Return to Padre
Last summer my relatives won a lawsuit that gave them a share of the island that once had belonged to their forebears. But before they could prevail, the Ballis had to rediscover their own history—and the history of South Texas.
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For decades, when family members had talked of what had happened, they had referred to Kerlin only as "the gringo" or "the bolillo," and there were so many Anglo names in the title abstracts that Gonzales scoured. She didn't even know if the man her grandmother had dealt with was still alive. All she could do was jot down every name, then run them by the elders in her family. Gilbert Kerlin, one aunt thought, sounded familiar. Gonzales' hopes soared. She called New York information: The name of the law firm he had worked for still existed. An operator provided the number. She placed two calls, left messages, and waited in suspense.
Two weeks later her phone rang, and a voice at the other end said it was Gilbert Kerlin. "At that point," she recalls vividly, "I asked him point-blank if it had been him. And immediately he said, 'Yeah, but those deeds weren't valid.'" And then he said something else: Did she have a lawyer? Because the burden of proof in a lawsuit would be on the Ballís, and fighting him was going to cost a fortune.
Gonzales pressed forward. With her brother, she had created el Comité Padre José Nicolás Ballí, and they summoned other Ballís through classified ads in the Brownsville Herald. At the first meeting, she joined forces with Johnny and Pearl. She continued her archival research, and in 1985—almost magically, it seemed—she found her treasure. In the bowels of the Kleberg County Courthouse, in Kingsville, she found the original eleven deeds the Ballís had signed over to Gilbert Kerlin in 1938. "It was like gold," she remembers. With only enough cash to copy a handful of them, she had to send a niece back for the rest.
Kerlin had a point, though: As much as they had come to despise attorneys, the Ballís would need one. In 1991 the family hired Brian Scott and Murray Fogler of Houston. But after nearly two years of work, they washed their hands of the case. "I think the excuse was that there wasn't enough production in the oil wells [on the island] for them to pursue it," Gonzales recalls. My branch of the family, which had begun to pursue the La Barreta case on the mainland, faced the same problem. Individual families mustered little payments worth more than a week of groceries—$100 here, $200 there—to pay the expenses of their lawyers, who drove to preliminary hearings throughout South Texas and wined and dined as professionals do. The lawyers quit anyway. For most of them, the case represented a big gamble; the probability of winning wasn't worth their time and expense, not to mention the difficulty of representing hundreds of people who were spread throughout the country and often couldn't agree with each other. My uncle, a La Barreta heir, received a letter last year from a Dallas law firm that said only, "We regret to inform you that circumstances have developed which hinder our continued effective litigation of the lawsuit." Two hundred twenty-three Ballís were dumped.
But in 1994 a young Houston lawyer named Hector Cárdenas, whose grandmother had signed one of the eleven Kerlin deeds, undertook the mission to save the island case. After his own law firm declined to take it, Cárdenas, who was just out of law school, contacted some twenty firms, to no avail. Even Houston's top plaintiffs lawyers turned him down. Then, a lawyer who went to church with his aunt offered the name of Tom McCall, an Abilene native who is now a well-regarded Austin oil and gas lawyer. Meanwhile, Kerlin wasn't the Ballís' only adversary: The clock was ticking. While McCall was reviewing the case, a state district judge dismissed the lawsuit for want of prosecution. The Ballís had just thirty days to reinstate it. McCall agreed to take the case, then filed a motion to reinstate on behalf of Hector Cárdenas' mother and four of her siblings—just one day before the deadline expired.
The story of what occurred next has become family legend. In April 1995 McCall showed up in a crowded state district court in Brownsville, where he argued that the case was not dead: He only needed a little time to sign up the rest of the family. Then, to prove his point, he turned to face hundreds of Ballís who were attending the hearing and asked, "Who here is going to join us?" Almost every hand in the audience shot up. By the time the room was cleared that afternoon, McCall had picked up at least a hundred new clients. The Ballí family, after all, would have its day in court.
Tom McCall never meant to reverse a family's fortunes, never meant to refuel a South Texas movement to reclaim lands, never meant to help rewrite Texas history from a Mexican American perspective. At first, he just meant to win a lawsuit. He is a 52-year-old lawyer with an office nestled in the hills of West Austin. A quiet man who usually carries a smile, he has a straightforward character that makes him automatically likable. It is reflected in the way he maintains his cool in front of a judge, the way he often paces alone outside the courtroom during long waits instead of visiting with other lawyers at their table. Britton Monts, a Dallas lawyer who is McCall's close friend and has teamed up with him in the courtroom for sixteen years, calls him "a real Don Quixote," a man who believes in the concept of good over evil. Hector Cárdenas regards him as the true lawyer ideal. "Tom, I've got to say, is the closest to the Atticus Finch character in To Kill a Mockingbird that I've ever worked with," he says. "That character is why I went to law school."When he reviewed the Ballí case, McCall remembers, he instantly spotted an argument. Given that the history of the island was so muddy, he would have a tough time proving the Ballís had held title in 1938, when the Kerlin deeds were signed. So McCall turned to another legal strategy called estoppel, a way of saying a man will be held to the benefit of his bargain. It would prevent Kerlin from denying the validity of the Ballí deeds if he had previously used them to make other legal claims to the island. Seldom invoked today, estoppel was used long ago, before a sophisticated title system was developed to facilitate the tracking of property ownership. "We spent, maximum, ten minutes talking about it in law school," Cárdenas says. In McCall's view this was the perfect opportunity to apply it. So he joined up with Monts, then completed the legal team with his twin brother David, whose specialty is land titles, their associate Robert Johnson, and Cárdenas. In Brownsville, Cárdenas had asked Frank Costilla to step in as local counsel.
For five years they built a case. As time passed, the lawyers began to feel they had stepped into something truly bigger than life—something guided, it seemed, by an invisible hand. "It almost felt like fate was moving us along, and I don't mean to sound superstitious," Monts says in retrospect. "There are some cases that feel like they're snakebitten from the start, but this one just felt like it was fated." It seemed like fate, for instance, that Kerlin still had boxes of old letters his uncle had exchanged with Seabury regarding his island transactions, which he turned over to his Houston attorney, M. Steve Smith, when they were subpoenaed by the court. It was in reading those 30,000 pages of letters and documents, over months of trips to Smith's office, that McCall began to suspect that the Ballís had been deliberately cheated from the beginning. He caught statements buried in that correspondence hinting that Kerlin, his uncle, and Seabury had conspired to leave the Ballís and their royalty interests out of Havre v. Dunn and the later cases that settled the title to Padre Island. In one letter, Seabury, who had told the court he represented both Kerlin and the Ballís in those cases, identified the former as his "real client." Another letter revealed that Kerlin's uncle had intended to "let the Ballí title, if such it may be called, die in Kerlin." The more McCall studied the documents, the more he was convinced that the carving up of Padre Island after Havre v. Dunn was settled was designed to wash the Ballís' claims out of the record. Although the island dealings stand out in Seabury's legal career, those files did not go into the collection of his papers that was donated to the Center for American History library at the University of Texas at Austin but were separated and eventually passed on to Kerlin in New York, who kept them in a filing cabinet. "I'm sure," says Robert Johnson, "Seabury never dreamed that the courts were going to give the Ballís the key to open that locked drawer."
On those allegations, the island trial began in Brownsville on an unbearably hot afternoon last May. At ninety years of age, Kerlin returned to South Texas by plane, dressed impeccably like the prominent lawyer he had become, flanked by Smith and Brownsville attorney Horacio Barrera (ironically, the descendant of another Ballí branch). Ballís drove in by the carloads, ice chests and family albums in tow, from as far away as Florida and Illinois and California. Retired senior state district judge Pat McDowell arrived from Dallas to try the case, replacing a local judge who had recused himself. The trial had been moved to the federal courthouse, where the courtroom was completely filled with Ballís, with hundreds more waiting in the halls, all of whom could confront at last the man who had been, for years, a faceless villain.
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