                   NUMBER 13-10-00563-CV

                   COURT OF APPEALS

           THIRTEENTH DISTRICT OF TEXAS

             CORPUS CHRISTI - EDINBURG

AMPARO PENA CORTINA, ET AL.,                            Appellants,

                               v.

P. I. CORPORATION AND WINDWARD
OIL AND GAS CORPORATION,                                Appellees.


             On appeal from the 28th District Court
                  of Nueces County, Texas.


                          OPINION
          Before Justices Rodriguez, Vela, and Perkes
                    Opinion by Justice Vela
           Appellants, Amparo Pena Cortina and numerous descendants of Carmen Balli and

Delfina Solis Balli ("the Cortinas"), filed suit against appellees, C. Jones Perry, as

executor of the Estate of Gilbert Kerlin,1 P. I. Corporation, and Windward Oil & Gas

Corporation ("Windward"), claiming to own an undivided 2.083% interest in Padre Island.

Windward filed both no-evidence and traditional motions for summary judgment. The

trial court's judgment granted both. On appeal, the Cortinas argue that the trial court

erred in granting Windward's motion for summary judgment on grounds that there was

evidence that a tutor deed, signed on behalf of Delfina, who was then a minor, was void,

that fraud was committed by Gilbert Kerlin, the predecessor in interest to the property at

issue, and there is a fact issue with respect to who are the true owners of the land. We

affirm.

                                               I. BACKGROUND

           The Cortinas claim a right to a portion of Padre Island as descendants of Delfina

Solis Balli and Carmen Balli Solis, Delfina's mother and guardian. It is undisputed that

record title passed from Delfina Balli in 1846 when four deeds were recorded by Nicolas

Grisante in the Nueces County deed records in 1847. Delfina's interest in Padre Island

was conveyed to Grisante through a tutor's (guardian's) deed, signed by her mother,

dated October 28, 1846. The Cortinas' claim is that the tutor's deed is void because the

"court in Mexico had no authority to convey land in the State of Texas on October 27,

1846."         In fact, all of the Cortinas' claims hinge upon establishing that the 1846

guardian's deed was void. They do not contest the truth of the recitations in the deed.


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               The special appearance filed on behalf of the Estate was granted and it was dismissed from the
lawsuit.
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Rather, they urge that the sale should be disregarded as void because after Texas

declared its independence from Mexico, courts in Mexico had no jurisdiction over Texas

lands.

         Windward moved for summary judgment on grounds that (1) the Cortinas can

produce no evidence that they have superior title to the property in question; (2) laches

and estoppel applied; (3) as a matter of law, Mexican courts had jurisdiction to appoint a

guardian and authorize the sale of Delfina Solis Balli's property on Padre Island; (4) the

claims are barred by res judicata and collateral estoppel; and (5) title has been

established through adverse possession. The trial court granted the motion for summary

judgment.

                                 II. STANDARD OF REVIEW

         Whether the motion for summary judgment was brought pursuant to no-evidence

or traditional grounds determines our standard of review. See TEX. R. CIV. P. 166a(c), (i);

see also Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.—Corpus Christi 2003,

no pet.).    A no-evidence summary judgment equates to a pre-trial directed verdict.

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006); Ortega, 97 S.W.3d at

772. We review the evidence presented with the motion and the response in the light

most favorable to the party against whom the summary judgment was rendered, crediting

evidence favorable to a party if reasonable jurors could and disregarding contrary

evidence unless reasonable jurors could not. Mack Trucks Inc., 206 S.W.3d at 582.

          We utilize a de novo standard in reviewing the trial court's granting of a

traditional motion for summary judgment. See Provident Life & Acc. Ins. Co. v. Knott,


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128 S.W.3d 211, 215 (Tex. 2003); Branton v. Wood, 100 S.W.3d 645, 646 (Tex.

App.—Corpus Christi 2003, no pet.). We must determine whether the movant met its

burden to establish that no genuine issue of material fact exists and that the movant is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); see Sw. Elec. Power Co.

v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth.,

589 S.W.2d 671, 678 (Tex. 1979). In a traditional summary judgment, the movant bears

the burden of proof, and all doubts about the existence of a genuine issue of material fact

are resolved against the movant. See Sw. Elec. Power Co., 73 S.W.3d at 215. We take

as true all evidence favorable to the non-movant, and we indulge every reasonable

inference and resolve doubts in the non-movant's favor. See Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

      We affirm a traditional summary judgment only if the record establishes that the

movant has negated at least one essential element of the plaintiff's causes of action or

has conclusively proved its defense as a matter of law. IHS Cedars Treatment Ctr. of

DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); see Am. Tobacco Co. v.

Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Clear Creek Basin Auth., 589 S.W.2d at 678.

When reasonable people could not differ as to the conclusion to be drawn from the

evidence, the matter is conclusively established. City of Keller v. Wilson, 168 S.W.3d

802, 816 (Tex. 2005). Once the movant has produced sufficient evidence to establish its

right to summary judgment, the burden to produce competent, controverting evidence

raising a fact issue shifts to the non-movant. Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d

217, 223 (Tex. 1999); see Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.


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1995). When the trial court's judgment does not specify which of several proposed

grounds was dispositive, we affirm on any ground offered that has merit and was

preserved for review. See Joe v. Two Thirty Nine J.V., 145 S.W.3d 150, 157 (Tex.

2004).

                                        III. ANALYSIS

         By the Cortinas' first issue, they argue that the trial court erred in granting the

summary judgment motion because the Mexican courts had no authority to approve a

tutor's deed, signed on October 28, 1846. In other words, they urge that Windward has

no title because the Mexican courts had no jurisdiction to appoint a guardian and

authorize the sale of Delfina Solis Balli's property on Padre Island. It is undisputed that

Carmen Balli Solis, by a Mexican judicial decree, deeded her daughter's property to

Nicholas Grisante in 1846. Windward first urges that the State of Texas was required to

recognize Grisante's ownership under the terms of the 1848 Treaty of Guadalupe

Hidalgo. Article VIII of the treaty provided:

         In the said territories, property of every kind, now belonging to Mexicans not
         established there, shall be inviolably respected. The present owners, the heirs of
         these, and all Mexicans who may hereafter acquire said property by contract, shall
         enjoy with respect to it guarantees equally ample as if the same belonged to
         citizens of the United States.

In State v. Balli, the court acknowledged that Grisante had appeared before the Bourland

and Miller Commission to have his title to Padre Island confirmed by the State of Texas.

190 S.W.2d 71, 89 (Tex. 1944). The Bourland and Miller Commission was formed to

give effect to the 1848 Treaty of Guadalupe Hidalgo and recognize the title of Mexican

citizens in a disputed boundary area between Texas and Mexico. Balli, 190 S.W.2d at


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86.

       The Cortinas cite Kenedy Pasture Company v. State as authority for its position

that the Mexican courts had no authority over the land in 1846, thus the deed was void.

231 S.W. 683 (Tex. 1921). The issue in Kenedy Pasture, however, was whether the

governor of Tamaulipas had authority to issue a land grant on April 12, 1848, and whether

the grant on that date was valid and protected by the Treaty of Guadalupe Hidalgo. Id. at

689. The Treaty recognized the Rio Grande River as the boundary between Texas and

Mexico. Id. at 690. In other words, that case dealt with whether the Mexican state could

legally grant land in Texas after 1848. Kenedy Pasture is inapposite, because the issue

here is whether a sale of land, located in Texas, between individual Mexican citizens,

sanctioned by a Mexican court, prior to the Treaty of Guadalupe Hidalgo, should be given

validity. Here, there was no land being granted by the Mexican government.

       The Cortinas also cite Wortham v. Walker for the proposition that a de facto

government cannot be the source of a title. 128 S.W.2d 1138 (Tex. 1939). In Wortham,

the relator sought a mandamus to require the Commissioner of the General Land Office to

classify, appraise, and value certain area as dry grazing lands. Id. at 1139. While we

agree that the proposition of law the Cortinas state is mentioned in the Wortham opinion,

we do not believe it is dispositive of the issue in this case, which involves a Mexican court

allowing for the transfer of property rights between individual Mexican citizens.

       Likewise, Slaughter v. Qualls, cited by the Cortinas, has no application here. See

162 S.W.2d 671 (Tex. 1942). Slaughter was a trespass to try title case brought by a

vendee of land against the holder of a purchase money note who attempted to foreclose a


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deed of trust lien given to secure the note. Id. at 673. The supreme court, in that case,

opined that because the conditions and limitations on the trustee's power to convey the

land were never fulfilled, the trustee's power never came into being, thus the foreclosure

sale and trustee's deed were void. Id. at 675. It did not involve the issue of the validity

of a foreign deed and we see no applicability to this case.

       We note that the Mexican court, in this case, did not exercise jurisdiction over the

land. Rather, it exercised jurisdiction over the individuals, Mexican citizens, who came

before it.   The court was approving a private sale of land situated in Texas.             In

McElreath v. McElreath, the court stated that when jurisdiction of the persons is present:

       No one disputes the jurisdiction and authority of the Oklahoma court to
       decree that A convey to B certain Texas lands, nor the further proposition
       that such deed, when executed in accordance with the Texas laws relating
       to conveyancing, operated to legally convey lands in Texas.

 345 S.W.2d 722, 727 (Tex. 1961). Issues of title to land in Texas may be adjudicated by

courts of another state when that court has personal jurisdiction over the parties. Hall v.

Jones, 54 S.W.2d 836, 836 (Tex. Civ. App.—San Antonio 1932, no writ). Here, there is a

160 year long title history and multiple judgments have adjudicated title to land on Padre

Island. See, e.g., Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008) (per curiam); State v.

Balli, 173 S.W.2d 522 (Tex. Civ. App.—San Antonio 1943), aff'd, 190 S.W.2d 71 (Tex.

1944). Texas courts apply a presumption in favor of ancient judgments, particularly

those involving land titles. King Ranch v. Chapman, 118 S.W.3d 742, 755 (Tex. 2003).

The Mexican court had jurisdiction over the parties to sell the land. The trial court did not

err in granting summary judgment that the 1846 guardian's deed was a valid conveyance.



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      Regardless, the trial court would have been justified in granting summary

judgment on limitations.    Windward's motion for summary judgment urged that it

acquired the land by limitations by holding deeds from persons in privity which go back

over 100 years. In order to obtain title by adverse possession, a party must prove that

the acts of the one in possession of the land are such as would reasonably apprise people

in the community of the true owner of the land that the possessor is claiming the right to

appropriate the land to his own use. McDow v. Rabb, 56 Tex. 154, 160 (1882). In suits

to recover land, limitations periods run from four to twenty-five years. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 16.003, 16.004, 16.025–.029 and 16.003 (West 2002). For

instance, section 16.028 of the civil practice and remedies code provides that:

      (a) A person, regardless of whether the person is or has been under a legal
      disability, may not maintain an action for the recovery of real property held
      for 25 years before the commencement of the action in peaceable and
      adverse possession by another who holds the property in good faith and
      under a deed or other instrument purporting to convey the property that is
      recorded in the deed records of the county where any part of the real
      property is located.

      (b) Adverse possession of any part of the real property held under a
      recorded deed or other recorded instrument that purports to convey the
      property extends to and includes all of the property described in the
      instrument, even though the instrument is void on its face or in fact.

      (c) A person who holds real property and claims title under this section has
      a good and marketable title to the property regardless of a disability arising
      at any time in the adverse claimant or a person claiming under the adverse
      claimant.

TEX. CIV. PRAC. & REM. CODE §16.028.

      The Cortinas complain that the sale in 1846 was void. Here, the land was held

under a recorded deed that purports to sell the property in question. Thus, even if the


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instrument was "void on its face or in fact," the claims are time barred. See Id.

       The Cortinas also argue the applicability of the discovery rule. A cause of action

accrues when a wrongful act causes some legal injury, even if the injury is not discovered

until later and even if not all resulting damage has occurred. S.V. v. R.V., 933 S.W.2d 1,

4 (Tex. 1996). The date of accrual is a question of law. Moreno v. Sterling Drug, Inc.,

787 S.W.2d 348, 351 (Tex. 1990). Examples of doctrines that may defer or toll the

running of the statute of limitations include the discovery rule, fraudulent concealment,

and equitable estoppel. The discovery rule is a very limited exception which defers the

accrual of a cause of action until the injury was or could have reasonably been

discovered. Shell Oil Co. v. Ross, 356 S.W.3d 924, 929 (Tex. 2011). It applies only

when "the alleged wrongful act and resulting injury are inherently undiscoverable at the

time they occurred but may be objectively verified." S.V., 933 S.W.2d at 6. An injury is

inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed

limitations period despite due diligence. Id. at 7.

       In this case, the record reflects that the land, in question, has been the subject of

both a publicly recorded deed and multiple judgments. We hold that the discovery rule

does not apply here. Summary judgment would also have been proper on this ground.

We overrule the Cortinas' first, third, and fifth issues. In light of our ruling on these

issues, we need not address issues two and four as they are not dispositive.




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                                      IV. CONCLUSION

       Having determined that the trial court properly granted summary judgment, we

affirm the judgment of the trial court.




                                                ROSE VELA
                                                Justice

Delivered and filed the
4th day of October, 2012.




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