                                                                                   ACCEPTED
                                                                               03-14-00731-CV
                                                                                       5084966
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                          4/29/2015 2:42:24 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                        IN THE
                  COURT OF APPEALS
          THIRD DISTRICT OF TEXAS AT AUSTIN                  FILED IN
                                                      3rd COURT OF APPEALS
                                                          AUSTIN, TEXAS
                                                      4/29/2015 2:42:24 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 REJOINDER TO APPELLANTS’ REPLY 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
                 TABLE OF CONTENTS

                                             Page(s)

INDEX OF AUTHORITIES ……………………………………………………. iii

ARGUMENT AND AUTHORITIES ……………………………………………. 1

PRAYER ………………………………………………………………………..... 5

CERTIFICATE OF COMPLIANCE …………………………………………...... 5

CERTIFICATE OF SERVICE …………………………………………………... 6




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                                              INDEX OF AUTHORITIES
Cases

(Tex. App. – El Paso, 2007, pet dism) ..........................................................................................................2
Falcon v. Ensigna, 976 S. W. 2d 336, 338 (Tex. App. – Corpus Christi 1998, now pet.) ............................2
Heard v. State, 146 Tex. 139, 146, 204 S. W. 2d 344, 348 (1947) ...............................................................1
Mapco v. Marek, 797 S. W. 2d 700, 702, 33 Tex. Sup. Ct. J. 303 (Tex. 1990) ............................................2
Satterwhite v. Rosser, 61 Tex. 166, at 171, (1884) .......................................................................................1
Sparkman v. State, 968 S. W. 2d 373, 377-78 (Tex. App. – Tyler 1997, pet. Ref’d) ...................................2
Villalon v. Bank One, 176 S. W. 3d 66 (Tex. App. – Houston [1st Dist.], 2004, pet. denied).......................2

Rules

Texas Rules of Civil Procedure 166a(c) .......................................................................................................3

Code

Texas Civil Practice and Remedies Code Section 16.025 and 16.026..........................................................3
Texas Civil Practice and Remedies Code Section 16.025 or 16.026 ............................................................1
Texas Property Code Chapter 24 ..................................................................................................................1




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      Appellee, Melody Mueller Moerbe, files this her Rejoinder to the Reply

Brief of Appellants.

                       ARGUMENT AND AUTHORITIES

      This Rejoinder is intended to address only those arguments and authorities

raised in Appellants’ Reply Brief. There are three simple points. First, Appellants

have wholly failed to point this Court to any case which holds that filing suit in

Justice Court to recover possession of real property under the Texas Property Code

Chapter 24, commonly called an eviction case, is not sufficient to toll limitations

under Texas Civil Practice and Remedies Code Section 16.025 or 16.026.

Secondly, Appellants argue that just because the testimony of Appellant Juana

Mendez Valdez was full of inconsistencies and outright lies on some issues, she

should still be believed on other issues.      Third, Appellants urge that lack of

exercise of control over the property by Ms. Moerbe somehow lowers Appellants’

burden to show that they exercised sufficient use and control over the property to

establish the requisite possession and control over the property, to-wit:

      “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).


                                          1
      Regarding the first point, Appellants have now cited the Court to two cases

which really do them no good, and in fact help establish that filing suit in Justice

Court is sufficient. In Padilla v. NCJ Dev., Inc. 218 S. W. 3d 811 (Tex. App. – El

Paso, 2007, pet dism), the Eighth District Court of Appeals clearly held that

“Specific evidence of a title dispute is required to raise an issue of a justice court’s

jurisdiction.” Id. at 815. HN 4. Citing with approval, Falcon v. Ensigna, 976 S. W.

2d 336, 338 (Tex. App. – Corpus Christi 1998, now pet.) and Sparkman v. State,

968 S. W. 2d 373, 377-78 (Tex. App. – Tyler 1997, pet. Ref’d). In this case, no

issue of title was raised in the Justice Court and the Justice Court suit was a suit to

recover real property tolling limitation. The tolling of limitations never ceased as

the suit in District Court below was filed while the appeal to the County Court was

pending. The second case, Villalon v. Bank One, 176 S. W. 3d 66 (Tex. App. –

Houston [1st Dist.], 2004, pet. denied), merely recites that “A judgment is void only

when it is apparent that the court rendering the judgement had no jurisdiction of

the parties, no jurisdiction of the subject matter, no jurisdiction to enter the

judgment, or no capacity to act as a court.” Id. at 69. Citing Mapco v. Marek, 797

S. W. 2d 700, 702, 33 Tex. Sup. Ct. J. 303 (Tex. 1990). Under Villalon and

Mapco, the Justice Court had jurisdiction until an issue of title was raised, which it

was not until after the appeal to County Court. The filing of the suit clearly was a

suit to recover property, if just possession, which tolled limitations under Texas


                                           2
Civil Practice and Remedies Code Section 16.025 and 16.026. Appellants have yet

to cite any case to the contrary.

      On the issue of credibility of Appellant Juana Mendez Valdez, Appellants’

only witness on their possession and use of the property, Appellants are now

admitting that she testified falsely, but offer the excuse that such testimony was not

relevant and that her testimony was clear, direct and positive when it counted. See

Reply Brief at Page 3, Paragraph 2. However, the standard which Appellants must

prove is that her testimony, where there is no opposing evidence, also is:

      “clear, direct, and positive and otherwise credible and free from
contradiction and inconsistencies and could have readily been controverted.”

Texas Rules of Civil Procedure 166a(c).        What Mrs. Valdez heard from Ms.

Gordon or did with the property early on could not be “readily controverted.” Ms.

Gordon is dead. Mr. and Mrs. Valdez are admittedly the only people who were

paying attention to the use of the property in 2000. However, Mrs. Valdez’

evidence is not clear and there is a lot of testimony tending to discredit or impeach

such testimony. Mrs. Valdez repeatedly contradicted her testimony given in direct

and upon cross, and on extremely material issues such as what use she made of the

property. In direct she said she and her husband cleared the land when they

purchased it. Under cross examination, she admitted that the brush was thick and

they only cleared enough to get the trailers in as they built them. The evidence of



                                          3
the contradictions and lies by Mrs. Valdez was overwhelming. See Appellee’s

Brief Pages 9-15 which detail many of the most clearly established lies.


      Notwithstanding Mrs. Valdez’ various testimony, she clearly admitted that

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 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) As such, even if all

of her other testimony was credible, by her own admissions adequate evidence

exists to support the jury’s finding that Appellants’ possession 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.” It is on this issue the jury properly considered not only the lack of

credibility of Mrs. Valdez, but also the self-defeating testimony of her limited use.


      Without the benefit of the presumption of use of the entire tract, which is

allowed under Texas Civil Practice and Remedies Code 16.025, Appellants had the

burden under the ten (10) year statute, Texas Civil Practice and Remedies Code

16.026, of establishing that their use to the above standard applied not only to

some corner, but to the entirety of the tract. Mrs. Valdez’ own testimony shows
                                          4
that Appellants did not do so, and would compel such a finding even if the jury had

not so found.

                                     PRAYER

      Appellee, Melody Mueller Moerbe, prays that for the foregoing reasons,

Appellants’ appeal should be in all things denied.

                                       Respectfully submitted,
                                       GATES, STEIN, GILLESPIE &
                                       TREFNY

                                       By     /s/    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 RULES OF APPELLATE PROCEDURE 9.4(i)(3), I hereby
certify that Appellee’s Rejoinder to Appellants’ Reply Brief contains 1,071 words,
as computed by the word processing program Microsoft Word, commencing with
the Argument and Authorities and, except for footnotes, is in Times New Roman
font text, 14-point typeface.

                                             /s/  Michael T. Trefny
                                             MICHAEL T. TREFNY



                                         5
                        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 29th day of April, 2015, as follows:

      E-filing through Pro-Doc, on OF JONES III, at ofjones360@gmail.com.

                                            /s/  Michael T. Trefny
                                            MICHAEL T. TREFNY




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