                                            COURT OF APPEALS
                                         EIGHTH DISTRICT OF TEXAS
                                              EL PASO, TEXAS

                                                              §
     JUAN HEREDIA AND                                                        No. 08-15-00327-CV
     FLOR FLORES,                                             §
                                                                                  Appeal from
                                Appellants,                   §
                                                                              327th District Court
     v.                                                       §
                                                                            of El Paso County, Texas
     MICHAEL ZIMPRICH,                                        §
                                                                                (TC # 2011-344)
                                Appellee.                     §

                                                    OPINION

           Juan Heredia and Flor Flores appeal a judgment finding in favor of Michael Zimprich on

his trespass to try title claim and establishing the boundary between the parties’ adjoining

properties. We affirm.

                                             FACTUAL SUMMARY

           The dispute in this case is the correct boundary line between a residential property and a

commercial property located in Socorro, Texas. Appellee, Michael Zimprich, filed a trespass to

try title suit alleging that Appellants, Juan Heredia and Flor Flores1 (collectively referred to as the

Heredias), had built a wall inside of the boundary line on his property, and he sought to have it

removed.

           Prior to 2006, Antonio Martinez owned an undivided .6042-acre parcel of property known

as Tract 5V, Block 27, Socorro Grant. A residence and a commercial building were located on the



1
    Flores testified at trial that she now goes by the name Flor Heredia.
undivided parcel located at the corner of Dini Rozi Road and Socorro Road. The commercial

property was located at 11685 Socorro Road and the residence behind it is located at 576 Dini Rozi

Road.

                             The Socorro Road Commercial Property

        In May 2005, Martinez sold a portion of the property with the commercial building on it to

Carolina Aleman. In the latter part of 2005, Daniel and Margarita Luevano purchased the note on

the Socorro Road commercial property from Martinez. On March 20, 2006, a professional

registered land surveyor, Carlos Jiminez, surveyed the property and prepared a plat and description

of the Dini Rozi Subdivision. The City of Socorro approved the Dini Rozi Subdivision plat on

June 15, 2006, but the plat was not recorded in the real property records. The Subdivision Plat

reflects that the previously undivided parcel is divided into two lots, with the Socorro Road

commercial property designated Lot 1 and the Dini Rozi residential property designated Lot 2.

        In February 2007, Aleman stopped making payments on the note, and the Luevanos

accepted a deed in lieu of foreclosure. The Luevanos did not want to own the Socorro commercial

property, so Mr. Luevano began looking for an investor to purchase it. Zimprich agreed to

purchase the property, but they were unable to close the transaction because the title company

required a survey. Mr. Luevano located the Dini Rozi Subdivision plat and took it to the title

company, but the title company required that it be recorded. Mr. Luevano subsequently became

aware that there was a problem with the metes and bounds, and the title company required that

correction deeds be executed.

                                The Dini Rozi Residential Property

        On April 26, 2006, Martinez sold the residential portion of the property to Marcella Betts.

Betts sold the property to the Heredias on February 6, 2007, and in March 2007, the Heredias

constructed a wall between their property and the Socorro commercial property then owned by

                                               -2-
Aleman. Mr. Heredia testified that they had a survey done when they bought the property and they

built the wall along the boundary line between the properties. The Heredias did not introduce this

survey into evidence.

       The warranty deed dated February 6, 2007 contained the following description of the

Heredias’ property:

       A 0.3209 acre portion of Tract SV, more or less, Block 27, SOCORRO GRANT,
       El Paso County, Texas, being more particularly described by Metes and Bounds as
       shown In Exhibit ‘A’ attached hereto and made a part hereof for all purpose [sic]
       intended.

Exhibit A attached to the warranty deed and referenced therein contained the following

description of the property:

       A portion of Tract 5V, Block 27, SOCORRO GRANT, in El Paso County, Texas,
       according to the resurvey of said SOCORRO GRANT made by El Paso County,
       Texas, for tax purposes, and being more particularly described by metes and bounds
       as follow [sic]:

       Beginning at a set iron rod at the common boundary line of Tract 5V and Tract 5U,
       Block 27, also lying on the northerly right-of-way line of Dina [sic] Rozi Drive
       (50’R.O.W.) and being the POINT OF BEGINNING of the herein described parcel;

       THENCE, leaving said northerly right-of-way line and along common boundary
       line, South 27°07’00”, East a distance of 116.71 feet to a point;

       THENCE, leaving said common boundary line, South 62°30’00” West, a distance
       of 120.00 feet to a point;

       THENCE, North 25°53’36” West, a distance of 117.54 feet to a point;

       THENCE, North 62°53’00” East, a distance of 117.52 feet to the POINT OF
       BEGINNING of the herein described parcel and containing 0.3209 acres of land,
       more or less.

Based on this deed, the front property line length is 117.52 feet and the back property line is 120.00

feet. This legal description varies from the Dini Rozi Subdivision Plat because the Plat reflects

that the front and back property line lengths are 109.45 feet.



                                                -3-
       Mr. Heredia testified that in March 2007, he and his wife went to the City of Socorro to

apply for the permit to obtain water and gas utilities. The City of Socorro told them that they had

to submit a survey and “do a lot split with the City of Socorro” because a lot split had not been

recorded. On August 1, 2007, the Heredias signed the Dini Rozi Subdivision Plat thereby agreeing

to the plat and its description of the two properties. When Mr. Luevano approached them later and

presented the Correction Deed for their signature, the Heredias believed that it was related to the

discussion they had in March 2007 with the City of Socorro. Mr. Luevano represented to them

that the Correction Deed was for a lot split.

       The Correction Deed contains the following description of 576 Dini Rozi:

       A 0.3209 acre portion of Tract 5V, more or less, Block 27, SOCORRO GRANT,
       El Paso County, Texas, being more particularly described by Metes and Bounds as
       shown In Exhibit ‘B’ attached hereto and made a part hereof for all purpose [sic]
       intended.

Exhibit B to the Correction Deed is signed by the surveyor, Carlos Jiminez, and is dated June 5,

2007. It states the following:

                        METES AND BOUNDS DESCRIPTION
                             576 Dina [sic] Rozi Drive
                                   Exhibit “B”

FIELD NOTE DESCRIPTION of a parcel of land being a Portion of Tract 5V, Block 27, Socorro
Grant, (To be known as Lot 2, Block 1, Dini Rozi Subdivision), El Paso County, Texas and being
more particularly described by metes and bounds as follows:

COMMENCING FOR REFERENCE at a found iron rod located at the common boundary line of
Tracts 5U and 5V, same being the southerly right-of-way line of Dina [sic] Rozi Drive (50’
R.O.W.) and being the POINT OF BEGINNING of the herein described parcel;

       THENCE, leaving said southerly right-of-way line and along said common boundary line,
       South 27°07’00” East, a distance of 116.71 feet to a set iron rod for corner;

       THENCE, leaving said common boundary line, South 62°30’00” West, a distance of
       109.45 feet to a set iron rod for corner;

       THENCE, North 27°07’00” West, a distance of 117.44 feet to a set iron rod for corner;


                                                -4-
         THENCE, North 62°53’00” East, a distance of 109.45 feet to the POINT OF BEGINNING
         of the herein described lot and containing 12,813.45 square feet or 0.2941 Acres of land
         more or less.

The Correction Deed stated on the first page that the land conveyed was .3209 acres, but the size

of the lot was actually .2941 acres as a result of the metes and bounds correction. The Correction

Deed recites that Marcella Betts and the Heredias signed the Correction Deed before a notary on

October 30, 2007. The Heredias testified that they signed the Correction Deed but a notary was

not present. When the correction deed was filed among the deed records, it had been notarized by

a notary public from New Mexico. Mr. Luevano could not recall how the correction deed came to

be notarized.

         On January 17, 2008, Zimprich purchased the Socorro commercial property from Luevano.

Zimprich made improvements to the property consisting of septic lines on the parcel in dispute.

By the same token, the Heredias made improvements on the disputed portion of the parcel for

approximately three years before Zimprich filed suit in 2011 alleging a trespass to try title claim

and seeking judgment that the Heredias remove the rock wall. The Heredias filed a counterpetition

alleging a suit to quiet title and a third party claim against Mr. Luevano for fraud.2

         After trial began, the Heredias refinanced their home and signed a deed of trust, filed of

record under Document No. 201150034302 in the real property records of El Paso County, Texas,

containing the same legal description as that contained in the Correction Deed and with the same

boundaries as those listed on the Dini Rozi Subdivision Plat. Zimprich asserted in his second

amended petition that the Heredias should be estopped from disputing the metes and bounds of

their property because they had signed the Dini Rozi Subdivision Plat and the Correction Deed.



2
  The Heredias also filed civil conspiracy and fraud claims against Zimprich, but the trial court signed an agreed order
granting Zimprich’s no evidence motion for summary judgment with respect to these claims. Zimprich’s summary
judgment evidence included the Heredias’ responses to interrogatories establishing that they did not have any evidence
that Zimprich had made a material misrepresentation, had engaged in an unlawful act, or had participated in the
procurement and filing of the Correction Deed.
                                                         -5-
         The trial court determined that Zimprich is the owner of the parcel in question and the wall

constructed by the Heredias is on the Zimprich property. The court ruled in favor of the Heredias

on their fraud claim against Mr. Luevano, finding that he committed fraud by failing to inform the

Heredias that the Correction Deed was conveying land away from their homestead. In addition to

establishing the metes and bounds of the Heredias’ property, the trial court ordered Zimprich to

pay for the removal and rebuilding of the wall on the correct property line, to pay for costs

associated with relocating water, sewer, and electric lines that belong to the Heredias’ property,

and to reimburse the Heredias for the costs of landscaping completed on the disputed parcel. The

court also ordered Mr. Luevano to pay damages to the Heredias in the amount of $11,250.

         Zimprich and the Heredias filed notices of appeal from the trial court’s judgment, but

Mr. Luevano did not appeal. We later granted Zimprich’s motion to dismiss his appeal. See

Michael Zimprich v. Juan Heredia and Flor Flores, No. 08-15-00327-CV, 2016 WL 3387076

(Tex.App.--El Paso June 16, 2016, opn. on motion)(mem. opinion).

                    ISSUES BASED ON MYRAD PROPERTIES DECISION

         In Issues One, Two, Three, Six, and Nine, the Heredias challenge the validity of the

Correction Deed they signed (hereinafter referred to as the Heredia Correction Deed). They assert

that the Heredia Correction Deed is invalid because there were no facial imperfections in the

original warranty deed or in the Heredias’ chain of title (Issues One and Six), the Heredias did not

agree to the Heredia Correction Deed (Issue Two), there was no mutual mistake which caused a

defect or imperfection in the original warranty deed (Issue Three), and a correction deed cannot

be used to convey an additional, separate parcel of land not conveyed in the original deed (Issue

Nine).

         The Heredias’ arguments are based on Myrad Properties, Inc. v. LaSalle Bank National

Association, 300 S.W.3d 746 (Tex. 2009). In Myrad Properties, the Supreme Court acknowledged

                                                 -6-
the longstanding rule that a correction deed could be used “to correct a defective description of a

single property when a deed recites inaccurate metes and bounds.” Myrad Properties, 300 S.W.3d

at 750, citing Doty v. Barnard, 92 Tex. 104, 47 S.W. 712, 713 (1898). It held, however, that a

correction deed could not be used to substantively change an unambiguous conveyance of real

property to include an additional parcel of land not described in the original deed, as that would

undermine the purpose of record notice. Myrad Properties, 300 S.W.3d at 750-51. The Texas

Legislature responded to Myrad Properties in 2011 by enacting statutes which permit the use of

correction deeds under specified circumstances to make both material and nonmaterial corrections

to a deed. See Act of May 13, 2011, 82nd Leg., R.S., Ch. 194, § 1, 2011 TEX.GEN.LAWS 747, 748

(codified at TEX.PROP.CODE §§ 5.027-.031); Tanya L. McCabe Trust v. Ranger Energy LLC, 531

S.W.3d 783, 794 (Tex.App.--Houston [1st Dist.] 2016, pet. denied).3 This legislation applies to

correction instruments filed before September 1, 2011. See TEX.PROP.CODE ANN. §5.031 (West

2014).

         The trial in this case began well after the legislative modification of the Myrad Properties

rule, yet the Heredias’ brief does not acknowledge the limitation on Myrad Properties and they do

not state their arguments in terms of the applicable statutory requirements for correction deeds.

The first question we must resolve is the scope of our review because the Heredias have not briefed

whether the Heredia Correction Deed generally complies with Sections 5.028 and 5.029 of the

Property Code. The Texas Rules of Appellate Procedure govern the contents and organization of

an appellant’s brief. See TEX.R.APP.P. 38.1; ERI Consulting Engineers, Inc. v. Swinnea, 318

S.W.3d 867, 880 (Tex. 2010). Rule 38.1(i) requires an appellant’s brief to concisely state all issues

or points presented for review and, among other things, to contain a clear, concise argument for



3
  The Legislature enacted additional legislation addressing corrections deeds in 2013. See Act of May 8, 2013, 83rd
Leg., R.S., Ch. 158, § 3, 2013 TEX.GEN.LAWS 597, 597 (codified at TEX.PROP.CODE § 5.028(a) & (a-1)).
                                                       -7-
the contentions made, with appropriate citations to authorities and to the record. [Emphasis

added]. TEX.R.APP.P. 38.1(i). While substantial compliance with the briefing rules is acceptable

when determining whether a brief complies with Rule 38.1, the burden remains on the Heredias to

assign error and brief the issues they wish to have reviewed on appeal. If we go beyond the issues

presented and consider whether the Heredia Correction Deed generally complies with Sections

5.028 and 5.029 of the Property Code, we are effectively making the Heredias’ arguments for

them. This is contrary to the well-established principle that an appellate court is not permitted to

make a party’s argument for him. See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.--El Paso

2007, no pet.). Strange v. Continental Casualty Company, 126 S.W.3d 676, 678 (Tex.App.--Dallas

2004, pet. denied). The danger in undertaking to make a party’s argument for him is that the court

abandons its role as neutral adjudicator and becomes an advocate for the party. See Valadez, 238

S.W.3d at 845. Consequently, we will restrict our review to the precise arguments made by the

Heredias.

       Under Section 5.028 and 5.029, the parties to the original transaction or the parties’ heirs,

successors, or assigns, may execute a correction instrument to make both nonmaterial and material

corrections to the recorded original instrument of conveyance. See TEX.PROP.CODE ANN. § 5.028-

5.029 (West 2014). Pertinent to this case, a correction deed may be utilized to add or remove land

to a conveyance that correctly conveys other land. TEX.PROP.CODE ANN. § 5.029(a)(1)(C), (a)(2).

The statutes pertaining to correction deeds do not limit the use of correction deeds to correct facial

imperfections in the original warranty deed or in the chain of title, nor is there a requirement that

there be a mutual mistake which caused a defect or imperfection in the original warranty deed.

While the Heredias assert that they did not agree to the Correction Deed, the evidence supports the

trial court’s determination that the Heredias signed the Correction Deed, and they acquiesced to

the change in the metes and bounds by signing a Subdivision Plat on August 1, 2007 and a Deed

                                                -8-
of Trust in 2015 containing the same metes and bounds of their property as the Heredia Correction

Deed. Accordingly, Issues One, Two, Three, Six, and Nine are overruled.

                             SUFFICIENCY OF THE EVIDENCE

       In Issue Four, the Heredias assert that the trial court erred by finding that Zimprich met his

burden of proof on his trespass to try title action. The Heredias do not discuss a standard of review

nor do they specify whether they are challenging the legal or factual sufficiency of the evidence.

They argue, in effect, that Zimprich offered no evidence to prove that he owned the 10-feet-wide

by 120 feet-long strip of property or that he has superior title. Further, they ask in the prayer that

we set aside the trial court’s judgment and declare the Heredia Correction Deed to be invalid. The

relief requested is the equivalent of reversal and rendition. Consequently, we have construed this

issue as challenging only the legal sufficiency of the evidence.

                                        Standard of Review

       We review the trial court’s findings of fact for sufficiency of the evidence by the same

standards applied to a jury verdict. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). The trial

court’s conclusions of law are reviewed de novo to determine their correctness and we will uphold

conclusions if the judgment can be sustained on any legal theory supported by the evidence. BMC

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We will not reverse an

erroneous conclusion if the trial court rendered the proper judgment. City of Austin v. Whittington,

384 S.W.3d 766, 779 n.10 (Tex. 2012); see BMC Software, 83 S.W.3d at 794.

       In conducting a legal sufficiency review, we consider the evidence in the light most

favorable to the verdict, indulging every reasonable inference in favor of the verdict. Autozone,

Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008)(per curiam); City of Keller v. Wilson, 168 S.W.3d

802, 827-28 (Tex. 2005). To determine whether legally sufficient evidence supports a challenged

finding of fact, we credit evidence that supports the finding if a reasonable fact finder could, and

                                                -9-
disregard contrary evidence unless a reasonable fact finder could not. See City of Keller, 168

S.W.3d at 822. The fact finder is the sole judge of the credibility of the witnesses and the weight

to be assigned to their testimony. See City of Keller, 168 S.W.3d at 819. The fact finder is free to

believe one witness and disbelieve another, and reviewing courts may not impose their own

opinions to the contrary. Id. Anything more than a scintilla of evidence is legally sufficient to

support the challenged finding. See Continental Coffee Products Company. v. Cazarez, 937

S.W.2d 444, 450 (Tex. 1996).

                                 Trespass to Try Title - Boundary Dispute

        To prevail in a trespass-to-try-title action, a plaintiff must ordinarily (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. Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004). A trespass to try title

action has strict pleading and proof requirements. See TEX.R.CIV.P. 783-798; Martin, 133 S.W.3d

at 265. The plaintiff must prove that he has superior title to the property. Lance v. Robinson, ---

S.W.3d ---, 2018 WL 1440476 (Tex. 2018); Martin, 133 S.W.3d at 265.

        The Heredias assert that Zimprich failed to meet these strict proof requirements because he

failed to prove that he has superior title. When the sole dispute between the parties involves a

boundary’s location, as in this case, the dispute may be tried as a statutory trespass to try title

action, but the formal proof requirements are relaxed. See Martin, 133 S.W.3d at 265; Plumb v.

Stuessy, 617 S.W.2d 667, 669 (Tex. 1981).4 In such a case, a recorded deed is sufficient to show


4
   In Martin, the Supreme Court held that the boundary dispute could not be resolved by means of an action under the
Declaratory Judgments Act because the trespass-to-try-title statute governed the parties’ claims. Martin, 133 S.W.3d
at 267. The Legislature subsequently amended the Declaratory Judgments Act to expressly provide that,
notwithstanding Section 22.001 of the Property Code (the trespass-to-try-title statute), a claimant may sue for
declaratory relief “when the sole issue concerning title to real property is the determination of the proper boundary
line between adjoining properties.” TEX.CIV.PRAC.&REM.CODE ANN. § 37.004(c)(West 2015). Consequently, the
boundary dispute in this case could have been resolved by means of an action under the Declaratory Judgment Act.
Zimprich’s second amended petition included a Declaratory Judgment claim, but he proceeded at trial on his trespass-
                                                       - 10 -
an interest in the disputed property without having to prove a formal chain of superior title. Martin,

133 S.W.3d at 265; Plumb, 617 S.W.2d at 669.

          To prove the correct legal description and metes and bounds for his property, Zimprich

introduced the following recorded documents related to the Socorro commercial property: (1) the

deed from the Luevanos to Zimprich, (2) the correction deed from Martinez to Aleman, and (3)

the correct deed in lieu of foreclosure from Aleman to Luevano, The recorded documents related

to the corrected deed in lieu of foreclosure include a correction affidavit5 signed by Vanessa Parga,

an escrow officer with Sierra Title, which states the following:

          In connection with the following described property, the undersigned hereby
          certifies and affirms that the Deed in Lieu of Foreclosure dated February 19, 2007,
          recorded in El Paso County, County Clerk’s File No. 20070016009, Real Property
          Records of El Paso County, Texas between Daniel Luevano, Grantor, and Carolina
          Aleman, Grantee, contained an incomplete Legal description due to a schrivener’s
          [sic] error. The legal description for the subdivision did not include the correct
          Exhibit ‘A’.

          The sole purpose of this filing is to complete the legal description by having a
          corrected Deed in Lieu of Foreclosure accepted by the El Paso County Clerk’s
          office and recorded.

Parga executed the correction affidavit on October 26, 2007 but its effective date was February 19,

2007.

          Zimprich also introduced the following recorded documents to establish the correct legal

description and metes and bounds for the Heredia property: (1) the correction deed from Martinez

to Betts, (2) the correction deed from Betts to the Heredias, (3) the Dini Rozi Subdivision Plat




to-try-title claim.
5
  The Property Code permits a person having personal knowledge of facts relevant to the correction of a recorded
original instrument of conveyance to prepare or execute a correction instrument to make a nonmaterial change that
results from an inadvertent error, including the addition, correction, or clarification of a legal description correction
prepared in connection with the preparation of the original instrument but inadvertently omitted from the original
instrument. See TEX.PROP.CODE ANN. § 5.028(a-1)(1).

                                                         - 11 -
completed in 20066 and signed by the Heredias on August 1, 2007, and (4) the Deed of Trust

signed by the Heredias and filed of record under Document No. 20150035302 in the Real Property

Records of El Paso County, Texas containing the same legal description as the Heredia Correction

Deed and with the same boundaries listed on the Subdivision Plat. The foregoing evidence is

legally sufficient to establish Zimprich’s interest in the disputed parcel and to establish the correct

location of the boundary line between the adjoining properties as determined by the trial court in

its judgment. Issue Four is overruled.

                                           REMEDY FOR FRAUD

         In Issue Five, the Heredias contend that the trial court erred by failing to declare the Heredia

Correction Deed void because that is the proper remedy on their fraud claim against Luevano. The

Heredias do not cite any relevant authority to support their assertion that the proper remedy on

their fraud claim is a declaration that the Heredia Correction Deed is void.

         The Heredias’ amended counter-petition included claims for common law fraud and fraud

by nondisclosure against Luevano. The pleadings also included a suit to quiet title. In their prayer,

the Heredias requested that the court declare the Correction Deed void and award them attorney’s

fees. While the trial court found in favor of the Heredias on their fraud claim against Mr. Luevano

and awarded them money damages,7 the court found against them on their suit to quiet title and

ruled in favor of Zimprich on his trespass to try title claim. The court determined that the Heredia

Correction Deed is valid because the Heredias signed a Subdivision Plat on August 1, 2007 and a




6
  The Heredias argue in their brief that the Dini Rozi Subdivision Plat did not exist until after they bought their
property. This assertion is contradicted by the evidence and the trial court’s findings of fact. While the Subdivision
Plat was not recorded until 2007, there is evidence that the plat was completed on March 20, 2006, and the City of
Socorro approved the plat on June 15, 2006.
7
   In his closing argument, the Heredias’ trial counsel asked that the court award the Heredias damages on the fraud
claim because they had been required to expend $11,250 in attorney’s fees to defend against Zimprich’s suit, and the
trial court awarded damages against Mr. Luevano in that amount.
                                                       - 12 -
Deed of Trust in 2015 containing the same metes and bounds of their property as the Correction

Deed.

        Deeds obtained by fraud are voidable rather than void, and remain effective until set aside.

Nobles v. Marcus, 533 S.W.2d 923, 926 (Tex. 1976). Section 5.030 of the Property Code provides

that a correction instrument that complies with Section 5.028 or 5.029 is: (1) effective as of the

effective date of the recorded original conveyance, (2) prima facie evidence of the facts stated in

the correction instrument, (3) presumed to be true, (4) subject to rebuttal, and (5) notice to a

subsequent buyer of the facts stated in the correction instrument. TEX.PROP.CODE ANN. § 5.030.

        An action to cancel a deed procured by fraud and vest title to the realty in the grantor is a

suit to quiet title. See Byrd v. Guyler, 310 S.W.2d 747, 749 (Tex.Civ.App.--San Antonio 1958,

writ dism’d). The purpose of a traditional suit to quiet title is to remove a cloud from the title

created by an invalid claim. Teon Mgmt., LLC v. Turquoise Bay Corp., 357 S.W.3d 719, 726-27

(Tex.App.--Eastland 2011, pet. denied). The elements of a suit to quiet title are (1) the plaintiff

has an interest in a specific property, (2) title to the property is affected by a claim by the defendant,

and (3) the defendant’s claim, though facially valid, is invalid or unenforceable. Montenegro v.

Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 572 (Tex.App.--Amarillo 2013, pet. denied), citing

Vernon v. Perrien, 390 S.W.3d 47, 61 (Tex.App.--El Paso 2012, pet. denied). The Heredias would

have been entitled to have the Correction Deed cancelled or voided if they had prevailed on their

suit to quiet title.

        In its judgment, the trial court effectively ruled against the Heredias on their suit to quiet

title because the court found in favor of Zimprich on his trespass to try title claim. The Heredias’

brief does not include an issue challenging the legal sufficiency of the evidence supporting the trial

court’s adverse finding on this claim. See Sterner v. Marathon Oil Company, 767 S.W.2d 686,

690 (Tex. 1989)(when attacking the legal sufficiency of the evidence to support an adverse finding

                                                  - 13 -
on an issue for which he had the burden of proof, i.e., challenging the trial court’s finding as a

matter of law, the appellant must demonstrate on appeal that the evidence conclusively established

all the vital facts in support of the issue); In re Estate of Livingston, 999 S.W.2d 874, 879

(Tex.App.--El Paso 1999, no pet.). Because the trial court determined that Zimprich’s claim to the

disputed property is valid, the Heredias failed to prove that Zimprich’s claim is invalid or

unenforceable. Conesquently, the Heredias failed to establish an essential element of their suit to

quiet title, and they were not entitled to have the Correction Deed cancelled or declared void. Issue

Five is overruled.

                               DINI ROZI SUBDIVISION PLAT

       In Issue Seven, the Heredias complain that the trial court erred by impliedly finding that

the disputed parcel of land could be conveyed by the Dini Rozi Subdivision Plat. The trial court

did not make an express or implied finding that the Dini Rozi Subdivision Plat conveyed the

disputed property. Zimprich relied on the Dini Rozi Subdivision Plat to establish the correct

boundary between the adjoining properties. The trial court found that the Heredias signed the

Subdivision Plat on August 1, 2007 indicating their agreement to it, and they also signed a Deed

of Trust in 2015 containing the same metes and bounds of their property as the Correction Deed.

Issue Seven is overruled.

                               “BLANK” CORRECTION DEED

       In Issue Eight, the Heredias argue that the Correction Deed is invalid because it was

“blank” when they signed it. We understand the Heredias to argue that they signed the Correction

Deed in August 2007 and Betts did not sign it until October 2007. In order to preserve an issue

for appellate review, the complaining party must make a timely and specific request, motion, or

objection in the trial court, and obtain an adverse ruling. See TEX.R.APP.P. 33.1. The Heredias

did not allege in their pleadings or argue in the trial court that the Correction Deed is invalid

                                               - 14 -
because it had not been signed by Betts before they signed it, and the trial court was never given

the opportunity to consider this argument as a ground for invalidating the Correction Deed.

Because the Heredias failed to preserve this argument, we overrule Issue Eight. Having overruled

Issues One through Nine, we affirm the judgment of the trial court.


August 14, 2018
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.
Palafox, J., dissenting




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