author: J. WOODFIN JONES, Chief Justice.

text:
    The STATE of Texas and the TEXAS WATER DEVELOPMENT BOARD, Appellants, v. HEARTS BLUFF GAME RANCH, INC., Appellee.
    No. 03-09-00598-CV.
    Court of Appeals of Texas, Austin.
    May 13, 2010.

      Arthur C. D’Andrea, Asst. Solicitor General, Austin, for Appellants.
    Terry Jacobson, Jacobson Law Firm, PC, Corsicana, for Appellee.

      Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
   OPINION

J. WOODFIN JONES, Chief Justice.

Appellee Hearts Bluff Game Ranch, Inc. (“Hearts Bluff’) sued appellants the State of Texas and the Texas Water Development Board (“the Board”) (collectively, “the State Defendants”) alleging a regulatory taking. The State Defendants filed a plea to the jurisdiction, which the trial court denied. On appeal, the State Defendants argue that the jurisdictional facts pleaded by Hearts Bluff do not allege a valid regulatory taking and, consequently, that Hearts Bluff has not pleaded a claim for which sovereign immunity has been waived. We will reverse the trial court’s order and dismiss the cause for lack of subject-matter jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from Hearts Bluffs live pleading.

Hearts Bluffs sole line of business is “mitigation banking.” Under federal law, a mitigation bank is a preserved, restored, established, or enhanced wetland area set aside in perpetuity to compensate for unavoidable losses to similar wetland areas elsewhere. In exchange for creating a mitigation bank, a landowner receives valuable “mitigation banking credits” from the federal government, which the landowner sells to third parties who are required under federal law to offset some other environmentally harmful activity. Unlike other forms of environmental-damage mitigation under federal law, mitigation banks are not situated directly adjacent to the site of the negative environmental impact. Rather, a mitigation bank is established as a distinct conservation area located somewhere within the same watershed as the negative environmental impact that it offsets. The Army Corps of Engineers (“the Corps”) is, in most cases, the federal agency primarily responsible for designating mitigation banks and issuing mitigation-banking credits.

Hearts Bluff purchased approximately 4,000 acres of bottomland — a term used to describe seasonally or continuously flooded deciduous hardwood river swamps — in Titus County, a rural county east of Dallas, with the intention of creating a mitigation bank. The land is located near the Sulfur River, an area that, off and on for at least twenty years, has been considered by the State Defendants as a site for a future water reservoir called the Marvin Nichols Reservoir (“the .Reservoir”). The Reservoir, if created, would inundate all of Hearts Bluffs land, thereby preventing it from being used as a perpetual mitigation bank. When it purchased the land, Hearts Bluff was aware that the State Defendants had considered creating the Reservoir and knew that its land was within the Reservoir’s footprint. Hearts Bluff assumed, however, that the Reservoir was “only an idea that had been floating around for forty years” because the State Defendants had taken no “concrete” steps toward its formation.

It is undisputed that the Reservoir was controversial from its conception, as it pitted rural interests against urban by proposing to flood a vast tract of rural land to meet the water needs of Dallas-Fort Worth. According to Hearts Bluffs petition, controversy over the fate of the Reservoir existed even within the ranks of the regional and state water planners themselves. Hearts Bluff pleaded that the Region D Water Planning Group — one of several regional planning groups that, together with the Board, develop the state water plan — purposely omitted the Reser-vón.' from its 2006 regional water plan in an effort to “kill” the project. In light of this controversy, Hearts Bluff assumed that plans for the Reservoir were either “dead” or “dying.” Hearts Bluff pleaded:

In 2004, when Hearts Bluff acquired its property in Titus County, [the Reservoir] was merely an idea. It had not yet been declared to be a necessary or feasible project. And, no decisions had been made with respect to whether it would ever or even needed to be built.

Although it assumed that the Reservoir’s construction was unlikely, before purchasing the land, Hearts Bluff consulted with the Corps about the viability of forming a mitigation bank on the site in light of the possibility that the Reservoir might be built. According to Hearts Bluffs petition, “[t]he Corps told Hearts Bluff there were no impediments to permitting that site [as it was] and that because mitigation banks are comprised of wetlands, mitigation banks routinely are found in the footprint of potential reservoir sites.”

After Hearts Bluff bought the land and conducted an engineering survey, it applied to the Corps for a permit to create a mitigation bank. In September 2004, the Corps sent notice of the application to all known interested parties, including the Board, and solicited public comment. It was at this point, Hearts Bluff contends, that the State Defendants began their efforts to actively block Hearts Bluffs application. Hearts Bluff pleaded that the Board and the Region C Water Planning Group (“Region C”) immediately began “intense lobbying” of the Corps to convince it to deny Hearts Bluffs application. Hearts Bluff also pleaded that the State Defendants took “efforts to discourage [Hearts Bluffs engineering firm] from continuing to represent Hearts Bluff in connection with the mitigation banking process,” resulting in the firm’s dropping Hearts Bluff as a client.

According to Hearts Bluff, beginning “in or before December of 2004,” the Board “began to formulate a plan to deny the Hearts Bluff mitigation banking permit and reserve the property for its own purposes.” According to Hearts Bluff’s pleadings, the State Defendants had two motivations. “First, the State Defendants were concerned that a mitigation banking permit might preempt the State’s later actions to acquire property for the [Reservoir].” In other words, if the mitigation bank were to exist, federal law might prevent the State from later taking the property for use as a reservoir. “Second, the State Defendants were very concerned that their costs in creating the [Reservoir] would be much higher if Hearts Bluff received its permit.”

Shortly after it received notice from the Corps, the Board contacted the Corps in writing, expressing concerns that the proposed mitigation bank would make the planned reservoir project less viable, if not entirely infeasible. It also sought to convince the Corps that the site’s lack of a “unique-reservoir-site” designation, a legislative designation that prevents state agencies from acquiring land within the site, was irrelevant to the Corps’s consideration of whether the reservoir was likely to be built — a position that Hearts Bluff asserts the Board later reversed once the site received such a declaration. Hearts Bluff also pleaded that Region C asserted to the Corps that its designation of the Reservoir as part of its regional water management strategy meant that the entire footprint of the Reservoir was essentially “off limits” to development.

After Hearts Bluff made minor changes in its mitigation-permit application in mid-2005, the Corps told Hearts Bluff that it had completed the “technical requirements” for receiving a permit. In the autumn of that year, Hearts Bluff asserts that the Corps told it to expect a “Christmas present” — i.e., that its permit application was all but assured and would be granted before the end of the year. Meanwhile, according to Hearts Bluffs pleadings, the state water planners continued to fight over the Reservoir’s fate:

In the Spring of 2005, during the development process for the 2006 Regional Water Plan, Region D declined to support [the Reservoir] as a unique reservoir site. The Region D Board members had consulted with the TWDB to determine what steps were necessary to Mil [the Reservoir project].

According to Hearts Bluff, the Board soon discovered that the Corps might be ready to approve its permit and began working in earnest to block the application. Some of the Board’s efforts were apparently directed at countering Region D’s efforts to “kill” plans for the Reservoir, including enlisting Region C to resurrect the plans.

In the fall of 2005, [the Board] realized that unless it moved quickly, the Corps was about to approve the Hearts Bluff mitigation banking permit, perhaps as early as January of 2006, because Hearts Bluff had complied with all the requirements for the issuance of the permit. So, [the Board] informed the Corps that the Region C Water Plan would include [the Reservoir] as a recommended water management strategy and, for the first time, that it would be designated as a site of unique value for the construction of a reservoir.

(Emphasis in original.) After learning that the Board would likely include the Reservoir in its 2006 state water plan and recommend to the legislature that it be designated as a unique-reservoir site, the Corps decided to delay issuing the permit until after the Board’s April 2006 meeting. At that meeting, the Board adopted Region C’s water plan, which included plans for the Reservoir. The Corps then contacted Hearts Bluff, indicating that it would delay its decision until after the 2007 legislative session to see if the legislature adopted the Board’s proposed water plan. Hearts Bluff declined to wait and instead asked the Corps to rule on its permit as soon as possible. On July 13, 2006, the Corps denied Hearts BlufPs permit request, citing the Board’s opposition and the fact that Texas’s long-term water needs appeared to conflict with maintaining a permanent mitigation bank on Hearts Bluffs land.

Hearts Bluff asked the Corps to reconsider its decision, suggesting a limited-term mitigation bank instead of a perpetual bank. The Corps denied the request on the ground that mitigation banks must be perpetual. In the time between the Corps’s first and second denials, the legislature passed the Board’s proposed water plan and designated the Reservoir site as a unique reservoir site.

Hearts Bluff sued the State Defendants, alleging that their actions with respect to the Corps’s denial of its mitigation-banking permit was a regulatory taking under the Texas and federal constitutions because the State Defendants’ actions stripped its land of “all economically viable uses.” Hearts Bluff pleaded that its permit

application satisfied all ecological, environmental, economic and other technical scientific criteria for the issuance of a permit. The only criteria which Hearts Bluff did not satisfy was the criteria that the mitigation bank “exist in perpetuity.” And the only reason the Corps found that Hearts Bluff did not satisfy that criteria was that the Hearts Bluff mitigation bank was located within the footprint of a reservoir that was a unique reservoir site, suitable for construction, that was to be and actually was adopted by the State legislature.

Hearts Bluff also pleaded that

[b]ut for the State Defendants’ actions ... the Corps would have granted Hearts Bluff its mitigation banking permit. ... [T]he granting of a mitigation banking permit is a common and routine thing which the Corps normally encour-ages_ [T]he granting of the mitigation banking permit by the Corps would certainly have occurred had the State Defendants not intervened-

The State Defendants filed a plea to the jurisdiction, asserting that Hearts Bluff had failed to plead a valid taking claim and, consequently, had failed to plead a claim for which sovereign immunity was waived. The trial court denied the plea, and the State Defendants filed this interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (West 2008) (allowing interlocutory appeal from denial of plea to jurisdiction of governmental entity).

STANDARD OF REVIEW

Whether a court has subject-matter jurisdiction is a question of law, which we review de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). When reviewing a grant or denial of a plea to the jurisdiction, we consider the plaintiffs pleadings, construed in favor of the plaintiff, and any evidence relevant to jurisdiction without considering the merits of the claim beyond the extent necessary to determine jurisdiction. Mat 226-27; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

Here, the State Defendants’ primary contention is that Hearts Bluffs pleaded jurisdictional facts, taken as true, do not give rise to a legally cognizable taking claim. In the absence of a properly pleaded taking claim, the State Defendants would retain sovereign immunity. See General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 599 (Tex.2001) (sovereign immunity is not waived unless claim for which it is waived is properly pleaded). When, as here, the jurisdictional facts are undisputed, the court should make the jurisdictional determination as a matter of law. Miranda, 133 S.W.3d at 226, 228. If the plaintiffs pleadings “affirmatively negate the existence of jurisdiction,” then a plea to the jurisdiction may be granted without affording the plaintiff an opportunity to amend its pleadings. Id. at 226-27. If, however, the pleadings do not “demonstrate incurable defects in jurisdiction,” but merely fail to allege sufficient facts to affirmatively show the trial court’s jurisdiction, then the plaintiff should be given an opportunity to amend. Id.

DISCUSSION

Regulatory Takings In General

A regulatory taking occurs when the government “impose[s] restrictions that either (1) deny landowners of all economically viable use of their property, or (2) unreasonably interfere with landowners’ rights to use and enjoy their property.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex.1998). To give rise to a regulatory taking, the governmental action must, at a minimum, create a “current, direct restriction on the property’s use.” Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex.1992). “[P]ublicly targeting a property for condemnation, resulting in economic damage to the owner, generally does not give rise to an inverse condemnation cause of action unless there is some direct restriction on use of the property.” Id. at 453. If the proposed future regulation merely “threaten[s] some possible future loss,” then no taking has occurred. Id. If, however, in planning future condemnation, the government uses its regulatory authority to stymie development of land in order to reduce future acquisition costs, then there may be a regulatory taking. See City of Austin v. Teague, 570 S.W.2d 389, 394 (Tex.1978); San Antonio River Auth. v. Garrett Bros., 528 S.W.2d 266, 273 (Tex.Civ.App.-San Antonio 1975, writ ref d n.r.e.).

State Defendants’ Issue on Appeal

In their sole issue, the State Defendants assert that Hearts Bluff has not properly pleaded a regulatory-taking claim and, consequently, that the State Defendants retain their sovereign immunity from liability and suit. The State Defendants assert that Hearts Bluffs pleadings have not and cannot, given their pleaded jurisdictional facts, allege that the State Defendants have imposed any current, direct restrictions on the use of its property, for two reasons. First, the State Defendants’ conduct in announcing their plans to condemn Hearts Bluffs land in the future does not present a current, direct restriction on Hearts Bluffs land. Second, even assuming that the Corps’s denial of Hearts Bluffs permit request was a current, direct restriction on its property rights, the State Defendants’ conduct did not “cause” that restriction because “neither [the State nor the Board are] empowered to grant or deny [the mitigation-banking permit].” Finding the second argument dispositive, we need not discuss the first.

Elements of Inverse Condemnation

Hearts Bluff sued the State Defendants for inverse condemnation, alleging a regulatory taking under article I, section 17 of the Texas Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. In an inverse-condemnation suit, a property owner seeks compensation for a taking that has allegedly already occurred and requests just compensation from the government. The general elements of an inverse condemnation are: “(1) an intentional act of a government entity; (2) accomplished for a public purpose; (3) that damages or takes property from a private citizen.” Domel v. City of Georgetown, 6 S.W.3d 349, 357 (Tex.App.-Austin 1999, pet. denied). Hearts Bluff notes that Texas courts also formulate the test using the following elements: “(1) the governmental entity intentionally performed an act in the exercise of its lawful authority; (2) that resulted in the taking, damaging, or destruction of the party’s property; (3) for public use.” City of Midlothian v. Black, 271 S.W.3d 791, 799 (Tex.App.-Waco 2008, no pet.). Hearts Bluff notes that “it wasn’t until the late 1990s that Texas courts began routinely listing the elements of an inverse condemnation case [as they do above].” We assume Hearts Bluffs implication is that the latter test differs substantively from the former because it uses different language. While we think that the two tests are essentially identical in their substantive requirements and that our analysis would be the same under either test, we will apply the test cited by Hearts Bluff.

The Elements Applied: “Cause in Fact” Relationship Insufficient

The parties agree that Hearts Bluff pleaded sufficient jurisdictional facts to meet the requirements of the first and third elements of the test. It pleaded that the State Defendants performed certain acts for a public purpose in the exercise of their lawful authority. The dispositive question here is whether those acts, as Hearts Bluff pleaded them, could “result in” a taking. With respect to the second element, Hearts Bluff argues that

the State Defendants are responsible for their own acts which resulted in and caused the taking of Hearts Bluff’s property. If all Hearts Bluff pleaded was that the denial of the permit by the Corps was a taking by the State, the State Defendants’ argument [about why they are not liable for a taking here] might have more substance. However, Hearts Bluff has identified a series of intentional, purposeful acts that were undertaken by the State Defendants in the exercise of their lawful authority— the inclusion of [the Reservoir] in the 2006 Region C Water Plan and the 2007 State Water Plan, the approval of the 2006 Region C Water Plan and the 2007 State Water Plan by [the Board], the adoption of the 2007 State Water Plan by the Legislature, and the initiation of the Reservoir Site Protection Study with its stated goal being to inhibit private development within the footprint of reservoirs, including [the Reservoir], culminating with the declaration of [the Reservoir] by the Legislature as a unique site suitable for the construction of a reservoir — all of which resulted in the denial of the permit and the taking of Hearts Bluff’s property.

(Emphasis in original.)

Because Hearts Bluff pleaded it, we assume that the State Defendants’ actions convinced the Corps to deny Hearts Bluff’s permit application. In other words, we assume that “but for” the State Defendants’ actions, the Corps would have issued the permit. Even assuming that, however, Hearts Bluff has not met its pleading burden. A review of relevant case law leads us to conclude that pleading a valid taking claim requires more than a simple “but-for,” cause-in-fact relationship between the state action and the alleged harm. Rather, implicit in the test for inverse condemnation are two understood requirements: (1) the governmental entity against whom the claim is brought must possess — or have possessed during the relevant time period — the regulatory power that effected the taking, and (2) the governmental entity’s exercise of its own regulatory power must have imposed the current, direct restriction that gave rise to the taking.

In Garrett Brothers, the plaintiff owned land on which it was actively building a subdivision. 528 S.W.2d at 269. The San Antonio River Authority (“SARA”) wanted to build a park on the same site. Id. SARA officials met with the City of San Antonio to express concerns that the plaintiff’s development activities would make the land too expensive to later condemn and use as a park. Id. Shortly after the consultation, the City’s director of planning ordered various municipal departments to stop installing utilities at the plaintiffs subdivision and ordered the planning office to stop issuing construction permits to the plaintiff. Id. at 270. After six months of study, SARA decided that another site would make a better park and told the City it was no longer interested in the plaintiffs land. Id. Construction resumed on the subdivision, but the plaintiff sued the City and SARA for a regulatory taking for the six-month delay. Id. On appeal from a jury award in favor of the plaintiff, SARA advanced what it labeled an “ultra vires” argument. Id. at 271. The court held that because SARA did not possess regulatory authority, it could not be held liable for a regulatory taking:

SARA wholly lacks authority to regulate the development of subdivisions.... Even if it be assumed that SARA’s governing body [authorized] the acts of its executive personnel [in colluding with the City to stop the plaintiffs development], the conclusion is inescapable that the conduct of SARA’s executive officers was in relation to matters wholly beyond the ambit of SARA’s powers. SARA wholly lacked the authority to interfere with plaintiff’s development of the subdivision under any circumstances.

Id. As to the City of San Antonio, on the other hand, the court affirmed.

Under similar facts, federal courts have arrived at the same conclusion. See B & G Enters, v. United States, 220 F.3d 1318, 1321 (Fed.Cir.2000) (state action can be attributable to federal government for taking liability only if state actors were “agents” of federal government); see also Rose Acre Farms, Inc. v. United States, 373 F.3d 1177, 1195-96 (Fed.Cir.2004) (same); Mackin v. City of Coeur D’Alene, 551 F.Supp.2d 1205, 1209 (D.Idaho 2008) (regulatory-taking claim cannot result from suit to determine governmental entity’s scope of claim to land because court “exercised its power,” not governmental entity, even though governmental entity initiated suit) (emphasis added).

In B & G Enterprises, B & G, the owner and operator of vending machines in California, alleged a regulatory taking against the federal government based on the California legislature’s enactment of restrictive regulations on the use of tobacco vending machines. 220 F.3d at 1S21. The federal government conditioned the states’ receipt of grant money on them passing and enforcing laws that regulated minors’ access to tobacco products. Id. “The proposed [federal] regulation did not make tobacco vending machine restrictions a condition of the receipt, but the [regulating body] did suggest that states ban tobacco vending machines or restrict their placement.... ” Id. (emphasis in original).

The federal government asserted that it was not the “regulator” in that case, and thus could not be held liable for a regulatory taking. The court agreed, basing its holding on several grounds. Id. at 1323. First, precedent established that the federal government’s conditioning a state’s receipt of funds on the enactment of certain laws did not expose the federal government to liability for a taking. Id. Second, “California’s legislature [could not] be considered to have acted under federal authority.” Id. at 1324. In other words, California had discretion to enact the law or not; that its entitlement to federal funding hinged on its decision did not fetter its discretion. Id. Third, the court distinguished that case from situations in which the federal government has been held liable for a taking because state officials were held to be acting as agents of the federal government “under the authority of a federal order or law.” Id. Fourth, the court noted that California’s regulation was enacted “for the benefits of its own citizens, not for the benefit of Americans generally.” Id. at 1325. This factor is important because it zeros in on the essence of a regulatory taking. The regulatory-taking test, at its core, requires a court to decide whether, “ ‘in all fairness and justice,’ ” the burdens of any given regulation “ ‘should be borne by the public as a whole’ ” instead of by those property owners affected by the regulation. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)); Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 672 (Tex.2004). Thus, the scope of the regulation at issue was crucial. If the benefits of California’s law only accrued to Californians, then it makes little sense to impose the burdens of the regulation on all Americans. See B & G Enters., 220 F.3d at 1325. Finally, the court noted that “it was California’s decision to create restrictions on the placement of tobacco vending machines, not the federal government’s. Congress may have provided the bait, but California decided to bite.” Id.

The California legislature in B & G Enterprises and the City of San Antonio in Garrett Brothers occupied similar “regulatory” positions in those cases as the Corps does in the present case. In B & G Enterprises, while the federal government’s promise of cash provided the California legislature with an incentive to enact the complained-of regulation, the decision whether to do so was left to California. Similarly, in Garrett Brothers, while SARA’s plan for the park provided the City an incentive to stop the plaintiffs development, the City was the entity held liable for taking the plaintiffs property because only the City had the power to regulate the plaintiffs development. In the present case, while the State Defendants provided an incentive — in the form of persuasive lobbying — for the denial of Hearts Bluffs permit, the ultimate decision was the Corps’s. The Corps cannot be considered to have acted under the authority of the state of Texas; nor can we say that the Corps, under the facts alleged here, was acting as an “agent” of the state government. The Corps, a federal government agency that implements federal law and federal policy, is presumed to have made its decision denying Hearts Bluffs application based on federal guidelines for the benefit of the United States as a whole. In sum, the State Defendants might have been instrumental in persuading the Corps to deny Hearts Bluffs permit application, but, in the end, it was the Corps’s decision to make.

Hearts Bluff argues that Garrett Brothers is distinguishable because Hearts Bluff “has identified a series of intentional, purposeful acts that were undertaken by the State Defendants in the exercise of their lawful authority ... all of which resulted in the denial of the permit and the taking of Hearts Bluffs property.” We acknowledge that the present case differs from Garrett Brothers in one major respect. Unlike SARA in Garrett Brothers, the State Defendants have regulatory powers, and the State Defendants’ actions that Hearts Bluff contends contributed to the alleged taking — like the designation of the land in question as a unique-reservoir site and the enactment of the state water plan — were done pursuant to those powers. Hearts Bluff contends that this “regulatory authority” is key:

A private party could not interfere with the Corps’ [sic] requirement that a mitigation bank exist “in perpetuity”. Only a governmental entity could do that through its general eminent domain powers for public uses. The link between the intentional actions and the taking is factual — the act must “result in” the taking, which is what Hearts Bluff has alleged.

Assuming that Hearts Bluff is correct that “only a governmental entity” could interfere with the Corps’s requirement that a mitigation bank exist forever, it still cannot allege that the State Defendants had the power to grant or deny the mitigation-banking permit here, only that, at most, they had some influence over the Corps. The real source of Hearts Bluffs alleged regulatory taking is the denial of the mitigation-banking permit. As Hearts Bluff asserts: “The denial of the permit itself is a current, direct restriction on Hearts Bluffs ability to develop its property.” Indeed, if we survey the State Defendants’ actions outside the lens of their influence on the Corps, it would seem unlikely that those actions, taken alone, would amount to much more than mere announcements of plans to condemn land in the future. See Westgate, Ltd., 843 S.W.2d at 453 (“[PJublicly targeting a property for condemnation, resulting in economic damage to the owner, generally does not give rise to an inverse condemnation cause of action unless there is some direct restriction on use of the property.”).

Even taking as true that the State Defendants acted as Hearts Bluff alleged, the fact remains that the Corps retained discretionary authority to grant or deny Hearts Bluffs permit. The Corps did not need the State Defendants’ permission and was free to grant the permit, even in the face of strong opposition. In short, advocacy of the type alleged here is not the same thing as regulation. While there might be some point at which a non-regulating governmental entity’s conduct could cross the threshold from mere advocacy into indirect control, such that courts could impute the exercised regulatory power to that entity, that point is not reached here.

Opportunity to Amend

Hearts Bluff requests an opportunity to amend its pleadings. Amendment is proper only if Hearts Bluffs live pleadings do not affirmatively negate the existence of jurisdiction. Miranda, 133 S.W.3d at 226-27. If they do, then it is not entitled to an opportunity to amend. Id. For the reasons discussed above, we conclude that Hearts Bluffs pleadings affirmatively negate jurisdiction. By pleading facts that, if true, could not constitute a regulatory taking against the State Defendants, Hearts Bluff has pleaded itself out of court. See Little-Tex Insulation Co., 39 S.W.3d at 599-600 (plaintiffs pleadings affirmatively negated jurisdiction when, assuming facts alleged in petition were true, plaintiff did not allege legally cognizable taking claim).

CONCLUSION

Hearts Bluffs pleadings negate the existence of a valid regulatory-taking claim against the State Defendants; therefore, it has not pleaded a cause of action for which sovereign immunity has been waived. Because sovereign immunity has not been waived, the trial court lacked subject-matter jurisdiction. We reverse the trial court’s order denying the State Defendants’ plea to the jurisdiction and dismiss the cause for want of subject-matter jurisdiction.

      . The parties dispute whether the Corps’s designation of land as a mitigation bank in exchange for its allocation of mitigation banking credits is a "permit” or a "contract” — i.e., whether the process is regulatory in nature or more akin to a contractual relationship. We find the distinction immaterial to the disposition of this appeal; therefore, for simplicity, we use the term "permit.”

      . The unique-reservoir-site designation in the present case is itself unique. Normally unique-reservoir sites are designated pursuant to section 16.051(g) of the water code, which provides:
      The legislature may designate a site of unique value for the construction of a reservoir. A state agency or political subdivision of the state may not obtain a fee title or an easement that would significantly prevent the construction of a reservoir on a site designated by the legislature under this subsection.
      Tex. Water Code Ann. § 16.051(g) (West 2008). The designation here, however, was made by enacting a new provision, section 16.051 (g-1), which provides:
      Notwithstanding any other provisions of law, a site is considered to be a designated site of unique value for the construction of a reservoir if the site is recommended for designation in the 2007 state water plan adopted by the board and in effect on May 1, 2007. The designation of a unique reservoir site under this subsection terminates on September 1, 2015, unless there is an affirmative vote by a proposed project sponsor to make expenditures necessary in order to construct or file applications for permits required in connection with the construction of the reservoir under federal or state law.

        Id. § 16.05 l(g — I).

      . The parties disagree on whether the Corps has discretion to deny a mitigation-banking permit. The State Defendants cite guidance from the Federal Register on the establishment of mitigation banks as evidence that the Corps has discretion. See Federal Guidance for the Establishment, Use and Operation of Mitigation Banks, 60 Fed.Reg. 58,610 (Nov. 28, 1995) ("No agency is required to sign a banking instrument....”).
      Hearts Bluff asserts that the cited quote from the Federal Register is taken out of context and applies only to state, local, and tribal agencies that might be participating on a mitigation-bank-review team.
      We believe the regulations governing the creation of mitigation banks clearly allow the Corps to exercise its discretion to approve or deny a mitigation-banking permit. See, e.g., 33 C.F.R. §§ 332.8(b)(4) (2009) ("The district engineer alone retains final authority for the approval of the [mitigation-banking agreement] where the mitigation bank or in-lieu fee program is used to satisfy compensatory mitigation requirements of [Department of the Army] permits.”), 332.8(d)(5)(ii)-(iii) (district engineer has discretion to accept or reject proposed mitigation bank), 332.8(d)(8) (following conclusion of any dispute-resolution process among the members of the review team, if any, "the district engineer will notify the sponsor of his final decision”). Furthermore, even if the Corps was required to grant every permit application meeting its guidelines, it would still retain discretion to determine whether those guidelines were met.


source: Caselaw Access Project

author: Justice MOSELEY.

license: Public Domain

text:
    In the Interest of C.N., a child.
    No. 05-08-01072-CV.
    Court of Appeals of Texas, Dallas.
    May 14, 2010.

      Rande K. Herrell, John B. Worley, Attorney General Office, Child Support Division, Michael D. Becker, Assistant Attorney General, Austin, TX, for Appellant.
    Robert E. Hilton, Attorney at Law, Dallas, TX, for Appellee.
    Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion By

Justice MOSELEY.

The Office of the Attorney General (OAG) appeals the portions of the trial court’s April 28, 2008 Order Suspending Commitment that concern support and custody matters, that is, all matters other than contempt. As set forth below, we conclude this order was signed after the trial court’s plenary power had expired and is therefore void as to these matters. We vacate it to the extent of these matters and dismiss this appeal for lack of jurisdiction.

BACKGROUND

In 2001, J.N. was ordered to pay $550 per month in child support for C.N. and $24,200 to the OAG in retroactive child support. When J.N. failed to pay, the OAG filed a motion for enforcement, seeking an arrearage judgment and an income withholding order, and also asking the court to hold J.N. in contempt. An associate judge heard the motion for enforcement on February 26, 2007, and on the same day signed a proposed order finding unpaid child support arrears in the amount of $76,279.50 as of January 31, 2007, with interest, and ordering income withholding. The associate judge also found J.N. in contempt for failing to pay court-ordered child support on four separate occasions, sentenced him to 180 days in the county jail for each separate act of contempt (sentences to run concurrently), and ordered him committed to the county jail beginning on June 4, 2007. Both J.N. and his attorney appeared at the hearing and signed the proposed order. Also on the same day, February 26, 2007, the presiding judge of the 256th Judicial District Court, sitting for the judge of the 301st Judicial District Court, signed an order stating, “The Court approves and adopts the above and foregoing orders as the order of the Court.”

J.N. appealed the associate judge’s order to the 301st Judicial District Court on March 1, 2007. That court held hearings and signed a second enforcement order, the Order Suspending Commitment, on April 28, 2008, more than a year after the first order was signed. In this second order, the trial court granted judgment for arrears in the amount of $50,000 as of March 13, 2008, with interest. The trial court also reduced the monthly child support to $375; modified visitation, possession, and access; and suspended commitment and placed J.N. on community supervision pursuant to certain terms and conditions. At the OAG’s request, the trial court filed findings of fact and conclusions of law. The court denied the OAG’s motions for new trial. The OAG appeals from the April 28, 2008 Order Suspending Commitment, arguing in a single issue that it is void as to the support and custody matters, that is, all matters other than contempt, and this appeal should be dismissed.

JURISDICTION

The family code authorizes a trial court judge to refer certain family law matters to associate judges. See generally Tex. Fam.Code Ann. §§ 201.001-.209 (Vernon 2008 & Supp.2009). An order adopting an associate judge’s report as the order of the court disposes of all issues and all parties, and, therefore, is a final judgment for purposes of appeal. See State ex rel Latty v. Owens, 907 S.W.2d 484, 485 (Tex.1995) (per curiam); see also Tex. Fam.Code Ann. § 201.011(e) (Vernon 2008) (“After a hearing conducted by an associate judge, the associate judge shall send the associate judge’s signed and dated report, including any proposed order, and all other papers relating to the case to the referring court.”). The trial court retains plenary power for only thirty days unless a party files an appropriate motion to extend the trial court’s plenary power. See Tex.R. Civ. P. 329b(d) (“[Rjegardless of whether an appeal has been perfected,” trial court retains “plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.”). Judicial action taken after the trial court’s plenary jurisdiction over a cause has expired is a nullity, and an appeal based upon a void judgment should be dismissed for lack of jurisdiction. Owens, 907 S.W.2d at 486 (citing Tex.R. Civ. P. 329b(d)).

DISCUSSION

February 26, 2007, is the date both the proposed order and the trial court’s order adopting it were signed. No party filed a motion extending the trial court’s plenary power. See Tex.R. Civ. P. 329b(d). Thus, the trial court’s plenary power over the cause expired thirty days later, on March 28, 2007. See id. The record shows that J.N. appealed the associate judge’s proposed order to the 301st Judicial District Court on March 1, 2007, and the court heard the case on March 8. But, although the district court should have held a hearing on J.N.’s appeal before signing an order adopting the associate judge’s report, its failure to do so neither deprived it of jurisdiction to issue the February 26, 2007 order nor made that order void. See Owens, 907 S.W.2d at 485. J.N. never requested the trial court to vacate its February 26, 2007 order, and the trial court’s April 28, 2008 order did not vacate the earlier order. J.N. did not timely appeal from the trial court’s February 26, 2007 order; he did not file a bill of review. See id. at 486. The April 28, 2008 order was signed after the district court’s plenary jurisdiction expired (on March 28, 2007) and is void as to all matters other than contempt. See id.

J.N. argues he had no notice of the trial court’s February 26, 2007 order, and rule of civil procedure 306a(4) applies to begin the period of the trial court’s plenary power in this circumstance. See Tex.R. Civ. P. 306a(4) (providing that, if, within twenty days after judgment is signed, party has neither received notice nor acquired actual notice, time periods begin on date party either received notice or acquired actual notice, whichever occurred first, but in no event shall periods begin more than ninety days after original judgment was signed). However, to invoke this exception, “the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.” Tex.R. Civ. P. 306a(5). The record does not reflect a motion was filed to extend post-judgment deadlines under rule 306a.

We resolve the OAG’s issue in its favor. We vacate those portions of the April 28, 2008 Order Suspending Commitment that concern support and custody, that is, all matters other than contempt, because they are void. This leaves the trial court’s February 26, 2007 Order Adopting Associate Judge’s Report intact as the final order in this case as to those matters. We dismiss this appeal for lack of jurisdiction.

      . As the OAG recognizes, a court of appeals lacks jurisdiction to review a contempt order on direct appeal. Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985) (per curiam); Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex.App.-Dallas 2007, no pet.). Contempt orders involving confinement may be reviewed by writ of habeas corpus; contempt orders that do not involve confinement may be reviewed only through mandamus. Tracy, 219 S.W.3d at 530. The contempt portions of the April 28, 2008 Order Suspending Commitment are not before the Court in this appeal. See In re Office of the Attorney Gen. of Tex., 215 S.W.3d 913, 916 (Tex.App.-Fort Worth 2007, orig. proceeding) (arrearage portion of order ap-pealable, but not contempt); In re M.P.M., 161 S.W.3d 650, 653 n. 1 (Tex.App.-San Antonio 2005, no pet.) (same).

      . This single-line order is found on page eight, the last page, of the associate judge’s proposed order and is titled "Order Adopting Associate Judge’s Report.” It was signed and dated by the presiding judge of the 256th Judicial District Court.


author: Justice O’NEILL.

text:
    ALLIANCE ROYALTIES, LLC and Alliance Royalties, Inc., Appellants, v. William A. BOOTHE, M.D., Wendy J. Boothe, W.A., Boothe Family, Ltd., GVLP, LLC, DVLP, LLC, NVLP, LLC, RVLP, LLC, Appellees.
    No. 05-09-01019-CV.
    Court of Appeals of Texas, Dallas.
    May 14, 2010.

      Jeffrey S. Levinger, Brett D. Kutnick, Hankinson Levinger LLP, James W. Grau, Scott A. Whisler, Grau Koen, PC, Dallas, TX, for Appellant.
    Mark L. Johansen, Gruber Hurst Johan-sen <& Hail, LLP, Jason A. Copling, Munsch Hardt Kopf & Harr, P.C., William Ross Forbes, Jr., Jason P. Shanks, Jude T. Hiekland, Jackson Walker, L.L.P., Vanessa Jean Rush, Dallas, TX, for Appellee.
    Before Justices O’NEILL, LANG, and MYERS.
   OPINION

Opinion By

Justice O’NEILL.

In this interlocutory appeal, appellants Alliance Royalties, LLC and Alliance Royalties, Inc. appeal a temporary injunction enjoining them from terminating a Management Agreement between Alliance Royalties, Inc. and interpleader Compass Royalty Management, LLC. The injunction was granted at the request of two groups of appellees William A. Boothe, M.D., Wendy J. Boothe, and W.A., Boothe Family, LTD. (the Boothes) and GVLP, LLC, DVLP, LLC, NVLP, LLC, and RVLP, LLC (the Vento entities). In three issues, Alliance, Inc. and Alliance, LLC contend the trial court abused its discretion in granting temporary injunctive relief because (1) the trial court enjoined termination of an at-will contract between Alliance, Inc. and Compass, a third party that did not concern the underlying claims at issue, (2) appellees did not prove irreparable injury, and (3) the injunction does not preserve the status quo. For the following reasons, we reverse the temporary injunction and remand for further proceedings consistent with this opinion.

Alliance, Inc. holds a royalty interest in certain oil and gas interests offered by Noble Royalties. Alliance, Inc. entered into a Management Agreement with Compass Royalty Management, Inc. to manage this interest. In managing these interests, Compass collects royalty revenues, accounts by percentage ownership to the royalty owners, and distributes that income less any applicable costs, fees, taxes, or charges. In return, Compass receives a substantial fee. The Management Agreement was terminable at Alliance, Ine.’s will on sixty days’ notice.

The relationship between Compass and Alliance, Inc. deteriorated, both parties accusing each other of wrongdoing. Alliance, Inc. accused both Compass and Noble Royalties of fraud and notified them it was going to demand arbitration. Alliance, Inc. also alleged Compass was charging excessive fees and holding funds for excessive periods of time.

Compass, on the other hand, had discovered appellees were accusing Alliance, Inc. of committing fraud and were claiming appellees’ owned the interest in Noble Royalties. As a consequence, Compass filed an interpleader and declaratory judgment action and tendered the disputed funds into the court’s registry to allow the court to resolve the dispute between Alliance, Inc. and appellees. Compass claims it is a disinterested third party and is merely attempting to protect itself from liability related to the disputed funds.

After discovering Compass was inter-pleading the funds, Alliance, Inc. gave Compass sixty days’ notice that it was terminating the Management Agreement. This termination was in accordance with the terms of that agreement. Alliance, Inc. sought to contract with a third-party independent royalty interest manager, B & L Royalty Management to take over the management of Noble Royalties. According to Alliance, Inc., B & L will charge a smaller fee and make distributions more quickly.

Appellees answered the interpleader and alleged several claims against Alliance, Inc. and Alliance, LLC. They also sought to enjoin Alliance, Inc. from terminating the Management Agreement with Compass. Appellees are not parties to that agreement. Appellees nevertheless assert an injunction was necessary to prevent Alliance, Inc. from absconding with the funds. They further asserted B & L was not qualified to manage the royalty interests.

At the hearing on the temporary injunction, appellees presented evidence showing what they contend is an elaborate fraudulent investment scheme in which Alliance, Inc. and/or Alliance, LLC induced them to invest millions of dollars offshore. According to appellees, they were led to believe they were investing in oil and gas interests offered by Noble Royalties. Appellees made this investment through a complex multi-leveled structure involving various trusts, annuities and life insurance policies. According to Alliance, Inc. and Alliance, LLC, however, appellees have no interest in Noble Royalties, which is held solely by Alliance, Inc. They assert appellees only have an interest in Alliance, LLC. Alliance, LLC owns notes on which Alliance, Inc. pays interest which is then paid out to Alliance, LLC’s investors, including appel-lees. These payments come from money Alliance, Inc. receives from the Noble Royalties, but are far less than what Alliance, Inc. actually receives from those interests.

The trial court granted a temporary injunction and enjoined Alliance, Inc. from terminating its contract with Compass. Alliance, Inc. and Alliance, LLC appeal. They assert the trial court abused its discretion in enjoining the termination of a contract, that is unrelated to the subject matter of the litigation, and was terminated pursuant to the agreed upon contractual terms. We agree.

A temporary injunction’s purpose is to preserve the status quo of the litigation’s subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.1993). A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at 57. To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at 57. An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204; Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex.App.-Dallas 1989, no writ).

Whether to grant or deny a temporary injunction is within the trial court’s sound discretion. Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at 58. The reviewing court must not substitute its judgment for the trial court’s judgment unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable discretion. Butnaru, 84 S.W.3d at 204.

It is undisputed the Management Agreement was terminable at Alliance, Inc.’s will on sixty days’ notice. Alliance, Inc. gave Compass the requisite notice. The trial court nevertheless enjoined Alliance, Inc. from terminating the contract. It is well settled that courts must enforce contracts as written by the parties and cannot rewrite a contract. Rimes v. Club Corp. of Am., 542 S.W.2d 909, 912 (Tex.Civ.App.-Dallas 1976, writ refd n.r.e.). The injunction effectively rewrote the contract. We conclude using a temporary injunction to impose a contractual relationship upon parties that is contrary to the specific contractual provisions regarding termination is not proper.

Moreover, the injunction here prevented the termination of a contract that was not related in any way to the causes of action alleged. Specifically, ap-pellees’ claims had nothing whatsoever to do with the Compass contract. We recognize that in seeking a temporary injunction, it is not necessary that the ultimate relief sought be in the nature of permanent injunctive relief. See Walling, 863 S.W.2d at 57. But we cannot agree that a plaintiff need show probable right on any cause of action to obtain injunctive relief regarding a defendant’s assets, much less its business decisions. If this were the case, injunctions would usurp the carefully constructed statutes concerning garnishment, attachment, receivership, etc. Instead, we conclude there must be some connection between the claims alleged and the acts sought to be enjoined. See No-wak v. Los Patios Investors, 898 S.W.2d 9, 10 (Tex.App.-San Antonio 1995, no pet.); Victory Drilling, LLC, v. Kaler Energy Corp., 04-07-00094-CV, 2007 WL 1828015 *2 (Tex.App.-San Antonio 2007, no pet.). If a plaintiff wants to protect its right to collect a potential judgment, it must follow the specific statutes designed for that purpose. See, e.g. Tex. Civ. Prac. & Rem.Code Ann. § 61.001 (Vernon 2008) (attachment); Tex. Civ. Prac. & Rem.Code Ann. § 62.001 (Vernon 2008) (sequestration); Tex. Civ. Prac. & Rem.Code Ann. § 63.001 (Vernon 2008) (garnishment); Tex. Civ. Prac. & Rem. Code Ann. § 64.001 (Vernon 2008) (receivership). In conclusion, the temporary injunction in this case attempted to effect some type of prejudgment attachment, garnishment, or receivership. In doing so, it improperly bypassed the statutory requirements for such relief.

In reaching this conclusion, we recognize a trial court has some authority to protect funds when ownership is in dispute beyond the confines of the statutes regarding extraordinary remedies. See, e.g., Castilleja v. Camero, 414 S.W.2d 431, 433 (Tex.1967). However, the temporary injunction was directed toward a specifically bargained for voluntary contractual relationship, not just the funds at issue. We conclude using a temporary injunction to impose á contractual relationship, unrelated to any of the claims at issue, and contrary to the specific contractual provisions regarding termination, is not proper.

Finally, we disagree with appel-lees to the extent they argue that the temporary injunction was necessary to protect the trial court’s jurisdiction over the interpleader action. The purpose of an interpleader is to relieve an innocent stakeholder of the vexation and expense of multiple litigation and the risk of multiple liability. Dallas Bank & Trust Co. v. Commonwealth Dev. Corp., 686 S.W.2d 226, 230 (Tex.App.-Dallas 1984, writ refd n.r.e.). Thus, the purpose of that action, as it relates to this case, is to protect Compass from liability for funds in its possession. Any issue with respect to funds not in Compass’s possession has no effect on the trial court’s jurisdiction over the interpleader.

We conclude the trial court abused its discretion by enjoining Alliance, Inc. from terminating its contract with Compass. Consequently, we reverse the trial court’s order and remand this case to the trial court for further proceedings consistent with this opinion.


author: Justice MYERS.

text:
    In re DALLAS COUNTY HOSPITAL DISTRICT d/b/a Parkland Health & Hospital System, Relator.
    No. 05-10-00515-CV.
    Court of Appeals of Texas, Dallas.
    May 18, 2010.

      Sherri Turner Alexander, Angela R. Joyce, Bell Nunnally & Martin LLP, Dallas, TX, Matthew C.G. Boyle, Boyle & Lowry, L.L.P., Irving, TX, for Relator.
    Edward Lopez, Linebarger, Goggan, Blair and Sampson, L.L.P., Eddie Vassal-lo, Law Offices of Eddie Vassallo, P.C., Kenneth A. Wright, Law Office of Kenneth A. Wright, Dallas, TX, for Real Party in Interest.
    Before Justices BRIDGES, LANG, and MYERS.
   OPINION

Opinion By

Justice MYERS.

In this mandamus proceeding, relator contends the trial court abused its discretion by (1) entering the withdrawal order and/or overruling Parkland’s emergency motion for apportionment and objections to the withdrawal of funds from the registry of the court, (2) allowing LAZ to withdraw funds from the registry of the court without first conditioning the withdrawal on requiring LAZ to secure its repayment of the funds, and (3) ordering a lump sum payment of funds to LAZ and TAB without apportioning the funds or without conditioning payment of the TCB funds on the release of its lien. The facts and issues are well known to the parties, so we need not recount them. Based on the record before us, we conclude relator has not shown it is entitled to the relief requested. See Tex.R.App. P. 52.8(a); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992).

We DENY relator’s petition for writ of mandamus.


author: Justice CARTER.

text:
    Edith Elizabeth RAMSEY, Buck Bryan Ramsey and Optimal Utilities, Inc., Appellants, v. Joe GRIZZLE, Charles Calhoun, and Donna Kay Calhoun, Appellees.
    No. 06-09-00026-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 16, 2009.
    Decided May 19, 2010.

      David E. Wynne, The Wynne Law Firm, Houston, Robert W. Weber, Smith Weber, LLP, Texarkana, for appellants.
    J. Stephen Walker, James R. Rodgers, The Moore Law Firm, LLP, Paris, Sherry P. Thompson, Little, Little, et al., Madill, OK, for appellees.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice CARTER.

Very often determining which party has the burden of proof is perfunctory and does not have a great effect. In this case, we believe the burden of proof is crucial.

Buck Bryan Ramsey and his wife, Edith Elizabeth Ramsey, became the owners of real property in Lamar County upon which an oil well was located, the well having been drilled pursuant to a pre-existing oil and gas lease (the Hancock lease). Joe Grizzle became the holder of the leasehold estate. The operators of the well experienced problems with it, and its production was intermittent for several years. Thinking that he had been excluded from operating the well, Grizzle filed suit to enjoin Ramsey from excluding him and to declare his lease valid; Ramsey countered -with an allegation that the lease had terminated by its own terms because for more than ninety consecutive days Grizzle had no production or other operations at the well site. Thinking the lease had expired, Ramsey entered into another oil and gas lease on the same property with Optimal Utilities, Inc., who intervened in the suit and likewise alleged Grizzle’s lease had terminated for lack of operations. Grizzle sold a ten percent interest in the lease to Charles and Donna Kay Calhoun. Optimal brought in the Calhouns as defendants.

All parties filed what were designated as declaratory judgment actions. The purchaser of the oil, Eastex Oil, filed an inter-pleader action; not knowing who to pay, Eastex deposited the money into the registry of the court. The two cases were consolidated for trial.

Trial was to a jury who found that Ramsey and Optimal had not shown a cessation of operations for more than ninety consecutive days. Based on that verdict, the trial court entered a declaratory judgment that the Grizzle lease was valid and awarded Grizzle attorney’s fees of over $49,000.00 plus additional amounts on appeal. Ramsey and Optimal’s appeals raise several issues: (1) lack of standing by Grizzle; (2) default in proof of title; (3) insufficiency of evidence to uphold the jury verdict; (4) improper attorney’s fees; and (5) incurable jury argument. We affirm the judgment of the trial court in some respects, but reverse the attorney’s fee award.

I. FACTUAL AND PROCEDURAL HISTORY

A. History of Leases

Pauline Hancock, G.T. Hancock, Ollie Gill, and W.E. Gill first leased the Hancock well in 1975 to Oil Development Company of Texas. A series of assignments throughout the years led to a 1999 lease to Dale Glass, who would later assign his interest to Grizzle.

When the Ramseys purchased the real estate in 2002, the ownership they acquired was subject to the existing Hancock lease.

B. Acquisition of Lessees Rights by Grizzle; Assignment(s) by Grizzle

Grizzle claims, and it appears to be generally accepted, that he got the interest in the Hancock lease by assignment from Glass in June 2003, to be effective July 1, 2003. Glass was the lessee from the 1999 lease and the man working for Grizzle as pumper. Grizzle later fired Glass in January 2005 and hired Michael Brooks as “pumper” somewhere around February 2005.

Glass explained the confusing set of circumstances leading up to the assignment to Grizzle. He had an interest in the well and was involved in some litigation -with Jack Atkins. Grizzle got part of the interest from Atkins, but required that Glass release Atkins. Glass would sell his claims against Atkins, then Grizzle was to furnish the money to keep the well pumping and would serve as the operator. A man named Sparkman was the operator when Grizzle first got his interest. Then Grizzle became operator and, according to Glass, that was “when it went to hell.”

II. DISCUSSION

A. Standing: Trespass to Try Title or Declaratory Judgment Action

1. Title was at issue in this case

Ramsey and Optimal argue that Grizzle lacks standing to assert this claim because this case was in reality a trespass to try title case and Grizzle failed to prove a title interest in the Hancock lease. So we must first decide whether we must review this case as a declaratory judgment or based on requirements of a trespass to try title case.

The Texas Supreme Court has explained that oil and gas leases are unique: In Texas it has long been recognized that an oil and gas lease is not a “lease” in the traditional sense of a lease of the surface of real property. In a typical oil or gas lease, the lessor is a grantor and grants a fee simple determinable interest to the lessee, who is actually a grantee. Consequently, the lessee/grantee acquires ownership of all the minerals in place that the lessor/grantor owned and purported to lease, subject to the possibility of reverter in the lessor/grantor. The lessee’s/grantee’s interest is “determinable” because it may terminate and revert entirely to the lessor/grantor upon the occurrence of events that the lease specifies will cause termination of the estate. In the cases before us today, the lessors retained only a royalty interest. When an oil and gas lease reserves only a royalty interest, the lessee acquires title to all of the oil and gas in place, and the lessor owns only a possibility of reverter and has the right to receive royalties. A royalty interest, as distinguished from a mineral interest, is a nonpossessory interest. Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188,192 (Tex.2003).

This recitation of Texas law by the Texas Supreme Court illustrates that title to the mineral estate is at issue here. Grizzle takes the position that he still holds the fee simple determinable, that cessation of operations did not exceed ninety days and, therefore, did not terminate the lease. The Ramseys and Optimal maintain that the possibility of reverter automatically vested in the Ramseys’ title to the mineral estate, after which they entered into a lease with Optimal.

2. The impact of title as issue

With an exception not applicable here, a trespass to try title claim is the exclusive method in Texas for adjudicating disputed claims of title to real property. See Tex. PROp.Code Ann. § 22.001(a) (Vernon 2000); Martin v. Amerman, 133 S.W.3d 262, 267 (Tex.2004); Koch v. Gen. Land Office, 273 S.W.3d 451, 455 (Tex.App.-Austin 2008, pet. filed); Glover v. Union Pac. R.R. Co., 187 S.W.3d 201, 211 (Tex.App.-Texarkana 2006, pet. denied). When the suit does not involve the construction or validity of deeds or other documents of title, the suit is not one for declaratory judgment. McRae Exploration & Prod. Inc. v. Reserve Petro. Co., 962 S.W.2d 676, 685 (Tex.App.-Waco 1998, pet. denied).

In a cessation of operations case, the San Antonio court pointed out that construction of the lease was not at issue in a ease. See BP Am. Prod. Co. v. Marshall, 288 S.W.3d 430, 453 (Tex.App.-San Antonio 2008, pet. filed). Instead, the issues were whether the defendant failed to engage in good faith drilling or reworking operations without a sixty-day cessation and committed fraud with regard to its activities. Id. Despite their pleading, the underlying nature of the plaintiffs’ suit was to obtain a determination of title to the leasehold and for further relief based on that determination.

Indeed, this Court recently re-emphasized the distinction between trespass to try title and a declaratory judgment action. See Lile v. Smith, 291 S.W.3d 75, 78 (Tex.App.-Texarkana 2009, no pet.). The appellant complained that the trial court was not authorized to enter a declaratory judgment action when title was at issue and the case was not a boundary dispute. Id. at 77-78. Noting that the proper vehicle was a trespass to try title and faced ■with a point of error that plainly recognized that and asked for relief on that basis, this Court sustained the appellant’s point of error, reversed the trial courts judgment, and rendered judgment that ap-pellees take nothing. Id. at 79.

Well-established authority supports the conclusion that this matter is not properly authorized to proceed as a declaratory judgment. See Renwar Oil v. Lancaster, 154 Tex. 311, 276 S.W.2d 774, 776 (1955) (in venue context; in order to determine a dispute concerning royalties, “the suit is essentially one for the recovery of land and to quiet title ... even though cast as one for a declaratory judgment,” an adjudication that certain unitization agreements were void was a conveyance in realty and, as to that matter, the suit was an effort to remove cloud from title, even though alleged as an effort to construe a contract).

Other cases examining the nature of the suit came in the context of venue. Kilgore v. Black Stone Oil Co., 15 S.W.3d 666 (Tex.App.-Beaumont 2000, pet. denied); Griffin v. Collins, 310 S.W.2d 137 (Tex.Civ.App.-Amarillo 1958, no writ). In this line of cases, courts have consistently characterized allegations concerning instruments relating to real property as suits concerning the title to land. See also Kelly Oil Co. v. Svetlik, 975 S.W.2d 762 (Tex.App.-Corpus Christi 1998, pet. denied) (dispute regarding overriding royalty interests necessarily hinged on determination of whether lease was in effect or terminated; since suit related to real property in Mississippi, Texas courts were without jurisdiction).

This Court has pointed out that “[a]ny 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 (Tex.App.-Texarkana 1991, no writ) (citations omitted).

Grizzle characterized and continues to characterize his suit as one for declaratory judgment. The Ramseys countersuit likewise sought declaratory judgment (in addition to other causes of action). Optimals petition in intervention also characterized its action against Grizzle and the Calhouns as a suit seeking declaratory judgment.

Since title to real property was at issue in the instant case, a declaratory judgment action is not a proper vehicle to resolve the matter. Had this been a boundary dispute, a declaratory judgment action is permissible. See Tex. Civ. Prac. & Rem.Code Ann. § 37.004(c) (Vernon 2008). Had it been a ease in which interpretation of the lease was at issue, the matter may have been properly resolved through a declaratory action. See Cadle Co. v. Ortiz, 227 S.W.3d 831, 837-38 (Tex.App.-Corpus Christi 2007, pet. denied). As the instant case stands, however, title was at issue here, meaning the proper vehicle was a trespass to try title action.

Since this case involves title to real property, we will analyze it as a trespass to try title case regardless of the form or classification of the suit by the parties.

3. Requirements of trespass to try title action

An action in trespass to try title is the vehicle by which parties determine title to land, improvements on land, or other real property. Tex. Prop.Code Ann. § 22.001(a); see Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex.1994); Yoast v. Yoast, 649 S.W.2d 289, 292 (Tex.1983). Trespass to try title is a purely statutory creation and embraces all character of litigation that affects the title to real estate. Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 133 S.W.2d 767, 770 (1939). The action is governed by special pleading and proof requirements established by the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 783-809. A plaintiff who has no interest at all in the land lacks standing to assert a trespass to try title action. Walston v. Lockhart, 62 5.W.3d 257, 259 (Tex.App.-Waco 2001, pet. denied).

To maintain an action of trespass to try title, the person bringing the suit must have title to the land sought to be recovered. Brownlee v. Sexton, 703 S.W.2d 797, 799-800 (Tex.App.-Dallas 1986, writ refd n.r.e.); Wall v. Carrell, 894 S.W.2d 788, 797 (Tex.App.-Tyler 1994, writ denied). A plaintiffs right to recover depends on the strength of his or her own title, not the weaknesses of the title of his or her adversary. Rogers, 884 S.W.2d at 768; Brownlee, 703 S.W.2d at 799-800; Land v. Turner, 377 S.W.2d 181, 183 (Tex.1964); Wall, 894 S.W.2d at 797. A defendant is not required to show title in himself or herself, nor may the plaintiff rely on the defendant’s failure to do so. Brownlee, 703 S.W.2d at 799-800; Wall, 894 S.W.2d at 797. Ordinarily, a plaintiff may recover (1) by proving a regular chain of conveyances from the sovereign, (2) by proving a superior title out of a common source, (3) by proving title by limitations, or (4) by proving prior possession and that the possession has not been abandoned. Rogers, 884 S.W.2d at 768; Turner, 377 S.W.2d at 183.

4. Proof of title

Ramsey and Optimal argue that Grizzle has no standing to present what essentially is a trespass to try title suit because he did not prove any ownership of the property in question. It is true that Grizzle, having filed a declaratory judgment action, did not provide documentary evidence of his leasehold interest. The assignment from which Grizzle claims to have acquired the interest in 2003 is not in the record. He did testify to his acquisition of title. More importantly, Ramsey admitted in his pleadings and in testimony that Grizzle did have a valid lease at one time to the Hancock well. In the Ramseys’ original counterclaim, they allege ownership of a forty-acre tract in the John Price Survey A-673, Red River County, Texas, which is encumbered by the oil, gas, and mineral lease which forms the basis of this lawsuit. Further, it is alleged that before they acquired the property, George Hancock leased the property to Dale Glass, as lessee. Glass assigned the lease to counter-defendant (Grizzle).

B. Standing (or Failure to Prove Title)

Ramsey and Optimal’s first point complains of standing in terms of Grizzle’s failure to prove chain of title. Ramsey cites authority relating to trespass to try title law on the principle that Grizzle “is not entitled to recover unless [his] own title is effectively disclosed.” Wall, 894 S.W.2d at 796. Ramsey and Optimal point to the absence of evidence of legal title to the mineral estate and ask the Court to reverse on this issue “because Grizzle does not qualify for any affirmative relief.” Grizzle and the Calhouns respond to the standing point of error by taking the position that the standing issue was waived; this is inaccurate since standing, an element of subject matter jurisdiction, cannot be waived. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex.1993). They go on to point out that all the parties recognized Grizzle as being the lessee and having title.

Despite having been couched in terms of standing, it appears that the substance of the point of error goes to Grizzles failure to prove he had good title, an element of a trespass to try title action.

It is evident that this case was tried by all parties as a declaratory judgment action which would not require proof of title in the orthodox manner required for trespass to try title cases. The issue before us is whether, despite this errant view, there is sufficient evidence in the record to support a conclusion that Grizzle owned a lease of the property in question. We find the evidence is sufficient based on the admissions of Ramsey that Grizzle had a “rightful” lease on the property as well as the pleadings acknowledging the lease. In essence, this was not a disputed issue as all parties assumed the lease was at one time valid and the entire trial was to determine if that valid lease had expired by its own terms. While Optimal never made such an admission, it took its title based on the ownership interest of Ramsey after Ramsey had concluded that the prior lease with Grizzle had expired. Optimal was not the lessor; Ramsey acknowledged Grizzle’s leasehold interest. We find the evidence to be sufficient to allow Grizzle standing to assert his leaseholder rights in this action.

C. Factual Sufficiency of the Evidence

Ramsey and Optimal ask the Court to find that the evidence is factually insufficient to support the jury’s verdict on the operations issue. To prove the lease had terminated, Ramsey and Optimal had the burden to prove that Grizzle failed to maintain operations on the Hancock well for ninety consecutive days. Phillips Petroleum Co. v. Rudd, 226 S.W.2d 464, 466 (Tex.Civ.App.-Texarkana 1949, no writ); Guleke v. Humble Oil & Ref. Co., 126 S.W.2d 38, 41 (Tex.Civ.App.-Amarillo 1939, no writ).

When considering a factual sufficiency challenge to a jury’s verdict, the court must consider and weigh all of the evidence, not just that evidence which supports the verdict. Ramsay v. Tex. Trading Co., 254 S.W.3d 620, 625 (Tex.App.-Texarkana 2008, pet. denied) (citing Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998)). Since Ramsey and Optimal had the burden on the continuous operations issue, they must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. We weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); see Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

The 1999 lease under which Grizzle claims to still have an interest in the mineral estate contains the following language:

Unless sooner terminated or longer kept in force under other provisions hereof, this lease shall remain in force for a term of [1 year] from the date hereof, hereinafter called “primary term”, and as long thereafter as operations, as hereinafter defined, are conducted upon said land with no cessation for more than ninety (90) consecutive days.
Whenever used in this lease the word “operations” shall mean operations for and any of the following: drilling, testing, completing, reworking, recomplet-ing, deepening, plugging back or repairing of a well in search for or in an endeavor to obtain production of oil, gas, sulphur or other minerals, excavating a mine, production of oil, gas, sulphur or other mineral, whether or not in paying quantities.

The jury answered No to the following question:

Do you find by a preponderance of the evidence that Joe Grizzle, while operator of the Hancock Well, failed to commence drilling or operations on the Hancock Well within ninety days after the well ceased to produce oil and gas?

The Court will look at the following evidence to determine whether factually sufficient evidence supports the jury’s verdict.

When the primary term expired to maintain the lease, it was required that operations be conducted with no cessation for more than ninety consecutive days. Ramsey argues that during several time periods, each of more than ninety consecutive days, operations were not conducted. See Samano v. Sun Oil Co., 621 S.W.2d 580 (Tex.1981). We first must determine the time periods to be considered.

Initially the question is what periods of time are to be considered as the ninety days where no operations took place. In Ramsey’s original counterclaim, which was not amended, it is alleged that on or about December 27, 2004, production ceased for a period in excess of ninety consecutive days. Optimal’s pleading simply alleges that Grizzle’s lease had expired “principally for lack of continuous operation.” No special exceptions were made to the pleadings. Now at the appellate level, Ramsey and Optimal direct us to time periods during the years 2008 and 2006 showing the noncontinuous operations; no argument is presented that the lease expired due to inactivity in 2004.

Grizzle argues that neither the 2003 nor the 2006 time period of alleged noncontinuous operations should be considered as there was no pleading to support those time frames. Further, Grizzle argues that the 2006 period cannot be considered because, he alleges, prior to that time Ramsey had repudiated the lease thereby relieving Grizzle from continuing to comply with it. Countering that argument, Ramsey and Optimal point out that Grizzle did not plead the affirmative defense of repudiation and is precluded from relying on that defense. Repudiation is in the nature of an avoidance or affirmative defense which is not available to the defendant unless specifically pleaded. Brantley v. Etter, 662 S.W.2d 752, 757 (Tex.App.San Antonio 1983), writ ref`d n.r.e., 677 S.W.2d 503 (Tex.1984) (citing Mid-Tex Constr. Corp. v. Passero, 430 S.W.2d 515, 517 (Tex.Civ.App.-El Paso 1968, writ ref`d n.r.e.)).

Grizzle filed a lawsuit against Ramsey, who responded with a counterclaim alleging the lease had terminated. Even after the matter was raised to the trial court, no trial amendment was offered on the repudiation issue. Grizzle did request a jury finding on the repudiation issue, which was denied by the trial court, but that denial has not been urged as erroneous by a counterpoint.

Ramsey pled that the production ceased on or about December 27, 2004, and that such cessation of production lasted for a period of time in excess of ninety consecutive days. The pleading does not necessarily require a construction that the period of nonproduction was December 27, 2004 through March 27, 2004. Since the pleading was couched in terms of “in excess of’ ninety days, the cessation period could, theoretically, have continued for years.

As to the 2003 time period, the pleading of Optimal alleged in the broadest of terms that the Grizzle lease had expired for lack of continuous operation without designating any time period whatsoever. Since no exception was made to this pleading, a limitation for a specific time period does not apply. Without limitation in the pleading and with no exception to the pleading, we cannot restrict the evidence on this issue to a particular time period. The fact that Optimal filed this unobjected-to global pleading placed all time periods in question without limitation. Consequently, the trial court did not err in submitting a jury issue without limiting a precise time period of the alleged noncontinuous operations. With this explanation, we will proceed to examine the operations at the well site during the time periods in 2003 and 2006 that are argued in the appellate briefs.

1. What are operations

The Texas Supreme Court has concluded that obtaining drilling permits and performing other preparatory work does not constitute “operations” when there is no actual work done on ground in an attempt to produce. Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 160 (Tex.2004). The Texas Supreme Court referred to operations that are necessary to maintain the lease as “activities that were calculated to obtain production.” Id. Here, the question is not so much whether the activities were sufficient, but primarily a claim that the proof that any activities occurred at the well site is too incredible or weak to be believed. For instance, Ramsey and Optimal acknowledge there are Texas Railroad Commission (RRC) records showing that seventy-three barrels of oil were produced in July 2003, but argue that evidence was a corrected report, belatedly filed, and that evidence that no electricity was used shows conclusively that no oil could have been produced. As to the 2006 time period, appellants argue that Brooks’ and Grizzle’s testimony that Grizzle spent $30,-000.00-$40,000.00 in the summer of 2006 to repair the rods was conclusively rebutted by other evidence. So the question before the jury was primarily did Grizzle perform the activities he claimed or were these claims too insubstantial and weak that they could not, in law, be credited by the jury.

2. Time frame: May 1, 2003 to September 30, 2003

Grizzle points out that he did not own the well in May 2003. RRC records show that no oil was produced in the months of May and June 2003. Those records show seventy-three barrels for July 2003 but none for August and September 2003. But pumper records (daily accounts of production) show zero each day for the month of July 2003; not 73.

Ramsey relies on records that no usage of electricity was shown during July, August, and September 2003, only a surcharge of $27.00. Based on this evidence, Ramsey urges that it was impossible to produce oil during that time. Other records, however, call into question the accuracy of the electrical usage reports. For the month of February 2005, one set of electrical records shows a zero usage of electricity, while another Lamar Electric Co-op statement indicates 1335 kilowatt hours usage during that time period. Evidence of operations consists of a belated and contradicted report of seventy-three barrels of production in July 2003; a pumpers record of emptying water from a tank on July 31, 2003; and a report of a sale that oil was purchased in July 2003. Ramsey testified that he did not think the lease terminated in 2003.

Appellants also point out that the July 2003 production number is also contradicted by pumper Dale Glass records showing that the well was down on June 30, 2003, that it was not repaired in July 2003, that there was no production in July 2003, and that there were no charges for pumping the well. The August 2003 letter asking Eastex Crude (buyer) to suspend payment to Grizzle until the well was returned to a productive state also suggests that the July 2003 production number filed four months late with the RRC is inaccurate or somehow askew. Glass testified that Grizzle regularly filed false or inaccurate reports with the RRC.

The draining of the water, the Ramseys and Optimal maintain, is insufficient to show operations, comparing it to the routine starting of a pump to keep it in running condition found as insufficient to show operations in Hall v. McWilliams, 404 S.W.2d 606 (Tex.Civ.App.-Austin 1966, writ refd n.r.e.). The Ramseys and Optimal point out that Grizzle hangs his hat on operations during this time period based on the production report.

The Ramseys and Optimal respond to the notion that Eastex’s purchase of oil in July 2003 is factually insufficient to show operations at the well. They argue that the production record suggests that the oil purchased in July 2003 was produced earlier than July 2003. Further, they reiterate that the pumpers records and the electricity usage support the fact that the well was not producing in July 2003.

We find the jury could have reasonably found that there is some evidence of production during this time period and such finding would not be against the great weight and preponderance of the evidence.

3. Time frame: May 1, 2006 to November 30, 2006

The production reports filed with the RRC show that Grizzle did not produce any oil out of the Hancock well during this 210-day time period. Grizzle claimed just normal operations were going on. On May 11, 2006, Grizzle sent a letter to the Ramseys seeking a ratification of the lease and offering money in exchange for the ratification.

Brooks also explained that Grizzle called for a workover rig to come out in April 2006, but that it did not get out to the well until October 2006, suggesting the well was down for those seven months. In somewhat inconsistent testimony, Brooks testified that sometime in the summer of 2006, Grizzle spent $30,000.00-plus replacing casings and rods.

The Ramseys and Optimal point to electrical records to suggest that Grizzle did not use any electricity at the well from February 28, 2006 to June 29, 2006. The testimony from Brooks concerning the work done at the Hancock well site during this time was:

Q .... Isn’t it true that during that summer, Mr. Grizzle replaced the rods and the pipe on the Hancock?
A Yeah.
Q So during this time he says y’all weren’t doing anything, y’all replaced the casing and the rods.
A Right.

Grizzle testified, “The well was down at some times in 2006, but we didn’t abandon the well. We were out there working on it, but we didn’t abandon it. That was — if you remember back on the expense deal, that’s when we spent the forty thousand dollars putting the pipe and the rods in, was during the summer of 2006.”

While this evidence is nonspecific about precisely when the operations were conducted, it was the burden of Ramsey and Optimal to prove cessation of operations for ninety consecutive days. We must weigh all evidence introduced, and here Ramsey and Optimal had the burden to show the evidence was so weak or the finding was so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Francis, 46 S.W.3d at 242.

Ramsey and Optimal proved that no oil was produced and presented evidence that no electricity was used through June 30, 2006. But the testimony of both Brooks and Grizzle, which was apparently credited by the jury, directly states that operations were done at the well in replacing the rods and pipes during the summer. Our decision rests on the placement of the burden of proof and the inferences the jury is allowed to make. Clearly, Ramsey and Optimal had the burden of proof; proving no- oil production does not prove that no operations took place. Actual physical work being done on equipment in a good faith effort to place it in working order to produce oil constitutes sufficient operations to maintain the lease. For us to set aside this verdict as unsupported by the evidence, we must determine that the great weight of evidence is so contrary to the jury finding that the failure to find in Ramsey and Optimal’s favor was manifestly unjust. Even though Brooks’ and Grizzle’s testimony might be inconsistent with other evidence (that the workover rig did not arrive until October), that was a matter of credibility for the jury to determine. We must recall that the jury found that Ramsey and Optimal failed in their proof; whether that would have been our finding on this evidence is irrelevant. If Grizzle did $30,000.00-$40,000.00 of work on the oil site in the summer in an effort to produce oil, presumably after June 30, 2006, it cannot be concluded that the jury finding is so against the great weight of the evidence as to result in a manifestly unjust result.

D. Attorneys Fees

The final judgment awarded Grizzle $49,706.25 in attorneys fees. He is not entitled to them.

First, Ramsey and Optimal preserved this alleged error. See Krabbe v. Anadarko Petroleum Corp., 46 S.W.3d 308, 320-21 (Tex.App.-Amarillo 2001, pet. denied) (concluding that since appellants failed to urge at trial court that appellee should not recover attorney’s fees because suit was in essence a suit for title rather than being properly a declaratory judgment action and since appellant failed to assert such in court of appeals until after oral argument, error was waived). Here, in response to Grizzles application for attorneys fees, the appellants objected in writing to his application maintaining that this was, by its nature, a trespass to try title action in which attorneys fees are unavailable. Ramsey also objected on the same basis to the inclusion of attorneys fees in their objection to the proposed final judgment.

The recovery of attorney’s fees under a trespass to try title suit is barred because it is not provided for by the Texas Property Code. See Martin, 133 S.W.3d at 264. Texas courts have followed this rule consistently. When a corporation’s suit was in the nature of a trespass to try title, it was not entitled to recover attorney’s fees. McAnally v. Friends of WCC, Inc., 113 S.W.3d 875, 881 (Tex.App.-Dallas 2003, no pet.). An award of attorney’s fees under the Declaratory Judgments Act was not appropriate in a suit that was in the nature of a trespass to try title. Ely v. Briley, 959 S.W.2d 723, 727 (Tex.App.-Austin 1998, no pet.). The defendant was correct in maintaining that the plaintiffs were not entitled to recover attorney’s fees under Section 37.009 when the suit was in the nature of trespass to try title. See Marshall, 288 S.W.3d at 453-54; see also EOG Res., Inc. v. Killam Oil Co., 239 S.W.3d 293, 304 (Tex.App.-San Antonio 2007, pet. denied).

We sustain this point of error and reverse the trial courts award of attorneys fees.

E. Improper Jury Argument

1. Jury argument at issue

Ramsey and Optimal now complain that Grizzle’s attorneys made improper jury arguments; however, only one objection was made to the jury argument, and that concerned the issue of repudiation. We agree the trial court erred in failing to sustain that objection; since the issue of repudiation was not submitted to the jury, any discussion of the issue was irrelevant and therefore no argument should have been permitted. The question is whether the erroneous ruling probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1(a). The argument concerning the issue of repudiation made by one of appellants’ attorneys was that Glass placed the chain on the property and Ramsey filed a lawsuit that the lease was terminated, but now after Optimal intervened “they don’t want repudiation.” At that point, an objection was lodged and overruled. It was then argued that Glass testified that the chain was not to keep Grizzle out, but to keep beekeepers out — and this testimony was an effort to try “to make facts fit their theory.” This argument appears to be an attempt to discredit the testimony of Glass in order to show “[o]ver-testifying.” It is not an appeal to passion, or prejudice, but is irrelevant since the issue of repudiation was not presented to the jury. The mere possibility of harm is not sufficient. The entire record must support the conclusion that it is more probable that the jury’s verdict reflects consideration of the improper matter than it is that the verdict was based on proper proceedings. See Smith v. Smith, 720 S.W.2d 586, 593 (Tex.App.-Houston [14th Dist.] 1986, no writ). We do not find this argument one that probably caused the rendition of an improper verdict and judgment.

No objection was made to any of the other complaints that Ramsey and Optimal now make about the jury arguments. The jury arguments complained of are in the following categories:

1. “I trust the testimony of these people down here in Red River County more so than I do a man that’s sitting down in Houston”;

2. Counsel’s discussion that his father grew up nearby;

3. That elderly people can be taken advantage of by some businessmen;

4. That as the various points were made by Ramsey and Optimal, Grizzle’s attorney was able to answer each charge; Ramsey and Optimal had not met their burden of proof, and the testimony had “been to the point of trying to mislead.”

2. Analysis

Generally, a litigant will not be allowed to urge on appeal that a violation of the rules defining permissible jury argument resulted in an improper judgment unless the litigant made a timely objection to the argument. Tex.R.App. P. 33.1; Standard Fire Ins. Co. v. Reese, 584 5.W.2d 835, 839-41 (Tex.1979). In rare instances, however, there is an exception for argument so inflammatory that its harmfulness could not have been eliminated by an instruction to the jury to disregard it. In instances of such “incurable” argument, the failure to object at trial is not a waiver of the right to complain on appeal. See Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex.1968). However, unlike an appeal to racial or religious prejudice, an appeal to local prejudice or unity usually is considered a curable impropriety for which an objection is required. Rodriguez v. Hyundai Motor Co., 944 S.W.2d 757, 774 (Tex.App.-Corpus Christi 1997), rev’d on other grounds, 995 S.W.2d 661 (Tex.1999). Incurable jury argument is rare because typically retraction of the argument or instruction from the court can cure any probable harm. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex.2009) (citing Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex.2008)). The party claiming incurable harm must persuade the court that, based on the record as a whole, the offensive argument was so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” Id. (quoting Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404, 404 (1954)).

After examining the entire record, we find that none of the eomplained-of arguments meet the onerous test required. This point of error is overruled.

III. CONCLUSION

We affirm the judgment of the trial court finding Ramsey and Optimal failed in their burden to prove a cessation of operations for ninety consecutive days and affirm the judgment finding Grizzle’s lease valid. We reverse the judgment for attorney’s fees and render judgment that Grizzle take nothing for attorney’s fees.

      . We will refer to Mr. and Mrs. Ramsey simply as Ramsey.

      . A nonpossessory interest such as royalty interest is not a proper matter for resolution by trespass to try title. See Grasty v. Wood, 230 S.W.2d 568, 571 (Tex.Civ.App.-Galveston 1950, writ ref'd n.r.e.).

      . Citing Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 525 (Tex.1982); W.T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27, 28-29 (Tex.1929); Walker, Fee Simple Ownership of Oil & Gas in Texas, 6 Tex. L.Rev. 125, 128-29 (1928); Concord Oil Co. v. Pennzoil Exploration & Prod. Co., 966 S.W.2d 451, 459 (Tex.1998); Walker, The Nature of the Property Interests Created by an Oil & Gas Lease in Texas, 7 Tex. L.Rev. 539, 547-48 (1929).

      .After Martin was decided, the Legislature added to Section 37.004 a specific provision that allows for declaratory judgment action to determine a case in which the sole issue is a boundary dispute. Martin, then, a boundary dispute, was abrogated as to the issue of boundary dispute not being a proper matter for a declaratory judgment action. It remains good law as to other title disputes, however, and was recently cited by the Texas Supreme Court for that proposition. MEM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 n. 48 (Tex.2009) (citing Martin, 133 S.W.3d at 267 (for position "that the Property Code describes trespass-to-try-title actions as ‘the method for determining title’ ")).

      . A declaratory judgment action may be brought “when the sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties.” Tex. Civ. Prac & Rem.Code Ann. § 37.004(c); see State v. BP Am. Prod. Co., 290 S.W.3d 345, 360 (Tex.App.-Austin 2009, pet. filed); Veterans Land Bd. v. Lesley, 281 S.W.3d 602, 627 (Tex.App.-Eastland 2009, pet. filed).

      .
      Q.You agree here today before the jury, Mr. Ramsey, that in 2003, 2004, Joe Grizzle had a lease with you. Correct?
      A. Yes
      Q. But you don’t dispute that he had a lease. It’s just your position that at some point it terminated. Right?
      A. After ninety days.

      Q.There is no question that until you allege that the lease terminated, Mr. Grizzle had a rightful lease. Right?
      A. Right.

      . In Ridge, the Texas Supreme Court summarized the facts of several cases to explain situations that qualify as "operations.” Utley v. Marathon Oil Co., 31 S.W.3d 274, 275, 278-79 (Tex.App.-Waco 2000, no pet.) (lease required operations for drilling, mining, or reworking or additional operations to be commenced or prosecuted with no cessation of more than ninety consecutive days and pipeline leading to the well was being constructed during disputed time and "there were activities testing and trying to obtain production from ... a ‘wildcat’ well”); Petersen v. Robinson Oil & Gas Co., 356 S.W.2d 217, 219 (Tex.Civ.App.-Houston 1962, no writ) (court recounted activities each day, including driving a stake and leveling with a maintainer one day, more maintainer work the next two days, use of a Caterpillar the following day, constructing a road each of the next several days, and moving a drill onto the location, continuing work on the rig and drilling without interruption when lease required drilling or reworking operations with no cessation of more than sixty consecutive days); Morrison v. Swaim, 220 S.W.2d 493, 494-96 (Tex.Civ.App.-Eastland 1949, writ ref’d n.r.e.) (detailing work done each day after expiration of the primary term on well drilled before end of primary term under a lease that remained in effect after the primary term as long "as the lessee in good faith shall conduct drilling operations thereon and should production result”).

      . Attorney’s fees are available in very limited cases involving trespass to try title: between a party claiming under record title and a party claiming by adverse possession when statutory prerequisites are satisfied. Tex Civ. Prac. & Rem.Code Ann. § 16.034(a) (Vernon Supp. 2009). This very narrow exception is not applicable here.