Rev ersed and Rendered and Opinion filed April 14 , 2022

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00421

- CV

THE CITY OF WEBSTER , Appellant

V.
MARY JENNETTE JACKSO N HUNNICUTT, Appellee

On Appeal fr om the County Civil C our t at Law No

. 2

Ha rris C ou n ty, Texas Trial Court Cause No. 1135217

O P I N I O N

The issue presented in th is interlocutory appeal is whether a n i n dividual who

asserts she was co erced or fra udu lently indu ced into deeding real p roperty to a government al entity can (1) as sert a v iab l e inverse

- co n dem nation cl aim and (2) establish subject

- matter jurisdiction for a cl aim against the governmental entity

. Concluding that appellee Mary Jennette Jackson H unnicutt ’ s allegations against appellant City of Webster are founded on tort ious be h avi or t hat negate s a n inv erse

- co ndemnation claim , we reverse the order of the trial court denying the2

ple a to the jurisdiction and re nder judgment dismiss ing Hunnic utt ’ s claims for
want of subject

- matter jurisdiction

. I. B A CKGR OUND 1

H unnicu tt owned a two

- thi r ds undi v i d ed interest in a 23

. 5

- acre tract of la nd
in t he City o f Webster fronting I nter state 45. Hunnicutt ’ s brother, Clifford Jackso n , owned the remai n in g one

- third und i v i d ed interest in the 23

. 5

- acre tract

. The City wished to develo p the area ar ound the i n terstate into a regional
sho pping a nd entertainment destination which included public r oads to service th e developmen t

. Hunn i c utt alleges that the City desired to plac e a public road, o r a s her pet i tion describes it
, a “ grand entrance, ” across a part of he r 23.5

- acre tract instead of across land owned b y t he City through its wholly

- owned subsidiary Webster Economic Developme nt Corporation

. In November 2016, Cit y employee Betsy Giu st o visited Hunnic ut t i n her home wit h a deed prep ared for Hunnicut t ’ s sign atu re , which proposed to convey 4.1 1 1 acres o f Hunni c utt ’ s 23.5

- acre tra ct to the City. Hunnciutt describes that she was induce d to sign the “ deed conveyin g not only the approximate 2. 6 ac res needed for t he gr and entran ce bu t also another 1.5

acres of land co nsist ing of a pipeline easement and a five

- fo ot stri p of land south of
the pipeline easement to vastly increase the value of the land owned by the City [.] ”

Hunnic utt ’ s petition alleges that even tho ug h t he City and Giusto knew
Jackson owned an inter est in the 4.111 acres , Hunnicutt w as told that Jackson ’ s sign ature wa s not necessar y

. Her petition further alternatively alleges that Giusto
assured her that if Jackson was not in agreement , t hen the deed w ou l d b e v oided. It is undisputed t hat the Cit y n ever rec eived a conveyance of Jacks on ’ s one

- third
int eres t i n the 4. 1 1 1

- acre tr act . It also undisputed tha t the City be gan constructi on

1 S ee Hunnicutt v . City of Web ster , N o. 14

– 20

– 00 22 2

– CV (Tex. App.

— Houst o n [14th Dist. ] F eb. 17, 2022, no pet. h.) ( Hunnicu tt I)

.3

of the public road on the 4. 1 1 1 acres approximately t wo y ea rs later.

In 2 01 8 , Hu n nic ut t filed suit in Harris County d ist rict cou rt asserting : (1) an
inverse

- condemnation claim agains t the City; (2) “ an action for recission ” of the deed; (3) an ultra

- vire s claim against Giusto; and (4 ) a request for declaratory rel ief agains t the C i t y v oiding H unnicutt ’ s conveyanc e of the 4. 1 1 1 acre s

. Hunnicutt
amended her district

- court petition to rem ove the inverse

- condemnation claim
because that claim may only be brought in a county court at law in Ha rris County. 2
Tex. Gov’t Code Ann. § 25.103 2 (c ) ( “ A county civil court at la w has excl usi ve juris diction in Harris County of eminent doma in proce ed ings, both statutory and inverse, if the amount in controvers y in a statutory proc eeding does not exceed [ $25 0,000 ] in ci vil cases. ” )

.
In June 2019, Hun nic u tt a nd Jackson brough t t his su it against the City in the county civil court at law assert in g a c ommon

- law inverse

- condemnation claim
based on the same facts , as well as seeking recission of the warran ty dee d

. The City filed a ple a to the jur isdicti on a rguin g that Hunnicutt ’ s “ a c tion fo r recissio n ”
was ba rred by governmental i mmunity and she ha d not p leaded a viable inverse

condemnation claim against the City. The trial court denied the plea to the juri sdiction
, res ulting in t his interlocutory a ppe a l. S e e Tex. Civ. Prac. & Re m. Co de Ann. § 51.014(a )(8).

II. A N ALYSIS In two appe llate issues , the City argues that the trial court erred in denying its p lea to the jurisdiction . In issue 1, the City argues Hunn icut t did not plead a
via bl e inverse

- condemnat ion clai m . In is sue 2, the City ar gu es that Hu nnicutt has

2 Hunni cutt ’ s re m ai nin g cl a im s asserted in the district

- cour t proceeding were challenged by the City and Giusto in a plea to the j urisdiction. The distri ct court granted the plea to the jur isdiction and dismiss ed all Hunni c ut t ’ s and Jac ks on ’ s claim s in that proceeding

. This c ou rt aff i r me d the judgment of the distri ct court

. See Hunni cu t t I

.4

no r ecission claim because re s cission is not a separate cause of action, but rather an equitable remedy

.
T he City does not dispute that Jackson ’ s undivided one

- third interest in the
4

. 1 1 1 acres was taken b y the City when the City b ui lt the r oa d and ad mit s t ha t Jackso n i s o w ed com pensation

. It is only Hun nicutt ’ s claims agains t the City that

are the subject of this appeal , and therefore Jacks on is not an appellee in this

appea l

. 3

A. Standard of r eview
A plea to the juri sdic tion is a pro ce dural ve h i cle used to chal leng e the

court ’ s subjec t

- matter jurisdic tion over a c lai m. T exas Dep ’ t of Parks & Wil d lif e v. M ira nda
, 133 S .W.3d 217, 232 (Tex. 2004)

. The standard of re view of a trial

court ’ s ruling o n such a plea i s d e novo. State v. Holl an d
, 221 S.W .3 d 639, 6 42 (Tex. 2007 ). In our revi ew , we do not consider the merits of the un derlying cl aim;

we co n sider only t he plaintiff ’ s pleadin gs and th e eviden ce p ertin ent to t he juri sdictional inqui ry

. Se e B land Indep. Sch. D ist. v. Blue
, 34 S.W.3d 54 7, 555 (Te x. 200 0 )

. When a p lea challenges the claimant ’s plead ings, w e determi ne wh ether t h e cla i mant p leaded facts that affi rm ati v e ly d emonst rat e the tria l co urt’s j u ri sdic ti on, con struin g the pleadings liberally and in favor of the cla imant.
Miranda , 13 3 S.W.3d a t 22 6

. I f the plea dings do not contain sufficient facts to

3 Texas Rule of Appellate Procedure 3.1(c) def ines an appelle e as “a party adverse to an appellant.” U n l i k e an appell ant , which in civil cases Texas Rules of Appel la te Procedure 3.1(a ) and 25 .1 (c) ge ne rally require t he fi l ing of a notice of appeal t hat identif ies the appealing party
, an appellee need not be definitively ide ntified until the appellant’s brief is file d. An appellee, how ever, must be a party to th e trial court ’s final jud gment an d must b e someone again st whom the ap p e llant raises issues or points of error in the appell ant’s brief. Showbiz Multimedia, LLC v. Mou ntain States Mortg. Ctrs., Inc ., 303 S.W.3d 769, 771 n.3 (Tex. App.

— Houston [1st Dist.] 2 00 9, no pet.)

. The City f iled a p lea to t he jurisdiction onl y as to Hu n n icutt ’ s claims and confirmed both in the trial court and in its appella te briefing that Jackso n is entitled to compensation for his inve r se

- condemnation cla im.5

a ffirmati vely demonstr a te th e trial court ’ s jurisdiction bu t do no t affirm ati vely
demonstra te in cu rab le defects in jurisdiction, the issue is on e of pleading
suf fici ency and the claimant sh ould be af forded t he oppor tunity to amend. I d

. at
22 6

– 2 7

. However, i f the pleadings affir m ative l y nega te the existence of ju ri sdic tio n, then we should re nder by grant in g the plea and dismissing for want of jurisdiction without a llowing an opportunity to a m end

. Id

. a t 22 7

.
T he stand ard of review for a plea to the jurisdiction based o n evidence

“ g enerally mirrors that of a s ummary judgme nt under Texas Ru le of C ivil Procedure 166a(c).” Id

. at 228 . Under thi s standard, we take as tru e all evidenc e favoring th e nonmova n t and draw a ll rea sonable inferences and re solve any doubts
in the nonmovant ’ s favor. Id

. If the movant presents conclusive proof that the trial court lacks subject

- matte r j urisdic tion, then the nonmovant must present ev idence
suff i cient to rai se a materia l issue of f act re g arding jurisdiction or the plea will be
sustained. See id

. The City ’ s plea challenged both the pleadings and the existence of jurisdictional facts.

B. Invers e - co nde mnation c laim

1. Hunn i c utt did not plead a via ble inve rse - condemnatio n cl aim

I n ve rse

- cond emn a tion claim s , 4 a l s o r e f e r r e d t o as “ takings ” claim s , are rooted in the takings c lause of the Texas Constitution

— article I, section 17

— which provides, in relevant part, tha t “no p erson ’ s property shall be tak en , damaged, or dest royed fo r or app l i ed to pu bli c use without adequat e com pen satio n

4 T he action is referre d to as inver se beca use t h e prop er ty owner i nitiates a c ommon

- law acti on to recover compensation for a taking that has already occurred instead of the government initi ating a formal statutory proceeding to determine appropriate c ompensation for a prospecti ve takin g. See Ci ty of D al las v. Ste wa rt , 361 S. W.3d 562, 56 7 (Tex. 2012 ).6

being made, unless by the consent of such pe rson.” Tex. Const. art. I, § 17(a). 5
B e cau s e t his c ause of action is created b y the Texas Constitution, a viable
inver se

- condem nation claim is not barred b y common

- l aw doctr ines of soverei gn and governmental immunity. See Holla n d
, 221 S.W.3d at 643

. H owever , if a plainti f f “c ann ot es ta

blish a viable takings claim ” against a governmental entity,
the claim wou ld implicate im munity and po tentiall y be barred by it. Texas Dep ’ t of Transp. v. A.P.I. Pipe & Supply, LLC
, 39 7 S.W.3 d 162, 166 (Tex. 2013)

. A trial court should therefore grant a plea to the jurisdict ion when a government defendant
de monstrates or produce s evidence to show as a ma tt er of la w that the p laintiff

cann ot e s tab lish a v iable inv e rse

- con demna tion c laim

. See A.P.I. Pipe , 397 S.W.3d
at 166 ; Miranda
, 133 S.W.3 d at 228

. As part of its arguments in issue 1
, t he City argues that Hunnicutt ’s pleadings negat e her inverse

- condemnatio n c laim
, be ca use her pleadings allege a

tort c la im

. 6 To plead a viable inverse

- condemnat ion claim under Te xas Constitution a rt icle I, section 17
, Appel lant must allege (1) an intentional act by the

gove rnmental entity under its law ful authority, (2) resulti ng in a ta ki ng or damaging of property, (3) for pu blic use. See Harris Cty. Flo od Control D ist. v.

5 The United States Constitution also p rovides “ nor shall private propert y be taken for public u se, without just compensation. ” U.S. Const. amend. V.

6 In so doing, the City advances ne w ar gume nts o n appeal in support o f its po si ti on that Hu nni cutt has not pleaded a v iable inverse

- condemnation claim. Ordinarily new issues may n ot be raised for the fi rst time on appeal , though there is an exception for issues de monstrating an absence of s ub

ject

- m atter jurisdic tio n

. See Ru sk State H os p . v. Blac k
, 392 S.W.3 d 88 , 95

– 97 (Tex. 2012). In some circumsta nces , a challenge to subject

- matte r jurisdiction raised f or the first time on appeal may depri ve the plaintiff of the o pportunity to amend its ple ad ings t o cur e defects

or to dev el op the r ec or d with rel evant eviden ce. Id

. at 96. However, Hunnicutt respond e d substantively to the City ’ s argu m ents on appeal
, and Hun nicutt raise d no issue requiring further dev elop ment of the record or amend men t of her pleadings

. Because Hunn icutt ’ s pl ea dings an d

re sponse to the plea to the jurisdiction descri be G iusto ’ s conduct as consisting sole l y of tortious acts and i ntentional misrepresen tations
, we conclude that it is unnecessar y to allow Hunnicutt a further opportunity to am end her pl ea dings

. M i ra nda , 133 S. W. 3d at 22 6

– 27

.7

Kerr , 499 S.W.3d 79 3, 7 9 9 (Tex. 2016 ) ; State v. Hale
, 146 S.W.2d 731, 737 ( Tex. 1941)

. Mere negl igence is not a compensable t aking. Steele v. City of Ho uston , 603 S.W.2d 786, 79 0

– 9 1 (Tex

. 19 80)

.
T he supre me court h as h eld th at a n inverse

- condemnation claim must be
based on int entio n al governmental action that i s within the govern m ent ’ s au thor ity

. See St e ele
, 6 03 S.W.2d at 79 1 ; Hale
, 146 S.W.2d at 737 . Only whe n the governmental entity has pr op erly exe rc ise d its authority may it be liable under article I, section 17. Nuss baum v . Bell Count y , 76 S.W. 430, 432 ( Tex. 19 03 ). The

supreme court described the contours of “ takings ” liability in Nussbaum

. The court
held th at “ where this authority is pr op erly exe rc ise d a county may be made liable”
under article I, se ction 17. Id

. Ho wever, govern menta l entities “ are not responsi ble for damages caused by the neglects or wrongs committed by their offic ers

. . . . In [th is] class of cases the [governmental en ti ty] i s n ot re sponsible, but the person through whose wrong or n eglect the damag e occu rred may be. ” Id

. Nussbaum thus distingu ishe s between a compens able taking under article I, section 17 and a tort

. See id

. Unintentional acts o f negligence or intentiona l acts tha t are outside the authority of the state may be torts
, but they are not takin g s. See id .; see a lso Texas Hig h way Dep ’ t v. Weber
, 219 S.W.2d 70, 72 ( Tex. 1949) (recognizing distinction
between cause of action for inverse condemnation and cause o f action b as ed on

tort ) ; Fir em en ’ s Ins. Co. of Newark, N.J. v. Board of Regents of the Univ. of Tex. Sys ., 909 S.W.2d 540, 543

– 44 (Tex. App.

—

Au stin 19 95, writ denied) (“The allegation of fraudulent inducement pleads a tort , not a taking.”)
, disa pproved of on other g ro unds by Bland I nd ep . Sch. Dist.
, 34 S.W.3 d at 555 ; City of Richardson v.
C annon , No. 05

– 18

– 00181

– CV, 2018 WL 6845240, at *3 (Tex. App.

— Da llas
Nov. 16, 2 018, no pet.) (mem. op.) (plaintiff ’ s allegation s t h at city and i ts employees ac ted fraudul en tly neg a te d taki ngs c la im)

.8

T he Texarkana Court of Appeals reached a different conclusion in holding
the “ fraudulent taking of a person ’ s property by a governmental entity without
ad equ ate com pensation or consent constitutes inve rse condemnation

. ” Smith v. Harris o n C ty

. , 824 S.W.2d 788, 792 (Tex. App.

— Texarkana 1992, no writ)

. In so holding, t he court n ot ed it found no cases in which an inverse

- c ondemnation action was used to complain th at a d eed was obtained fraudulently and did not reflect the parties ’ p r ior agr e em ent

. I d

. In Smith
, a landowner agreed to sell property to the county for a specific use
, subject to certain condition s

. Id . at 790

– 91. The county prepared the deed , which t he l andowner signed

. Id . a t 791

. The landowner late r discove r ed that the deed did not rest rict the use of the property pursuant to the conditions she negotiated

. The trial court rendered a take

- nothing judgment on the
landowner ’ s c laim s following a b en ch trial. I d . at 791. Though u ltimately the court of ap pe als aff

i rm ed the judgment of the tria l court
, co ncluding the factfinder could
have determined the lan downer did not meet her burd en on he r claims
, the court speculated th at the landowner woul d be entitled to compensation if she h ad met the requirements f

or fr aud. We disagree with the conclusi on of our sister court that the fraudulent taking of a person ’ s property by a governmental entity constitutes
inverse condemnation
, because it cannot be reco nciled w ith precedent which holds
that an i nverse

- condemnati on claim f ou nded on tor tio us conduct ca nnot be
maint a ined

.
Hu nn i c utt responds to the City by arg uing that she did not bring tort claims against the City. She maintai ns that her allegations in this lawsuit do not ac cuse th e City of unlawful beha vior, but in st ead all e ge that the City “intentional ly took [Hunnic utt’s] property for public u se” without her consent and denied her access to the undivided two

- thirds interest in the 4 .1 1 1 acres of land that she owned but “received absolutely no compensatio n for this t a king, m uc h less a dequate9

compensatio n as require d by the Texas constitution.” However, t he basis of
Hunn icutt ’s taking claim is that she was f raudulently induced to sign the

conveyance based on var ious “ unfulfilled ” promis es, including the promis e that if
Jackso n d i d not a gree to convey his ow nership of the pr o perty th at t he deed would
be voided. 7 Hunnicutt al leges that she believed the deed she signed to be worthless.
In h er re sponse to the plea to the jurisdiction , H unnicutt describes t he inter acti o n a s follows :

L a ter that day, Giusto arriv ed at Mr s. Hunnicutt’s house armed with a prepared warranty deed ( the “ Warranty De ed ” ) and a City nota ry named Pam Guillory. At the meeting, Giusto made a num ber of promises and rep resentations and us e d her re lati o nsh ip of tru s t t o persuade and pressure Mr s. Hun nicutt. In addition, when Mrs. Hunnicutt hesitated and insisted that Mr. Jac kson needed to si gn a deed as well due to his ownership in terest, Giusto pro mise d Mrs. Hunnicutt th at any conveyance o f the lan d wo u ld be of no e ff e ct and would be worthless if Mr. Jackson refused to convey his ownership interest in property to the City. G iusto also told Mrs. Hunnicutt that the document was just a piece of paper th at the mayor needed fo r an important meet i ng to sh ow t o so me people

. M r s. Hunnicutt was never all owed t he opportunity to discuss the Warranty Deed with her lawyer or Mr. Jackson. Eventually Mrs. Hunnicutt folded to Giusto’s pressure and executed the Warran ty Deed based upon the representations ma d e by Giu sto a nd th e trust re l ationship. As she had been assur ed the Warranty Deed was worthless without Mr. Jackson’s signature , Mrs. Hun nicutt di d not understand that she had conveyed her intere st in the property at the time she execut ed the Warranty Dee d

. We conclude Hu nn i c utt ’ s pe t it ion did not plead a via b le
inve rse

- condemnation cl aim because her all egations are premised on tortious or
unl awful conduct on t he part of Gui sto rather tha n conduct with in the lawful
auth o rity of t he City. Without a via ble inve rse

- condemnati on claim, Hu n ni cutt ’ s

7 Hunn i c utt also attache d to her response to the plea to the jurisdiction a copy of her pe t itio n in the d istrict

- court case, which expli ci tly al lege s fraudulent and un law fu l behavior on the part of the City and Giusto in p rocu r in g the co nve ya nce of the 4. 1 1 1 acr es from Hunnicutt

.10

petition does not support the subje ct

- mat ter jurisdiction of t he trial court.
Ther efore, w e need not address the City ’ s other appellat e arguments und er issue 1
that the deed is unambiguous and m u st be con str ued as a matter of law to e st ablish

c on s ent and compe nsa tion

. 2. The City was not precluded from challengi ng subject

- matter jurisdiction

Notwithstandin g her pleadings, Hunnicutt argues that the City judicially
admitted that Hunn icut t has a viable inve rse

- condem nation claim, and tha t “ it may

no t n ow dispute thi s fact. ” 8 T he statements alleged by Hunnic utt to consti tute a judicial admission were by made an attorney for the C i ty du ring the hearing on the City ’ s plea to the jur isdiction in the underlying distri ct

- court c as e in Hunnicut t I

. In
di scussing w het her t he City wa s eng aged in a prop rie tary function or governmental
funct ion for purposes of governmental immunity in t he district

- court case , the attorney f or the City re sponded to a h ypothetical from the cou rt asking if Hunnicutt
ha d any reco ur se if she was i n fact “ swi nd led
, ” by stating “ No, it’s a takings
claim. ” T h at respon se was part of a more extensive ex change between counsel and
the court : [ Counsel f

or the City : ] And in addition to that, she could sue wh oever di d it for fraud, and there ’ s an election of re m edies unde r 101.06(f). And if you include the City, then it ’ s inclu de

— your

— your allegations, you ’ re stuck with that. You ’ re

— it ’ s aga inst the C ity and the actual plaintiff under 101.106. [ Tria l Co ur t : ] So e ve n though she g ives the deed to the City, ther e ’ s no way fo r h er to undo it ? [ Counsel for the City : ] No. It ’ s

— it s ;

— the City ’ s already taken it

8 Hunnicutt speci fically states that she does n ot ar gue the a pplication of j udici al esto ppe l, only the doctrine of judi cial admission. Judicial es to ppel is a “ rule of proc edure based on justice and soun d p ublic p oli cy” that bars a party fr om taking a posi tion inconsistent with one taken successfully in an e arlier pr oceeding. Pleasant G lade As sembly of God v. Schubert
, 264 S.W.3d 1 , 6 (Tex. 2008 )

.11

and [] constructed a street. And it ’ s

— t hat ’ s a

— that

— if they have a cla im, it ’ s a takings clai m

. In respo ns e, the City ar gues : (1) its co unsel never admit t ed Hunnicu tt had a vi able
claim ; (2) a judicial admission must occu r in the same proceeding and its counsel ’s

state ment was made in anoth er pro ceeding; (3) the determinatio n of a taking is questi o n of law; an d (4) subject

- matter jurisdict ion cannot be con f erred by j ud icial
adm ission

. A “ true ” judicial admission is a f orma l waiver of proof usually found in pleadings or the stipulations of t he part ies. Mendoza v. Fid. & Guar. Ins. Underwriters, Inc

. , 6 06 S.W.2 d 692, 694 (Tex. 1980)

. Testimon ial declarations
which are c o ntrar y to a party ’ s position are qu as i

- admissions and co nstitute some evidence, but are not conclusive on the admitter unless they m eet the following requirem ent s: (1) the statement mu s t be made i n the course of a judicial

proc eeding; (2) it m u st be contr a ry to an e ssential fact or defense asserted b y the party ; (3) it must be deliberate, clear, and unequivocal; (4) it cannot be destru ctive of the opposing party ’ s theory of recovery o r d ef ense; an d (5) enforcing the

statement as a judicial admi s sion would b e consiste nt with public policy. See i d

. Statements of f

act made in other proceedings may also be re ceived as an admission if they meet t he lega l requirements

. See Brown v. Lanier Worldwide, Inc

. , 12 4 S.W.3d 8 83 , 900 (Tex. App.

— Houston [14 th Dist.] 2004, n o pet.)

.
R e l ying on Lanier World wide
, Hunnicutt argues that a j udicial admissi on

ma y be from a party ’s counsel and need not be sworn

. 12 4 S.W.3d at 900

. But se e Banda v. G arcia , 955 S .W .2d 270, 2 72 (Tex. 1997) (uns worn statem ent s of
counsel g enerally do not constitu te evidence )

. Lanier World wide is distinguis hable

as our opinion addressed a situation in which d efens e cou nsel represented to a G e orgia court that h is client was an existin g entity a nd a par ty to the disput e

. See12

Lanie r Worldwide , 12 4 S.W.3d at 829
, 900

. When the p lain tiff in Lanier
World wide attempted to domesticat e the Ge orgia judgment in Texas , the defendant sought summary judgment on the basis that it was not an existing ent it y and no t
pa rt of the dispute w i th the plai n tiff

. See id

. Hunnicutt ’ s argumen t attempts to expand our holding in Lan ier World wide

— that statements of material fact made by

cou nsel in another proceeding
, over whi ch counsel ha d personal knowle dge
, were a judicial adm is sio n

—

to th e fact s here , which i nvol v e counsel ’ s respon se to hypothe tical questions from the trial c ourt about a matter of law

. S tatements made by a party or counsel in cours e of judicia l proceedings that

are not based on personal kn owledge or are made by m istake o r ba sed on a
mistaken belief of facts are not judicial admi ssio ns

. See g enerally Gevinson v.
Manhattan Constr

. Co. of Okla

. , 449 S.W.2d 458, 466 (Te x. 1 969)

. Not only was
the st atement made by counsel for the City not “ cle ar, delibera te and unequ iv ocal
, ”
b ut t he admis s io n alleged to have been made conce rn ed a ques tion of law and not a
mate rial fact in the case

. See generally Horizon/CMS Healthcare Corp. v. Auld
, 34 S.W.3d 887, 905 (Tex. 2000) ; Mendoza , 606 S.W.2d at 694 ( “ A judicial
admiss ion is conclusive upon the par ty m aking it , a n d it relieves the opposing part y ’ s burden of proving the admitted fact, and bar s the admitting party from disputing it

. ”). The ad mission alleged to have occu rred is that H unnicutt ha s a viable inverse

- condemnati on cla im, which i s a q uestion of l aw and a ffe c ts the subject

- matter jurisdic tion of the trial court

. See Wilmer

– Hutchins Inde

p. Sch. Dist.
v. Sullivan
, 51 S.W.3d 293, 294

– 95 (Tex. 2001) (“A party cannot by his own
conduct confer j urisdiction on a court whe n none exists oth erwis e.”) ; Ma yh e w v. To wn of Sunnyvale , 964 S.W.2d 9 22, 936 (Tex. 1998) ( “ whether th e facts are
sufficient t o constitute a ta king is a question of l aw ”) ; see also Am erican Title Co.
v. Smit h
, 445 S.W.2d 807, 809 (Tex. App.

— Houston [1st Dis t.] 19 69, no writ )13

(“The pa rti es t o an a ct ion may not control the power of t he trial court to apply t he applicable rules of l aw to the facts i n rendering his judgmen t by stipulations or admissions concer ning the rules of law deemed to be applicable .”)

. Fur thermo re, i t is well

- sett le d t ha t partie s can n o t agree t o t he trial court ’ s s ubject

- matter jurisdiction over a cla im

. See Tex as Ass ’ n of B us. v. Tex as Air Control Bd
., 852 S. W.2d 440, 44 5

– 4 6 (Tex. 1993) (subject

- matter jurisdiction cann ot b e waived
and may b e raise d for the first ti me on ap peal by th e pa r ties or cou r t)

. Accordingl y , we conclude that the statement by the City ’ s coun sel was not a judicial a dmission
and did not preclude t he City from challenging Hunnicutt ’s inve rse

- condemnatio n clai m by asserting the t rial court lacked subje c t

- matter j ur isd i ction

. We s ustain the City ’ s issue 1

. C. R ecission claim

In issue 2 , the Ci ty argues Hunnicutt has no separate claim for reciss ion

. 9
H unnicutt ’s petition included an “ action to rescind the Warranty Deed ” because no

cons ideration was paid for t he convey a nc e. Her pet ition maintained the deed fail ed
for lack of considerat ion an d no meeting of t h e minds.

Resc ission is merely the “common, sh orth and name” for the composite

re medy of rescission and res titu tion. Cruz v. Andrews Re storation, In c

. , 364 S .W .3d 8 17, 8 25 (Tex. 2012) (citing Restate m ent (Third) of Rest itution and Unjust Enrichment § 54 cmt. a ( Am. Law I nst. 201 1) ) ; s ee also Italian C owboy

9 The City a ppears to use the ter m “ cl aim ” inte rc hangeabl y w ith “ cau se of action. ” Black ’ s Law Dictionary defines a “ claim ” to include (1) [t]he assertion of an exi sting right; any right to payment or to an equitable remedy ” ; (2) an interest or remedy recognize d at law; the means by which a person can ob tain a pr iv ilege
, p oss ession , or enjoyment of a right or thing. ” C laim
, B LACK ’ S L AW D ICTIONARY (11 th ed. 2019). Hun nicutt asserted a claim to the e quitable

r emedy of recission in her pe tition. In contrast , a “cause of action” is “[a] group of operative fac ts giving r ise to o ne or more bases for suing; a factual situation that entitles one person to obtain a remedy in c ourt from another person. ” Cause of Action
, B LACK ’ S L AW D ICTIONARY ( 11 th ed. 2019). Both parties agree recission is not an independent cause of act ion

.14

Partners v. Prudential Ins

. , 341 S.W.3d 323, 344 (Tex. 2011) ( rescission is a

rem edy )

. A party se ek ing re sc ission a nd r estitution must first establi sh a substantive right to avoida nc e of the transaction in question. Se e Restatement (Thi rd) of Restitution and Unjust Enrichment § 54 cmt . a ( Am . Law Inst. 2 0 11 )

. Bec ause Hu nnicutt has not established a subs tantiv e ri ght to r elie f against the City
,

s he has no claim for th e remedy of recission

. W e sustain the City ’ s i ssue 2

. III. C O NC LUSION Having sustained the City ’ s two issue s , we hold the trial court reversibly erred in denying the City ’ s p lea to the j uri sdictio n on H un nicutt ’ s c laims against it

. We reve rse th e order of the trial court and r ender the judgment the trial court
should have render ed, a dism issal of H unnicutt ’ s claims for want of subject

- matter jurisdiction

. Tex. R. App. P. 43.2(c).

/s/ Charles A. S pa in J ustic e

Pan el con sists of Justi c e s J ewell, Spain , and W ilson

.