# Porretto v. Patterson

> Texas Court of Appeals, 1st District (Houston) · February 19, 2008 · 251 S.W.3d 701

URL: https://www.frixlaw.com/law-library/cases/9734219

## Case

- **Full name:** Henry P. PORRETTO, Jr. and Rosemarie Porretto, Appellants, v. Jerry PATTERSON, Commissioner of the Texas General Land Office, Texas General Land Office, Lou Muller, Executive Director of the Park Board of Trustees of the City of Galveston, Texas, and the Park Board of Trustees of the City of Galveston, Texas, Appellees
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** February 19, 2008
- **Citations:** 251 S.W.3d 701; 2007 WL 4593295
- **Precedential status:** Published
- **Opinion:** Concurring in part by Radack
- **Judges:** Jane Bland
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9734219

## How later opinions describe it (automated extraction)

- holding that trial court erred in sustaining pleas to jurisdiction of Commissioner Patterson and a local official where there was no evidence in the record that the governmental entities had claimed a superior title or right to the property
- explaining that a takings claim is not equivalent to a trespass-to-try-title suit because the relief available for a takings differs from a suit to quiet title and concluding that immunity does not bar a takings claim
- rejecting the government’s claim that it “had no intent to take the . . . land, but rather only to assert the government’s ‘rights,’” noting that “the government offered no evidence on the issue of ownership or title, or even a colorable assertion of ownership in the land”
- holding “[t]he policy supporting [the holding in Lawson ] is that the government should not regain immunity it previously has waived by settling a case”
- holding that a person claiming ownership of property could sue the State for a taking for having leased it

## Opinion text

SHERRY RADACK, Chief Justice,
dissenting in part and concurring in part.
I respectfully dissent from the panel’s resolution of issue one. The defendants argue that the Porrettos’ case is not truly an inverse condemnation case, but is, in fact, a trespass to try title action because it involves a dispute over title to real property. The defendants also argue that, because the State is actually claiming ownership of the property, it has no intent to take the Porrettos’ property. I agree with the defendants.
Texas courts have repeatedly held that a trespass to try title action is the proper method of adjudicating rival claims to real property. Martin v. Amerman, 133 S.W.3d 262, 267 (Tex.2004) (stating that trespass to try title is “the method for determining title to ... real property.”) (quoting Tex. PROp.Code AnN. § 22.001(a)); Rogers v. Ricane Enters., 884 S.W.2d 763, 768 (Tex.1994); Yoast v. Yoast, 649 S.W.2d 289, 292 (Tex.1983).
Thus, the question presented is whether the Porrettos can try the State’s title in an inverse condemnation proceeding. I think not. In Bell v. State Department of Highways and Public Transportation, the plaintiff filed a declaratory judgment, seeking a declaration that he held title to property upon which the State had built a highway. 945 S.W.2d 292, 293 (Tex.App.Houston [1st Dist.] 1997, writ denied), abrogated on other grounds by Harris County v. Sykes, 136 S.W.3d 635 (Tex.2004). Id. The State claimed title to the property by adverse possession. 945 S.W.2d 292, 293 . This Court held that “[n]o matter how Bell’s suit is styled, it is, as the trial court found, ‘in effect’ a trespass to try title suit.” 945 S.W.2d at 294 . This Court *714 further held that because Bell did not obtain legislative consent before bringing his trespass to try title action against the State, the trial court lacked subject-matter jurisdiction. Id.
In Texas Southern University v. State Street Bank and Trust Co., the plaintiff entered into an equipment lease with Texas State University (TSU), a governmental entity. 212 S.W.3d 893, 897-98 (Tex.App.Houston [1st Dist.] pet. denied). The plaintiff sued TSU, alleging that TSU had “taken” its equipment by inverse condemnation. Id. at 899 . This Court held that because TSU was acting under color of contract, it was not exercising its eminent domain power. Id. at 911 . As such, TSU lacked the requisite intent under constitutional takings jurisprudence. Id.
As in Bell, I believe that the Porrettos’ claim is “in effect” á trespass to try title suit. Both the Porrettos and the State claim to own the property at issue. “Any suit that involves a dispute over the title to land is, in effect, an action in trespass to try title, whatever its form and regardless of whether legal or equitable relief is sought.” Jordan v. Exxon Corp., 802 S.W.2d 880, 883 (TexApp.-Texarkana 1991, no writ). A trespass to try title suit is “the method for determining title to ... real property.” Martin, 133 S.W.3d at 266 ; Tex. Peop.Code Ann. § 22.001(a) (Vernon 2000).
As in TSU v. State Street Bank, the Porrettos’ pleading does not show the requisite intent necessary to establish a taking claim. The State claims the property under color of title; it is not “taking” property that it believes belongs to the Porrettos.
Indeed, were we to agree that the State’s claim of title to real property could be adjudicated through a takings claim, we would be creating a waiver of the State’s sovereign immunity in all actions involving the validity of the State’s title to real property. The opposing party in a trespass to try title claim against the State would always be able to circumvent the State’s immunity from suit simply by pleading his case as an inverse condemnation. Such artful pleading should not be permitted to effect a waiver of the State’s sovereign immunity.
In sum, the Porrettos’ takings claim fails because (1) it is “in effect” a trespass to try title action because it asks the court to adjudicate rival claims to the property, and (2) when acting under color of title, the State does not have the requisite intent to “take” the property of another. Because the Porrettos bring a trespass to try title action against the State, not a takings claim, they must first obtain legislative consent, which they did not do. See State v. Lain, 162 Tex. 549 , 349 S.W.2d 579, 582 (1961). Thus, the trial court properly granted the defendants’ plea to the jurisdiction on the Porrettos’ inverse condemnation claims.
Accordingly, I would overrule issue one.
Because I believe that the GLO is entitled to immunity, I would also hold that it is immune from the Porrettos’ breach of contract claim. See Tex. A & M Univ.— Kingsville v. Lawson, 87 S.W.3d 518, 521 (Tex.2002) (holding that if governmental entity agrees to settle lawsuit from which it is not immune, it cannot claim immunity from suit for breach of settlement agreement).
Accordingly, I would also overrule issue three in its entirety.
I concur in the remaining portions of the opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9734219. Public record. Not legal advice.