UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 97-41085

____________

BANK ONE TEXAS, NATIONAL ASSOCIATION, Trustee

of the R ed Crest Trust; LILIA BEATRICE COX

HARRIS; LINDA HARRIS BEARD; MARGIE HARRIS

NEWTOWN; JOHN H. MCMULLEN; ANDY J. MCMULLEN,

Plaintiffs - Appellants,

versus

UNITED STATES OF AMERICA; KCS RESOURCES

INCORPORATED; TESORO EXPLORATION AND

PRODUCTION COMPANY; TRANSTEXAS GAS

CORPORATION; TESORO E & P COMPANY, Limited

Partnership,

Defendants - Appellees.

Appeal from the United States District Court

for the Southern District of Texas

______________________________________________

October 16, 1998

Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA,

Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Bank One Texas, N.A. (“Bank One”), Lilia Beatrice Cox Harris,

Linda Harris Beard, Margie Harris Newtown, John H. McMul len and

Andy J. McMullen (“the McMullens”) appeal the dismissa l of their

Q uiet Title Act (“QTA”), 28 U.S.C. § 2409a (1994), claim. We

affirm.1 The residue is “[t]he surplus of a testator’s estate remaining after

all the debts, taxes, costs of administration, and particular legacies have been

discharged.” B LACK ’ S L AW D ICTIONARY 1310 (6th ed. 1990).

-2- I

In 1927, H. J. McMullen bought “an undivided one- sixteenth

interest in and to all oil, gas and other minerals in and under,

and that may be produced from” several pieces of land located in

Zapata County, Texas, totaling slightly mor e than 1000 acres

(“mineral interests”). He later ceded to McMullen Oil & Royalty,

Inc. (“McMullen Oil”), “any and all moneys of any kind or character

paid by any person [sic] firm or corporation, in any way or manner,

as down payment [sic] bonus money or delay rentals, in connection

with” leases of the mineral interests, as well as the “power and

authority to execute” such leases. McMullen Oil, in return, paid

$10.00, and promised that all royalties from the mineral interests

would be “the property of H. J. McMullen, individually and his

heirs, representatives and assigns” and that the leases would

direct payment of royalties to H. J. McMullen.

H. J. McMullen died in 1934. He left everything to his wife,

Susie McMullen. Susie McMullen, who later married George Langille,

died in 1938. Her will placed the residue, 1 of which the mineral

interests were a part, in trust (“Langille Trust”). It named her

two children as life beneficiaries of the Langille Trust; they were

to rece ive payments from the trust res for the duration of their

lives. S ee Dickson v. Dickson, 544 S.W.2d 200, 201 (Tex.-3-

App. )) Austin 1976, writ dism’d w.o .j.) (describing life

beneficiaries of a trust). The will named the heirs of Langille’s

children as remainder beneficiar ies of the Langille Trust; they

were to receive any res remaining upon the death of the surviving

c hild. S ee Barcelo v. Elliott

, 923 S.W.2d 575, 576 (Tex. 1996)

(describing remainder b eneficiaries of a trust). This remainder

interest immediately vested because one of Langille’s

grandchildren, Glenn Harris, Jr., was alive when she died. S ee

Caples v. Ward, 179 S.W. 856, 857-58 (Tex. 1915) (“A remainder is

vested where there is a person in being who would have an immediate

right to the possession upon the termination of the i ntermediate

estate.”).

Langille’s will designated Fort Worth National Bank (“FWNB”)

as trustee of the Langille Trust. It granted the bank, in that

capacity, the following authority:

To make demands, sue and receipt for all amounts due and

owing to, and claims and causes of action owned by or

involving this Trust; and, to defend all claims and

causes of action asserted against the Trust property, or

this Trust, or the interest of any beneficiary therein,

and to settle and compromise for, and on behalf of this

Trust, and all benef iciaries of same, all claims,

demands, and causes of action involving either the Trust

property or the right, title or interest of any

beneficiary therein, now in being or unborn; all of which

said settlement and compromise as so made by said

Trustee, sha ll be made by the Trustee acting upon its

sole and exclusiv e discretion and judgment, and when

made, shall be binding upo n all of the Trust Estate

whether in being or unborn.2 The United States built Falcon Dam, a multipurpose storage dam, and

an accompanying hydro-electric power plant on the Rio Grande River pursuant to

a 1944 treaty with Mexico concerning, among other things, water utilization on

the Rio Grande. S ee Treaty Respecting Utilization of Waters of the Colorado and

Tijuana Rivers and of the Rio Grande, Feb. 3, 1944, U.S.-Mexico, 59 Stat. 1219;

Allis Chalmers Corp. v. Friedkin, 481 F. Supp. 1256, 1259 (M.D. Pa. 1980), aff’d,

635 F.2d 248 (3d Cir. 1980). It completed Falcon Dam in 1952. See John B.

Hardwicke Co. v. United States, 467 F.2d 488, 490 (Ct. Cl. 1972).

-4- FWNB, as trustee, acquired the legal title to the Langille Trust’s

property, while the beneficiaries took an equitable interest. S ee

Cutrer v. Cutrer

, 334 S.W.2d 599, 605 (Tex. Civ. App. )) San Antonio

1960) (“for a trust to be a trust, the legal title must immediately

pass to the trustee, and beneficial or equitable interest to the

beneficiaries”), aff’d

, 162 S.W.2d 513 (Tex. 1961); s ee also

Shearrer v. Holley, 952 S.W.2d 74, 78 (Tex. App. )) San Antonio 1997,

no writ) (obs erving that the merger of legal and equitable

interests ends a trust).

The Government institu ted a condemnation action in 1949

against approximately 85,237 acres in Zapata County to obtain land

on wh ich to construct Falcon Dam. 2 S ee United States v. 85,237

Acres of Land, More or Less, in Zapata County, Tex., 157 F. Supp.

150, 152 (S.D. Tex. 1957), aff’d, 252 F. 2d 116 (5th Cir. 1958).

The condemnation action encompassed the properties in which the

mineral interests were held. At the outset, the Government filed

a Declaration of Taking that announced the taking of the lands at

issue “in fee simple title absolute, subject to existing easements

for public utilities and highways.” It identified both FWNB, as

executor and trustee under Langille’s will, and M cMullen Oil as3 The condemnation procedure established by the Declaration of Taking

Act has stayed the same since the measure’s enactment in 1931. See 40 U.S.C.

§ 258a (1994) (Amendments).

4 Federal Rule of Civil Procedure 71A, which provides procedures for

condemnation cases, became effective on August 1, 1951. S ee F ED

. R. C IV

. P. 71A

advisory committee’s note. It governed “all proceedings in actions brought after

it [took]

. . . effect and also . . . all further proceedings in actions then

pending,” unless the court found application to a given pending action infeasible

or working injustice. Id.

-5- among the “purported owners” of each parcel in which H. J. McMullen

had purchased a mineral interest. The district court subsequently

entered a judgment that pronounced the lands listed in the

Declaration of Taking condemned upon the Declaration’s filing and

that vested title to those lands in the Uni ted States in fee

simple, subje ct to an exception. S ee 40 U.S.C. § 258a (1994)

(Declaration of Taking Act). 3

The Government served FWNB, as “Executor and Trustee under the

will of Susie McMulle[n] Langille,” with a notice of the

condemnat ion action in 1955. S ee F ED

. R. C IV

. P. 71A(d)(3)

(requiring personal service of a defendant to a condemnation action

residing in the United States whose residence is know n). 4 FWNB

neither filed an answer, made an appearance nor sought to collect

sums that the district court adjudged to be just compensation for

the mineral interests, see 28 U.S.C. § 258a (1994) (creating a

right to just compensati on); F E D

. R. C IV

. P. 71A advisory

committee’s note (“Failure on the part of the defendant to serve an

answer constitutes a consent to the taking and to the authority of

the court to proceed to fix compensation, but it does not preclude5 Harris died in 1989.

6 Bank One’s participation in the condemnation action, as well as in

this case, occurred because it perceived itself as “stand[ing] in the position

of” Harris’ heirs and the McMullens.

-6- t he defendant from presenting evidence as to the amount of

compensation due him or in sharing the award or distribution.”).

A disagreement about the mineral interests arose in the early

1960s. FWNB believed that the Langille Trust solely held them.

McMullen Oil also claimed ownership, ex cept for royalties. This

dispute became moot in 1966, when McMullen Oil conveyed to FWNB, as

“Trustee under the Will of Susie McMullen Langille,” title to and

interest in all of its oil, gas and mineral interests.

Langille’s surviving child died in 1984. The remaining assets

in the Langille Trust then were distributed to Harris and the

McMullens, Langille’s three grandchildren (i.e., her children’s

heirs). Harris and the McMullens then pooled their interests in

the mineral or royalty interests that they had received from the

Langille Trust to create the Red Crest Trust. They designated

FWNB’s successor, Texas American Bank, N.A., as trustee of the Red

Crest Trust. Bank One later assumed that role.

In 1995, Bank One, Harris’ heirs (Lilia Beatrice Cox Harris,

Linda Har ris Beard and Margie Harris Newtown) 5 and the McMullens

filed a Rule 60(b) motion in the condemnation action contesting the

Government’s tit le to the mineral interests. 6 S ee F ED

. R. C IV

. P.

60(b) (listing instances in which a district court may relieve a7 We found no need, however, to deem the QTA the sole means for Bank

One, Harris’ heirs and the McMullens to pursue their title challenge. S ee Bank

One at 5-6.

8 Bank One, Harri s’ heirs and the McMullens initially sued only the

United States. They subsequently added as defendants KCS Resources, Inc., Tesoro

Exploration and Production Company, TransTexas Gas Corporation and Tesoro E & P

C ompany, which were alleged to be entities “conducting mineral production

operations” on the lands in which the mineral interests were held.

-7- party of a final judgment, order or proceeding). The district

court dismissed for lack of subject matte r jurisdiction, holding

that the QTA was the exclusive means for litigating the challenge.

See United States v. 85,237 Acres of Land, More or Less , No. 97-

40419, at 1-2, 4 (5th Cir. 1997) (unpublished opinion)(reporting

the district court’s ruling). In doing so, it rejected the

contention that a 1970 order closing the condemnation action (“1970

order”) wa s not a final judgment. S ee id. at 1 (same). We

affirmed the dismissal of t he Rule 60(b) motion, concluding that

the 1970 order “was a final judgment,” id. at 1, and that Bank One,

Harris’ heirs and the McMullens, as non-parties to the condemnation

action, had “to assert their claims to the condemned property via

an independent action against the United States, not a Rule 60(b)

motion,” id. at 6. 7

While their appeal of the dismissal of their Rule 60(b) motion

was pending, 8 Bank One, Harris’ heirs and t he McMullens brought a

QTA suit disputing the United States’ t itle to the mineral

interests in 1996. The district court, relying on the complaint

and the undisputed facts, held the action barred by the QTA’s9 We construe the district court’s disposition as a dismissal for lack

of subject matter jurisdiction. See infra pp. 11-12 and note 12.

10 The doctrine of virtual representation relates to relationships other

than that between a trustee and beneficiary. S ee R ESTATEMENT (S ECOND ) OF J UDGMENTS

§ 41(1) (1982) (listing the occasions when the doctrine of virtual representation

controls ); 18 C H ARLES A LAN W RIGHT ET AL

., F EDERAL P RACTICE AND P ROCEDURE § 4457 (1981 &

Supp. 1998) (disc ussing the development of the doctrine of virtual

-8- t welve-year statute of limitations, granted summary judgment an d

entered a dismissal order. 9 It again rejected the argument that

the 1970 order failed to constitute a final judgment in the

condemnation action. A timely appeal followed.

II

The parties differ over whether or not this case comes within

the QTA’s twelve-year statute of limitations. Bank One, Harris’

heirs and the McMullens argue that their claim accrued when Harris

and the McMullens vested in possession in 1984 )) twelve years prior

to the filing of this suit )) because Harris and the McMullens never

received notice from the Government of the condemnation action.

The U nited States and its co-defendants counter that accrual

occurred upon FWNB receiving notice of the condemnation action. In

support, they cite the doctrine of virtual representation, a rule

of Texas trust law that declares the following:

In actions adverse to a trust, if the dispute involves no

conflict of interest between the trustee and the

beneficiaries, or between the beneficiaries themselves,

a trustee may sue or defend in the trustee’s own name

when, either by express grant or necessary implication,

that power is vested in the trustee. In addition, in the

absence of a conflict of interest, or of a pleading that

they are inadequately represented, the beneficiaries who

did not participate at trial are not considered necessary

parties to the case. 10representation). For example, it controls when the earlier case concerned “[t]he

representation of a class of persons similarly situated, designated as such with

approval of the court, of which the person is a member.” R ESTATEMENT

, supra

§ 41(1)(e). The Fourth Circuit has decided whether or not judgments in earlier

condemnation actions bind QTA claimants by looking to see if those proceedings

fall within that particular situation. S ee Klugh v. United States, 818 F.2d 294,

300-01 (4th Cir. 1987) (observing that “[t]he doctrine of virtual representation

is recognized by federal and state law alike in this case” and applying it).

-9- Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 833 (Tex.

App. )) Amarillo 1993, no writ); see also R ESTATEMENT (S ECOND ) OF J UDGMENTS

§ 41(1)(a) (1982) (stating that the do ctrine of virtual

representation applies when “[a] person is represented by a party

who is

. . . [t]he trustee of an estate or interest of which the

person is a beneficiary”). The Government and its co-defendants

maintain that the notice to FWNB of the condemnation action against

the mineral i nterests in 1955 bound Harris and the McMullens

because the doctrine made the bank, “as trustee,

. . . the only

necessary party to the condemnation proceeding.” In other words,

they believe the doctrine should work to impute FWNB’s knowledge of

the adverse claim, acquired decades before this case began, to

Harris and the McMullens.

The QTA permits civil actions contesting a right, title or

interest in real property claimed by the United States. See 28

U.S.C. §§ 2409a(a) & (d), 1346(f) (1994). To foreclose “stale

challenges to the United States’ claim[s] to real property,

whatever the merits of those challenges,” it includes a statute

of limitations. United States v. Mottaz, 476 U.S. 834, 851, 106

S. Ct. 2224, 2234, 90 L. Ed. 2d 841, ___ (1986). That provision11 “Knowledge of the claim’s full contours is not required. All that

is necessary is a reasonable awareness that the Government claims some interest

adverse to the plaintiff’s.” K napp v. United States, 636 F. 2d 279, 283 (10th

Cir. 1980).

-10- states, “Any civil action under this section, except for an

action brought by a State, shall be barred unless it is commenced

within twelve years of the date upon which it accrued.” 28

U.S.C. § 2409a(g) (1994). It identifies “the date the plaintiff

or his predecessor in interest knew or should have known of the

claim of the United States” as the time when an action accrues. 11

Id.

The QTA is a waiver of sovereign immunity. See Block v.

North Dakota ex rel. Board of Univ. and Sch. Lands, 461 U.S. 273,

280, 103 S. Ct. 1811, 1816, 75 L. Ed. 2d 840, ___ (1983).

Therefore, the measure’s statute of limitations manifests a

condition to this waiver. See Mottaz, 476 U.S. at 841, 106 S.

Ct. at 2229, 90 L. Ed. 2d at ___ (QTA case). As such, it must be

construed strictly in favor of the Government. See Block, 461

U.S. at 287, 103 S. Ct. at 1819-20, 75 L. Ed. 2d at ___ (“when

Congress attaches conditions to legislation waiving sovereign

immunity of the United States, those conditions must be strictly

observed, and exceptions thereto are not to be lightly implied”).

Moreover, because it circumscribes the scope of a waiver of

sovereign immunity, the statute of limitations manifests a

jurisdictional prerequisite, rather than an affirmative defense.

See Mottaz, 476 U.S. at 841, 106 S. Ct. at 2229, 90 L. Ed. 2d at-11-

___; see also Block, 461 U.S. at 287, 292, 103 S. Ct. at 1823, 75

L. Ed. 2d at ___ (holding that, if the suit was barred by the

QTA’s statute of limitations, then “the courts below had no

jurisdiction to inquire into the merits”).

Courts interpret the QTA “in accordance with principles of

federal law.” Vincent Murphy Chevrolet Co. v. United States, 766

F.2d 449, 451 (10th Cir. 1985). “[W]hile [they] . . . may

properly look to state law as an aid in determining the

application of statutory language to specific facts, such state

law should be ‘[c]ompatible with the purpose of [the legislation

so as] to find the rule that will best effectuate federal

policy.’” Id. Thus, state law may provide courts with insight

about “ownership, transfer and title to real estate.” Amoco

Prod. Co. v. United States, 619 F.2d 1383, 1387 (10th Cir. 1980);

see Prater v. United States, 618 F.2d 263, 263 (5th Cir. 1980)

(holding plaintiff’s evidence in QTA case “sufficient to

establish the promise to reconvey, and thus raise a claim for

equitable title [under Georgia trust law] for jurisdictional

purposes”). It also may assist in discerning knowledge of the

Government’s claim. See Amoco, 619 F.2d at 1387 (“Local

practices and local rules are particularly indicative of whether

a party should have known a relevant fact.”).

We construe the district court’s grant of summary judgment as

a dismissal for lack of subject matter jurisdiction because of the12 Granting summary judgment is an inappropriate way to effect a

dismissal for lack of subj e ct matter jurisdiction. S ee Stanley v. Central

Intelligence Agency, 639 F.2d 1146, 1157 (5th Cir. Unit B Mar. 1981) (finding a

dismissal based on an exception to a waiver of sovereign immunity to implicate

subject matter jurisdiction) (“Since the granting of summary judgment is a

disposition on the merits of the case, a motion for summary judgment is not the

appropriate proc edure for raising the defense of lack of subject matter

jurisdiction.”).

-12- jurisdictional nature of QTA limitations. 12 S ee Valley v. Rapides

Parish Sch. Dist., 145 F.3d 329, 331-32 (5th Cir. 1998) (“Subjectmatter jurisdiction can be raised at any time, even sua sponte.”).

Dismissal for lack of subject matter jurisdiction arises when “it

appears certain that the plaintiff[s] cannot prove any set of facts

in support of [their] claim which would entitle [them] to relief.”

Hobbs v. Hawkins, 968 F.2d 471, 475 (5th Cir. 1992). Where the

dismissal rests on the complaint and the undisputed facts, such as

here, we decide the correctness of the district court’s application

of the law and whether or not the fa cts on which it relied were

indeed undisputed. S ee Williamson v. Tucker, 645 F.2d 404, 413

(5th Cir. 1983). Our review of the district court’s application of

the law is de novo. S ee Ynclan v. Department of Air Force, 943

F.2d 1388, 1390 (5th Cir. 1990).

We conclude that this QTA action accrued more than twelve

ye ars before its commencement. FWNB learned about the United

States’ claim to the mineral interests in 1955, when it was served,

as trustee under Langille’s will, with a notice of the condemnation

action. It consequently knew of the Government’s adverse action in

1966, when McMu llen Oil conveyed to FWNB, as trustee under-13-

Langille’s will, any rights i t held in the mineral interests.

These facts operated to put Harris and the McMullens on notice of

the Government’s claim, given FWNB’s authority to sue or defend on

behalf of th e Langille Trust and the absence of any conflict of

interest between FWNB or Langille’s children and them. C f. Towson

v. Texas Elec. Serv. Co., 371 S.W.2d 581, 582-83 (Tex. Civ.

App. )) Eastland 1963, writ ref’d n.r.e.) (applying doctrine of

virtual representation in a state condemnation case). Harris and

the McMullens, therefore, were aware of the Government’s claim to

the mineral interests at least thirty years before this suit was

brought. This situation renders the present title challenge barred

by the QTA’s twelve-year limitations period.

IV

Bank One, Harris’ heirs and the McMullens also argue that the

1970 order was not a final judgment. We have resolved this issue

alre ady, agreeing with the district court. S ee Bank One at 2-4.

We cannot revisit it; res judicata prevents us from doing so. S ee

5th C ir. R. 47.5.4 (“Unpublished opinions issued on or after

January 1, 1996, are not precedent, except under the doctrine of

res judicata

. . . .”); United States v. Timmons, 672 F. 2d 1373,

1377-78 (11th Cir. 1982) (finding res judicata to bind as to issue

resolved in earlier case).

V

We AFFIRM the dismissal of this case for lack of jurisdiction.