                                                                                  ACCEPTED
                                                                             03-14-00731-CV
                                                                                    4696965
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                        3/30/2015 3:31:31 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                       IN THE
                 COURT OF APPEALS
         THIRD DISTRICT OF TEXAS AT AUSTIN                   FILED IN
                                                      3rd COURT OF APPEALS
                                                          AUSTIN, TEXAS
                                                      3/30/2015 3:31:31 PM
                     NO.03-14-00731-CV                  JEFFREY D. KYLE
                                                              Clerk



                JUANA MENDEZ VALDEZ
             ET VIR JUAN VALDEZ, Appellants

                              V.

          MELODY MUELLER MOERBE, Appellee



                    APPELLEE'S BRIEF



On Appeal from the 155th District Court of Fayette County, Texas
              Trial Court Cause No. 2013V-052


                             GATES, STEIN, GILLESPIE &
                             TREFNY
                             MICHAEL T. TREFNY
                             TBN 20207650
                             P. O. Box 458
                             Columbus, Texas 78934
                             Telephone: (979) 732-2301
                             Facsimile: (979) 732-2303
                             Email: mtrefny@gsgtlawfirm.com

                             ATTORNEYS FOR APPELLEE,
                             MELODY MUELLER MOERBE
               IDENTITY OF PARTIES AND COUNSEL

APPELLANTS:             JUANA MENDEZ VALDEZ
                        ET VIR JUAN VALDEZ

REPRESENTED    BY:      O.F. Jones III
                        Attorney at Law
                        PO DrawerE
                        Victoria, Texas 77902
                        Telephone: (713) 758-2391
                        Facsimile: (713) 615-5903
                        Email: ofiones360@gmail.com

APPELLEE:               MELODY MUELLER MOERBE

REPRESENTED    BY:      Michael T. Trefny
                        GATES, STEIN, GILLESPIE & TREFNY
                        PO Box 458 - 415 Spring Street
                        Columbus, Texas 78934
                        Telephone: (979) 732-2301
                        Facsimile: (979) 732-2303
                        Email: mtrefny@gsgtlawfirm.com

TRIAL COURT:

    DISTRICT COURT-     Honorable Judge Dan R. Beck
                        155th Judicial District Court of Fayette County
                        151 North Washington - Room 201
                        La Grange, Texas 77475
                        Telephone: (979) 968-8500
                        Facsimile: (979) 966-0799




                                 ii
                         TABLE OF CONTENTS

                                                              Paee(s)

IDENTITY OF PARTIES AND COUNSEL                                     ii

INDEX OF AUTHORITIES                                               iv

STATEMENT OF THE CASE                                               v

STATEMENT CONCERNING ORAL ARGUMENT                                 vi

ISSUES PRESENTED                                                   vi

RECORD REFERENCES                                                 viii

STATEMENT OF FACTS                                                  1

ARGUMENT AND AUTHORITIES                                            8

    Standard of Review                                              8

    Summary of Argument                                             9

    Appellee's Response to Appellants' Point of Error One          15

    Appellee's Response to Appellants' Point of Error Two          22

    Appellee's Response to Appellants' Point of Error Three        29

CONCLUSION                                                         30

PRAYER                                                            32

CERTIFICATE OF COMPLIANCE                                          33

CERTIFICATE OF SERVICE                                             33




                                     iii
                                   INDEX OF AUTHORITIES

Cases

Barrett v. McKinney,93     S.W.2d 240,242 (Court of Civ. Appeals, 1906)                                 24
Blaylockv. Riser, 163 Tex. 235; 354 S. W. 2d 134 (1962)                                                 25
Blaylock, 163 Tex. At 238                                                                               25
Chambers v. Shaw, 23 Tex. 165, (1859)                                                                   28
Coleman v. Waddell, 151 Tex. 337, 249 S.W.2d 912 (1952)                                                 17
Coleman v. Waddell, 151 Tex. 340                                                                        17
Doyle v. Ellis, 549 S.W. 2d 62 (Tex. Civ. App.-Waco,     1977, no writ)                                 17
Garcia v. Dial, 596 S.W.2d 524,528 (Tex. Cr. App. 1980)                                                 26
Harmon v. Overton Refining Co., 130 Tex. 365, 109 S. W. 2d 457 (1937)                                   18
Heard v. State, 146 Tex. 139, at 146,204 S. W. 2d 344, at 348, (1947)                                   16
Holley v. Watts, 629 S. W. 694, 696 (Tex.l982)                                                           8
In re GMC, 296 S. W. 3d 813 (Tex. App. - Austin, 2009, no pet.)                                         26
In Re King's Estate, 244 S. W. 2d 660,661 (Tex. 1951)                                                    9
In Re King's Estate, 244 S. W. 2d 660, 662 (Tex. 1951)                                                   8
King v. Bauer, 688 S. W. 2d 845, 846 (Tex. 1985)                                                         9
Mata v. Mata, 710 S. W. 2d 756, 757-8 (Tex. App. - Corpus Christi, 1986, no writ.)                       8
McGalliardv.   Kuhlmann, 722 S. W. 2d 694, 696-697 (Tex. 1986)                                           8
Pool v. Ford Motor Co., 715 S. W. 2d 629,635 (Tex. 1986)                                                 8
Poole v. Gode, 442 S. W. 2d 810 (Tex. Civ. App. - Houston [14th District] 1969, writ refused n. r. e    28
                                                                                                th
Royal Independent School Dist. V. Ragsdale, 273 S. W. 3d 759, 763 (Tex. App. - Houston [14 Dist.]
  2008, no pet.)                                                                                        26
Satterwhite v. Rosser, 61 Tex. 166, at 171, (1884). Cited with approval in Heard v. State, 146 Tex. 139,
   146,204 S.W. 2d 344,348 (1947)                                                                        16
Schleicher v. Gatlin, 85 Tex. 270, at 275,20 S. W. 120, at 123, (1892), Tex                             16
Sun Oper. L.P. v. Oatman, 911 S.W.2d 749, 758 (Tex.Civ. App.-Austin,       1987, writ denied)           16
Surkey v. Qua, 173 S.W. 2d 230 (error refused for want of merit)                                        17
York v. Thompson Lumber Co., 169 S.W. 2d 187                                                            17

Rules

Tex. R. Civ. P. Rule 278                                                                                29
Texas Rules of Civil Procedure, Rule 510.1 et seq                                                       24

Treatises

2 Corpus Juris Secundum, Adverse Possession, sub. b, Sec. 185                                           18
                      rd
Texas Jurisprudence 3 §72                                                                               28

Code

Property Code Chapter 24.001                                                                            25

                                                    iv
Tex. Civ. Prac. & Rem. §§16.025 and 16.026                                              9, 23
Tex. Civ. Prac. & Rem. §16.025                                                         16, 23



                                 STATEMENT OF THE CASE

Nature of the Case:              This case involves the appeal by the AppellantslPlaintiffs
                                 below from findings by the jury that Plaintiffs did not
                                 adversely possess land owned by Melody Mueller
                                 Moerbe,      AppelleelDefendant       below.    Appellants
                                 submitted a jury question under the ten (10) year
                                 limitations rule and a separate question under the five (5)
                                 year limitations rule. Both were answered "no" by the
                                 JUry.



The Trial Court:                 Cause No. 2013V-052, in the 155th Judicial District Court
                                 of Fayette County, Texas, Judge Daniel Beck presiding
                                 by assignment after the voluntary recusal of Judge Jeff
                                 Steinhauser, sitting district judge; Trial was commenced
                                 May 27,2014.


Course of Proceedings: Trial was commenced May 27, 2104 and a jury was duly
                       empaneled. The jury returned its verdict May 30, 2014.
                       The Court duly charged the jury and submitted the
                       questions requested by the AppellantIPlaintiff. The jury
                       returned its verdict on May 30, 2014. The court heard
                       Motions for Entry of Judgment by AppelleelDefendant
                       and for Directed Verdict by AppellantIPlaintiff.


Trial Court's Disposition:     The     Court     entered   final judgment               that
                         AppellantslPlaintiffs take nothing on July 30, 2014.




                                                 v
             STATEMENT CONCERNING ORAL ARGUMENT


      Appellee does not request oral argument, and requests oral argument be

waived. The issues of law are not unique, and arguing interpretation of the facts

would serve no good purpose. The record is clear. The standard of appellate review

is no evidence and there is ample evidence to support the jury's                verdict.

Furthermore, the value the land in controversy is relatively small and the expense

of oral argument is undesirable.


                               ISSUES PRESENTED


      While Appellants did not present a concise statement of the separate issues

complained of on appeal, their Issues Presented section of Appellants' Brief state

that "Appellants assert that the trial court erred in refusing to grant their Motion for

Instructed Verdict and Motion for Judgment Notwithstanding Verdict based upon

the five year and the ten year statute of limitations. Appellants go on to say that the

jury findings were against the great weight and preponderance of the evidence.

However, since Appellants as the parties claiming to have adversely possessed the

property bore the burden of proof on the issues, the standard of review is a "no

evidence" standard, not against the great weight and preponderance               of the

evidence. Appellants appear to recognize the no evidence standard of review on

page 20 of their brief. Further, on page 22, paragraph b. of Appellants' Brief, they


                                           vi
simply complain that "Appellants established good title to the 1.93 acre tract under

the ten (10) year statute of limitations", and on page 30, paragraph c., that

"Appellants established good title to the 1.93 acre tract under the five (5) year

statute of limitations".


       Appellants also complained that the trial court committed reversible error by

failing to properly charge the jury on the law. However, Appellants fail to point

with specificity to the particular error complained.


       The real questions presented by Appellants' arguments are quite simple.

First, "As a matter of law does the possession and use of a portion of a property

entitle you to adverse possession of the entirety of the property under the 10 year

rule?" The answer of course is "no". Appellants failed to show how much of

Appellee's property they did use and possess, instead seeking to claim it all by

adverse possession of only a portion. They claimed it all even though it was clear

they did not use it all for the required ten year period. The judgment in this case is

the result of Appellant's knowing waiver of the right to pursue adverse possession

of the sliver of land they actually used for 10 years, instead only claiming to have

adversely possessed the entirety of the tract without proof of such use to the extent

required by the statute and case law. This is an evidentiary issue governed by the

no-evidence standard.



                                          vii
      The second question presented is: "Does the filing of a Petition for Forcible

Entry and Detainer toll limitations on adverse possession?" Here the answer is "Of

course it does." Forcible Entry and Detainer is the usual and most expedient

recourse to remove trespassers. It is not a nullity because on re-trial Appellants

decided to raise the issue of title. This is an issue of law for the Court.




                             RECORD REFERENCES

      The Reporter's Record consists of six (6) volumes and will be cited as "RR
[vol], [page]."

      The Clerk's Record consists of one (1) volume to be cited as "CR [page]"
and a Supplemental Clerk's Record to be cited as "SCR [page]."




                                           viii
                            STATEMENT OF FACTS

      Appellant stipulated the Appellee, Melody Mueller Moerbe, was the record

title holder of a 0.92 acre tract, she inherited from her grandmother,            Mrs.

Seeberger, herein the "Seeberger tract". (RR Vol. 2, P. 12, LLI6)            Near the

Seeberger tract was a tract acquired by Mike Steinhauser from Chris Houston. (RR

Vol. 3, P. 125, LL 4-19 and Plaintiff's Ex. 1). Mike Steinhauser sold the tract to

Ms. Arnie Marie Gordon (RR Vol. 3, P. 129, LL 22-P. 130, LL 4). Mr. Steinhauser

testified that no one could reasonably know the boundary lines of the tracts in that

area without a survey, and he didn't know what he owned and sold to Ms. Gordon,

and she had no way of knowing it either. (RR Vol. 3, P. 154, LL II-P. 155, LL 24)

The Seeberger tract was not included in the 1999 deed from Arnie Marie Gordon.

(RR Vol. 3, P. 149, LL 18-21 & P. 150, LL 8-10)


      The Seeberger tract was all grown up in brush. (RR Vol. 3, P. 29, LL 24-P.

30, LL 10). Appellants did not clear the entire property when they first took

possession in 2000, but rather only cleared a little area for the first trailer in 2000

(RR Vol. 3, P. 32, LL 10-21) which is situated very close to the edge of the

Seeberger tract along an area of unknown ownership, and only partially on the

Seeberger tract. (RR Vol. 3, P. 65, LL 5-14) Appellants never fenced any of the

land except a fence along the front of their first trailer which does not enclose

anything and is not on the Seeberger tract. (RR Vol. 3, P. 63, LL 2-15) Valdez did

                                           1
not clear the lower portion where the second trailer was situated until that trailer

was installed in 2005. (RR Vol. 3, P. 65, LL 11-14)

      Lillie Seeberger owned the Seeberger tract, legally and equitably, in 2006

because nobody established any rights to the contrary. (RR Vol. 3, P. 145, LL 15-

17)   Juana Valdez was well aware that somebody else owned that tract, the

Seebergers, in early 2006 when she got the survey back (RR Vol. 3, P. 144, LL 19-

24) Juana Valdez was upset about the fact that somebody else owned the tract on

which she had partially located her trailer. (RR Vol. 3, P. 145, LL 20-22) Instead

of addressing the partial trespass, Juana Valdez set about to take the property by

false Affidavit of Use and Possession (Defendant's Ex. 7), by encouraging Ms.

Gordon to execute a "Deed Without Warranty" conveying to Ms. Mendez Valdez

much more land than she owned (Defendant's Ex. 6), clearly designed to start the

five (5) year limitations period, and thereafter clearing more land and moving more

trailer houses onto the property. (Defendant's Ex. 9 and testimony at RR Vol. 3,

PP. 98-100)    There are now four (4) mobile homes and some sheds on the

Seeberger tract. (RR Vol. 3, P40, LL 18)


      Appellant, Juana Mendez Valdez was caught in multiple lies about her

claimed use of the Seeberger tract, both at trial and in an Affidavit of Use and

Possession (Defendant's Exhibit 7). Juana Valdez testified at trial that Ms. Gordon

showed her (Valdez) the four comers of the property sold, being from I-10 to

                                           2
Walnut, to Collins Street, to Hackberry and back up to I-10. (RR. Vol. 3, P. 28, LL

1-P. 29, LL 5) Mr. Mr. Steinhauser, who sold the land to Ms. Gordon, never told

Ms. Gordon that he was selling her the entire boundary between Walnut, Collins

and Hackberry Streets and Interstate 10, or even "this is your four comers." (RR

Vol. 3, P. 153, LL 17-24) Mr. Steinhauser admitted that he never had a clue where

the boundaries were (RR Vol. 3, P. 155, LL 18-24) Mr. Steinhauser testified that

Ms. Gordon would not have been able to know where the four comers of her

property were ... no one could without a survey. (RR Vol. 3, P. 154, LL ll-P. 155,

Ll-21)


         Appellants'   attorney, Mike Steinhauser, testified that he personally knew

Arnie Marie Gordon (RR Vol. 3, P. 150, LL 18-23), and that she was not the kind

of person who did misrepresent things ... she was "brutally honest" (RR Vol. 3, P.

151, LL 9-11), that she was not well educated (i.d. at LL 15-18); that she was not

knowledgeable of deeds and property descriptions (i.d. at LL 19-21).

         Juana Valdez also testified that Ms. Gordon told her the tract contained two

(2) acres. (RR Vol. 3, P. 72, LL 20-24) Per Mr. Steinhauser, he computed the total

area of 1.93 acres for purposes of the Affidavit of Use and Possession, and prior to

that date no one knew how many acres were involved. (RR Vol. 3, P. 142, LL 3-

11) The deed from Gordon to Juana Mendez Valdez in 1999 (Defendant's Ex. 3),

did not show a description of two acres. Juana Valdez admitted that she only paid

                                            3
taxes on 0.443 acres until 2007. (RR Vol. 3, P. 80, LL 11-23). She also admitted

on cross examination that she didn't know how many acres were in the Seeberger

tract until after it was computed by Steinhauser, and Ms. Gordon could not have

told her any tract contained two acres.

      Juana Valdez also lied in the Affidavit of Use and Possession which she

fraudulently filed in May 2006. (Defendant's Exhibit 7) In particular, she swore

in her affidavit that Ms. Gordon had been paying taxes on all of the property

covered by the Affidavit,      being the entire 1.93 acres computed      by Mike

Steinhauser, including the Seeberger tract. (ld.) However, her tax statements show

she was not taxed on the Seeberger tract until after the Affidavit was filed in May

2007 (Plaintiffs' Ex. 7) but thereafter she was taxed on the entire 1.93 acres (RR

Vol. 3, P. 38, LL 25-P. 39, LL 3). Juana Valdez admitted under cross that she only

paid taxes on 0.443 acres until 2007. (RR Vol. 3, P. 80, LL 11-23) Juana Valdez

also swore under oath in her Affidavit that Ms. Gordon had made use of all of the

property, being the 1.93 acres described therein, since she (Ms. Gordon) bought it

from Mike Steinhauser (Defendant's Ex. 7). Again, Mr. Steinhauser admitted that

he never had a clue where the boundaries were (RR Vol. 3, P. 155, LL 18-24). Mr.

Steinhauser testified that Ms. Gordon would not have been able to know where the

four comers of her property were ... no one could without a survey. (RR Vol. 3, P.

154, LL II-P. 155, LI-21). Further, Juana Valdez even acknowledged in her trial


                                          4
testimony on direct that when they went onto the property "It was ugly. It was

nothing but brush. There were rotten trees. You couldn't see anything." (RR Vol.

3, P. 29, LL 24) Finally, in cross examination, Juana Valdez admitted that she did

not know of ANY acts of control by Ms. Gordon. She testified that only she and

her husband cleared any of it. (RR Vol. 3, P. 89, LL 21- P. 90, LL 12)

      Juana Valdez asked her friends, Pedro Villegas and Cesaria Cedillo, to sign

an Affidavit corroborating the facts in her Affidavit of Use and Possession (Their

affidavit at Defendant's Ex. 8; admitted RR Vol. 2, P. 13). The affidavit states that

Villegas and Cedillo had read all of the facts in Juana Mendez (Valdez') affidavit

and those facts are true and correct and within their personal knowledge (Def. Ex.

8; RR Vol. 3, P. 91, LL 12-18). However, on cross examination, Juana Valdez

admitted that Villegas and Cedillo never saw her Affidavit of Use and Possession

(RR Vol. 3, P. 92, LL 4-25). They also did not have personal knowledge of any of

the facts, such as whether she (Mendez Valdez) paid her taxes on time (RR Vol. 3,

P. 93, LL 4-16). Likewise, they did not know if Ms. Gordon had paid taxes on the

property, or whether she made any use of the property. (RR Vol. 3, P. 94, LL 13-

24)

      Juana Valdez also attempted to fabricate testimony that she knew where the

blackjack tree described in her deed from Ms. Gordon in 1999 (Defendant's Ex. 3)

was located. (RR Vol. 3, P. 55, LL 9-24) She even purported to point the tree out


                                          5
on a plat at trial. (RR Vol. 3, P. 56, LL 5-P. 57, LL 12) However, upon closer

cross examination, Juana Valdez admitted that she did not know what a blackjack

tree even looked like and only picked that tree because it was close to her house.

(RR Vol. 3, P. 58, LL 6-15) Juana Valdez was shown the old deed to Steinhauser

in 1984 (Plaintiffs   Exhibit 1, Deed from Houston to Steinhauser) (RR Vol. 3, P.

59) where the third paragraph stated that the property described "being the same

property described in a deed Amanda Evans to Fannie Evans Taylor dated January

13, 1914" showing that the tree described was described over 100 years earlier (RR

Vol. 3, P. 60, LL 2-9). Juana Valdez then confessed that she merely "imagined"

the tree was the one referred to in her original deed. She also admitted she knew

nothing about measurements. (RR Vol. 3, P. 60, LL12-25)

      This case commenced on March 1, 2012, when Appellee, Melody Mueller

Moerbe, first filed suit for Forcible Entry and Detainer in the Justice Court. See

Petition in Forcible Detainer at Defendant's Exhibit 32 (RR Vol. 6, P. 234-244).

The record contains no other references to pleadings and evidence in the Justice

Court or County Court on Appeal. In the Petition in Forcible Entry and Detainer,

Melody Mueller Moerbe sought to recover the property in question from the

trespassers, Juana Mendez Valdez and Juan Valdez, who held no title to the

property. It has been acknowledged by Appellants that the Forcible Detainer suit

was to recover possession of the property back from Ms. Mendez Valdez by the


                                         6
record title owner. (RR Vol. 3, P. 146, LL 24-P. 147, LL 1) The exact timing is

unclear in the record, but Valdez's attorney, Mike Steinhauser, admitted he filed a

general denial in the underlying Forcible Entry and Detainer suit. (RR Vol. 3, P.

147, LL 18-23) In that case, Appellant claimed to be the owner of the property,

not by adverse possession but by a Special Warranty Deed. (RR Vol. 3, P. 148, LL

9-13) In fact Appellant plead in the Forcible Detainer case that "Plaintiff should

provide written proof via bona fide up-to-date survey performed by a registered

professional licensed surveyor to determine the actual boundaries of plaintiff s

property and defendant's property." (RR Vol. 3, P. 147, LL 24-P. 148, LL 3)

       It was not until sometime later, after having lost the forcible detainer action,

that Appellants' asserted a claim of title to Mrs. Moerbe's property (the Seeberger

tract) by adverse possession.   In any event, when Appellants asserted a claim of

title to the property, the appeal to the County Court of Fayette County was abated

by said court. It is uncontested that Appellants did not file suit in this case until

February 15, 2013, while the County Court eviction case was pending, but after

raising the issue of the jurisdiction of such court. That action is still pending,

awaiting the final judgment in this case.




                                            7
                        ARGUMENT AND AUTHORITIES

Standard of Review

      Appellee agrees with Appellants' statement that "in attacking an adverse

finding to an issue upon which he or she had the burden of proof, the appellant

must demonstrate on appeal that the evidence conclusively established all vital

facts in support of the issue." (Appellants' citation omitted)


         In reviewing a "no evidence" point of error where the party has the burden

of proof, the reviewing court must first examine the record for evidence that

supports the finding while ignoring the evidence to the contrary.      If there is no

evidence to support the finding, the court must then further examine the entire

record to see if the contrary proposition is established as a matter of law. Holley v.

Watts, 629 S. W. 694, 696 (Tex.1982); McGalliard v. Kuhlmann, 722 S. W. 2d

694, 696-697 (Tex. 1986); Mata v. Mata, 710 S. W. 2d 756, 757-8 (Tex. App. -

Corpus Christi, 1986, no writ.).


         The finding must be upheld unless the court finds that the evidence is so

weak or the finding is so against the great weight and preponderance           of the

evidence as to be manifestly erroneous and unjust. Pool v. Ford Motor Co., 715 S.

W. 2d 629, 635 (Tex. 1986); In Re King's Estate, 244 S. W. 2d 660, 662 (Tex.

1951).


                                           8
      If there is any evidence of probative force to support the finding, the no

evidence point must be overruled and the finding upheld. In Re King's Estate, 244

S. W. 2d 660,661 (Tex. 1951); Kingv. Bauer, 688 S. W. 2d 845,846 (Tex. 1985).


Summary of Argument


      There is ample factual support for the jury's finding that Appellants did not

possess and use the property sufficiently to give notice of adverse claims for a ten

(10) year period from the admissions of fact in the testimony of Juana Valdez and

the testimony of Mike Steinhauser.


      The Forcible Entry and Detainer suit was a suit to recover real property as

defined by Tex. Civ. Prac. & Rem. §§16.025 and 16.026, and the Justice Court had

jurisdiction over the suit until a determination was made in such court that it did

not have jurisdiction. Therefore, limitations were interrupted by such suit as a

matter of law.


Juana Valdez' lack of credibility/impeachment


      In analyzing the no evidence points presented         by Appellants,    all of

Appellant Juana Valdez' testimony should be disregarded, except that which

supports the verdict. This is even more so in this case because Appellants simply

did not present credible evidence. Juana Valdez' testimony was not "clear, direct,

and positive with no circumstances       tending to discredit    or impeach    such
                                         9
testimony" as suggested by Appellants, and as such, may not be considered as

evidence against the findings by the jury, even in absence of other evidence.      In

their brief, Appellants have reiterated only Juana Valdez' testimony in favor of her

position. (See Appellants' Brief generally.) Plaintiffs ignore all of her conflicting

statements and admissions in clear contravention of her earlier testimony regarding

use of the property, and hence, whether the Plaintiffs have established each

element of adverse possession. Counsel for Melody Mueller Moerbe, Appellee,

elicited from Juana Valdez on cross examination          much testimony     in direct

contravention of the testimony Valdez "agreed to" as presented by Valdez'

attorney on direct. (See cross examination of Juana Valdez, generally at CR Vol. 3,

PP. 54-104, to be cited with greater specificity below.) While Appellee's counsel

did not repeatedly object to the leading nature of questioning by Appellants'

attorney, and makes no complaint at this time, the fact that Mrs. Valdez could not

testify without help from her attorney is clearly obvious from the transcript. (See

generally direct exam of Juana Valdez, CR Vol. 3, PP 1-53) If must be accepted

that the jury saw it as well.


       Juana Valdez      greatly exaggerated   her knowledge    when under direct

examination. The following are some of the out and out lies she told in an apparent

attempt to bolster her case. Juana Valdez testified Gordon showed her (Valdez)

the four comers of the property sold, being from 1-10 to Walnut, to Collins Street,

                                          10
to Hackberry and back up to 1-10. (RR. Vol. 3, P. 28, LL l-P. 29, LLS) This could

not possibly be true. Mr. Steinhauser, who sold the land to Ms. Gordon, never told

Ms. Gordon that he was selling her the entire boundary between Walnut, Collins

and Hackberry Streets and Interstate 10, or even "this is your four comers." (RR

Vol. 3, P. 153, LL 17-24) Mr. Steinhauser admitted that he never had a clue where

the boundaries were (RR Vol. 3, P. 155, LL 18-24). Mr. Steinhauser testified that

Ms. Gordon would not have been able to know where the four comers of her

property were ... no one could without a survey. (RR Vol. 3, P. 154, LL ll-P. 155,

Ll-21)


         So either Mrs. Valdez was lying at trial, or Ms. Gordon lied to her. They are

completely inconsistent.     Fortunately,   Appellants'   attorney, Mike Steinhauser,

testified that he personally knew Arnie Marie Gordon (RR Vol. 3, P. 150, LL 18-

23), and that she was not the kind of person who did misrepresent things ... she was

"brutally honest" (RR Vol. 3, P. 151, LL 9-11), that she was not well educated (i.d.

at LL 15-18); that she was not knowledgeable of deeds and property descriptions

(i.d. at LL 19-21).

         That was not the only lie the jury heard. Juana Valdez also testified that Ms.

Gordon told her the tract contained two (2) acres. (RR Vol. 3, P. 72, LL 20-24)

Again, this just could not be true. Per Mr. Steinhauser, he computed the total area

of 1.93 acres for purposes of the Affidavit of Use and Possession, and no one knew

                                            11
how many acres were involved prior to that date. (RR Vol. 3, P. 142, LL 3-11)

The deed from Gordon to Juana Mendez Valdez in 1999 (Defendant's Ex. 3) did

not show a description of two acres. Mrs. Valdez admitted that she only paid taxes

on 0.443 acres until 2007. (RR Vol. 3, P. 80, LL 11-23) She did not know how

many acres were in the Seeberger tract until after it was computed by Steinhauser,

and Ms. Gordon could not have told her any tract contained two acres.            Mrs.

Valdez was caught in another lie.

      Mrs. Valdez also lied in the Affidavit of Use and Possession which she

fraudulently filed in May 2006 (Defendant's Exhibit 7). In particular, she swore in

her affidavit that Ms. Gordon had been paying taxes on all of the property covered

by the Affidavit, being the entire 1.93 acres computed by Mike Steinhauser,

including the Seeberger tract (Id.). However, her tax statements show she was not

taxed on the Seeberger tract until after the Affidavit was filed in May 2007

(Plaintiffs' Ex. 7), but thereafter she was taxed on the entire 1.93 acres (RR Vol. 3,

P. 38, LL25-P. 39, LL 3). Mrs. Valdez admitted under cross that she only paid

taxes on 0.443 acres until 2007. (RR Vol. 3, P. 80, LL 11-23) Mrs. Valdez also

swore under oath in the Affidavit Ms. Gordon had made use of all of the property,

being the 1.93 acres described therein, since she (Ms. Gordon) bought it from Mike

Steinhauser. Again, Mr. Steinhauser admitted that he never had a clue where the

boundaries were (RR Vol. 3, P. 155, LL 18-24). Mr. Steinhauser testified that Ms.


                                          12
Gordon would not have been able to know where the four comers of her property

were ... no one could without a survey. (RR Vol. 3, P. 154, LL II-P. 155, LI-21)

Further, Mrs. Valdez contradicted the sworn affidavit wherein she stated that Ms.

Gordon had previously occupied and used all of the property (1.93 acres including

the Seeberger tract) (Defendant's     Ex. 7). However, Mrs. Valdez's         candidly

admitted in her trial testimony on direct that when they went onto the property "It

was ugly. It was nothing but brush. There were rotten trees. You couldn't see

anything." (RR Vol. 3, P. 29, LL 24). However, Ms. Gordon made no visible use

of the property, being the Seeberger tract. Juana Valdez finally admitted that she

did not know of ANY acts of control by Ms. Gordon, saying only she and her

husband cleared any of it. (RR Vol. 3, P. 89, LL21-P. 90, LL 12). Juana Valdez

clearly fabricated all of the statements in her Affidavit of Use and Possession.

      Not only did Juana Valdez fabricate evidence, she enlisted her friends to do

so as well in an effort to bolster her claims. Juana Valdez asked her friends, Pedro

Villegas and Cesaria Cedillo, to sign an Affidavit corroborating the facts in her

Affidavit of Use and Possession (Their affidavit at Defendant's Ex. 8; admitted RR

Vol. 2, P. 13). The affidavit states that Villegas and Cedillo had read all of the

facts in Juana Mendez (Valdez'S) affidavit and those facts are true and correct and

within their personal knowledge (Def. Ex. 8; RR Vol. 3, P. 91, LL 12-18).

However, on cross examination, Juana Valdez admitted that Villegas and Cedillo


                                          13
never saw her Affidavit of Use and Possession (RR Vol. 3, P. 92 LL 4-25). They

also did not have personal knowledge of any of the facts, such as whether she

(Mendez Valdez) paid her taxes on time (RR Vol. 3, P. 93, LL 4-16). Likewise,

they did not know if Ms. Gordon had paid taxes on the property, or whether she

made any use of the property. (RR Vol. 3, P. 94, LL 13-24)

      Juana Valdez would seize upon any opportunity to try to puff up her case,

with utter disregard for whether there was any truth to it. Juana Valdez had the

audacity to claim that she knew where the blackjack tree described in her deed

from Ms. Gordon in 1999 (Defendant's Ex. 3) was located. (RR Vol. 3, P. 55, LL

9-24) She even purported to point the tree out (RR Vol. 3, P. 56, LL 5-P. 57, LL

12). However, upon closer cross examination, Mrs. Valdez confessed that she did

not know what a blackjack tree looked like and only picked that tree because it was

close to her house. (RR Vol. 3, P. 58, LL 6-15) When Juana Valdez was shown

the old deed to Steinhauser in 1984 (Plaintiff's Exhibit 1, Deed from Houston to

Steinhauser) (RR Vol. 3, P. 59) where the third paragraph state that the property

described "being the same property described in a deed Amanda Evans to Fannie

Evans Taylor dated January 13, 1914" showing that the tree described was

described over 100 years earlier (RR P. 60, LL 2-9), Juana Valdez then confessed

that she merely "imagined" the tree was the one referred to in her original deed.

Juana Valdez imagined much that was convenient and she thought helpful without


                                        14
any regard for the truth. She not only lied, but mostly lied except when confronted

with documentation. So much of what she testified to was made up to suit her

story, the jury was well founded in choosing what to believe from Juana Valdez'

testimony and in disregarding any of her testimony because it was not positive,

clear, direct and free of contradictions.   If she lied about these many critical issues,

the jury was justified in not believing anything she said, even if there was no direct

conflicting testimony.

      Due to the egregious lies by Juana Valdez, the jury would be justified in not

accepting any single bit of testimony from her, and therefore, her claims would be

completely unsubstantiated, even without admissions to the contrary. None of her

testimony regarding use of the property is credible and it fails to provide any basis

for her claims as a matter of law.

Appellee's Response to Appellants' Point of Error One, to-wit:


      "Appellants established a good title to the 1.93 acre tract under
      the ten year statute as a matter of law."
      The law on adverse possession has not changed much in the last 100 years.

The old and middle aged Texas Supreme Court cases are still good precedent and

guide interpretation of the current statutes. The Texas Supreme Court has held:

      It is well settled, that, where a party relies upon naked possession
      alone as the foundation for his adverse claim, it must be such an actual
      occupancy as the law recognizes as sufficient, if persisted in for a long
      enough period of time, to cut off the true owner's right of recovery. It
      has been said that such possession must not only be actual, but also
                                            15
     visible, continuous, notorious, distinct, hostile (i.e., adverse), and of
     such a character as to indicate unmistakably an assertion of a claim of
     exclusive ownership in the occupant.

      Satterwhite v. Rosser, 61 Tex. 166, at 171, (1884). Cited with
      approval in Heard v. State, 146 Tex. 139, 146, 204 S.W. 2d 344, 348
      (1947).
      "When a person enters upon land without any deed or color of title, he
      is a naked possessor, and his possession is restricted to the land
      actually occupied by him."
      Schleicher v. Gatlin, 85 Tex. 270, at 275, 20 S. W. 120, at 123,
      (1892), Tex.
      "To constitute adverse possession, the party occupying the land must
      in some way appropriate the land for some purpose to which it is
      adapted. Mere occupancy of the land without any evidence of an
      intention to appropriate it will not support the statute of limitation."

      Heard v. State, 146 Tex. 139, at 146, 204 S. W. 2d 344, at 348,
      (1947).

      Appellants were naked trespassers and as such had the burden of pleading

and proving the extent of the land they actually occupied. See Schleicher, 85 Tex.

At 275.

      Under the ten (10) year rule, Appellants are obligated to show the extent of

the lands they claim to have adversely possessed and do not have the benefit of the

presumption of use and occupancy of all of the lands described in a deed made the

subject ofa claim under the five (5) year statute, Tex. Civ. Prac. & Rem. §16.025.

See also Sun Oper. L.P. v. Oatman, 911 S.W.2d 749, 758 (Tex. Civ. App.-Austin,

1987, writ denied). Appellants had the burden to plead and prove what lands they

occupied and possessed sufficient to establish limitations.   Coleman v. Waddell,

                                         16
151 Tex. 337, 249 S.W.2d 912 (1952). In that case, where Plaintiff had used a

garden out of a larger tract for a long period of time, the Court found:

      Respondents failed to allege or prove any description of the garden
      claimed by them. For that reason the trial court could not render
      judgment in their favor for it. They had they burden of identifying the
      tract, and since they failed to do so, the trial court properly rendered
      judgment in favor of the record owners for title to the entire tract.
      Surkey v. Qua, 173 S.W. 2d 230 (error refused for want of merit);
       York v. Thompson Lumber Co., 169 S.W. 2d 187."

       Coleman v. Waddell, 151 Tex. 340. As in that case, Appellants failed to

plead and prove what portion of the tract they occupied, since it was less than the

entire tract. Appellants never sought to recover less than 100% of the Seeberger

tract. They argue that they are entitled to all of it under the ten (10) year statute,

even though they admittedly did not use all of it. More particularly, Appellants

stated in their brief:

       "The jury may have believed that the Appellants did not use all of the
property at the outset of their occupancy, and consequently did not have exclusive
possession of all of the 0.992 acre tract from the beginning. That is not the law,
and under the facts of this case, the use of so much of it as they could over the
period of time that it took to clear it and put it to other use was sufficient."

       Appellants' brief at pages 26-27. Appellants cite the case of Doyle v. Ellis,

549 S.W. 2d 62 (Tex. Civ. App.-Waco,           1977, no writ), for the proposition that

they did not need to use the entirety of the property for the entire period. To the

extent Doyle conflicts with Coleman, it is probably not good law. However, both

must be read in light of the purpose of reviewing the sufficiency and extent of the


                                          17
claimant's use, and that is to determine whether such use was sufficient to put the

record owner on notice of an adverse claim of title.

      "It is well settled that when one enters into possession of land under a
      deed his possession is referable to the deed, and is presumed to be in
      conformity with it, and is confined to the limits thereof (emphasis
      added). Therefore, in order for a vendee to acquire title by adverse
      possession of additional or adjoining land outside the limits of the
      boundaries in his conveyance, he must have actual possession of
      such additional land of such character as of itself will give notice of
      an exclusive adverse possession and mature into title after the
      statutory period. (emphasis added) (String citations omitted) 2 Corpus
      Juris Secundum, Adverse Possession, sub. b, Sec. 185."
      Harmon v. Overton Refining Co., 130 Tex. 365, 109 S. W. 2d 457 (1937).

Under the Texas Supreme Court holding in Harmon, in order for Appellants to

acquire title by adverse possession of adjoining land outside the limits of the

boundaries of the original deed, they must have actual possession             of such

additional land of such character as of itself will give notice of an exclusive

adverse possession and mature into title after the statutory period of 10 years.

      Appellants had two ways to plead and prove this case. First, they could have

plead and proved that they used a specific portion of the property. That should

have been an easier burden but would not have allowed them to obtain title to the

entire tract. Second, Appellants could have chosen to plead and prove that they

used the entire tract sufficiently to claim adverse possession. In fact, they did

neither. Instead, as the cite to pages 26-27 of Appellants' brief reveals, they plead

they are entitled to it all by merely using a portion. That simply is not the law

                                          18
under the 10 year rule. (It is the standard under the 5 year rule where they claim

the property described in a deed.) Having made the election to pursue the entirety

of the Moerbe tract, it was incumbent upon them to show that their use, whatever it

was, was "of such a character as of itself will give notice of an exclusive adverse

possession", not only as to a portion, but as to all. This was clearly a fact issue for

the jury.


       Appellants' argument, and requested instruction, that any use of the property

for the period would be sufficient as to all, is an incorrect statement of the law, and

would have been improper. Appellants requested the questions submitted to the

jury, presented no proper further instructions on this issue and waived any right to

complain about them. Therefore any error in the question or instruction is waived

and not grounds for reversal. The Court properly denied Appellants' requested

instruction because it misstated the law. (SCR Pages 13-17)

        The question answered by the jury was basically whether the use Appellants

made of the Moerbe tract was of the nature and character sufficient to establish

limitations to the entire tract. This was a jury question on which Appellants bore

the burden of proof, and it being found against them, the standard of review by this

court is whether they established the facts as a matter of law.

       The Seeberger tract was all grown up in brush and they did not clear it right

away. (RR Vol. 3, P. 29, LL 24-P. 30, LL 10) Appellants did not clear the entire

                                          19
property when they first took possession in 2000, but rather only cleared a little

area for the first trailer in 2000 (RR Vol. 3, P. 32, LL 10-21) which is situated very

close to the edge of the Seeberger tract along an area of unknown ownership, and

only partially on the Seeberger tract. (RR Vol. 3, P. 65, LL 5-14)

      While Appellants have shown that the first trailer house erected in 2000 is

partially upon the Seeberger tract, that was far from open and obvious at the time.

Appellants never fenced any of the land except a fence along the front of their first

trailer which does not enclose anything and is not on the Seeberger tract. (RR Vol.

3, P. 63, LL 2-15) Valdez did not clear the lower portion where the second trailer

was situated until that trailer was installed in 2005. (RR Vol. 3, P. 65, LL 11-14)

      When looking at the year 2002, the first year of a ten year limitations period

tolled March 1, 2012, there simply was not much use of the property. Valdez had

one trailer on a slim portion of the property, cleared just enough to put the trailer

on, and was not paying taxes.

      It was not until 2006, well short of the 10 year period, that Appellants began

an intentional development of the entirety of the property with the goal of adverse

possession.   That is when Appellants discovered they had located on an entirely

different property than they had purchased and sought to set up adverse possession

by filing a false Affidavit of Use and Occupancy, and talking the uneducated Ms.

Arnie Marie Gordon into executing          a Correction   Deed Without      Warranty.


                                          20
Appellants admitted that they did not use other portions of the property for the

entire 10 year period.

      Appellants have accepted their no evidence burden to set aside the jury's

finding to Question No. 1 and that the Appellate Court must disregard all evidence

which supports Appellants' failed claims, and consider only the evidence which

supports the jury's negative finding. (Appellants' Brief, page 20) There is more

than a scintilla of evidence to support the jury's findings that the Appellants' use of

the Seeberger tract was NOT so "visible, continuous, notorious, distinct, hostile

(i.e., adverse), and of such a character as to indicate unmistakably an assertion of a

claim of exclusive ownership in the occupant.


Appellee's Response to Appellants' Point of Error Two, to-wit:

       "Appellants established a good title to the 1.93 acre tract under
      the five year statute as a matter of law."
      Appellants do not contest the facts relating to the denial of their claim of

adverse possession       under the five (5) year rule. They have a deed, albeit

fraudulent, that describes a 1.93 acre tract, including Appellee's 0.992 acres. They

had some possession and use of the property, and that is all that is required under

the 5 year rule (as opposed to the 10 year rule requiring proof of the extent of

possession).   The sole question is whether Appellee's       filing of the Petition in

Forcible Entry and Detainer in Justice Court stops the running of limitations.

Clearly it does.
                                          21
         Appellants argue that the instruction on Question No.2, that "a suit that has

been abandoned, dismissed for want of prosecution, settled, or otherwise not

prosecuted to final judgment does not interrupt the running of the period of

limitations." There is no doubt that this is a correct statement of the law. On the

other hand, Appellants' requested instruction, if properly made, was an improper

comment on the weight of the evidence, being tantamount to an instructed verdict.

Appellants assert that they requested an affirmative instruction that the Justice

Court case did not interrupt limitations.

         Appellants have two problems to overcome with respect to the 5 year

limitations claim. First, Appellants chose not to present any evidence on the status

of the Justice Case, or the nature of the case, and in particular any claims of title as

a defense to such suit, which they now argue is controlling.          Moerbe offered,

without objection, the Complaint in Forcible Detainer filed March 1, 2012. She

established that she filed suit to recover the property.      No other evidence was

presented regarding that suit.     Mr. Steinhauser testified that Appellants filed a

general denial.     As such, no issue of title was raised, at least not in the Justice

Court.     Appellants failed to present any evidence that the suit was abandoned,

dismissed for want of prosecution, settled, or otherwise had not been prosecuted to

a final judgment.    They also failed to present any evidence that such suit involved

title to the real property, and hence, if and when the Justice Court was determined


                                            22
not to have jurisdiction.     Without proof that the Justice/County       Courts lost

jurisdiction and when, there is no way for a jury to determine if limitations were

ever interrupted, or started again. Appellants now assert that the Justice Court case

was a nullity because they raised the issue of title as a defense and therefore as a

matter of law the Justice Court was without jurisdiction. If that were so, there is no

evidence in this record and any complaint about the adequacy of the Justice case

has been waived. The Appellants cannot complain that the jury failed to find on

evidence they did not present to the jury. It was Appellants' burden of proof, and

they simply did not present any evidence on that issue, whatsoever.          The jury

verdict cannot be set aside on the basis of evidence never presented to the jury.

       Appellants' second obstacle is that what they are asking for is basically a

directed verdict, that a Justice Court Forcible Entry and Detainer case can never

toll limitations as a matter of law.     This would render meaningless the plain

language of the limitations statutes, Tex. Civ. Prac. & Rem. Code §§16.025 and

16.026, and require an overly restrictive interpretation of the Justice Courts' core

jurisdiction. The Statutory Language

      The rule on adverse possession of real property under the ten (10) year

limitations period is governed by the Texas Civil Practice & Remedies Code

§16.026.   (Effective September 1, 1985; Amended effective September 1, 1989,

O'Connor's 2014). Section 16.026(a) provides:


                                          23
       A person must bring suit not later than 10 years after the day the cause of
       action accrues to recover real property held in peaceable and adverse
       possession by another who cultivates, uses, or enjoys the property.

Likewise the five (5) year rule uses the same operative words: " a person must

bring suit ... to recover real property ... "


       No definition of a suit to recover real property is provided by the Texas

Legislature so the words must be given their ordinary meaning. The word "title" is

conspicuously absent from the statute and there is no reasonable basis to infer that

the suit "to recover real property" must be a suit "to recover title to real property."

Appellants have not provided this Appellate court or the trial court below with any

case holding that a suit to recover "possession" of real property, an eviction suit,

under Texas Rules of Civil Procedure, Rule 510.1 et seq, is not a suit to recover

real property within the meaning of TCPRC §16.025 or §16.026. In fact, there

seems to have been a change in the law broadening the definition of a suit that

would interrupt "peaceable possession." The old cases refer to defined peaceable

possession as "such possession as in continuous and not interrupted by adverse suit

to recover the estate".     Barrett v. McKinney, 93 S.W.2d 240, 242 (Court of Civ.

Appeals, 1906). However, the language of the current statute is broader, merely

requiring a "suit to recover real property".         Again, no case can be found holding

that a Justice Court forcible detainer suit does not interrupt limitations, and such

should not be lightly inferred.

                                                24
The Existence of Jurisdiction


      Property Code Chapter 24.001 provides a remedy to the legal owner of land

to recover the real property possessed by a person who "enters the real property of

another without legal authority and refuses to surrender possession on demand."

Jurisdiction is vested in the Justice Court, with an appeal to the County Court, if

desired. If the Defendant asserts an affirmative defense of title to the property, the

Justice Court does not have jurisdiction to render judgment as to title. However,

that does not mean that the Justice Court does not have any jurisdiction and that

filing of the case was of no effect, as argued by Appellants.


      Appellee acknowledges that the Texas Supreme Court in Blaylock v. Riser,

163 Tex. 235; 354 S. W. 2d 134 (1962) held that the County Courts (and Justice

Courts) are "without power to try title to land and that this subject matter is

exclusively within the jurisdiction of the District Court.      Blaylock, 163 Tex. At

238. This does not mean the filing of the suit did not toll limitations. That Court

also held that

      "A judgment may be void as to a severable portion over which the court has
      no jurisdiction and valid as to the portion remaining over which it does have
      jurisdiction. "

Id. While the County Court did not have jurisdiction to determine the issue of title

and could not award possession of real estate if at required determination of title,

the Justice Court and County Court were not wholly devoid of jurisdiction.       They
                                          25
had jurisdiction to hear the simple eviction issue, and continues to do so, pending

determination of the title issue by the District Court.       Since these courts had

jurisdiction the filing of the original Forcible Entry and Detainer suit was not a

"complete nullity" as urged by Appellants.         Since the suit was a valid suit to

recover possession of real estate, it tolled limitations.

       It is a well-established rule that a court has the power to determine its own

jurisdiction and to take the appropriate action of dismissing claims over which it

does not have jurisdiction.      In re GMC, 296 S. W. 3d 813 (Tex. App. - Austin,

2009, no pet.); citing Royal Independent School Dist. V. Ragsdale, 273 S. W. 3d

759, 763 (Tex. App. - Houston [14th Dist.] 2008, no pet.) Otherwise every order of

dismissal entered by a court without jurisdiction would be void. Id. at 827. The

Court of Criminal Appeals stated it succinctly, "Once jurisdiction is invoked, that

jurisdiction embraces every thing in the case and every question arising which can

be determined in the case, until it reaches its termination and the jurisdiction is

thereby exhausted."        Garcia v. Dial, 596 S.W.2d 524, 528 (Tex. Cr. App. 1980).

These cases make it clear that while a court may determine it does not have

jurisdiction to determine an issue in a case, it has jurisdiction       to make the

jurisdictional determination. Until a court determines it lacks jurisdiction, the suit

is a proper suit and, as here, tolls limitations. The actions of the parties and the

court are not a nullity.


                                            26
      When the Forcible Entry and Detainer suit was filed to recover possession of

the property in Justice Court, Appellee had no way of knowing title would be an

issue. In fact, according to Mr. Steinhauser, who presented the only evidence on

the issue contained in the record, it was not raised in the Justice Court but only on

appeal to County Court. It seems absurd for Appellants to argue that such a suit,

filed in good faith without notice of an adverse claim of title, and which proceeded

to trial under a general denial, should be declared a complete nullity after the fact

when AppellantslDefendants raised the issue of title in the appeal to County Court.

That approach would be nothing short of "lying behind the log" to ambush an

unsuspecting record title holder, and should not be condoned. Limitations should

be interrupted by such suit, as here, at least until the jurisdictional issue is raised

and determined. It has been said that all courts have inherent power to determine

their own jurisdiction, and prior actions before them cannot be said to be a nullity

as a matter of law.

      The eviction process is, by design, simple and expedient and promotes the

prompt resolution of the right to possession of real estate. Appellants would have

this Court hold that their long-standing and accepted suit to recover possession of

real property does not count as a suit to recover real property under the limitations

statute. Such a holding would be a departure from existing law and practice, and

would create a trap for the unwary who had no idea that a trespasser would assert a


                                          27
claim of title which, under Appellants' view, should render the Justice suit a nullity

ab initio. The better interpretation of law is that an eviction suit is a suit to recover

real estate, subject to the requirements of any suit that it not be abandoned.        Of

course, such a suit that has been abandoned, dismissed for want of prosecution,

settled, or otherwise not prosecuted to final judgment does not interrupt the

running of the period of limitations. Texas Jurisprudence 3rd §72, citing Chambers

v. Shaw, 23 Tex. 165, (1859), Poole v. Gode, 442 S. W. 2d 810 (Tex. Civ. App. -

Houston [14th District] 1969, writ refused n. r. e.       However, in this case it is

undisputed that Appellee did not abandon, dismiss or fail to prosecute her suit to

recover the property in Justice/County Court. She actively pursued the case until it

was abated, pending the outcome of this action. It being still pending and this suit

obviously having been prosecuted, there was no lapse which would have restarted

limitations.


       Again, Appellants have cited this Court to no case which says that filing a

suit to recover possession of real property is not a suit to "recover real property"

for purposes of suspending the running of limitations.




                                           28
Appellee's Response to Appellants' Point of Error Three, to-wit:

      "The Court erred in failing to provide the jury with adequate and
      appropriate jury questions."

      Appellants have complained that the trial court erred by failing to give a

requested instruction but point to no such instruction in their brief.


      "Failure to submit a definition or instruction shall not be deemed a ground
      for reversal of the judgment unless a substantially correct definition or
      instruction has been requested in writing and tendered by the party
      complaining of the judgment." Tex. R. Civ. P. Rule 278.

Therefore, any such complaint has been waived.         Appellants' brief mentions an

instruction to the effect that the Justice Court suit did not interrupt limitations. For

the reasons set forth in the argument and authorities above any such instruction

would have been legally incorrect and improper.



                                   CONCLUSION
      Appellant, Juana Valdez, repeatedly perjured herself with false testimony in

records filed in the real property records, and testimony at trial. She also enlisted

her friends to perjure themselves for her benefit as well. Likely, her friends had no

idea what they were doing, but it is clear from the record that Juana Valdez did,

and had a plan to try to take the Seeberger tract from Appellee, Melody Mueller

Moerbe. When she learned of her encroachment, she didn't deal with it, she

doubled down on her efforts to develop the Seeberger tract, and the tract that she


                                           29
had actually purchased. There is no way the jury could find anything Juana Valdez

said was "clear, direct, and positive with no circumstances tending to discredit or

impeach such testimony".     As such, none of her testimony is evidence to support

her claims. Further, her admissions on cross further affirmatively show that she

did not use the property for the required 10 year period. Appellant, Juan Valdez,

Juana's husband, never testified.

        Appellants'   claim under the 5 year statute is predicated on a patently

fraudulent deed, and the accompanying Affidavit of Use and Possession.           Their

attorney admitted that he fabricated the property description.     The original deed

from Ms. Gordon to Juana Mendez (Valdez) was a General Warranty Deed, but the

attorney made the bogus deed a Deed Without Warranty, for obvious reasons.

While no cases can be found on fraudulent deeds, only forged deeds, they seem of

the same nature and Appellants should be estopped to claim under such a falsified

deed.

        However, Appellants limitation claims were "interrupted" by Mrs. Moerbe's

suit to recover the property in Justice Court. She obtained a judgment             for

possession.    The judgment in her favor was appealed to the County Court where

Appellants decided to raise the issue of title. They had previously asserted only a

general denial, and never raised an issue of the Justice Court's jurisdiction.    The

Appellants argue that the Justice suit was a nullity, but even if there was a question


                                          30
of jurisdiction, the court had jurisdiction to hear that issue and make and order. In

the interim, the court certainly had jurisdiction.   There was no lapse between the

Justice Court/appeal to County Court and the filing of this case. Limitations were

therefore tolled by Appellee filing suit to recover possession of the real property in

Justice Court. Appellants have argued that such suit did not toll limitations, but no

Texas case has held that, and for good reason. It is in fact a suit to recover real

estate. The statute does not require a suit to recover "title" to real estate and if that

were the intention of the Legislature, they would certainly have said it.           That

appears to have been the law many years ago under different statutes, but the

change in the language of the statute makes clear it is not a requirement.          This

should be obvious, given there are no cases holding to the contrary.




                                       PRAYER

      Appellee, Melody Mueller Moerbe, prays that Appellants' points of error be

denied, that the findings of the jury be sustained and the judgment of the trial court

be affirmed in all aspects.




                                           31
                                     Respectfully submitted,
                                     GATES, STEIN, GILLESPIE &
                                     TREFNY

                                     By      Isl      Michael T. Trefny
                                             MICHAEL T. TREFNY
                                             SBN 20207650
                                             P. O. Box 458
                                             Columbus, Texas 78934
                                             Telephone: (979) 732-2301
                                             Facsimile: (979) 732-2303
                                             Email: mtrefny@gsgtlawfirm.com

                                     ATTORNEYS FOR APPELLEE,
                                     MELODY MUELLER MOERBE


                     CERTIFICATE OF COMPLIANCE

       Pursuant to TEXAS RULE OF APPELLATEPROCEDURE9.4(i)(3), I hereby
certify that Appellee's brief contains 8,151 words, as computed by the word
processing program Microsoft Word, commencing with the Statement of Facts
and, except for footnotes, is in Times New Roman font text, 14-point typeface.

                                             Isl   Michael T. Trefny
                                             MICHAEL T. TREFNY



                        CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the foregoing instrument has
been served on Appellants, pursuant to the TEXAS RULES OF ApPELLATE
PROCEDURE  on this 30th day of March, 2015, as follows:

       E-filing through Pro-Doc, on OF JONES III, at ofiones360@gmail.com; and
via certified mail return receipt requested at PO Drawer E, Victoria, Texas 77902.

                                             Isl   Michael T. Trefny
                                             MICHAEL T. TREFNY
                                        32
