                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-18-00450-CV

                             Velma SAN MIGUEL and Alexis Rendon,
                                         Appellants

                                                  v.

      PLAINSCAPITAL BANK, TRUSTEE OF THE GUERRA MINERAL TRUST,
                               Appellee

                      From the 381st Judicial District Court, Starr County, Texas
                                      Trial Court No. DC-16-19
                            Honorable Everardo Garcia, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice
Dissenting Opinion by: Patricia O. Alvarez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: July 10, 2019

REVERSED AND REMANDED

           Appellants Velma San Miguel and Alexis Rendon appeal the trial court’s order granting

summary judgment in favor of Appellee PlainsCapital Bank, Trustee of the Guerra Mineral Trust,

(the “Bank”) in a trespass-to-try-title action. The appellants claim the Bank failed to conclusively

prove it was entitled to judgment as a matter of law. The Bank moved for summary judgment

asserting title to the disputed property on three alternate theories: (1) the doctrine of prior

possession; (2) statutory adverse possession; and (3) common law adverse possession. The Bank

also moved for summary judgment on the ground that title to the disputed property had been
                                                                                                    04-18-00450-CV


previously adjudicated and the suit was barred by the doctrine of res judicata. The trial court

granted summary judgment in favor of the Bank but did not specify on which grounds the Bank

proved title.

                                                 BACKGROUND

         The ownership of the mineral interest at issue in this case involves legal descriptions to

three tracts of land consisting of two tracts nested within a single large tract in Starr County, Texas.

The largest tract, Porcion 58, consists of approximately 5,733.70 acres. Nested completely within

Porcion 58 is an 859.77-acre tract. Nested completely within the 859.77-acre tract is the 781.11-

acre tract of land. The mineral interests in the 781.11-acre tract of land are in dispute in this case.

         As trustee of the Guerra Mineral Trust, the Bank claims it holds record title to 46.6% of

the mineral interest in the 781.11-acre tract based on an unbroken record title back to 1956. 1 The

beneficiaries of the Guerra Mineral Trust (the “Guerras”) assert they owned the unsevered surface

and mineral interest until the 781.11-acre tract was sold to Clinton Manges in 1969.2 In the 1969

sale, the surface and mineral estates were severed when Manges was deeded all of the surface

estate and 53.4% of the mineral estate while the Guerras retained 46.6% of the mineral estate. 3

         An oil company sought to develop the mineral interests in the 781.11-acre tract of land, but

as a condition of the lease, the oil company required the title to the mineral interests be cleared of

any claims prior to 1956. Prior to 1956, the mineral interests were not severed from the surface

estate. Therefore, in order for the Bank to establish ownership of the mineral interests, the Bank

had to establish the Guerras owned title to the surface estate.


1
  A 1956 deed from H.P. Guerra to the M. Guerra & Son Partnership is the first paper title of record since the King of
Spain granted Porcion 58 to Joaquin Chapa.
2
  Even though the purported property was transferred from H.P. Guerra to the M. Guerra & Son Partnership, the
property allegedly remained in the control of the Guerra family.
3
  The sale to Manges included 72,000 acres of land in Jim Hogg and Starr County. Manges v. Guerra, 673 S.W.3d
180, 181 (Tex. 1984). The Bank claims the 781.11-acre tract of land was included in the total acres sold to Manges
in 1969.


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        In January 2016, the Bank filed a trespass-to-try-title action to settle title to any claims of

ownership before 1956. The original sovereign was the King of Spain; in 1764 the King of Spain

granted all of Porcion 58 to Joaquin Chapa. The Bank served the heirs of Joaquin Chapa with

citation by publication. Hundreds of defendants responded to the lawsuit, but few produced any

evidence of ownership. Subsequently, the Bank moved for summary judgment as a matter of law

claiming it conclusively proved the Guerras had ownership of the 781.11-acre tract of land prior

to 1956 because: (1) title was previously adjudicated in favor of the Guerras in Manges v. Guerra,

673 S.W.2d 180 (Tex. 1984); (2) the Guerras acquired title by statutory adverse possession; (3) the

Guerras acquired title by common law adverse possession; and (4) the Guerras acquired title by

prior possession. The Bank attached the affidavits of William Thomas Guerra, Sr. (the “Guerra

Affidavit”) and Bill Douglas Pope, Sr. (the “Pope Affidavit”) to establish the Guerras’ possession

of the 781.11-acre property prior to 1956. 4

        San Miguel and Rendon filed a response to the Bank’s motion for summary judgment

arguing the Bank did not meet its burden to show it was entitled to judgment as a matter of law.

Additionally, San Miguel argued issues of material fact existed regarding the Guerras’ possession

of the disputed property prior to 1956. 5 San Miguel supported this contention with her own

affidavit, an abstract of title, and the affidavit of the expert who prepared her abstract of title. As

previously noted, the trial court granted summary judgment in favor of the Bank, and San Miguel

and Rendon appeal.




4
  The Bank conceded in oral argument that it relied solely on the Guerra and Pope Affidavits to establish actual
possession of the disputed property prior to 1956.
5
  Isabel Reyna, Juan Manuel Pina, Cristina Pina Garza, Amanda Pina, Homero Pina, Estefana Pina Gonzalez, Leonor
Pina Flores, Jaime Pina, and Tomas Pina also filed a response to the Bank’s motion for summary judgment but did
not appeal the trial court’s decision.


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                                      STANDARD OF REVIEW

       “A trial court’s decision to grant summary judgment is subject to de novo review.”

Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018). In a traditional motion for

summary judgment, the movant “bears the burden to show that no genuine issue of material fact

exists and that it is entitled to judgment as a matter of law.” Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215–16 (Tex. 2003) (citing TEX. R. CIV. P. 166a(c)). If the movant meets

its burden, the burden shifts to the nonmovant to raise a genuine issue of material fact that is

sufficient to defeat the summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich,

28 S.W.3d 22, 23 (Tex. 2000). The evidence raises a genuine issue of fact if reasonable and fair-

minded jurors could differ in their conclusions in light of all the summary-judgment evidence.

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). In our review, “we

take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference

and resolve any doubts in the nonmovant’s favor.” Knott, 128 S.W.3d at 215.

       When, as in this case, “the trial court’s order does not specify the grounds for its summary

judgment, we must affirm the summary judgment if any of the theories presented to the trial court

and preserved for appellate review are meritorious.” Knott, 128 S.W.3d at 216.

                                     TRESPASS TO TRY TITLE

       “[T]he Texas Property Code states that a ‘trespass to try title action is the method of

determining title to lands, tenements, or other real property.’” Lance v. Robinson, 543 S.W.3d

723, 735 (Tex. 2018) (emphasis in original) (quoting TEX. PROP. CODE ANN. § 22.001(a)). “To

prevail in a trespass-to-try-title action, a plaintiff must usually (1) prove a regular chain of

conveyances from the sovereign, (2) establish superior title out of a common source, (3) prove title

by limitations, or (4) prove title by prior possession coupled with proof that possession was not

abandoned.” Lance, 543 S.W.3d at 735. Trespass-to-try-title actions “involve detailed pleading


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and proof requirements.” Id. Thus, the plaintiff must recover upon the strength of his own title

and not upon the weakness of his adversary’s title. Id. at 736; see also Garza v. Garza, 297 S.W.2d

874, 875 (Tex. App.—San Antonio 1956, writ dism’d). In the trial court and on appeal, the parties

did not address the first two methods to try title—proof of a regular chain of conveyances from

the sovereign and superior title out of a common source—so we do not address them here. See

Stiles v. Resolution Tr. Corp., 867 S.W.2d 24, 26 (Tex. 1993) (“[A] summary judgment cannot be

affirmed on grounds not expressly set out in the motion or response.”); TEX. R. CIV. P. 166a(c)

(“Issues not expressly presented to the trial court by written motion, answer or other response shall

not be considered on appeal as grounds for reversal.”).

                                            SEVERANCE

       We briefly address San Miguel’s third issue contending the Guerras could not have actually

possessed the mineral estate without production of the minerals. San Miguel’s argument fails to

recognize that the Bank is claiming possession of the mineral estate by virtue of the Guerras’

possession of the surface estate prior to severance of the two estates in 1969. See Gulley v. Davis,

321 S.W.3d 213, 220 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“When adverse

possession commences before a severance of the mineral estate, the adverse possession includes

both the surface and mineral estate.” (citing Rio Bravo Oil Co. v. Staley Oil Co., 158 S.W.2d 293,

295 (Tex. 1942))). Because the surface and mineral estate were not severed when the Bank claims

the Guerras had possession of the surface estate, actual possession of the surface estate would also

constitute possession of the mineral estate. See McDaniel v. Williams, 429 S.W.2d 640, 642 (Tex.

App.—Tyler 1968, writ dism’d) (“It is a well established rule of law in this state that an adverse

entry upon the surface of land extends downward and includes title to underlying minerals where

at time of entry there has been no severance of mineral estate.”). For this reason, the Bank moved




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for summary judgment on the basis that the Guerras owned the surface estate of the disputed

property prior to 1956.

                                         PRIOR POSSESSION

    A. Applicable Law

        The rule of prior possession “has generally been applied in a case where[] it is shown that

the plaintiff, having been in possession of land, has been ousted by the defendant. However, the

possession relied upon must be of such nature and quality as will reasonably support an inference

of ownership.” Garza, 297 S.W.2d at 875. Consequently, the question of actual possession, giving

rise to a claim for prior possession, will usually go to a jury. Id. at 876. While proof of prior

possession of land is prima facie evidence of title, “[s]uch possession must . . . be actual, and must

be so clearly defined as to give the claimant the exclusive dominion over the property.” Id.

(quoting Lynn v. Burnett, 79 S.W. 64, 66 (Tex. App.—Fort Worth 1904, no writ)). “[B]efore the

judge is authorized to take the case from the jury [upon the issue of prior possession,] the evidence

must be conclusive, leaving no room for doubt as to the fact of actual possession.” See Mortgage

Land & Inv. Co. v. Spears, 162 S.W.2d 1015, 1016 (Tex. App.—San Antonio 1942, writ ref’d

w.o.m.) (holding the trial court should have submitted the question of actual possession to the jury

because the testimony of one witness was not sufficient to prove actual possession as a matter of

law); see also Garza, 297 S.W.2d at 876; Cf. Hash v. James, 337 S.W.2d 506, 508 (Tex. App.—

San Antonio 1960, writ ref’d n.r.e.) (“Where the possession is established by undisputed evidence,

no issue of fact is presented for the jury.”).

        “In order to show [itself] entitled to judgment on the theory of prior possession[,] the

[Bank] was under the burden of showing that [its predecessor’s, the Guerras,] possession of the

[781.11-acre tract] was of such a nature that reasonable minds could draw but one inference and

that no jury finding thereon would be required.” Decuir v. Houseman, 310 S.W.2d 591, 593 (Tex.


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                                                                                      04-18-00450-CV


App.—Beaumont 1958, writ ref’d n.r.e.) (holding the conflicting evidence regarding prior

possession could cause reasonable minds to draw different conclusions). The determination of

actual possession belongs to the jury unless the Bank undisputedly or conclusively proved the

Guerras had actual possession. See Hash, 337 S.W.2d at 508. The possession must be so clearly

defined as to give the claimant the exclusive dominion over the 781.11-acre tract. Rilling v. Munoz,

344 S.W.2d 696, 697–98 (Tex. App.—San Antonio 1961, writ ref’d n.r.e.) (noting where the

evidence is not fully developed, “the ends of justice” would be better served by remanding the case

to the trial court).

    B. Summary Judgment Evidence

        In this case, the Guerra Affidavit attempts to aver to the Guerras’ possession of the property

since 1932. However, the affiant, William Thomas Guerra, Sr., was not born until 1942. The

Guerra Affidavit makes conclusory references to William’s “memories” of his family grazing

cattle, mending fences, and building a cabin for ranch hands in 1948 on a property he refers to as

Los Barrosos Pasture that contained approximately 2,645 acres within Porcion 58. The affidavit

also contains phrases such as: “To the best of my knowledge,” when referring to the Guerra

family’s cultivation and use of the property. However, William does not attest to whether the use

and cultivation of the property occurred specifically on the 781.11-acre tract disputed in this case.

Finally, the affidavit asserts the Guerra family presumably paid taxes on the property to the best

of William’s knowledge because the taxing authorities never interrupted their control of the

property.

        The Pope Affidavit states Bill Pope remembered meeting ranch hands that worked for the

Guerra family who would lead the cattle to pens and water tanks that were on what was reputed to

be the Guerra property. However, it is not clear which portions of the Guerra property Pope is

referring to.


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       San Miguel’s affidavit controverts the Guerra and Pope affidavits, claiming San Miguel’s

family “has been in possession of some, part, or all of the Property at issue in this lawsuit since

1776.” San Miguel further avers her family has paid taxes on the property since 1951 and disputes

the Bank’s abstract of title by providing her own abstract of title and the affidavit of her expert

who prepared the abstract of title.

   C. Analysis

       Because the Guerra and Pope Affidavits are not specific to the 781.11-acre tract, the

affidavits fail to establish the Guerras conclusively or undisputedly had actual possession of the

781.11-acre tract of land prior to 1956. See Decuir, 310 S.W.2d at 593. Therefore, we hold the

affidavits were insufficient to conclusively establish the Guerras’ possession was so clearly

defined as to give them the exclusive dominion over the property. See Rilling, 344 S.W.2d at 697.

       Our holding in this case is supported by an earlier opinion from this court that addressed

this issue. In Mortgage Land & Inv. Co. v. Spears, 162 S.W.2d 1015 (Tex. App.—San Antonio

1942, writ ref’d w.o.m.), this court held one witness’s loose testimony regarding actual possession

was not conclusive enough to take the question from the jury and rule, as a matter of law, in favor

of the claimant’s prior possession claim. Id. “It [was] not enough that the evidence [was] without

conflict in establishing the facts relied on to show actual possession, but these facts must

themselves conclusively prove such possession.” Id. at 1016–17; see also Kennedy Con., Inc. v.

Forman, 316 S.W.3d 129, 138 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding “[t]he

record contains no summary-judgment evidence showing that Forman actually possessed [the

property] at any time, and there is certainly no evidence proving this proposition as a matter of

law” when Forman relied solely on a third-party’s affidavit to establish his ownership of the

disputed property by prior possession (emphasis added) (citing Land v. Turner, 377 S.W.2d 181,

186 (Tex. 1964))).


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        Here, the Bank is asserting actual possession based on affidavits that are disputed and

controverted by the opposing parties. 6             Just as the Spears court held the undisputed and

uncontroverted evidence in that case was insufficient to conclude the claimants held actual

possession of the property as a matter of law, the controverted and disputed affidavits in this case

are also insufficient to support a finding of prior possession as a matter of law.

        We conclude the Bank did not meet its burden of showing the Guerras actually possessed

the disputed property as a matter of law. Therefore, summary judgment cannot be affirmed based

on the doctrine of prior possession.

                                           TITLE BY LIMITATIONS

        The Civil Practice and Remedies Code defines adverse possession as the “actual and visible

appropriation of real property, commenced and continued under a claim of right that is inconsistent

with and is hostile to the claim of another person.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.021(1). “A person . . . must bring suit not later than 25 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.” Id. § 16.027. “Generally, to establish adverse possession,

a claimant must prove: (1) actual possession of the disputed property; (2) under a claim of right;

(3) that was adverse or hostile to the claim of another person[,] and that it was consistently and

continuously so for the duration of the statutory period.” Villarreal v. Guerra, 446 S.W.3d 404,

410 (Tex. App.—San Antonio 2014, pet denied). “[T]he question of adverse possession normally

is a question of fact, so only in rare instances is a court justified in holding that adverse possession

has been established as a matter of law.” Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990).



6
  We recognize Rendon did not submit any evidence in response to the Bank’s motion for summary judgment.
However, we agree with her assertion that the Bank did not satisfy its burden to prove actual possession as a matter
of law.


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“The possession must be of such character as to indicate unmistakably an assertion of a claim of

exclusive ownership in the occupant.” BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 70

(Tex. 2011) (emphasis in original). “In determining title by adverse possession[,] inferences are

never indulged in favor of the claimant.” Haby v. Howard, 757 S.W.2d 34, 37 (Tex. App.—San

Antonio 1988, writ denied).

       We have already determined the Guerra and Pope affidavits are insufficient to show the

Guerras had actual possession of the disputed property as a matter of law. See Rhodes, 802 S.W.2d

at 645–46 (holding actual and visible possession of the disputed property must be conclusively

and unmistakably established before a court may grant summary judgment on a claim for title by

limitations). “[T]estimony[] consisting almost entirely of conclusions of law and generalities of

fact[] falls far short of that clear and satisfactory proof essential to a showing of such peaceful,

adverse, exclusive and continuous possession and use of land as will support a limitation title under

the statutes.” Urschel v. Garcia, 164 S.W.2d 804, 806 (Tex. App.—San Antonio 1942, writ ref’d

w.o.m.). Thus, the Bank is not able to establish title by limitations because they have not

conclusively proved the first element of adverse possession—actual possession of the disputed

property. See Villarreal, 446 S.W.3d at 410. Therefore, summary judgment cannot be affirmed

based on title by limitations.

         COMMON LAW ADVERSE POSSESSION/TITLE BY CIRCUMSTANTIAL EVIDENCE

       The doctrine of title by circumstantial evidence is fundamentally a common law adverse

possession cause of action. It has also been referred to as the “lost grant” theory. “[The doctrine’s]

purpose is ‘to settle titles where the land was understood to belong to one who does not have a

complete record title, but has claimed a long time.’” Conley v. Comstock Oil & Gas, LP,

356 S.W.3d 755, 765 (Tex. App.—Beaumont 2011, no pet.) (quoting Purnell v. Gulihur,

339 S.W.2d 86, 92 (Tex. App.—El Paso 1960, writ ref’d n.r.e.)). “Where a party has asserted a


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claim to property in dispute for a long period of time, has established a general reputation of

owning the land, is able to establish a complete non-claim by the holder of apparent record title,

and lack of a claim by any other person over the same period, a court may presume the existence

of a ‘lost grant’ that conveyed the property in dispute to the adverse claimant.” Haby, 757 S.W.2d

at 39 (citing Purnell, 339 S.W.2d at 92).

       In this case, the Bank has failed to conclusively establish a “complete non-claim” by the

holder of apparent record title. In her controverting affidavit, San Miguel—a holder of apparent

record title as a descendant of Joaquin Chapa—claims the appellants erected fences and made use

of the disputed property prior to 1956. Because “the evidence does not establish as a matter of law

the complete non-claim of [an] apparent record holder[,]” summary judgment cannot be affirmed

based on title by circumstantial evidence. See Haby, 757 S.W.2d at 39 (“[T]he court may not find

as a matter of law that appellees have demonstrated a right to title by circumstantial evidence”

when the evidence does not establish the complete non-claim of the apparent record holder as a

matter of law).

                                PREVIOUSLY ADJUDICATED TITLE

       In its motion for summary judgment, the Bank briefly argues the appellants were barred

from disputing title to the property under the doctrine of res judicata because title had already been

adjudicated in favor of the Guerras in Manges v. Guerra, 673 S.W.2d 180 (Tex. 1984). Other than

citing Manges, the Bank does not cite any other authority to support its res judicata argument in

its motion for summary judgment or on appeal.

       In Manges, “Clinton Manges and several members of the Guerra family were mineral co-

tenants, with Manges holding the executive right to all the minerals.” Manges, 673 S.W.2d at 181.

“The Guerras sued Manges for failure to exercise diligence in leasing the minerals to third persons

and for leasing a portion of the minerals to himself at allegedly unfair terms.” Id. “The jury found


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that Manges had willfully disregarded the rights of the Guerras in several specific ways, including

his failure to negotiate for mineral leases with third persons, that Manges’[s] actions were in willful

and unconscionable disregard of the interests of the Guerras, that the conduct was malicious or

wanton, and that the Guerras should receive . . . punitive damages . . . .” Id. at 184.

        “For res judicata to apply, there must be: (1) a prior final judgment on the merits by a court

of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second

action based on the same claims that were raised or could have been raised in the first action.”

Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). Here, although the Manges

court may have discussed the mineral interests the Guerras owned, the Bank has not presented

evidence to show the disputed property in Manges is the same property in dispute in this case. In

addition, the claims raised in Manges revolved around whether Manges breached his duty as holder

of the executive rights when he leased the mineral interests to himself; it was not a title dispute.

Manges, 673 S.W.2d at 181. Finally, the Bank has not presented any evidence that San Miguel or

Rendon are in privity with the parties in Manges. Consequently, the appellants are not barred from

bringing this suit under the doctrine of res judicata because the parties and the claims are different

from those in Manges. See Daccach, 217 S.W.3d at 449. Therefore, summary judgment cannot

be affirmed based on res judicata.

                                             CONCLUSION

        Viewing the evidence in the light most favorable to the nonmovant, we hold the Bank has

not satisfied its burden to establish its right to judgment as a matter of law, and the trial court erred

in granting summary judgment. See Decuir, 310 S.W.2d at 593; see also Rilling, 344 S.W.2d at

698 (holding justice would be better served by remanding the case to the trial court when it was

uncertain whether the plaintiff had conclusively established its right to title of the disputed

property).


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       In the event this court reversed the trial court’s judgment, the Bank requested we remand

the cause only as to those parties who perfected appeal. An appellate court that reverses a judgment

against one defendant is not required to reverse the judgment for a nonappealing co-defendant

“unless the rights of the appealing and nonappealing parties are so interwoven or dependent on

each other as to require a reversal of the entire judgment.” Torrington Co. v. Stutzman, 46 S.W.3d

829, 843 (Tex. 2000) (citing Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 446 (Tex. 1989))

(“If the parties’ rights are so interwoven, we reverse the unappealed judgment to remedy the effects

of the erroneous judgment that prejudiced the appealing party’s rights.”); see also Bates v. First

Nat’l Bank of Waco, 502 S.W.2d 181, 185 (Tex. App.—Waco 1973, no writ) (applying the rule

recited in Torrington and Plas-Tex to a summary judgment appeal). Here, San Miguel and

Rendon’s rights are not dependent on any of the other nonappealing co-defendant’s rights because

each defendant’s claim of superior title is independent to any other person’s claim. Because the

appellants’ rights in this case are not so interwoven with the nonappealing co-defendants that one

defendant’s cause of action is dependent on another defendant’s cause of action, the judgment of

the trial court is reversed as to San Miguel and Rendon only, and the cause is remanded for further

proceedings consistent with this opinion.

                                                  Rebeca C. Martinez, Justice




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