### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00061- CV

The Archaeological Conser vancy, Appellan t

v. Wilson Land and Cattle Com pany an d Will R. Wilson Jr., App ellees

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT

NO. 06- 834- C368, HO NORAB LE B URT CARNES, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Ap p ellant The Arc haeolog ical Conservanc y (the “Conserva ncy ”) filed suit ag ains t appellee s Wil son L and and Cattle Company (“WL CC”) and Wil l R. Wil son J r. seeking judicial construction of a deed convey ing land from WL CC to the Conservanc y , subject to cer tain conditions subsequent, and a deter

mination of the validity of WL CC’s subsequent reve rter deed convey ing the proper ty to Wil son J r. After a bench t rial, t he trial court render ed judgment t hat t he C onserva ncy take nothing by its suit. On appea l, t h e C o n s er v an cy argues that the trial court err ed in its construction o f the reve rter clause contained in the orig inal deed, that no evidenc e supports the court’s finding that title in fac t reve rted from the Conservanc y to WL CC, and that the cause should be rema nded for a deter

mination of whether the Conservanc y is entitled to attorney ’s fee s. We will aff irm the judg ment of the trial c ourt.F ACTUAL AND P ROCEDURAL BACK GR OUND Th e Conservanc y is a nonprofit corpor ation established for the purpose of identify ing, acquir ing, and prese rving signific ant arc haeolog ical sites throug hout the United States. On April 11, 1991, Wil l R. Wil son Sr., as preside nt of WL CC, executed a deed (the “Gift Dee d”) convey ing a 2. 5 -a cr e trac t of land (“the Property ”) to the Conservanc y subject to the following conditions subsequent: (i) the Property shall be used predominantly to provide an arc haeolog ical labora tory for intermittent rese arc h excavations , restoration of I ndian artifa cts and habitats, exhibi tion of artifa ct s an d restore d habitats to the public or for any other arc haeolog ical purpose; (ii) all artifa ctual materia ls remove d from the Property shall be donated to the Texas Arc haeolog ical Resear ch L aborat ory , the University of Austin or its succe ssor, or another appropr iate Texas arc haeolog ical repository , in the name of Gra

ntor; (iii) this g ift of the Property shall be acknow ledg ed with a plaque on the Property in memory of Marjorie Ashcrof t Wil son; and (iv) the Property shall be name d the “Ma

rjorie Ashc roft Wilson Archae ologic al Preser ve”.

The Gift De ed also c ontained a r ever ter c lause, whic h stated:

I f at any time the Property shall no longe r be used in confor mity with the fore g oing conditions, then this g rant shall deter mine and come to an end, and without nece ssity for action on the part of Gra ntor, the Property and all rig hts there in shall reve rt to and vest in Grantor , its successors a nd assig ns.

The Property rema ined with the Conservanc y from 1991 until J anuar y 3, 2005, when Wil l R. W ilson S r. sig ned a de ed (the “Reve rter D eed” ) on beha lf of WL CC purporting to conve y the P roper

ty to his son, appellee Will R. W ilson J r. The Reve rter D eed rec ites that “the Property 1

Wil son Sr. died in Dece mber 2005, a nd his estate is not a par

ty to this appeal. 1 2has not been used in confor mity with the conditions of [t he Gift Dee d], and the g rant has deter mined and come to an end, a

nd title to the Prope rty has reve rted to a nd vested in Wi lson L and and Ca ttle Company , I nc.” T h e C o n s er v an cy asser ts that it did not lear

n of the Reverte r Dee d until it was

rec orded on A ug ust 17, 2006.

The dispute g iving rise to the in s t an t controve rsy beg an during Aug ust 2006. Acc ording to the Conservanc y , a number of rea l estate develope rs had approa ched it over the y ear s in connec tion with development proposals in the vicinity of the Property

. The Conservanc y did not ag ree to consider any of t h es e p ro p o s als, howeve r, unt il a developer proposed a “land swap” deal wher ein the Conservanc y would exchang e a 50-foot-w ide strip along the Property ’s wester n border for a larg er, more arc haeolog ically signific ant piece of land. On Ap ri l 7, 2006, the Conservanc y 2
enter ed into an ag ree ment with the develope r to exchang e the parc els of land and rec eived $10,000 in ear nest money . Then, on Aug ust 16, 2006, afte r obtaining approva l from the Texas Historical C o m m i s s i o n , the Conservanc y approa ched Wil son J r. about rele asing the 50-foot strip so that the transac tion with the develope r could close. T h er ea ft er, Wil son J r. rec orded the previously signe d Reverte r Dee d, chang ed the lock on the entr y gat e, and posted “No Trespa ssing” signs on the Property

. After lear

ning of the Reverte r Dee d, the Conservanc y continued its eff orts to pursue the deal with the develope r. I n September 2006, they amende d the exchang e ag ree ment to g rant the Conservanc y

additional time to try

to remove the encumbr ance s from ti tle to the 50-foot strip and

The rec ord indicates that the 50- by 210-foot strip of the Property that the Conservanc y was 2 to g ive up would have been used to provide drivewa y acc ess to the develope r, who intended to build townhomes on an a djoining par cel. 3to delay the Closing Date until Dec ember 20, 2006, or within fiftee n day s of such date that the

Conservanc y provided clea r title to the Property

. When its eff orts to neg otiate with Wil son J r. and WL CC proved unsucce ssful, the Conservanc y returne d the ear nest money to the develope r and filed

a trespass- to-try -title suit under Texas P ro p er ty Code section 22.001 asser ting owner ship of the Property and alleg ing that WL CC had ill ega l l y gra n t ed title to the Property to Wil son J r. The Conservanc y later added a cause of action under the Texas Uniform Dec lara tory J udg ments Act (“U DJ A”)

. See Tex. Civ. Prac. & Rem. Code Ann

. § § 3 7 .001-.011 (West 2008). I n the UDJA action, the Conservanc y soug ht decla ra t i o n s “that Def

endant Wil son L and and Cattle Company illega lly deede d the proper ty to Def endant Wil l R. Wil son, J r. on J anu ar y 3 , 2 0 0 5,” and that the Conservanc y “has not violated the terms of the April 11, 1991 deed in which Def endant Wil son L and and Cattle Company

g ave title to the Subject Proper ty to Plaintiff.” The Conserva ncy also soug ht attorney ’s fee s under the UDJA and section 16.034 o f t he civil prac tice and reme dies code. See id. § 16.034 (West 2008)

. WL CC and Wil son answe red and counter claimed f or a de clar ation that title to the Property

had re verte d under the Gift Dee d. The case was tried to the court in Oct o b er 2 007. On the first day of trial, the Conservanc y abandone d its trespass- to-try -title action, elec ting to proce ed only on its d ecla ratory -judg ment action, afte r appellee s raised a series of objections rela ting to the Conservanc y ’s failure to comply with the specia l pleading and proof require ments applicab le
to trespass- to-try -title actio n s . See Tex. R. Civ. P. 783-809. I n addition to objecting to the trespass to-try -title cause of action on the basis of proce dural failing s , ap p el l ees argued that the Conservanc y ’s reque sts fo r d ec l ar atory relief that WL CC “illeg ally deede d the proper ty to

4Wil l R

. W i l s o n, J r.” and that “plaintiff has not violated the terms of the April 11th g ift deed”

wer e also improper. I n expl aining their objection to the Conservanc y proce eding on its decla ratory -judg ment action, appe llees ar g ued:

That basica lly is taking their TTT [t respa ss-to-try -title] alleg ation and regurg itating it, I believe, as an attempt to g et attorney s’ fee s bec ause the next para g raph is for fee s. So they

—by this so-ca lled decla

ratory judgme nt, they have not come at it from a differ ent ang le or a differ ent deg ree or a differ ent cause of action

. I t ’s simply they ’ve restate d it as a decla ratory judgme nt action, and I think the same rules of evidenc e are g oing to apply

. They ’ve still —they ’ve still g ot to have a cer tified copy [of the deed], and they ’ve still got to comply with Davis v. D avis , Ibelieve.

The Cons erva

ncy then conceded that it had not filed wit hin three day s of t he sui t a

cer tified copy of the rele vant deed and i n d i ca ted that it would be willing “just to proce ed on the decla ratory judgme nt action.” Af

ter a rec ess, the trial c ourt resume d and cla rified the ma

tter:

The Court: Be fo re we beg in with witnesses, Mr. R ez n i k [ co u n s el fo r t h e

Conservanc y ], it’s my understanding that t h e plaintiff desires to abandon the trespass to try title cause of

action. Mr. Reznik: T h at i s co rr ec t , y o u r Ho n o r, and proce ed with the de cl ar at o ry

judgme nt cause of ac tion. Following this exchang e, the trial court denied appellee s’ motion for d i re ct ed verdic t that the Conservanc y take nothing on its trespass- to-try -title cause of action, rea soning that the Conservanc y had the r ight “ to nonsuit t he ca use of a ction any

time up until t he trial a ctually starts.” During the three -day trial, the Conservanc y ’s expert witnesses testified reg arding the

arc haeolog ical value of the Property , the prac tice of “conse rvation arc haeolog y ,” and the Conservanc y ’s eff

orts to “pre serve ” the site, which it asser ted was an acc eptabl e “u s e” for an
5arc haeolog ical purpose in acc ordanc e with the Gift Dee d’s conditions. Appellee s counter ed with

evidenc e that the Conservanc y failed to make appropr iate use of the Property or to provide adequate

secur ity , there by

allowing the Property

to suffer damag e at the ha

nds of looters. One of the primary disputes at trial conce rned the con s t ruction of the Gift Dee d—specific ally , what the contra cti n g parties intended in draf ting the first condition (that the Property be used “ predominantly

to provide an archa eolog ical laboratory for intermitt ent resear ch excavations, restoration of I ndian artifa cts and habitats, exhibi tion of artifa cts and restore d habitats
to the public or for any other arc haeolog ical purpose” ). Over the Conservanc y ’s objection, the trial court allowed testimony from W ilson J r. and admitted a number of ex hibits docum en t i n g various

corr espondenc e betwee n the Conserva ncy and Wilson S r. prior to the e x ecution of the Gift Dee d. The court stated on the rec ord that its basi s fo r al lowing the parol evidenc e was that “the parties

wer en’t in ag ree ment on what [t he above- qu o ted languag e] meant, and there ’s some ambig uity .” Wil son J r.’s testimony and the documentar y evidenc e tended to show that the Wil sons and WL CC intended this condition in the Gift Dee d to ensur e t h at t h e Property would be used for a public purpose— e.g. , that it would hous e a museum or an interpre tive cente r or something of that
nature —and not that it would be passively “pre serve d” for an indefinite period of time without ever opening the land to the public or a ctively conducting excavation on the site. 3

The e ssence of Wilson J r.’s testimony is that it was his family ’s under standing that their 3 donation of the site would be “an educa tional complim en t t o t h e L eande rthal [si te,] which has enormous public interest in this community .” The ref ere nce is to the so-ca lled “L eande rthal L ady ,” one of the oldest and most complete human skeletons ever found in North Americ a, discovere d near the Property

during an excava tion by

the Texas Depa

rtment of Tra

nsportation in 1983. 6At the close of the evidenc e, the trial court found that the Property had reve rted to the

WL CC and rende red judgme nt in favor of appellee s. I ts finding s wer e memorialized i n t h e final judgme nt signe d November 1, 2007, which order ed that the Conservanc y take nothing by its suit and decr eed that “the proper

ty was not used as require d in the reve rsionary clause in the g ift deed

. . . and there fore fee simple title to the proper ty has reve rted to [W L CC] and/or its succe ssors and assig ns” fre e and clea

r of any interest or claims of the Conservanc y . On the Conservanc y ’s motion, the trial
court a lso issued findings of f act. Of rele vance to this appeal ar e the f ollowing: Although [W L CC] expanded the siz e of the g rant in re liance on the Conservanc y ’s Represe ntation that an interpre tive cente r wou l d be built or maintained on the Property , no such interpre tive cente r or visitor’s cente r was ever built or maintained on the Property

. The Conservanc y failed to set aside any are a on the Property for an interpre tive cente r or visitor’s ce nter. The Conservanc y had no plans for building or maintaining an interpre tive cente r or visitor’s center

on the Property

. The Cons erva

ncy attempted to sell a portion of t he P ropert y intended for use as an interpre tive cente r and rela ted parking to a rea l estate develope r for $100,000 and for other land. No po rt ion of the Property has been excavated or interpre ted for the public as a county , state or national park. The Conservanc y never opened the Property to the public and had no plans to do so. The Conservanc y did not use the Property predominantly to provide an arc heolog ical labora tory for intermittent rese arc h excavat ions, restoration of I ndian artifa cts and habitats, exhibi tion o f ar tifacts and restore d habitats to the public, or for any other arc heolog ical purpose

. The Conserva

ncy maintained no ar cheolog ical labor atory on the Property

.

7No rese arc h excavations for arc heolog ical purposes t o o k p lace on the Property

afte r 1993. No re storation of I ndian ar tifacts and ha

bitats took place on the Prope rty

. The activities on the Property connec ted with the conser vancy ’s plan n ed sale of a portion of the Property to the rea l estate develope r wer e not conducte d for arc heolog ical purpose s. No exhibi tion of artifa cts and restore d habitats for t h e p u b l i c took place on the Property

.
The Conserva

ncy now appeals, arguing that the t rial court err ed in finding the Gift Dee d ambig uous without any pleading of ambig uity by t h e p arties, there by err oneously allowing parol evidenc e of the parties’ intent and imposing require ments on the Conservanc y not found within the four corne rs of the Gift Dee d. The Conservanc y also argues that the evidenc e supporting the trial court’s judg ment is leg ally insufficient.

DISCUSSIO N As a preliminary matter and b ec au s e it is dispositi ve of the issues that the Conservanc y raises on appea l, we first addre ss appellee s’ contention that the Conservanc y ’s suit for decla ratory relief was improper beca use it r aised title issues that could only have been a djudicated in a trespass- to-try -t i t l e s u i t. I n support of their arg ument, appellee s rely principally on Martin

v. Amerman , 133 S.W .3d 262 (Tex. 2004). I n Martin , the Texas S u p re m e C o u rt held that a trespass to-try -title action is the exclusive means t o resolve the parties’ substantive rig hts in a boundary -dispute case , there by prohibiting the parties from adjudicating their claims in a decla ratory -judg ment action. 133 S.W .3d at 267 (noting that trespass- to-try -title statute “expressly

8provides that it is ‘ the method for deter mining title to

. . . rea l proper ty ”). Severa l courts of appea ls, 4 including this Court, have interpre ted Martin to m ea n t hat a trespass- to-try -title claim “is the exclusive method in Texas for adjudicating disputed claims of title to rea l proper ty .” State v. BP Am. Pro d

. C o. , 290 S.W .3d 345, 360 (Tex. App.—Austin 2009, pet. filed); see Lile v. Smith , 291 S.W .3d 75, 77-78 (Tex. App.—Texarkana 2009, no pet.); Veterans L a n d B d

. v. Lesley , 281 S.W

. 3 d 602, 627 (Tex. App.—Eastland 2009, pet. filed); Porretto v. Patterson , 251 S.W .3d 701, 708 (Tex. Ap p . — Ho u s t o n [1st Dist.] , no pet.); Ruiz v. Stewart Mineral Corp. , 202 S.W .3d 242, 247-48 (Tex. App.—Ty ler 2006, pet. denied) ; Ely v. Briley , 959 S.W .2d 723 , 7 2 7 (Tex. App.—Austin 1998, n o pet.); see also MBM Fin. Corp. v. W oodlands Operating Co., L.P. , 292 S.W .3d 660, 669 & n.48 (Tex. 2009) (desc ribing , in dicta, proper ty code’ s trespass- to-try -title action as “ exclusive remedy ” for adjudicating title disput es). As part of its reque st for aff irmative relief

, the Conservanc y soug ht a decla ration that WL CC “illeg ally deede d the proper ty to D efe ndant Wil l R. Wil son, J r.”—a controve rsy that, at its hear t, seeks to deter

mine title to a define d parc el of land under competing deeds, which is prec isely what the trespass- to-try -title action is intende d to a ddress. See Lile , 291 S.W .3d at 78 (dec lara tory relief that Smit hs wer e owner s of proper ty and had wrong fully been denied acc ess was improper and claims could o n l y b e p rosec uted in trespass- to-try -title action); Roberson v. City of Austin , 157 S.W .3d 130, 136 (Tex. A pp.—Austin 2005, pet. denied) (“[W] hen one seeks title to proper ty ,

Post- Martin , the leg islature amende d the UDJA to allow a party to obtain decla ratory relief 4 “whe n the sole issue conce rning title to rea l proper ty is the deter

mination of the proper boundary line betwee n adjoining pr operties.” See Tex. Ci v. Prac. & Rem. Code Ann. § 37.004(c ) (West 2008). 9trespass to try title, and not the UDJA, is the proper cause o f ac tion.”). I ndeed, the Conservanc y

itself acknow ledg es that one of the “ultimate questions” in this case is “ who owns the Preser ve,” a q u es t i on that square ly deter mines title to the Property and there fore could not be broug ht un d er the UDJA. Yet the Conservanc y also asked the trial court to declare the rights, status, or ot her leg al re lations betwee n the par ties under the G ift Dee d, specific ally by construing the terms of the Gift Dee d’s re verte r cla

use and f inding that the Conser

vancy had not vi olated the reve rter c lause. The Conservanc y urg es that, under the p l ai n lang uag e of the UDJA, it was entitled to “have deter mined any question of construction or validity arising under” the Gift Dee d. See Tex. Civ. Prac. & Rem. Co d e Ann. § 37.004(a)

. The courts of appea ls have not been entirely consistent in

answe ring the question of whether a party may pursue decla ratory relief when the controve rsy soug ht
to be resolved by the decla ration implicates title but does not d i re ct l y decide it. Compare Hawk

v. E.K. Arledge, Inc. , 107 S.W .3d 79, 84 (Tex. App.—Eastland 2003, pet. denied) (“A ny suit that i n v o l v es a dispute over the title to land is, in eff ect, an action in trespass to try title, whateve r i t s form.”) ; Jordan v. Exx on Corp. , 802 S.W .2d 880, 883 (Tex. App.—Texarkana 1991, no writ) (“A ny suit that involves a dispute over the title to land is, in eff ect, an action in trespass t o t ry title, whateve r its form and reg ardle ss of whether leg al or equitable relief is soug ht. ”) ; K ennesaw Life & Acc ident Ins. Co. v. Goss , 694 S.W .2d 115, 118 (Tex. App.—Houston [14t h Dist.] 1985, writ ref ’d n.r.e.) (“While the [UDJ A] specific ally provides a proce dural method for the construction or validity of deeds by those whose rig hts are aff ecte d by such instruments, the substantive rig hts of the parties

ar e g overne d by the Trespa ss to Try Title statutes.”), with Cadle Co. v. Ortiz , 227 S

. W

. 3 d 8 3 1 ,

10837-38 (Tex. App.—Corpus Christi 2007, pet. denied) (allowing plaintiff to litigate validity of lien

under UDJ A, even though dispute “ultimately implicates title”); Brush v. Re ata Oil & Gas Corp. , 984 S.W .2d 720, 730 (Tex. App.—Waco 1998, pet. denie d) (pe rmitting re lief under UDJA in suit to construe oil and g as lea ses). 5

What is clea

r, howeve r, is that in try ing to resolve whether a suit in this context may proce ed under the UDJA, courts look to the hear t of the dispute to deter

mine whether , in substance, it is a dispute over title, or whether the true aim of the suit is simply to deter mine the validity or construction of a deed or other instrument. See, e.g. , McRae E xp loration & Prod. v. Reserv e Petroleum Co. , 962 S.W .2d 676, 685 (Tex. A pp.—Waco 1998, pet. denie d) (“ This suit i nvolves a title dispute betwee n competing deeds. I t does not involve the construction or validity of the deeds. As such it is an action for trespass to try title and not for decla ratory judgme nt.”); Bell v. State Dep’ t of Highways & Pub. Transp. , 945 S.W

. 2 d 2 92, 294 (Tex. App.—Houston [1st Dist.] 1997, writ denied) (“B ell makes no claim that the adver se posses s i o n s t at u tes are ambig uous or invalid. He claims only that the State is not entitl ed to owner ship under them. The Dec lara tory J udg ment Act does not supplant a suit for trespass to try title under these circ umstances. Moreove r, the State claims

owner ship under a lost deed; thus, there is no deed whose v al i d ity must be deter mined or terms construe d.”).

The Conservanc y urg es this Court to analog ize the prese nt case to F l o r ey v. E

s t a te of 5 McConnell , 212 S.W .3d 439 (Tex. App.—Austin 2006, pet. denied) , a case involving a suit to resc ind a deed under the UDJ A. We note, however, that Flore y never raised an obj ection that the estate’ s claim to quiet title was g overne d by the trespass- to-try -title statute, which distinguishes that case from the prese nt one. See Krabbe v. Anadarko Petroleum Corp. , 46 S.W .3d 308, 320-21 (Tex. App.—Amar illo 2001, pet. denied) (if trespass- to-try -title claim is broug ht as decla ratory -judg ment action, abse nt objection to that proce dure, a ny err or in permitting suit under UDJA is waived). 11I n this c ase, while it is true that the Conservanc y soug ht a construction of the terms

of the Gift Dee d, the rea l controve rsy betwee n it and the appellee s—as alleg ed in the Conservanc y ’s petition—concer

ns who owns the land. The Conservanc y ’s reque st for a decla ration that it did not violate the reve rter clause in the Gift Dee d is not a separ ate, stand-alone controve rsy ; rathe r, it g oes to the hear

t of the dispute over title to the Property beca use it is clea

r that the Conservanc y intended
to use this decla

ration to establish that it had reta ined title under the Gift Dee d. I n other words, the Conservanc y ’s s uit to decla re the Reverte r Deed i nvalid and it s reque st for a judicial con struction of the Gift Dee d’s reve rter clause wer e both means to deter mine title to the Property

. Acc ording ly ,
we hold that the Conservanc y had to p u rs u e b o t h as actions in trespass to try title and could not pursue e ither cla im under the UD J A.

CONCLUSION

Having deter

mined that the exclusive reme dy availabl e to the Conservanc y was in trespass to try title and not u n d er t h e UDJA, we overrule the Conservanc y ’s i ssues and affirm t he judgme nt of the district court. 6

We note that the Conserva ncy does not cha lleng e on appe al whethe r the trial court err ed 6 in rende ring judgme nt on the appellees’ counterc laims for declar at o ry relief reg arding their rights under the Gift De ed. There fore we express no opinion as to the propriety of the trial court’s decla ratory judgme nt construing t h e Gi ft Dee d and decla ring that fee simple title to the Property reve rted to WL CC. 12J . Woodfin J ones, Chief Just ice

Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: Mar ch 30, 2010

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