relief. In that event the plea to the jurisdiction
        based on sovereign immunity should be overruled and appropriate relief
        should be awarded against those in possession.

Lain, 349 S.W. at 582. In cases such as this one, the trial court must take evidence on the

issue of title and right of possession. Id. Thus, “Lain requires the trial court to hold an

evidentiary hearing before ruling on an official’s plea to the jurisdiction . . . .” Porretto v.

Patterson, 251 S.W.3d 701, 711 (Tex. App.–Houston [1st Dist.] 2008, no pet.). In fact, the

trial court has a “‘duty’ to decide the merits of the plaintiff’s trespass-to-try-title claim in

order to determine whether sovereign immunity applies.” BP Am. Prod. Co., 290 S.W.3d

at 354 (citing Lain, 349 S.W. at 582).




        4
          This statem ent reflects the burden of proof in a trespass to try title case wherein the plaintiff has the
burden to prove his own title and right of possession in the subject property and cannot prevail based entirely
on inadequacies in the defendant’s title. See State v. BP Am . Prod. Co., 290 S.W .3d 345, 353 n.16 (Tex.
App.–Austin 2009, pet. filed) (citing Stradt v. First United Methodist Church of Huntington, 573 S.W .2d 186,
189 (Tex. 1978)).



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       4.     Review of the Trial Court’s Actions

       At the September 20, 2007 hearing, the trial court admitted Patterson’s evidence

consisting of a judgment and a warranty deed purporting to represent Patterson’s title and

right to possession of the property. Fleming did not object to the admission of this

evidence. On November 5, 2007, without filing findings of fact or conclusions of law, the

trial court granted Patterson’s plea to the jurisdiction.

       “‘In a nonjury trial, where no findings of fact or conclusions of law are filed or

requested, it will be implied that the trial court made all the necessary findings to support

its judgment.’” Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84-85 (Tex. 1992)

(quoting Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980)); see Stallworth v. Stallworth,

201 S.W.3d 338, 334-45 (Tex. App.–Dallas 2006, no pet.). In concluding that it did not

have subject-matter jurisdiction, the trial court must have concluded that the State had

superior title and right of possession and impliedly made all findings necessary to support

that conclusion. See Holt Atherton Indus., 835 S.W.2d at 84-85.

       “When the appellate record includes the reporter's and clerk's records, these implied

findings are not conclusive and may be challenged for legal and factual sufficiency in the

appropriate appellate court.” BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789,

795 (Tex. 2002). However, “[w]hile implied findings may be challenged for legal and

factual sufficiency, we do not determine the sufficiency of the evidence supporting the

finding without such a challenge.”          In re W.J.B., 294 S.W.3d 873, 880 (Tex.

App.–Beaumont 2009, no pet.) (citing BMC Software, 83 S.W.3d at 795; Pat Baker Co. v.

Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (“It is axiomatic that an appellate court cannot

reverse a trial court's judgment absent properly assigned error.”)); see TEX . R. APP. P.



                                              8
38.1(f); Sonat Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 236 (Tex.

2008). Nonetheless, we must construe appellate briefs “reasonably, yet liberally, so that

the right to appellate review is not lost by waiver,” and we “should reach the merits of an

appeal whenever reasonably possible.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008).

       Fleming contends that his claim of title is based on a chain of title dating back at

least 100 years and on adverse possession, referring us to his arguments presented in his

response to the City’s no-evidence motion for summary judgment. In the “Statement of

Facts” section of his appellate brief, Fleming states that “the trial court did not address the

merits of the chain of title or adverse possession claims so these issues should not now

be before this Court.” He also asserts that “[t]he only issue now before this Court should

be whether the [t]rial [c]ourt had jurisdiction. This is a legal issues [sic] unmixed by

facts . . . . The [t]rial [c]ourt made no factual findings. This is simply a question of law.”

       The remainder of Fleming’s brief presents his arguments regarding sovereign

immunity and the propriety of bringing a lawsuit directly against Patterson. Other than

stating that there are title issues remaining for resolution by the trial court, he does not

mention the evidence presented by Patterson. He does not discuss or even allude to the

sufficiency of that evidence. Thus, we find that Fleming has waived any complaint about

the implied findings of the trial court. See In re W.J.B., 294 S.W.3d at 880; see also Alenia

Spazio, S.p.A. v. Reid, 130 S.W.3d 201, 209 (Tex. App.–Houston [14th Dist.] 2003, no

pet.) (finding that while appellants did not explicitly challenge the implied findings, they

presented specific record citations to evidence directly contradicting the trial court’s implied

findings and therefore adequately challenged the sufficiency of the evidence underlying the

implied findings); Berg v. AMF Inc., 29 S.W.3d 212, 216 n.1 (Tex. App.–Houston [14th



                                               9
Dist.] 2000, no pet.) (holding that appellants’ failure to cite any authority or to the record

to support their attempted challenge of the implied findings resulted in a waiver of their

challenge). We overrule Fleming’s issue as it relates to Patterson.

                                      III. CITY OF CORPUS CHRISTI

        The City asserts that Fleming’s lawsuit against it is barred by governmental

immunity. Fleming sued only the “City of Corpus Christi”; he did not sue any City officials.

Thus, the City reasons that under Lain, the outcome of the City’s plea to the jurisdiction

must be different than that of Patterson. See Lain, 349 S.W. at 582; see also Bell v. State

Dep’t of Highways & Pub. Transp., 945 S.W.2d 292, 294-95 (Tex. App.–Houston [1st Dist.]

1997, writ denied), abrogated in part by Harris County v. Sykes, 136 S.W.3d 635, 639-640

(Tex. 2004).

        As discussed previously, Lain requires that, in order to be able to present evidence

regarding title rights, the plaintiff must sue the governmental officials, not merely the

governmental unit. See BP Am. Prod. Co., 290 S.W.3d at 357-58. While we disagree

with the City’s assertion that governmental immunity precludes a determination of title

issues arising between governmental entities and individuals, we agree with it insofar as

it argues that governmental immunity bars suit against the entity itself.5 Therefore, by

failing to sue any City officials, Fleming failed to invoke the trial court’s jurisdiction to



          5
            In support of its argum ent, the City cites Gordon v. San Antonio W ater Sys. Nos. 04-06-00699-CV,
04-06-00700-CV, 04-06-00701-CV, 04-06-00702-CV, 2007 W L 748692, at *2 (Tex. App.–San Antonio Mar.
14, 2007, pet. denied) (m em . op.). W e conclude that Gordon is inapposite because, as the San Antonio Court
of Appeals stated, “because [Gordon’s] claim s seek to enforce rights [he] allege[s] to exist under the deeds,
the trial court properly granted” the plea to the jurisdiction. Id. at *2. Thus, the San Antonio Court of Appeals
characterized Gordon’s lawsuit as one based in contract, not in trespass to try title. Though we agree with
the City that governm ental im m unity generally bars suit against the governm ental entity, we disagree that
Gordon m andates the conclusion that governm ental im m unity bars a trespass to try title action against
governm ental officials.

                                                      10
resolve his trespass to try title suit against the City. See Lain, 349 S.W. at 582; BP Am.

Prod. Co., 290 S.W.3d at 357-58. We overrule Fleming’s issue as it relates to the City.

                                     IV. CONCLUSION

       Having overruled Fleming’s sole appellate issue, we affirm the trial court’s granting

of the pleas to the jurisdiction.



                                                    _______________________________
                                                    GINA M. BENAVIDES,
                                                    Justice


Delivered and filed the
25th day of February, 2010.




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