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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He was instantly spottable at the defense table, frail but erect, his thinning silvery hair neatly combed and turned up at the ends. "Ahí está el viejo" ("There is the old man"), one gray-haired woman said as she took her tan leather seat. For a few seconds she stared indignantly. Through large, thick glasses, he peered back. He almost evoked pity sitting there that way, his cheeks sagging heavily over the corners of his mouth. The Ballís who had arrived in cotton and rayon and polyester might have been a little less condemning if they had known Gilbert Kerlin better, if they had been aware, for instance, that he is a charitable man who contributes heavily to environmental and preservation causes in New York and even donated land for Andy Bowie Park on Padre Island. But there was no way they could know him—not now anyway, sitting under the high ceilings of a chilly, elegant white courtroom. They had not spoken for decades.
One by one, they took the stand—Ballí grantors and their descendants, oil and gas consultants, a title lawyer. Kerlin, ever sharp, testified for eight contentious days. Because of the complexity of the case, jurors were allowed to take notes and slip questions to the judge. In the audience, family members filled their own notebooks with scribblings. While McCall and the rest of the Ballí team used hundreds of letters and documents projected on a huge screen to prove the conspiracy, Kerlin's attorneys stuck by the argument that he had made to Primitivo Ballí long ago and to Connie Gonzales on the telephone: The Ballís' deeds had been no good when they sold them in 1938. Kerlin did not, they argued, enter the Havre v. Dunn case relying on the Ballís' deeds, as the family's lawyers contended, but by using titles he acquired later through lawsuits and deeds from several Anglo families. If the Ballís' deeds had been any good, Barrera told the jurors, "They wouldn't be using this fancy term called 'estoppel.'" In fact, if anyone had been cheated, it was Kerlin's late uncle, they said, when he spent $80,000 to acquire and defend these worthless deeds. Kerlin was acting only as an agent for his uncle, and although the Ballís kept harping on how they had slipped into poverty, Barrera added, "Who's poor and who's rich doesn't matter in the courts, because that's the way of life."
On the testimony went, for nine weeks. The jurors, attentive for the most part, began to grow nervous about being away from their jobs and slipped another question to the judge: "Once this trial is over, should a juror experience employment difficulties [directly attributable] to his/her jury service in this trial, what would be the avenue of relief?" The family continued to fill the courtroom early every morning, drawing family trees, proudly passing around snapshots of themselves standing in front of the courthouse with their attorneys. Kerlin appeared consistently too, shuffling in with small but steady steps, riding up and down the elevator alone, and reading the New York Times quietly. He would not discuss the case because of a gag order, but we had a pleasant chat one day about nothing important. Later that afternoon he gave me his business card with a small smile, ignoring his lawyer's suggestion that we speak through attorneys, and for a moment, I wanted to like him.
Then the trial was over and the judge gave the jury 27 questions to answer. (In civil trials in Texas, juries answer questions and judges apply the law based on their answers.) Nowhere was the jury asked to decide whether the Ballís had actually held title to the island when they sold their deeds in 1938. Instead, the charge opened by asking whether Kerlin was "estopped" to deny the validity of the deeds. By making estoppel the basis of his case, McCall was able to get around the need to prove that the Ballís had a valid title to the island in 1938, which would have been next to impossible to do, given the long passage of time. Instead, he needed to prove only that the Ballís had been cheated. Based on a request from Kerlin's attorneys, the judge tagged on an issue at the end: Were the Ballís guilty of waiting too long to bring this case to court?
When the judge called the jury in for a verdict four days later, on August 2, McCall blinked once, swallowed hard, then rose slowly. In the audience the Ballís filled every inch on the benches; teenagers, fathers, and grandmothers sat on the floor or stood in the back. About a dozen reporters were asked to stand along a side wall to make more room for the family. Before a row of chairs, a string of plaintiffs stood, clutching each other, eyes closed, heads imploring God in silent prayer. Kerlin was missing; he had been forced to leave for New York the day before, his lawyers said, because his wife, who was sick, needed him.
Wasting no time, the judge began to read what the jury had handed him. For the family, the answers that followed rang like sweet church bells. Was Kerlin estopped from denying that the Ballís' deeds were valid? Yes. Did he acquire an interest in those deeds? Yes. Did he fail to comply with his fiduciary duty to the Juan José Ballí grantors and their heirs? Yes. Did Seabury breach his fiduciary duty to the family when Havre v. Dunn was settled? Yes. During that settlement, did Kerlin conspire with Seabury to breach Seabury's fiduciary duty to the Ballís? Yes. During that settlement, did Kerlin conspire with Seabury to commit fraud against the Ballís? Yes. During that settlement, did Seabury commit fraud against the Ballís? Yes. Did that breach of fiduciary duty result from malice? Yes. Any way one put it, the Ballís, eleven of twelve jurors concluded, had been wronged—and in a blatant, conspiratorial way. "The documents were there, and that's what I found so amazing," jury foreman Cesar Cisneros, a retired school administrator, said later. "I just felt the evidence was so overwhelming that, as they say, hasta la pregunta es necia"—it was a moot question.
Less than an hour after the decision was read, McCall and his team arrived at the family's celebration at the Fort Brown hotel, the same place where U. S. troops under General Zachary Taylor had gathered in 1846 to take South Texas from Mexico. More than one hundred Mexican Americans offered the lawyers a standing ovation when they entered, and someone cried out with deep pride, "Arriba Tom McCall!" Cameras flashed. Old women hugged him. But the victory would be tempered by what happened just a few days later. A week after the vindicating verdict, after hearing a string of family members describe their lives in poverty, the all-Hispanic jury refused to award punitive damages. One juror—the only one who did not sign the original decision—told a reporter that the Ballís did not deserve compensation for their economic fate, which was shared by countless other Brownsville families. "If you were poor," the juror said, "you just had to struggle a little harder to get out of that hole, that's all." Another juror said that withholding punitive damages was the only decision all jurors could agree to. The outcome meant that a man whose attorneys said is worth $68 million would have to give back only what he had failed to pay.
Assuming that the decision is not overturned on appeal, the Ballís will get $3. 3 million in damages for fraud and unpaid royalties, of which their attorneys will receive 40 percent. The jury also concluded that the Ballís should have received mineral rights to 7,500 (plus accretion) of the 20,000 acres Kerlin acquired in settling Havre v. Dunn. So they now will be due small but regular oil and gas royalty payments for that property. All of this will be divided among roughly three hundred plaintiffs. Kerlin does not have to file an appeal until a final judgment is entered, but he has already hired Rusty McMains of Corpus Christi, a prominent appellate lawyer.
It is ironic that the Ballís ultimately prevailed the American way—by hiring a damn good lawyer—and that their attorneys used a legal doctrine that originated in English common law, the basis of our country's justice system. For it was the same system, sixty years ago, that created the loopholes through which their land had disappeared, and it was another Anglo lawyer who had authored their loss. Inevitably, some will see the case as something else, as the start of the repossessing of South Texas by Mexican Americans, who always have made up the majority of the population. But legal experts agree that most cases are lost causes because of statutes of limitations, lack of documentation, and transfers of land that were legitimate. Still, the Ballí case touched hundreds of people who have heard similar rumblings in their own families, and they have descended upon county courthouses and libraries, unraveling their own histories.
I must have been six when my father left Brownsville to attend a Ballí gathering in San Antonio and returned with tiny T-shirts of the Alamo for his three daughters. Like the rest of his siblings, our dad knew little about history and even less about law. I still have that shirt in a drawer back home, small holes where my bony shoulders used to rub. He died sick on a hospital bed, and other than a little bit of pride and lots of love, he couldn't leave us much. He was a cab driver with cancer. He was 41. But he left us a special last name, and there lay the treasure. I guess, with time, I too became Ballí. I became Ballí when, on childhood trips to the island, we pulled up by the priest's statue and admired how our last name looked engraved on a plaque. I became Ballí when, in high school, my twin sister and I penned a family history to show our classmates that ancestry ran much deeper than grandparents. And I became Ballí when, as a college freshman, my first A was on a paper about nineteenth-century relations between Anglos and Mexicans in Brownsville. "Can you believe how blessed we are to have been born into this family?" my sister asked in disbelief when news of the island trial went national. Because we descend from the priest's uncle, ours is the branch that will now pursue the La Barreta case against the John G. and Marie Stella Kenedy Memorial Foundation. I haven't decided whether to join the lawsuit, which is scheduled to go to trial on October 22.
The island victory, though, was for all of us to relish. In a way, its story is universal. For it is a story about how some people are washed out of their own histories. It testifies that important men like Seabury and Kerlin, like all other people, are both good and bad. And it offers a glimmer of hope that sometimes—not often, but sometimes—the little man does win. Sitting in a warm McDonald's in south Houston, Connie Gonzales reminded me how Kerlin had prevailed in so many lawsuits over island ownership—defeating the Kings, the Duke, the state. "And we brought him down!" she exclaimed triumphantly, throwing her head back with a loud, liberating laugh. "Little ranching family brought him down!"
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