Hilderbran v. Tex. Sw. Council

• Decision Date: 02 June 2021
• Docket Number: No. 04-20-00112-CV,04-20-00112-CV
• Parties: Victor HILDERBRAN, Homer Ray Smith, Ramon Castro, Dean Paret, and Brad Bradley, Appellants v. TEXAS SOUTHWEST COUNCIL, INC., BOY SCOUTS OF AMERICA, Appellee
• Court: Texas Court of Appeals

Victor HILDERBRAN, Homer Ray Smith, Ramon Castro,Dean Paret, and Brad Bradley, Appellants v. TEXAS SOUTHWEST COUNCIL, INC.,BOY SCOUTS OF AMERICA, Appellee

No. 04-20-00112-CV

Fourth Court of Appeals San Antonio, Texas

June 2, 2021

MEMORANDUM OPINION

From the 452nd District Court, Edwards County, Texas

Trial Court No. 4111

Honorable Robert Hoffman, Judge Presiding

Opinion by: Beth Watkins, Justice

Sitting: Rebeca C. Martinez, Chief Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

REVERSED AND RENDERED IN PART; AFFIRMED AS MODIFIED IN PART

Appellants Victor Hilderbran, Homer Ray Smith, Ramon Castro, Dean Paret, and Brad Bradley appeal the trial court's evidentiary rulings and its orders denying their motions for summary judgment and granting the competing motions of appellee Texas Southwest Council, Inc., Boy Scouts of America ("TSWC"). We affirm the trial court's evidentiary rulings, reverse the trial court's summary judgment and render judgment for Appellants in part, and affirm the trial court's summary judgment as modified in part.

BACKGROUND

This dispute involves the parties' competing claims to a tract of land in Edwards County known as Camp Fawcett. In 1930, a group of Edwards County citizens conveyed 300 acres of land that would become Camp Fawcett to E.K. Fawcett, V.A. Brown, K.T. Biggs, F.M. Getzendaner, and O.C. Meyers to hold in trust "for the use and benefit of the several troops of Boy Scouts of America which are now under the jurisdiction of the Southwest Texas Council, Boy Scouts of America." Despite their similar names, the Southwest Texas Council, Boy Scouts of America is a now-defunct entity unrelated to appellee TSWC. Appellants contend they are the successors to the 1930 trustees.

The 1930 deed contains four paragraphs whose language is relevant to this dispute:

FIRST. Said property is to be held by the said Trustees for the use and benefit of the several troops of Boy Scouts of America which are now under the jurisdiction of the Southwest Texas Council, Boy Scouts of America, and for such other uses, purposes and benefits as are customarily enjoyed by the Boy Scouts Troops, as long as the Southwest Texas County [sic], Boy Scouts of America, shall function as such and is to be under the supervision, management and control of the said trustees and their successors. Said Trustees shall have the right to improve and utilize said property in any way it may deem proper and desirable for the benefit of the said Boy Scout troops.

SECOND. In case at any time during which the said Southwest Texas Council, Boy Scouts of America, is functioning any vacancy that shall occur in the said board of Trustees, other than a vacancy in the presidency and camp chairmanship of said Council, they being Trustees by reason of their said offices, shall be filled by a majority of the other trustees by the selection and appointment of a successor to fill such vacancy, any successor trustee shall have all the powers and authority possessed by his predecessor trustee. Should at any time the said Council cease to function, then an [sic] in that event, the then five trustees and their successors shall hold the premises in trust as hereinafter set out, and such trustees shall fill any vacancy that shall occur in the Board of Five Trustees by a majority of the remaining members of said trustees selecting, appointing and constituting a successor to fill such vacancies, any such successor Trustee to have all the powers and authority possessed by his predecessors Trustee.

THIRD. Said Trustees or their successors, may, if in their judgment it is advisable to lease said property in whole or in part, sell or lease said property upon such terms or conditions as they deem best and shall reinvest the proceeds derived from suchsale or lease or any part thereof, in such property as in the judgement [sic] may be best suited for a camp site, the title to any property in which said proceeds are any part may be reinvested to be taken in the name of said trustees and their successors and the deed therefor [sic] to contain the same Trust provision as herein set forth. In the event of the sale or lease of said property by said trustees, the same shall be sold or leased free of each and all of the conditions set forth herein and the purchaser or lessee thereof shall hold said title free and clear of each and all of the provisions and conditions set forth in this deed and shall not be required to see to the application of the purchase or lease money. When property is purchased under the provisions and conditions of this paragraph, and a surplus remains from the proceeds of the sale of the property herein described, then said surplus may be used by said Trustees either in the improvement of said property or may be invested by said Trustees in safe and productive securities, and the income thereof used for the maintenance of said property or for other Boy Scout purposes, as to the said Trustees may see fit and proper.

FOURTH. In the event that such property shall cease to be used for the purposes herein set forth, or the said Southwest Texas Council, Boy Scouts of America shall cease to function, then in either of said events it shall be controlled, supervised and managed by the then existing Board of Trustees and utilized for such purpose or purposes as to them seem fit and proper.

The Southwest Texas Council, Boy Scouts of America ceased operating at some point in the 1930s. Appellee TSWC contends that because the shuttering of the Southwest Texas Council, Boy Scouts of America gave the then-existing trustees the right to utilize the property "for such purpose and purposes as to them seem fit and proper," those trustees owned the property in fee simple absolute.

In 1943, the five then-existing trustees conveyed Camp Fawcett to TSWC, which was then known as the Concho Valley Council. The 1943 deed repeated the paragraphs labeled FIRST, SECOND, THIRD, and FOURTH in the 1930 deed. The 1943 deed also provided that the then-existing trustees conveyed the land:

on condition that such [Concho Valley] Council and its successors shall perform and carry out the foregoing terms and conditions relating to the use of the said lands for the several troops of the Boys Scouts of America now located and to be located within the jurisdiction of what has been heretofore termed the Southwest Texas Council, Boy Scouts of America, and on the further condition that the properties conveyed shall be operated, managed and controlled under the name of Camp Fawcett.

The 1943 deed further provided:

Should the said Council, its successor or successors, at any time discontinue the management and control of the properties here conveyed for the use and benefit of the beneficiaries named in the original trust conveyance or in this instrument, then in that event all rights, titles and interest accruing to such Council, its successor or successors, under this conveyance shall be forfeited and all such rights and titles revert to the grantors and their successors upon written notice being given by them to the grantee, its successor or successors of their intention to declare such forfeiture and re-acquire and re-take possession of the said trust estate.

In 1947, TSWC sold a portion of the original tract, reducing it to its current size of 178 acres. It is undisputed that TSWC leased the land for grazing and mineral exploration multiple times over the years.

At some point between 2004 and 2006, TSWC began closing Camp Fawcett during deer hunting season "[a]s a safety precaution . . . because of hunting that is being done on adjacent properties." In 2007, TSWC signed a two-year hunting lease agreement with Alford and Pat Stewart that allowed the Stewarts to hunt on Camp Fawcett "during state established regular fall and spring hunting seasons set for" specific animals. The Stewart lease expressly reserved TSWC's "right to conduct youth activities as well as ranching operations at all times on the Property." In 2015, TSWC signed a hunting lease agreement with Shelly and Robbie Hilton that conveyed "the sole and exclusive right to the hunting and fishing use of" Camp Fawcett from November 1, 2015 until January 3, 2016. Unlike the Stewart lease, the Hilton lease conveyed "continuous access to [the] property through the entirety of the term" and did not specifically reserve TSWC's right to conduct scouting activities on the land.

In 2016, TSWC signed a one-year hunting lease with Jason Baker. Like the Hilton lease, the 2016 Baker lease conveyed "the sole and exclusive right to the hunting and fishing use of" Camp Fawcett and "continuous access to [the] property through the entirety of the term." Unlike the Hilton lease, the 2016 Baker lease gave Baker exclusive use of the property "between the months of November and January." It also reserved TSWC's "right to restrict access on certainweekends for Scouting Event purpose[s] to be decided on a future date" and noted Baker's acknowledgment that "he is not to use or access [the] property on said weekends." In 2017, TSWC and Baker signed a second hunting lease, this time with a term of May 1, 2017 until April 30, 2020, with an option to renew for another three years. The 2017 Baker lease added October to the months specified for Baker's exclusive use of the property. Like the 2016 Baker lease, the 2017 Baker lease reserved TSWC's "right to restrict access on certain weekends for Scouting Event purpose[s] to be decided on a future date" and noted Baker's acknowledgement that he could not use or access the land during those weekends.

On November 5, 2017, Appellants filed an "Affidavit of Fact" in the Edwards County property records. In the affidavit, Appellants alleged the 1943 deed contained a condition subsequent that TSWC violated by failing to manage and control Camp Fawcett "in a manner which benefits the beneficiaries named in the original conveyance, specifically the youth of the counties served by the original Southwest Texas Council." T...