                                                                           ACCEPTED
                                                                      13-15-00344-CV
                                                      THIRTEENTH COURT OF APPEALS
                                                             CORPUS CHRISTI, TEXAS
                                                                12/29/2016 7:01:58 PM
                                                                     Dorian E. Ramirez
                                                                                CLERK


             No. 13-15-00344-CV
                                               FILED IN
    In the Thirteenth Court of Appeals 13th COURT OF APPEALS
                                    CORPUS CHRISTI/EDINBURG, TEXAS

    Corpus Christi-Edinburg, Texas     12/29/2016 7:01:58 PM
                                         DORIAN E. RAMIREZ
                                                Clerk


            MARCO A. DELGADO, ET. AL.
                   Appellants
                         V.

           JUAN LINO GARZA, SR., ET. AL.,
                     Appellees


        APPEAL FROM CAUSE NO. C-2647-05-B
93RD JUDICIAL DISTRICT COURT, HIDALGO COUNTY, TEXAS
          HON. RODOLFO DELGADO, PRESIDING


               APPELLEES’ BRIEF


                Brandy Wingate Voss
               State Bar No. 24037046
                     Allegra Hill
               State Bar No. 24075965
    LAW OFFICES OF BRANDY WINGATE VOSS, PLLC
               820 E. Hackberry Ave.
               McAllen, Texas 78501
                   (956) 688-9033
                (956) 331-2230 (fax)
            brandy@brandyvosslaw.com
            allegra@brandyvosslaw.com

                Counsel for Appellees


      ORAL ARGUMENT NOT REQUESTED
   SUPPLEMENTAL IDENTITY OF PARTIES AND COUNSEL
Appellees:                                Appellate Counsel for Appellees:

Juan Lino Garza, Sr.                      Brandy Wingate Voss
Juan Lino Garza, Jr., as trustee of the   Allegra Hill
Juan Lino Garza Trust                     Law Offices of Brandy Wingate Voss,
Juan Lino Garza, Jr. and Elma Irene       PLLC
Garza, as co-trustees of the Juan Lino    820 E. Hackberry Ave.
Garza Energy Trust A-1 and A-2            McAllen, Texas 78501
                                          brandy@brandyvosslaw.com
                                          allegra@brandyvosslaw.com




                                          i
                                      TABLE OF CONTENTS

Supplemental Identity of Parties and Counsel .......................................................... i 

Index of Authorities ................................................................................................ vi 

Guide to Citations .....................................................................................................1 

Statement of the Case................................................................................................1 

Statement Regarding Oral Argument .......................................................................2 

Issues Presented (Restated) .......................................................................................2

         1.       Did the trial court properly award damages for Appellants’
                  trespass on the Garzas’ property? Must this Court affirm the
                  award of damages since Appellants attack only one of four
                  independent causes of action supporting the judgment?

         2.       Can Appellants take advantage of a now-cured misnomer in
                  the pleadings, even though Appellants actively participated in
                  the litigation for nearly a decade without raising the issue and
                  were not confused, disadvantaged, or even impacted by the
                  misnomer?

         3.       Can Appellants avoid liability by refusing to acknowledge the
                  existence of an assignment providing Juan Lino Garza, Sr.
                  with standing to bring suit regarding the 108 acres at issue?

         4.       Did the trial court properly deny Appellants’ plea in
                  abatement?

                  a.        Have Appellants provided a sufficient record to permit
                            review of the trial court’s denial of Appellants’ Plea in
                            Abatement—a Plea on which Appellants had the
                            burden of proof—despite Appellants’ failure to provide
                            a transcript of the hearing on their Plea?

                  b.        Did the trial court properly deny Appellants’ Plea in
                            Abatement by focusing on pragmatism in applying


                                                            ii
                            Texas Rule of Civil Procedure 39, as directed by the
                            Texas Supreme Court, and fully resolving the issues
                            before the court?

                  c.        Did the trial court properly deny Appellants’ Plea in
                            Abatement when Appellants had the burden to show
                            that the relevant parties were indispensable, but failed
                            to establish or even address the factors in Texas Rule of
                            Civil Procedure 39(b)?

         5.       Did the trial court obtain jurisdiction over the deceased
                  defendants’ estates and trust through their participation in the
                  trial and appeal?

         6.       Did Appellants waive their challenge to the reliability of the
                  foundational data underlying Richard Cortez’s expert
                  testimony by failing to request a Daubert hearing, failing to
                  object at trial, and agreeing to the admission of the documents
                  on which Cortez’s testimony was based?

         7.       Did the trial court properly hold the Appellants jointly and
                  severally liable as parties to the trespass of the Garzas’
                  property?

Statement of Facts .....................................................................................................4 

         1.       Eleuterio Salinas executed a warranty deed in 1942, conveying
                  271 acres of Share 13 to Guadalupe Garza Zamora.............................4 

         2.       The Garzas attempted to enforce and defend the 1942 Deed in
                  the Coates Maddux Litigation, but title failed. ....................................5 

         3.       The Garzas filed suit against Appellants. .............................................6 

         4.       The Garzas revived the action via a bill of review. .............................6 

         5.       The trial court denied Appellants’ Plea in Abatement. ........................7 

         6.       The trial court entered judgment for the Garzas on all claims,
                  holding Appellants jointly and severally liable....................................7 

         7.       Appellants appealed with an incomplete record. .................................8 

                                                           iii
Summary of the Argument........................................................................................8 

Standard of Review .................................................................................................10 

Argument.................................................................................................................10 

         I.        The Garzas’ suit is not barred by the statute of limitations, and
                   Juan Lino Garza, Sr. is a proper plaintiff. ..........................................12 

                   A.       The Garza Trusts had standing and capacity to bring suit,
                            and their corrected petition relates back. .................................13 

                            1.        The Garzas’ amended petition corrected a
                                      misnomer regarding the Garza Trusts. ..........................13 

                            2.        Appellants’ challenge to the Garza Trusts’
                                      “standing” is in fact an issue of capacity, and the
                                      Garzas’ corrected capacity relates back. .......................18 

                            3.        Furthermore, Appellants did not preserve their
                                      challenge to capacity. ....................................................21 

                   B.       Juan Lino Garza, Sr. was a plaintiff with standing at all
                            relevant times. ..........................................................................22 

                            1.        Juan Lino Garza, Sr. was an assignee with
                                      standing, and participated as a named plaintiff
                                      since 2001. .....................................................................23 

                            2.        Appellants have not provided an adequate record
                                      for review of Juan Lino Garza, Sr.’s role as an
                                      assignee. .........................................................................26 

                   C.       Regardless, Appellants’ challenges to the Garzas’
                            standing address only one of the four independent bases
                            supporting the judgment. .........................................................30 

         II.       The trial court properly denied Appellants’ Plea in Abatement. .......32 

                   A.       The record is insufficient to permit review. .............................33 

                   B.       The Plea was untimely. ............................................................34 



                                                            iv
                  C.       The Plea was unverified. ..........................................................37 

                  D.       Appellants did not and have not carried their burden to
                           show that there were “indispensable” defendants. ..................38 

         III.     The judgment against the estates and trust is valid. ...........................44 

                  A.       The record shows that the estates and trust participated in
                           the judgment and appeal. .........................................................44 

                  B.       Regardless, the record is inadequate to reverse the
                           judgment against Olivia Salinas Perez.....................................47 

         IV.      The damages award is valid. ..............................................................48 

                  A.       Appellants have not challenged all separate and
                           independent grounds supporting the damages award. .............48 

                  B.       The Garzas are entitled to recover damages for trespass
                           to try title and mineral trespass. ...............................................50 

                  C.       There is legally sufficient evidence showing Appellants’
                           interest in Share 13...................................................................52 

                  D.       Appellants were properly held jointly and severally liable
                           for the damages. .......................................................................54 

                  E.       Appellants did not preserve their challenge to Cortez’s
                           foundational data. .....................................................................57 
Conclusion and Prayer ............................................................................................61 

Certificate of Compliance .......................................................................................63 

Certificate of Service ..............................................................................................64 




                                                           v
                                  INDEX OF AUTHORITIES

Cases                                                                                                     Page(s) 

718 Assocs., Ltd. v. Sunwest N.O.P., Inc.,
      1 S.W.3d 355 (Tex. App.—Waco 1999, pet. denied) ...................................11

Austin Nursing Ctr., Inc. v. Lovato.
      171 S.W.3d 845 (Tex. 2005) ............................................................ 18, 19, 21

Bechtel Corp. v. City of San Antonio,
      No. 04-04-00910-CV, 2006 WL 228689 (Tex. App.—San
      Antonio Feb. 1, 2006, no pet.) (mem. op.) ....................................................49

Bernstein v. Portland Sav. & Loan Ass’n,
      850 S.W.2d 694 (Tex. App.—Corpus Christi 1993, writ denied),
      disapproved of on other grounds by Crown Life Ins. Co. v.
      Casteel, 22 S.W.3d 378 (Tex. 2000) .............................................................45

Bluebonnet Farms, Inc. v. Gibraltar Sav. Ass’n,
     618 S.W.2d 81 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ
     ref'd n.r.e.) ................................................................................... 32, 34, 35, 36

Bos v. Smith,
       No. 13-14-00456-CV, 2016 WL 1317691 (Tex. App.—Corpus
       Christi Mar. 10, 2016, pet. filed) ...................................................................10

Britton v. Tex. Dept. of Criminal Justice,
      95 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2002, no pet.) ...................31

Brooks v. Chevron USA Inc.,
     No. 13-05-029-CV, 2006 WL 1431227 (Tex. App.—Corpus
     Christi May 25, 2006, pet. denied) (mem. op.) .............................................11

Brown v. Brown,
     236 S.W.3d 343 (Tex. App.—Houston [1st Dist.] 2007, no pet.) .................10

Bulthuis v. Avila,
      No. 13-13-00717-CV, 2015 WL 9487472 (Tex. App.—Corpus
      Christi Dec. 29, 2015, pet. denied) (mem. op.) .............................................29




                                                         vi
Campbell v. Jefferson,
    453 S.W.2d 336 (Tex. Civ. App.—Tyler 1970, writ dism’d) .......................40

Carter v. DeJarnatt,
      523 S.W.2d 88 (Tex. Civ. App.—Texarkana 1975, writ ref'd
      n.r.e.) ....................................................................................................... 19, 21

Christiansen v. Prezelski,
      782 S.W.2d 842 (Tex. 1990) ............................................................ 27, 29, 33

CMM Grain Co., Inc. v. Ozgunduz,
    991 S.W.2d 437 (Tex. App.—Fort Worth 1999, no pet.) .......... 27, 29, 33, 34

Coastal Transport, Inc. v. Crown Cent. Petroleum Corp.,
     136 S.W.3d 227 (Tex. 2004) .................................................................. 58, 59

Cockrell v. Mullins,
     No. 14-98-00405-CV, 2000 WL 1158360 (Tex. App.—Houston
     [14th Dist.] Aug. 17, 2000, no pet.) (mem. op., not designated for
     publication) ....................................................................................................33

Commercial Structures & Interiors, Inc. v. Liberty Educ. Ministries,
    Inc.,
    192 S.W.3d 827 (Tex. App.—Fort Worth 2006, no pet.) .............................23

Conseco Fin. Servicing Corp. v. J & J Mobile Homes, Inc.,
     120 S.W.3d 878 (Tex. App.—Fort Worth 2003, pet. denied) .......................49

Cooper Tire & Rubber Co. v. Mendez,
     204 S.W.3d 797 (Tex. 2006) .........................................................................57

Cooper v. Tex. Gulf Indus., Inc.,
     513 S.W.2d 200 (Tex. 1974) .................................................................. 38, 39

Cunningham v. Coyle,
     1884 WL 8399 (Tex. Ct. App. 1884) ............................................................56

Damian v. Bell Helicopter Textron, Inc.,
     352 S.W.3d 124 (Tex. App.—Fort Worth 2011, pet. denied) .......................21

Davis v. Preston,
      16 S.W.2d 117 (Tex. 1929) .............................................................. 18, 19, 20



                                                            vii
Deutsche Bank Nat’l Trust Co. v. Jones,
      No. 13-14-00464-CV, 2015 WL 4116860 (Tex. App.—Corpus
      Christi July 2, 2015, no pet.) (mem. op.) .......................................................10

E.I. du Pont de Nemours & Co., Inc. v. Robinson,
       923 S.W.2d 549 (Tex. 1996) .........................................................................58

Ernst v. Banker's Servs. Group, Inc.,
      No. 05-98-00496-CV, 2001 WL 1256524 (Tex. App.—Dallas
      Oct. 22, 2001, pet. denied) (mem. op., not designated for
      publication) ....................................................................................................42

Flowers v. Steelcraft Corp.,
     406 S.W.2d 199 (Tex. 1966) .........................................................................38

Fox v. Maguire,
      224 S.W.3d 304 (Tex. App.—El Paso 2005, pet. denied).............................31

Fox v. Wardy,
      234 S.W.3d 30 (Tex. App.—El Paso 2007, pet. dism’d n.o.j.) .....................29

Garza v. Maddux,
     988 S.W.2d 280 (Tex. App.—Corpus Christi 1999, pet. denied) ...................5

Gillett v. Achterberg,
       325 S.W.2d 384 (Tex. 1959) .........................................................................50

Gross v. Carroll,
      339 S.W.3d 718 (Tex. App.—Houston [1st Dist.] 2011, no pet.) .................31

Guajardo v. Conwell,
     46 S.W.3d 862 (Tex. 2001) ...........................................................................28

Harris v. Hooper,
      No. 04–10–00378–CV, 2011 WL 4389908 (Tex. App.—San
      Antonio 2011, no pet.) (mem. op.) ................................................................33

Hedley Feedlot, Inc. v. Weatherly Trust,
     855 S.W.2d 826 (Tex. App.—Amarillo 1993, writ denied)................... 38, 39

Hernandez v. Hernandez,
     318 S.W.3d 464 (Tex. App.—El Paso 2010, no pet.) ...................................25



                                                          viii
Hexamer v. Topographic Land Surveyors,
     No. 05-97-00108-CV, 1999 WL 114390 (Tex. App.—Dallas Mar.
     4, 1999, no pet.) (mem. op., not designated for publication) ........................55

Highland Credit Opportunities CDO, L.P. v. UBS AG,
      451 S.W.3d 508 (Tex. App.—Dallas 2014, no pet.) .............................. 49, 52

Howell v. Mauzy,
     899 S.W.2d 690 (Tex. App.—Austin 1994, writ denied) .............................35

HSBC Bank USA, N.A. v. Watson,
    377 S.W.3d 766 (Tex. App.—Dallas 2012, pet. dism’d) ................. 23, 24, 26

Imagine Auto. Group v. Boardwalk Motor Cars, Ltd.,
     430 S.W.3d 620 (Tex. App.—Dallas 2014, pet. denied) ..............................47

In re Graybar Elec. Co., Inc.,
       No. 13-08-00073-CV, 2008 WL 3970865 (Tex. App.—Corpus
       Christi Aug. 26, 2008, orig. proceeding) (mem. op.) ....................................39

In re Greater Houston Orthopedic Specialists, Inc.,
       295 S.W.3d 323 (Tex. 2009) (orig. proceeding) .................................... 13, 17

Izaguirre v. Rivera,
      No. 14-12-00081-CV, 2012 WL 2814131 (Tex. App.—Houston
      [14th Dist.] July 10, 2012, no pet.) (mem. op.) .............................................31

Jones v. Barnes,
      463 U.S. 745 (1983).......................................................................................12

Lacy v. Jackson,
      No. 13-11-00364-CV, 2012 WL 432698 (Tex. App.—Corpus
      Christi Feb. 9, 2012, no pet.) .........................................................................31

Ledbetter v. Howard,
     395 S.W.2d 951 (Tex. Civ. App.—Waco 1965, no writ)..............................48

Longoria v. Exxon Mobil Corp.,
     No. 04-15-00536-CV, 2016 WL 4013793 (Tex. App.—San
     Antonio July 27, 2016, pet. filed) (mem. op.) ...............................................38

Longoria v. Exxon Mobil Corp.,
     255 S.W.3d 174 (Tex. App.–San Antonio 2008, pet. denied) ............... 41, 42

                                                       ix
Mar. Overseas Corp. v. Ellis,
     971 S.W.2d 402 (Tex. 1998) ............................................................ 58, 60, 61

McCarthy v. George,
    618 S.W.2d 762 (Tex. 1981) .........................................................................38

McFarland v. Szakalun,
    809 S.W.2d 760 (Tex. App.—Houston [14th Dist.] 1991, writ
    denied) ...........................................................................................................47

Merrell Dow Pharm. v. Havner,
     953 S.W.2d 706 (Tex. 1997) .........................................................................58

Miller v. Bank of the W.,
      No. 01-88-00195-CV, 1988 WL 88320 (Tex. App.—Houston [1st
      Dist.] Aug. 25, 1988, no writ)........................................................................23

Musquiz v. Marroquin,
     124 S.W.3d 906 (Tex. App.—Corpus Christi 2004, pet. denied) .................51

Nichols v. Byrne,
      No. 13-97-456-CV, 1999 WL 58570 (Tex. App.—Corpus Christi
      Jan. 28, 1999, no pet.) (mem. op.) .................................................................49

Nobility Homes of Tex., Inc. v. Shivers,
      557 S.W.2d 77 (Tex. 1977) .................................................................... 31, 49

Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist.,
      925 S.W.2d 659 (Tex. 1996) .................................................................. 21, 22

Pagosa Oil & Gas, L.L.C. v. Marrs & Smith P'ship,
     323 S.W.3d 203 (Tex. App.—El Paso 2010, pet. denied).............................24

Parker v. Kangerga,
     482 S.W.2d 43 (Tex. Civ. App.—Tyler 1972, writ ref'd n.r.e.) ....................55

Pierson v. SMS Fin. II, L.L.C.,
      959 S.W.2d 343 (Tex. App.—Texarkana 1998, no pet.) ...................... passim

Pirtle v. Gregory,
       629 S.W.2d 919 (Tex. 1982) ............................................................ 32, 38, 39




                                                           x
Plebian Partners, Ltd. v. McCorkle,
      No. 9-98-320 CV, 1999 WL 199641 (Tex. App.—Beaumont Apr.
      1, 1999, pet. denied) (mem. op., not designated for publication) .................55

Pledger v. Schoellkopf,
      762 S.W.2d 145 (Tex. 1988) .........................................................................37

Pyles v. Young,
      No. 06-07-00066-CV, 2007 WL 4462738 (Tex. App.—Texarkana
      Dec. 21, 2007, no pet.)................................................................ 27, 29, 33, 34

Retzlaff v. Mendieta-Morales,
      356 S.W.3d 676 (Tex. App.—El Paso 2011, no pet.) ...................... 27, 28, 29

S. County Mut. Ins. Co. v. Ochoa,
      19 S.W.3d 452 (Tex. App.—Corpus Christi 2000, no pet.) ..........................37

Sabre Oil & Gas Corp. v. Gibson.
      72 S.W.3d 812 (Tex. App.—Eastland 2002, pet. denied) ...................... 42, 43

San Antonio Press, Inc. v. Custom Bilt Mach.,
     852 S.W.2d 64 (Tex. App.—San Antonio 1993, no writ) ................ 31, 32, 49

Sixth RMA Partners, L.P. v. Sibley,
       111 S.W.3d 46 (Tex. 2003) ...........................................................................21

Tex. Oil & Gas Corp. v. Ostrom,
      638 S.W.2d 231 (Tex. App.—Tyler 1982, writ ref'd n.r.e.) ..........................42

United Sav. Ass’n of Tex. v. Villanueva,
      878 S.W.2d 619 (Tex. App.—Corpus Christi 1994, no writ) .......................51

United States v. Rutherford Oil Corp.,
      CIV.A. G-08-0231, 2009 WL 1351794 (S.D. Tex. May 13, 2009) ..............34

Univ. of Tex. Med. Branch at Galveston v. Allan,
      777 S.W.2d 450 (Tex. App.—Houston [14th Dist.] 1989, no writ) ..............23

Victory Energy Corp. v. Oz Gas Corp.,
      461 S.W.3d 159 (Tex. App.—El Paso 2014, pet. denied)..................... passim

Walker v. Read,
     59 Tex. 187 (Tex. 1883) ................................................................................54


                                                      xi
Werner v. Colwell,
     909 S.W.2d 866 (Tex. 1995) .........................................................................44

Wolf v. City of Mission,
      No. 13-12-00737-CV, 2013 WL 7864086 (Tex. App.—Corpus
      Christi Aug. 29, 2013, no pet.) ......................................................................31

Other Authorities                                                                                            Page(s) 
70 Tex. Jur. 3d Trespass to Realty § 12 (2016) .......................................................55

70 Tex. Jur. 3d Trespass to Realty § 14 (2016) .......................................................55

William V. Dorsaneo, III, Compulsory Joinder of Parties in Texas, 14
      HOUS. L.REV. 345, 369 (1977) ......................................................................32

Rules                                                                                                        Page(s) 
TEX. R. APP. P. 33.1 .......................................................................................... 60, 61

TEX. R. APP. P. 34.6(c)(1) ........................................................................................29

TEX. R. APP. P. 38.1(i)..............................................................................................25

TEX. R. CIV. P. 152 ...................................................................................................44

TEX. R. CIV. P. 39(b) ................................................................................................39

TEX. R. CIV. P. 783(f) ...............................................................................................51

TEX. R. CIV. P. 93(1) ................................................................................................21

TEX. R. CIV. P. 93(4) ................................................................................................37




                                                          xii
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
      Appellees Juan Lino Garza, Sr., Juan Lino Garza, Jr. as trustee of the Juan

Lino Garza Trust; and Juan Lino Garza, Jr. and Elma Irene Garza as co-trustees of

the Juan Lino Garza Energy Trusts A-1 and A-2 (collectively, the “Garzas”) file

this brief asking the Court to affirm the trial court’s final judgment. In support

thereof, Appellees respectfully show the following:

                           GUIDE TO CITATIONS
      Citations to the record are as follows: CR[page], referencing the Clerk’s

Record by page number; and [volume]RR[page]:[line], referencing the Reporter’s

Record by volume, page, and line number. Reference to Appellants’ Brief is

Appellants’ Brief at [page].

                       STATEMENT OF THE CASE
Nature of the Case:                            This is a suit for breach of warranty of
                                               title, breach of the covenant against
                                               encumbrances, breach of implied
                                               covenants, and trespass to try title, all
                                               stemming from a 1942 deed executed by
                                               Appellants’ predecessor in interest.1

Course of Proceedings:                         The case was tried to the bench before
                                               the Honorable Rodolfo Delgado, judge
                                               of the 93rd District Court of Hidalgo
                                               County, Texas.2


1
      CR94–108 (Fourth Amended Original Petition).
2
      CR195–97.

                                           1
Trial Court’s Disposition:                   The trial court entered a final judgment
                                             in Appellees’ favor on April 30, 2015.3
                                             The trial court issued findings of fact
                                             and conclusions of law supporting the
                                             judgment.4
                                              
                                              
           STATEMENT REGARDING ORAL ARGUMENT
      This is an appeal from a final judgment. Appellees do not believe oral

argument would aid the Court in deciding this appeal. The issues in this case do

not require any new interpretations of law, but application of established principles

of common and statutory law to the evidence. However, if the Court determines

that oral argument is necessary, Appellees request the opportunity to participate.



                   ISSUES PRESENTED (RESTATED)
     1.     Did the trial court properly award damages for Appellants’ trespass on
the Garzas’ property? Must this Court affirm the award of damages since
Appellants attack only one of four independent causes of action supporting the
judgment?

      2.     Can Appellants take advantage of a now-cured misnomer in the
pleadings, even though Appellants actively participated in the litigation for nearly
a decade without raising the issue and were not confused, disadvantaged, or even
impacted by the misnomer?

       3.    Can Appellants avoid liability by refusing to acknowledge the
existence of an assignment providing Juan Lino Garza, Sr. with standing to bring
suit regarding the 108 acres at issue?

      4.     Did the trial court properly deny Appellants’ plea in abatement?
3
      CR195–200.
4
      CR223–36.

                                         2
            a.     Have Appellants provided a sufficient record to permit review
      of the trial court’s denial of Appellants’ Plea in Abatement—a Plea on
      which Appellants had the burden of proof—despite Appellants’ failure to
      provide a transcript of the hearing on their Plea?

             b.    Did the trial court properly deny Appellants’ Plea in Abatement
      by focusing on pragmatism in applying Texas Rule of Civil Procedure 39, as
      directed by the Texas Supreme Court, and fully resolving the issues before
      the court?

            c.     Did the trial court properly deny Appellants’ Plea in Abatement
      when Appellants had the burden to show that the relevant parties were
      indispensable, but failed to establish or even address the factors in Texas
      Rule of Civil Procedure 39(b)?

       5.     Did the trial court obtain jurisdiction over the deceased defendants’
estates and trust through their participation in the trial and appeal?

       6.   Did Appellants waive their challenge to the reliability of the
foundational data underlying Richard Cortez’s expert testimony by failing to
request a Daubert hearing, failing to object at trial, and agreeing to the admission
of the documents on which Cortez’s testimony was based?

       7.     Did the trial court properly hold the Appellants jointly and severally
liable as parties to the trespass of the Garzas’ property?




                                         3
                         STATEMENT OF FACTS
1.    Eleuterio Salinas executed a warranty deed in 1942, conveying
      271 acres of Share 13 to Guadalupe Garza Zamora.
      This case stems from a legal dispute, resulting in a judgment and a later

warranty deed (the “Deed”) executed by Appellants’ predecessor in interest—

Eleuterio Salinas—in 1942.5

      On September 14, 1942, the 93rd District Court of Hidalgo County, Texas

entered a final judgment in a case styled Eleuterio Salinas, et ux vs. Guadalupe

Garza Zamora, et ux, granting Guadalupe Garza Zamora title to 271 acres out   of

Share 13 of the Schunior Subdivision in Porciones Nos. 73, 74 and 75 in Hidalgo

County, Texas.6 The next day, Eleuterio Salinas executed a Deed conveying the

271 acres of land to Appellees’ predecessor in interest, Guadalupe Garza Zamora.7

Although the Deed specified a particular plot of land by metes and bounds, it

independently and explicitly warranted the acreage in Share 13 as follows:

            Grantor does however unconditionally warrant 271 acres
            of land in Share Thirteen (13) and agrees that if in a
            partition on account of other owners, the Grantee herein
            should be unable to secure the 271 acres at the location
            herein above described, the Grantee shall nevertheless
            have under this conveyance 271 acres out of Share
            Thirteen (13), which is hereby in all things warranted by
            the Grantor.8

5
      5RR Ex. PX-8; CR94–108, 116–17.
6
      5RR Ex. PX-9.
7
      5RR Ex. PX-8; CR94–108, 116–17.
8
      CR116–17, 165, 210, 224; 5RR Ex. PX-8–9.

                                          4
The Garzas took possession of the 271 acres designated by the metes and bounds

description in the Deed.9

2.    The Garzas attempted to enforce and defend the 1942 Deed in
      the Coates Maddux Litigation, but title failed.
      On January 7, 1988, the Garzas filed suit in the 275th District Court of

Hidalgo County in Cause No. 13-97-109-CV, Juan Lino Garza, et al, v. Elizabeth

H. Coates Maddux, et al (“Coates Maddux Litigation”).10 The dispute centered

around the mineral rights to 108 acres out of the 271 acres that were identified by

metes and bounds and purportedly conveyed by Eleuterio Salinas to Guadalupe

Garza Zamora in the 1942 Deed. The defendants in the Coates Maddux Litigation

argued that the disputed 108 acres were not in Share 13 but rather, were in Share

15, and thus were never Salinas’s property to convey.11 The trial court granted

summary judgment in favor of the defendants.12 The judgment was affirmed by

this Court, and the Texas Supreme Court denied review on November 12, 1999.13




9
      2RR17, 32–33, 39, 41, 54, 80, 97; 33RR58–59.
10
      CR100, 122, 148, 209, 224.
11
      CR224.
12
      CR224.
13
      Garza v. Maddux, 988 S.W.2d 280 (Tex. App.—Corpus Christi 1999, pet. denied);
CR224.

                                        5
3.        The Garzas filed suit against Appellants.
          On November 13, 2001, the Garzas filed suit against Appellants in the 93rd

District Court of Hidalgo County in Cause No. C-1948-01-B.14 The Garzas

asserted breach of warranty of title and trespass to try title claims based on the 108

acres of Share 13 that were not properly conveyed.15 The trial court entered an

order of dismissal for want of prosecution without notice to the Garzas on May 12,

2004.16

4.        The Garzas revived the action via a bill of review.
          The Garzas filed a bill of review in Cause No. C-2647-05-B on October 26,

2005.17 The bill was granted on May 10, 2010.18 The Garzas amended their petition

as the case progressed, filing their Fourth Amended Petition in February 2014.19

The Fourth Amended Petition updated the plaintiffs named in the suit to remove

multiple parties, to clarify the capacity in which Juan Lino Garza, Jr. brought suit,

and to correct a misnomer regarding the Juan Lino Garza Energy Trusts A-1 and

A-2 (the “Garza Trusts”).20

14
          CR28, 225. Records from the original cause have not been included in the appellate
record.
15
       CR31, 225.
16
       CR29.
17
       CR23–33.
18
       CR55–56.
19
       CR94–117.
20
       The Garza Energy Trust terminated in 2004 and passed an interest in the mineral estate to
the Juan Lino Garza Energy Trusts A-1 and A-2. 5RR Ex. DX-4. However, the Garza Energy
Trusts were misnamed in the pleadings until the Fourth Amended Petition. CR94–117; 5RR Ex.
DX-1.

                                               6
5.    The trial court denied Appellants’ Plea in Abatement.
      Eight years after the Garzas initially filed their bill of review, Appellants

filed an unverified Plea in Abatement or Alternatively, Motion to Dismiss,

claiming that the Garzas needed to join additional defendants.21 The Plea was

amended with another unverified plea approximately six months later.22

      On October 8, 2014—nearly nine years after the Garzas filed their bill of

review—Appellants secured a hearing and ruling on the motion.23 The proceedings

are not included in the appellate record, and it is unclear what—if any—evidence

Appellants offered during such hearing to carry their burden and attempt to

establish the assertions made in their Plea.24 Regardless, the trial court denied

Appellants’ Plea in Abatement on October 9, 2014.25 At no time—either before or

after the trial court’s ruling—did Appellants attempt to join or designate any

defendants themselves.

6.    The trial court entered judgment for the Garzas on all claims,
      holding Appellants jointly and severally liable.
      The case proceeded to a bench trial on November 12, 2014.26 The trial court

entered judgment in favor of the Garzas, holding Appellants jointly and severally

liable for breach of warranty of title, breach of the covenant against encumbrances,
21
      CR85–89, 127–37.
22
      CR127–37.
23
      CR157.
24
      Id.
25
      Id.
26
      CR195.

                                         7
breach of implied covenants, and trespass to try title, and awarding damages of

$3,062,129.43, attorney fees for trial and appeal, and interest, while also declaring

the Garzas’ ownership of 13.5 acres in Share 13.27 Appellants requested findings of

fact and conclusions of law, which the trial court entered on August 26, 2015.28 No

additional findings of fact or conclusions of law were requested.29

7.     Appellants appealed with an incomplete record.
       Appellants filed a notice of appeal on July 28, 2015.30 Appellants requested

preparation of the Reporter’s Record only as to the bench trial conducted in

November 2014.31 The transcript of the hearing on Appellants’ Plea in Abatement

was not requested.32 Appellants also requested preparation of the Clerk’s Record

from Cause No. C-2647-05-B, but not from Cause No. C-1948-01-B.33

                      SUMMARY OF THE ARGUMENT
       In vivid, poetic language, Appellants argue that the trial court’s judgment

creates a “dystopian world” of unfairness in which “[t]he sins of the fathers are

visited on the sons.” Appellants’ Brief at 45. However, what Appellants call

“dystopian” the legal community has long called “running with the land,” or

27
        CR195–97, 223–26. The Garzas own a 1/8 interest in the 108 acres at issue in this case.
2RR66:15–25, 67:11–15; 5RR Ex. PX-10. Thus, the trial court’s declaration addressed only 13.5
acres. CR195–97; 3RR55; 4RR33–34.
28
        CR223–26.
29
        See, generally, CR.
30
        CR212–13.
31
        CR215–17.
32
        CR215–17.
33
        CR218–21.

                                              8
simply “binding.” Eleuterio Salinas expressly intended for his Deed to bind his

“heirs and assigns forever” when he executed the document in 1942. While

Appellants may claim that this is unfair, Texas courts interpret and enforce deeds

based on laws rather than one party’s subjective estimation of what “looms over

the crib of every swaddled infant.” Id. Unfortunately, for Appellants, their legal

arguments are meritless.

      Appellants raise nine issues on appeal, challenging everything from the

measure of damages, to the failure to join allegedly indispensable defendants, to

the reliability of the Garzas’ expert testimony, to the statute of limitations. The vast

majority of these arguments have been waived−whether by Appellants’ failure to

object at trial, failure to attack each independent basis for the challenged finding,

failure to provide an adequate appellate record for review of the issue, or some

combination of these flaws. Moreover, even if Appellants’ challenges had been

properly preserved, they are unsupported. The trial court’s judgment simply

enforced and provided relief for the valid 1942 Deed—a deed that Appellants

would have this Court ignore. However, neither the 1942 Deed, nor the laws that

mandate its enforcement can be ignored. Thus, the trial court’s judgment must be

affirmed.




                                           9
                           STANDARD OF REVIEW
       “In an appeal from a bench trial, the trial court’s findings of fact have the

same weight as a jury verdict.” Bos v. Smith, No. 13-14-00456-CV, 2016 WL

1317691, at *13 (Tex. App.—Corpus Christi Mar. 10, 2016, pet. filed); Brown v.

Brown, 236 S.W.3d 343, 347-48 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

The appellate court applies the same standards of review, using the well-known

legal and factual sufficiency standards applied to a jury verdict. Deutsche Bank

Nat’l Trust Co. v. Jones, No. 13-14-00464-CV, 2015 WL 4116860, at *4 (Tex.

App.—Corpus Christi July 2, 2015, no pet.) (mem. op.).

                                    ARGUMENT
      Appellants raise nine issues34 in support of their general complaint that the

trial court’s judgment creates a “dystopian world” in which “[t]he sins of the

fathers are visited on the sons, and then on their sons, ad infinitem,” resulting in a

“dark and brooding cloud of potential liability . . . [that] looms over the crib of

every swaddled infant.”35 The laws purportedly leading to such “dystopia,”

however, are more commonly known as property rights, or, more specifically,

covenants that run with the land.36 See, e.g., Brooks v. Chevron USA, Inc., No. 13-

05-029-CV, 2006 WL 1431227, at *8 (Tex. App.—Corpus Christi May 25, 2006,


34
      Appellees construe these nine issues as seven arguments.
35
      Appellants’ Brief at 45.
36
      Id.

                                             10
pet. denied) (mem. op.) (“Covenants running with the land bind the heirs and

assigns”); 718 Assocs., Ltd. v. Sunwest N.O.P., Inc., 1 S.W.3d 355, 364 (Tex.

App.—Waco 1999, pet. denied) (same). Eleuterio Salinas not only recognized, but

expressly intended to invoke such laws when he executed his 1942 Deed and

bound his “heirs and assigns forever.”37 Appellants, in fact, do not dispute that the

covenants underlying this suit run with the land, but nonetheless weave a

hyperbolic fairness argument throughout their brief in an attempt to bolster their

otherwise-weak legal case.38 Yet, there is nothing unfair about granting relief for a

deed that has been contemptuously ignored and transgressed for more than a half-

century.

          Moreover, this case is governed by the law—not by Appellants’ subjective

assessment of what constitutes a “dystopian” outcome. Appellants’ legal

arguments are woefully flawed. Appellants argue that, (1) the breach of warranty

of title claim was barred by the statute of limitations because the only plaintiffs

with standing to bring the breach of warranty of title claims were not added until

2014; (2) the trial court abused its discretion by denying Appellants’ Plea in

Abatement and proceeding with the case without joining indispensable parties; (3)

the judgment is void as against the named estates and trust; (4) the damages for


37
          5RR Ex. PX-6.
38
          Appellants’ Brief at 24 (“it is generally accepted that a warranty of title runs with the
land”).

                                                 11
Appellees’ breach of warranty of title claim must be limited to each heir’s share of

the consideration paid for the land; (5) the expert testimony regarding damages is

no evidence because it stems from unreliable foundational data; and (6) there is no

legal basis for joint and several liability.39 Appellants are essentially throwing

every issue at the wall to see what sticks, and the “[m]ultiplicity hints at [their]

lack of confidence in any one [argument].” Jones v. Barnes, 463 U.S. 745, 752

(1983). Upon further examination, such lack of confidence is understandable;

Appellants’ arguments are neither valid, nor fully preserved, nor adequately

presented.

I.    The Garzas’ suit is not barred by the statute of limitations, and
      Juan Lino Garza, Sr. is a proper plaintiff.
      By their third and fourth issues, Appellants assert that the Garzas’ breach of

warranty of title claim is barred by the statute of limitations because the Garza

Trusts—the only plaintiffs Appellants acknowledge have standing to sue—were

not properly identified in the pleadings until 2014, after the statute of limitations

had expired.40 Appellants’ challenge relies on two strawman arguments: (a)

mischaracterizing the Garzas’ correction of a misnomer as a substantive change in

the parties; and (b) pretending that Juan Lino Garza, Sr.’s standing stems from his




39
      See generally, Appellants’ Brief.
40
      Appellants’ Brief at 24–29.

                                          12
record interest in the 108 acres, rather than his interest as an assignee.41 Moreover,

Appellants attack the Garzas’ ability to bring suit as to only one of the four

independent causes of action supporting the judgment. Thus, for multiple reasons,

these issues must be overruled.

      A.     The Garza Trusts had standing and capacity to bring
             suit, and their corrected petition relates back.
      First, although Appellants frame their attack on the Garza Trusts as an issue

of standing, it is in fact a simple misnomer. At most, such misnomer misstated the

plaintiffs’ capacity, and Appellants’ purported error was not preserved for appeal.

             1.     The Garzas’ amended petition corrected                            a
                    misnomer regarding the Garza Trusts.
      The Garzas’ Fourth Amended Petition did not add new parties; it corrected a

misnomer. When a plaintiff misnames itself in a pleading but the correct parties are

served and involved in the suit, the matter is a simple misnomer and does not

negate the plaintiff’s standing nor implicate the statute of limitations. In re Greater

Houston Orthopedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig.

proceeding); Pierson v. SMS Fin. II, L.L.C., 959 S.W.2d 343, 347 (Tex. App.—

Texarkana 1998, no pet.). When the error is corrected, the amended pleading

relates back to the original date of filing. In re Greater Houston Orthopedic



41
      Id.

                                          13
Specialists, Inc., 295 S.W.3d at 326. Plaintiff’s Fourth Amended Petition naming

the Garza Trusts thus relates back.

      For example, in Pierson v. SMS Fin. II, L.L.C., the Bank of Longview

loaned Pierson and Ross $350,000 for real estate. 959 S.W.2d at 345–46. Team

Bank acquired the note through a series of assignments and mergers, and, in 1991,

sued to collect on the debt. Id. at 346. While the suit was pending, the FDIC

reacquired the note, then sold it to SMS Financial II along with Team Bank’s

related causes of action. Id. Meanwhile, the statute of limitations expired in 1995.

Id. In 1996, SMS Financial I—a separate corporate entity from SMS Financial II—

was incorrectly substituted as the sole plaintiff. Id. Four months later, SMS

Financial II filed another amended pleading reflecting it as the sole plaintiff. Id.

The trial court held that the claim was not barred by the statute of limitations. Id.

      On appeal, Pierson and Ross claimed that SMS’s suit was barred, as the

company misidentified itself and did not properly become a party until after the

statute of limitations had expired. Id. at 347. The Texarkana Court of Appeals

distinguished between misidentification and misnomer, finding that SMS’s

pleading error was a misnomer because “the correct parties are involved” and




                                          14
“received notice of the suit.” Id. at 347–48.42 SMS’s correction of the misnomer

was not barred by the statute of limitations. Id. The court explained:

              The purpose behind statutes of limitations is to compel a
              party to file suit within a reasonable time so that the
              opposing party has a fair opportunity to defend while
              witnesses are available and the evidence is fresh. A
              timely petition preserves this purpose when it gives fair
              notice of the suit to the opposing party. Indeed, the
              statute of limitations should not apply in circumstances
              where no party is misled or disadvantaged by the error in
              pleading.
               ....
              Moreover, the misnomer in this case was that of the
              plaintiff, not the defendant. . . . [T]he correct defendants
              were sued in the correct court, and they knew the
              allegations, facts, and circumstances that founded the
              claim against them. . . . Consequently, they had no
              disadvantage in obtaining relevant evidence to defend the
              suit against SMS II simply because the original petition
              named SMS I.

Id. at 347–48 (internal citations omitted). As such, the corrected pleading related

back to the original petition; SMS’s misnomer did not implicate the statute of

limitations. Id.

       As in Pierson, this case involves a misnomer of the plaintiff. Juan Lino

Garza, Jr. testified—at Appellants’ prompting—as follows:

              Q.      [Mr. Schell] When were those mineral interests
                      conveyed into A-1 and A-2? 


42
        “Misidentification is when the party named in the pleading is not the party with an
interest in the suit. Misnomer is when a party misnames either himself or the opposing party in a
pleading, but the correct parties are involved.” Pierson, 959 S.W.2d at 347–48.

                                               15
             A.     [Juan Lino Garza, Jr.] Those minerals were
                    actually originally in the Garza Energy Trust,
                    which was conveyed by the -- well, it was gifted
                    by the Parents Trust to the Garza Energy Trust in
                    1994 and ‘95. Then during that interim, Juan Lino
                    Garza, Sr., gifted those minerals into the Juan Lino
                    Garza Energy Trust A-1 and A-2.
             ....
             Q.   All right. So, is there any reason then why Trust A-
                  1 and A-2 were not plaintiffs in 2001 when this
                  action was first brought?
             A.   When this action was first brought, the minerals
                  were under the Garza Energy Trust, a holding
                  trust.
             ....
             Q.   All right. So, whatever mineral interests were in
                  the Garza Energy Trust, upon termination of that
                  trust, those passed to Trust A-1 and A-2?
             A.   Correct. 
             Q.   All right. So, that would have been in 2004; is that
                  right?
             A.   Yes.43

      Thus, this is simply a case in which the plaintiffs failed to update their name

in the pleadings. When the case was initially filed in 2001, the Garza Energy Trust

was properly named as a plaintiff.44 Similarly, when the case went to trial in 2014,

the Juan Lino Garza Energy Trusts A-1 and A-2 were properly named as

plaintiffs.45 Appellants’ own chart—offered into evidence to summarize the parties

named in the case since its original filing in 2001—confirms Juan Lino Garza’s


43
       2RR55:23–60:10; 5RR Ex. DX-3, D-4 (Termination of Trust, reflecting distribution of
mineral interests held by Garza Energy Trust upon termination in December 2004).
44
       2RR55:23–60:10; 5RR Ex. PX-2, DX-3.
45
       2RR55:6–19.

                                           16
testimony that the individuals representing these trusts were involved in the case

from the beginning.46 Juan Lino Garza, Jr. and Juan Lino Garza, Sr. were plaintiffs

in the suit at all times since its filing in 2001, whether as individuals, trustees, or

both.47 Thus, there is no contention that the wrong individuals were involved in the

suit, that Appellants lacked notice of the charges against them, or that Appellants

were otherwise misled or disadvantaged by the pleadings. The Garzas served and

responded to discovery, took depositions, designated expert witnesses, and

participated in pretrial hearings prior to correcting the misnomer in their petition.48

Defendants not only failed to raise the misnomer at the time, but still have not

shown that the pleading error had a practical effect on the case.

       The Garzas do not dispute that it would have been prudent to update the

parties in their pleadings to reflect the Garza Trusts as soon as the Garza Energy

Trust terminated. However, Appellants do not argue that the Garzas correction of

the misnomer was untimely; they argue that it should not have been allowed at all.

This is simply false. “[I]n a case like this, in which the plaintiff misnames itself,

the rationale for flexibility . . . applies with even greater force.” Houston

Orthopedic Specialists, 295 S.W.3d at 326. As in Pierson, the Garzas’ initial

pleadings tolled the statute of limitations, “and [the] subsequent amendment of the
46
        5RR Ex. DX-1. Due to Appellants’ failure to provide a copy of the record from the
original cause number, not all petitions reflected in their chart are included in the appellate
record.
47
        5RR Ex. DX-1.
48
        CR6–22.

                                              17
petition relates back to the date of the original petition.” Pierson, 959 S.W.2d at

347. Thus, the Garzas’ misnomer did not implicate the statute of limitations.

               2.     Appellants’ challenge to the Garza Trusts’
                      “standing” is in fact an issue of capacity, and the
                      Garzas’ corrected capacity relates back.
       Moreover, even if the Garzas’ misnomer were viewed as a substantive lapse,

Juan Lino Garza, Jr.—a trustee for the Garza Trusts—was a plaintiff in this suit at

all relevant times.49 Thus, the Fourth Amended Petition simply clarified Juan Lino

Garza, Jr.’s capacity.50 Corrections to a plaintiff’s misstated capacity relate back to

the original petition.

       For example, in Davis v. Preston, a widow filed suit against the Director

General of the Federal Railroads for her husband’s workplace death. 16 S.W.2d

117, 117 (Tex. 1929). The widow initially filed her action as an individual, then

amended her petition after the statute of limitations expired to sue in her capacity

as administratrix of her husband’s estate. Id. The Texas Supreme Court held that

the amendment related back to the widow’s original petition, explaining:

               The defect in her petition was that she sued as an
               individual, instead of as administratrix. She was the real
               party at interest, no matter by whom the suit was
               prosecuted. . . . [T]his defect did not prevent her suit

49
       5RR Ex. DX-1
50
       The Texas Supreme Court has explained that “[a] plaintiff has standing when it is
personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity
when it has the legal authority to act, regardless of whether it has a justiciable interest in the
controversy.” Austin Nursing Ctr., Inc. v. Lovato. 171 S.W.3d 845, 848–49 (Tex. 2005).

                                                18
             from being ‘properly commenced,’ so far as tolling the
             statutes of limitations is concerned.

Id. at 118. The Court reaffirmed this longstanding rule in Austin Nursing Center,

Inc. v. Lovato, quoting Davis and noting that “a plaintiff's amended pleading

alleging representative capacity [after an original petition file as an individual]

satisfies the relation-back requirements.” 171 S.W.3d 845, 852 (Tex. 2005).

      Similarly, in Carter v. DeJarnatt, Davye Carter sued on a promissory note

owned by her father and executed in her favor. 523 S.W.2d 88, 90 (Tex. Civ.

App.—Texarkana 1975, writ ref'd n.r.e.). Carter filed suit as the owner of the note.

Id. After the statute of limitations had expired, Carter amended her petition to

reflect that she was in fact not the owner of the note, but the constructive trustee

for the real owner. Id. The trial court dismissed the case, finding that Carter’s claim

was barred by the statute of limitations. Id.

      On appeal however, the Texarkana Court of Appeals reversed and remanded

for trial. Id. The court held that Carter’s modification of her capacity as plaintiff

was not barred by the statute of limitations. Id. at 91. The court noted:

             The amended petition, which was filed after the
             expiration of the limitation period, did not change the
             cause of action. . . . The same transaction . . . was the
             basis of the cause of action in both pleadings. At the most
             the amended petition merely changed the capacity in
             which appellant sued. That did not constitute a new cause
             of action which was barred by limitations.

Id. (internal citations omitted).


                                          19
       As Davis and Carter demonstrate, the misstatement of a plaintiff’s capacity

does not “prevent [a] suit from being ‘properly commenced,’ so far as tolling the

statutes of limitations is concerned,” and a later correction of such capacity relates

back to the original petition. Davis, 16 S.W.2d at 118. Here, the Garzas’ original

bill of review51 named the following parties as plaintiffs:

              Juan Lino Garza, Sr. and Guadalupe Garza, Jr., Trustees
              of the Garza Energy Trust, Juan Lino Garza, Sr., Juan
              Lino Garza, Jr., Trustee of the Juan Lino Garza Trust,
              Ma. Rita Garza Carrales, Individually and as Independent
              Executrix of the Estate of Jose Carmen Garza, Deceased,
              Guadalupe Garza, Jr., Aida A. Garza Lopez, Romulo
              Garza and Eduardo Garza52

The Garzas’ 2014 Fourth Amended Petition updated the plaintiffs as follows:

              Juan Lino Garza Sr.; Juan Lino Garza Jr. as trustee of the
              Juan Lino Garza Trust; and Juan Lino Garza Jr. and Elma
              Irene Garza as co-trustees of the Juan Lino Garza Energy
              Trust A-1 and A-253

Juan Lino Garza, Jr. remained a plaintiff in this suit—whether as an individual or

trustee—at all relevant times.54 As noted in Section I(A)(1), supra, Appellants do

not dispute that the same individuals who filed the bill of review in 2005 ultimately

participated in the 2014 trial as trustees.55 Nor do they contend that the amendment


51
        Plaintiffs’ original petition in 2001 is not included in the record. See, generally, CR.
52
        CR23–24. Juan Lino Garza, Sr. remained a party to the suit in his individual capacity at
all relevant times. See 5RR Ex. DX-1. However, Appellants separately challenge Juan Lino
Garza, Sr.’s standing as an assignee. See infra, Section I(B).
53
        CR223–26.
54
        5RR Ex. DX-1.
55
        Section I(A)(1); see also 5RR Ex. DX-1.

                                              20
somehow surprised them or deprived them of notice of the claim.56 Thus, even if

Appellants’ Fourth Amended Petition were interpreted as a substantive correction

of the plaintiff’s capacity rather than a misnomer, the amended petition nonetheless

relates back. Carter, 523 S.W.2d at 91; Pierson, 959 S.W.2d at 347.

             3.      Furthermore, Appellants did not preserve their
                     challenge to capacity.
      Furthermore, if the Garzas’ misnomer is interpreted as a substantive change

in capacity, Appellants failed to preserve the issue. “Unlike standing, an argument

that an opposing party does not have the capacity to participate in a suit can be

waived.” Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662

(Tex. 1996); see also Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 56 (Tex.

2003) (holding waiver of a capacity argument occurs “by a party's failure to

properly raise the issue in the trial court.”); Damian v. Bell Helicopter Textron,

Inc., 352 S.W.3d 124, 141 (Tex. App.—Fort Worth 2011, pet. denied) (same). A

party must preserve its challenge by filing a verified pleading challenging the

plaintiff’s capacity. TEX. R. CIV. P. 93(1); see also Nootsie, 925 S.W.2d at 662

(“Texas Rule of Civil Procedure 93(1) requires a party to file a verified pleading if

it argues that ‘the plaintiff has no legal capacity to sue’”); Lovato, 171 S.W.3d at

849 (“a challenge to a party's capacity must be raised by a verified pleading”).

Here, Appellants did not file a verified answer or plea in abatement challenging the
56
      Section I(A)(1).

                                         21
Garzas’ capacity.57 In fact, Appellants’ answer challenged the capacity in which

the defendants were sued, but did not mention the Garzas’ capacity at all.58

Appellants then filed an unverified Plea in Abatement that mentioned nothing

about the Garzas’ capacity to maintain the suit.59 Appellants notably failed to raise

their challenge to the Garzas’ capacity at trial.

       The Texas Supreme Court “ha[s] not hesitated in previous cases to hold that

parties who do not follow rule 93's mandate waive any right to complain about the

matter on appeal.” Nootsie, 925 S.W.2d at 662. Thus, Appellants have failed to

preserve any challenge to the Garzas’ capacity for appellate review.

       B.     Juan Lino Garza, Sr. was a plaintiff with standing at all
              relevant times.
       Appellants’ challenge to Juan Lino Garza, Sr.’s standing to bring suit

ignores his status as an assignee. In fact, Appellants have not even provided an

adequate record for review. Thus, their challenge to Juan Lino Garza, Sr.’s

standing—and correspondingly, their challenge regarding the statute of

limitations—must be overruled.




57
       CR34–40, 85–89, 127–37, 138–46.
58
       CR34–40 (Original Answer, claiming Defendants were not sued in the proper capacity),
138–46 (First Amended Original Answer, which served as Appellants’ live pleading at trial, and
again claimed that Defendants were not sued in the proper capacity).
59
       CR85–89, 127–37.

                                             22
              1.     Juan Lino Garza, Sr. was an assignee with standing,
                     and participated as a named plaintiff since 2001.
       Appellants attack Juan Lino Garza, Sr.’s standing to file suit based on the

fact that he is not a record owner of the 108 acres at issue.60 However, Juan Lino

Garza, Sr. never asserted standing as a record owner; he asserted standing as an

assignee.61

       Texas has long allowed the assignment of causes of action. HSBC Bank

USA, N.A. v. Watson, 377 S.W.3d 766, 774 (Tex. App.—Dallas 2012, pet. dism’d)

(“As a general rule, causes of action are freely assignable.”). An assignment is

interpreted as a contract between the assignor and assignee, and may be shown by

evidence of a party’s intention to transfer the right at issue. Commercial Structures

& Interiors, Inc. v. Liberty Educ. Ministries, Inc., 192 S.W.3d 827, 833 (Tex.

App.—Fort Worth 2006, no pet.); Univ. of Tex. Med. Branch at Galveston v. Allan,

777 S.W.2d 450, 453 (Tex. App.—Houston [14th Dist.] 1989, no writ) (“An

assignment is a contract between the assignor and assignee, and operates by way of

agreement or contract.”); Miller v. Bank of the W., No. 01-88-00195-CV, 1988 WL

88320, at *2 (Tex. App.—Houston [1st Dist.] Aug. 25, 1988, no writ) (“An

assignment may be shown by either direct or circumstantial evidence.”).



60
      Appellants’ Brief at 30–31.
61
      See, e.g. 2RR48:5–14, 61–62, 66:15–25 (clarifying that Juan Lino Garza, Sr. has interest
by way of Litigation Participation Agreement).

                                             23
      For example, in HSBC Bank USA, N.A. v. Watson, HSBC brought suit as an

assignee of Fieldstone Mortgage. 377 S.W.3d at 769. The trial court dismissed the

case, relying on the traditional rule of standing that “a party must assert its own

legal rights and interests and cannot rest its claim to relief on the legal rights or

interests of third parties.” Id. at 774. The Dallas Court of Appeals however,

recognized that the traditional rules were not the only way of acquiring standing.

Rather, “[t]he policy of this State is to permit the assignment of a cause of action in

the absence of policy reasons to forbid the particular kind of assignment.” Id. at

775. Thus, HSBC had standing to bring suit due to the assignment of Fieldstone’s

claim. Id.

      Again, in Pagosa Oil & Gas, L.L.C. v. Marrs & Smith Partnership,

Sombrero Oil and Gas Company and Pagosa Oil and Gas Company sued Rickey

Smith and the Marrs and Smith Partnership (“Smith”) for breach of contract, due to

Smith’s violation of an oil and gas lease. 323 S.W.3d 203, 208–09 (Tex. App.—El

Paso 2010, pet. denied). Although Sombrero was not a party to the underlying

contract at issue, Sombrero asserted standing based on assignment of the claim. Id.

at 209–10. The El Paso Court of Appeals affirmed this assignment, reiterating that

“generally, causes of action in Texas are freely assignable.” Id. at 212.




                                          24
      Here, the Garza family members assigned their claims for recovery of the

108 acres to Juan Lino Garza, Sr. via a Litigation Participation Agreement.62 The

Garzas offered extensive evidence and testimony at trial—including a copy of the

signed Litigation Participation Agreement contract itself—establishing the

assignment.63 Juan Lino Garza, Jr. testified that, through the Agreement, “Juan

Lino Garza, Sr., contracted with his brothers and sisters to get 30 percent of the

proceeds that would be recovered of the 108 acres.”64 The agreement was

understood to apply not only to the Coates Maddux Litigation, but also to any

necessary appeals and subsequent actions required to enforce the Garzas’ right to

the 108 acres at issue.65

      Although Appellants bear the burden to fully present this issue for appeal,

they have failed to even address the Litigation Participation Agreement, much less

cite authority to show why it allegedly failed to confer standing on Juan Lino

Garza, Sr.66 TEX. R. APP. P. 38.1(i); Hernandez v. Hernandez, 318 S.W.3d 464, 466

(Tex. App.—El Paso 2010, no pet.) (“When, as here, the appellate issues are

unsupported by argument or lack citation to the record or legal authority, nothing is

presented for review.”). Rather, Appellants simply pretend the Litigation


62
       5RR Ex. PX-14.
63
       Id.; see also 2RR47:16–49:13, 61:25–62:2, 65:25–66:14, 100:18–21.
64
       2RR100:18–21; see also 2RR47:16–49:13, 61:25–62:2.
65
       2RR65:25–66:14 (Juan Lino Garza, Jr., stating that the Litigation Agreement does not
simply apply to the Coates Maddux Litigation, but to the 108 acres).
66
       Appellants’ Brief at 24–31.

                                            25
Participation Agreement does not exist and conclude that Juan Lino Garza, Sr. did

not have standing to sue because he was not a record owner of the property at

issue.67 This is a logical fallacy, built on the inaccurate assumption that being the

record owner of the relevant property is the only way to acquire standing. HSBC

Bank, 377 S.W.3d at 774–75. More importantly, it is irrelevant; Juan Lino Garza,

Sr. did not and does not assert standing based on his personal record interest in the

mineral rights at issue.68 Rather, Juan Lino Garza, Sr. has standing based on his

interest as a trustee and as an assignee of his family’s claims.69 Appellants have

failed to address or disprove such assignment, and thus their issue must fail.

              2.      Appellants have not provided an adequate record
                      for review of Juan Lino Garza, Sr.’s role as an
                      assignee.
       Moreover, Appellants have not presented a sufficient record for review of

Juan Lino Garza, Sr.’s assignment. Appellants have omitted the entirety of the

original cause of action while conveniently claiming that there is “no evidence” in




67
        Id. at 30–31 (attacking Juan Lino Garza’s standing without even mentioning possibility
of an assignment).
68
        See, e.g. 2RR48:5–14, 61–62, 66:15–25 (clarifying that Juan Lino Garza, Sr. has interest
by way of Litigation Participation Agreement).
69
        5RR Ex. PX-14. In addition to his interest as an assignee, Juan Lino Garza, Sr. was a
trustee of the Garza Energy Trust. See CR23 (Original Petition for Bill of Review, naming Juan
Lino Garza, Sr. as trustee of Garza Energy Trust); 5RR Ex. DX-1 (spreadsheet of parties). DX-4
(Termination of Garza Energy Trust, reflecting Juan Lino Garza, Sr. as a trustee).

                                              26
their partial record.70 Thus, Appellants have waived their arguments regarding

standing and assignment by failing to provide an adequate record.

      “The burden is on the appellant to see that a sufficient record is presented to

show error requiring reversal.” Christiansen v. Prezelski, 782 S.W.2d 842, 843

(Tex. 1990). Thus, any omissions in the record are presumed to be relevant and to

support the judgment. Pyles v. Young, No. 06-07-00066-CV, 2007 WL 4462738, at

*2 n.6 (Tex. App.—Texarkana Dec. 21, 2007, no pet.) (“If the record is incomplete

and the appellant has not complied with Rule 34.6(c), the appellate court must

presume that the omitted portions support the judgment or order from which the

appeal is taken.”); CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439–40

(Tex. App.—Fort Worth 1999, no pet.) (“We must therefore presume that the

omitted portions of the record are relevant to this appeal and that the missing

evidence supports the trial court's judgment.”).

      For example, in Retzlaff v. Mendieta-Morales, Retzlaff and Morales agreed

to a contract prohibiting Morales from making false allegations about Retzlaff to a

governmental agency. 356 S.W.3d 676, 678 (Tex. App.—El Paso 2011, no pet.).

Eight years later, Retzlaff sued Morales for breach of contract and defamation, and

the trial court entered a default judgment against Morales. Id. Soon thereafter,

Morales filed and was granted a bill of review in a separate cause number. Id.


70
      See, generally, CR; Appellants’ Brief at 30–31.

                                             27
Morales then filed a motion for summary judgment in the original cause number.

Id. The trial court granted the motion, and Retzlaff appealed. Id. at 678–79.

       On appeal, Retzlaff provided only the record from the original cause

number, attaching copies of the bill of review documents to his appellate brief. Id.

at 680. The court of appeals held that the record was inadequate to enable review

of challenges involving the documents filed in the bill of review cause. Id. at 679–

81. The court stated:

              When the trial court grants a bill of review, subsequent
              proceedings on the merits of the original suit should be
              conducted under the bill of review cause number. The
              trial court should render the final judgment in the bill of
              review cause number. All of the relevant documents
              and transcripts concerning both the bill of review and
              the original suit can then be brought before the
              appellate court in the event of an appeal. . . . Retzlaff
              has made no attempt to obtain a complete record. He did
              not request that the trial court take judicial notice of the
              proceedings in cause number 345077, nor did he request
              that relevant documents from cause number 345077 be
              included in the appellate record. . . . The burden was on
              Retzlaff, as the party seeking review, to ensure that a
              sufficient record is presented to show error.

Id. at 679–80 (emphasis added). The court further explained that, although the

relevant documents were attached to Morales’ appellate brief, the court could not

consider documents outside the record.71 Id. at 680; see also Guajardo v. Conwell,

46 S.W.3d 862, 864 (Tex. 2001) (refusing to consider trial court order attached to

71
       There are limited exceptions to this rule, none of which were applicable in Retzlaff and
none of which are applicable to the case at hand.

                                              28
petition for review); Fox v. Wardy, 234 S.W.3d 30, 33 (Tex. App.—El Paso 2007,

pet. dism’d n.o.j.) (“The attachment of documents as exhibits or appendices to

briefs is not formal inclusion in the record on appeal and, therefore, the documents

cannot be considered.”). Thus, Retzlaff waived his arguments regarding Morales’

bill of review. Retzlaff, 356 S.W.3d at 680.

       Similarly, here Appellants claim that there is “no evidence” of Juan Lino

Garza, Sr.’s standing to bring suit.72 However, Appellants have not provided an

adequate record to support this claim. The Court can only speculate about whether

the Litigation Participation Agreement was challenged or litigated in a hearing in

the original cause number; whether Appellees provided additional evidence of the

assignment in the original cause; or whether Appellants stipulated to the

assignment in the original cause. Appellants cannot take advantage of their own

failure to provide an adequate appellate record. Rather, when—as here—the

appellant provides an incomplete record, the reviewing court must presume that the

omitted portions were relevant and that they supported the judgment.73

Christiansen, 782 S.W.2d at 843; Bulthuis v. Avila, No. 13-13-00717-CV, 2015

WL 9487472, at *2 (Tex. App.—Corpus Christi Dec. 29, 2015, pet. denied) (mem.

op.); Pyles, 2007 WL 4462738, at *2 n.6; CMM Grain Co., 991 S.W.2d at 439–40.
72
        Appellants’ Brief at 24–29.
73
        See supra, Section I(B)(2). Under Rule 34.6(c), an appellant can confine the record to
specific issues if he “include[s] in the request a statement of the points or issues to be presented
on appeal.” TEX. R. APP. P. 34.6(c)(1). Here however, Appellants have not filed a statement
limiting the issues on appeal.

                                                29
Thus, Appellants’ failure to provide an adequate record undercuts their attack on

Juan Lino Garza, Sr.’s standing.

       C.     Regardless, Appellants’ challenges to the Garzas’
              standing address only one of the four independent bases
              supporting the judgment.
       Even if Appellants’ challenges to the Garzas’ capacity, standing, and/or the

statute of limitations had merit, Appellants raise such issues only with respect to

one claim: the breach of warranty of title.74 Judgment was expressly entered on

four separate claims: breach of warranty of title, breach of the covenant against

encumbrances, breach of implied covenants, and trespass to try title.75 The Garzas

also pleaded a mineral trespass occurred, and the trial court found as much.76 The

remaining claims support the judgment and damages, independent of the breach of

warranty of title claim.

       “[I]f an independent ground fully supports the complained-of ruling or

judgment, but the appellant assigns no error to that independent ground, then

(1) [the appellate court] must accept the validity of that unchallenged independent

ground, and thus (2) any error in the grounds challenged on appeal is harmless

74
        Appellants’ Brief at 17 (characterizing the case as “a suit for breach of a warranty of
title” and arguing that damages for breach of warranty of title are limited to the consideration
paid for the conveyance), 24 (framing the key question as “Who has the right to sue to enforce
the alleged warranty of title?” and arguing that the Plaintiffs who had standing to enforce the
breach of warranty of title claim were not added until 2014), 30 (arguing that Juan Lino Garza
lacked bring to bring a breach of warranty of title claim).
75
        CR196 (Final Judgment); CR225 (Findings of Fact and Conclusions of Law).
76
        CR104 (pleading trespass), 225 (Finding of Fact #8).

                                              30
because the unchallenged independent ground fully supports the complained-of

ruling or judgment.” Britton v. Tex. Dept. of Criminal Justice, 95 S.W.3d 676,

681–82 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (internal citations omitted);

Izaguirre v. Rivera, No. 14-12-00081-CV, 2012 WL 2814131, at *2 (Tex. App.—

Houston [14th Dist.] July 10, 2012, no pet.) (mem. op.). In sum, “[a]n appellant

must attack all independent grounds that fully support an adverse ruling; if he fails

to do so, then [the appellate court] must affirm that ruling.” Wolf v. City of Mission,

No. 13-12-00737-CV, 2013 WL 7864086, at *2 (Tex. App.—Corpus Christi Aug.

29, 2013, no pet.) (internal citations omitted); see also Nobility Homes of Tex., Inc.

v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977); Lacy v. Jackson, No. 13-11-00364-CV,

2012 WL 432698, at *2 (Tex. App.—Corpus Christi Feb. 9, 2012, no pet.); Gross

v. Carroll, 339 S.W.3d 718, 723 (Tex. App.—Houston [1st Dist.] 2011, no pet.);

Fox v. Maguire, 224 S.W.3d 304, 307 (Tex. App.—El Paso 2005, pet. denied); San

Antonio Press, Inc. v. Custom Bilt Mach., 852 S.W.2d 64, 65 (Tex. App.—San

Antonio 1993, no writ).

      Here, Appellants attack only one of four independent claims supporting the

judgment.77 Rather than addressing or even acknowledging the four separate bases,

Appellants sweepingly characterize the action as “a suit for breach of a warranty of




77
      Appellants’ Brief at 17.

                                          31
title.”78 In fact, Appellants do not even specify the statute of limitations for any

claim other than the breach of warranty of title.79 Thus, even if Appellants’

challenge to the Garzas’ capacity, standing, and/or the statute of limitations had

merit, their failure to challenge all independent grounds supporting the judgment

leaves this Court with no choice but to affirm. See San Antonio Press, 852 S.W.2d

at 65.

II.      The trial court properly denied Appellants’ Plea in Abatement.
         Appellants also challenge the trial court’s denial of their Plea in Abatement

and refusal to dismiss the suit for misjoinder, insisting that the non-party owners of

mineral interests in Share 13 were indispensable defendants.80 But Appellants

failed in three separate ways to comply with the Texas Rules of Civil and

Appellate Procedure in presenting and preserving the issue. Thus, the matter is

waived. See, e.g., Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (objection to

misjoinder of parties or omitted parties must be preserved in trial court);

Bluebonnet Farms, Inc. v. Gibraltar Sav. Ass’n, 618 S.W.2d 81, 83 (Tex. Civ.

App.—Houston [1st Dist.] 1980, writ ref'd n.r.e.); William V. Dorsaneo, III,

Compulsory Joinder of Parties in Texas, 14 HOUS. L.REV. 345, 369 (1977) (“The


78
        See id. at 9 (statement of the case), 10 (“Fundamentally, this is a suit for breach of a
warranty of title.”), 27, 30 (asserting that Juan Lino Garza, Sr. had “no standing to sue as a
successor in interest to the warranty of title”).
79
        See id. at 17–24 (no mention of statute of limitations or standing requirements for claims
other than breach of warranty of title).
80
        Id. at 31–37.

                                               32
doctrine of fundamental error should no longer protect persons from the binding

force of judgments when they have had an opportunity to raise the absence of the

nonjoined person and waived it.”). Moreover, Appellants failed to carry their

burden to establish the necessity of the omitted parties regardless. Thus, the trial

court did not abuse its discretion by refusing to dismiss the case. Cockrell v.

Mullins, No. 14-98-00405-CV, 2000 WL 1158360, at *2 (Tex. App.—Houston

[14th Dist.] Aug. 17, 2000, no pet.) (mem. op., not designated for publication).

      A.     The record is insufficient to permit review.
      As discussed supra, “[t]he burden is on the appellant to see that a sufficient

record is presented to show error requiring reversal,” and any omissions in the

record are presumed to support the judgment or order appealed from.81

Christiansen, 782 S.W.2d at 843; Harris v. Hooper, No. 04–10–00378–CV, 2011

WL 4389908, at *2 (Tex. App.—San Antonio 2011, no pet.) (mem. op.); Pyles,

2007 WL 4462738, at *2 n.6; CMM Grain Co., 991 S.W.2d at 439–40.

      Here, the trial court held a hearing on Appellants’ Plea in Abatement and

Motion to Dismiss on October 8, 2014.82 As the movants, Appellants bore the

burden to prove the need for joining the allegedly indispensable parties. United

States v. Rutherford Oil Corp., CIV.A. G-08-0231, 2009 WL 1351794, at *2 (S.D.


81
      See supra, Section I(B)(2).
82
      CR9 (docket sheet, reflecting hearing), 157–58 (Order denying Appellants’ Plea in
Abatement).

                                          33
Tex. May 13, 2009) (“The moving defendant has the burden of showing that a

party must be joined for just adjudication.”). However, Appellants have not

provided a transcript of this hearing, nor any evidence regarding the exhibits and

arguments offered. On this inadequate record, it is impossible to determine what

evidence the parties offered regarding the necessity or infeasibility of the

remaining mineral interest owners.

      Nevertheless, attempting to take advantage of their own error, Appellants

now argue that the evidence fails to support the trial court’s ruling.83 These

inadequacies must be construed in favor of the Garzas, and the Court must assume

that the missing evidence supported the trial court’s decision to deny the Plea in

Abatement. Pyles, 2007 WL 4462738, at *2 n.6; CMM Grain Co., 991 S.W.2d at

439–40. Thus, once again, Appellants’ failure to provide an adequate record

requires the Court to overrule their issue.

      B.     The Plea was untimely.
      Moreover, even if the appellate record were sufficient to enable review,

Appellants did not timely preserve the issue.

      A plea in abatement must be raised in a timely manner or it is waived.

Bluebonnet, 618 S.W.2d at 84 (noting that Texas law aligns with the “numerous

federal cases[,] . . . cases from other jurisdictions,” and “the majority trend in this


83
      Appellants’ Brief at 32–37.

                                          34
country . . . to require that dilatory pleas be timely raised or they are waived”).

“[A] court may examine the equities of the situation in deciding whether a plea in

abatement is timely filed,” and will consider a plea untimely if the party delays

filing or actively participates in the litigation while aware of the facts supporting a

plea in abatement. Howell v. Mauzy, 899 S.W.2d 690, 698 (Tex. App.—Austin

1994, writ denied) (holding plea in abatement untimely where party delayed

several months with awareness of the facts supporting a plea in abatement);

Bluebonnet, 618 S.W.2d at 84 (holding plea in abatement untimely where party

delayed for several years).

      For example, in Bluebonnet Farms, Inc. v. Gibraltar Sav. Ass’n, Bluebonnet

Farms sued Gibraltar in 1975 for breaching an agreement to loan Bluebonnet $1.5

million for real estate development. 618 S.W.2d at 82. Gibraltar participated in the

suit for four years before amending its answer to allege that Bluebonnet lacked the

capacity to sue. Id. Gibraltar then filed a motion for summary judgment on the

capacity issue, arguing that Bluebonnet could not correct the problem because the

statute of limitations had expired. Id. The trial court granted summary judgment,

but the Houston Court of Appeals reversed, holding that Gibraltar had not timely

asserted Bluebonnet’s capacity. Id.

      The court noted that Gibraltar was actively engaged in the suit for four years

without mentioning the capacity issue, and had no reason for its delay other than



                                          35
that “its defense of limitations would not be good if it had apprised appellant of

this complaint earlier.” Id. at 84. “The Texas Rules of Civil Procedure, (including

the special purpose of a plea in abatement) are designed to aid the speedy

disposition of litigation on its merits,” and “Texas courts have . . . denied the filing

of a plea in abatement where it was not timely filed or where it would work an

injustice to the plaintiff by forever barring him from a suit on the merits.” Id. at

83–84. Gibraltar’s delay thus waived its complaint regarding capacity. Id. at 84.

       Here, Appellants filed their Plea in Abatement more than eight years after

the Garzas’ initial bill of review.84 In the motion, Appellants claimed that there

were indispensable defendants who had not been added to the case.85 By the time

the plea was filed however, the statute of limitations barred the Garzas from

joining the omitted defendants.86 Appellants thus attempted to use the same tactic

as Gibraltar, participating in the suit for years before filing a dilatory plea so that

the plaintiff would be unable to correct the alleged error due to the statute of

limitations. See Bluebonnet, 618 S.W.2d at 83–84.

       In fact, Appellants’ delay and waiver were even more egregious than that of

Gibraltar. Appellants waited twice as long as Gibraltar to file their Plea in

Abatement—eight years rather than four—and delayed another eleven months after
84
        CR23 (Original Petition for Bill of Review, filed October 26, 2005), 85 (Plea in
Abatement or Alternatively, Motion to Dismiss for Misjoinder, filed November 7, 2013).
85
        CR85.
86
        CR147–56 (Garzas’ response to Appellants’ Plea); see also CR142 (Appellants’ assertion
of statute of limitations).

                                             36
filing the Plea before seeking a ruling.87 By the time Appellants finally secured a

ruling regarding abatement, the parties were only weeks away from trial.88 Thus, as

in Bluebonnet, Appellants’ delay waived the issue.

      C.     The Plea was unverified.
      Not only was Appellants’ Plea in Abatement untimely, but it was unverified.

Texas Rule of Civil Procedure 93(4) requires a plea in abatement to be verified in

order to preserve a party’s objection to a defect of the parties. TEX. R. CIV. P.

93(4). “The failure to verify a pleading required to be verified under Rule 93

generally waives any complaint that the trial court ruled adversely to the plea.” S.

County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 461 (Tex. App.—Corpus Christi

2000, no pet.); see also Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex. 1988)

(party waived right to complain regarding lack of capacity by failing to file a

verified denial under Rule 93(2)). Here, as discussed above, Appellants filed an

original Plea in Abatement eight years after the cause was filed, followed by an

Amended Plea in Abatement six months later.89 But neither motion was verified.90

Thus, Appellants failed to preserve the issue for appeal. TEX. R. CIV. P. 93(4); S.

County Mut. Ins. Co., 19 S.W.3d at 461.
87
       CR127 (First Amended Plea in Abatement, filed April 29, 2014), CR157 (Order, signed
on October 9, 2014).
88
       CR157 (Order, signed on October 9, 2014), 195 (stating that bench trial began on
November 12, 2014).
89
       CR85–89 (Plea in Abatement, unverified), 127–37 (First Amended Plea in Abatement,
unverified).
90
       Id.

                                           37
      D.    Appellants did not and have not carried their burden to
            show that there were “indispensable” defendants.
      Even if Appellants had filed a timely, verified plea in abatement and

provided an adequate appellate record for review, the trial court did not abuse its

discretion by proceeding without the omitted defendants.

      In 1971, the Texas Supreme Court revised Rule 39 of the Texas Rules of

Civil Procedure to “lessen the numbers of categories of indispensable parties.”

Cooper v. Tex. Gulf Indus., Inc., 513 S.W.2d 200, 203–04 (Tex. 1974); Hedley

Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 832 (Tex. App.—Amarillo

1993, writ denied). Thus, parties who qualify for joinder under Rule 39(a) are not

necessarily indispensable. See, e.g., Longoria v. Exxon Mobil Corp., No. 04-15-

00536-CV, 2016 WL 4013793, at *3 (Tex. App.—San Antonio July 27, 2016, pet.

filed) (mem. op.). In fact, “[u]nder the provisions of our present Rule 39 it would

be rare indeed if there were a person whose presence was so indispensable in the

sense that his absence deprives the court of jurisdiction to adjudicate between the

parties already joined.” Pirtle, 629 S.W.2d at 920 (quoting Cooper).

      The emphasis of Rule 39 is on pragmatism and practicality. McCarthy v.

George, 618 S.W.2d 762, 763 (Tex. 1981); Cooper, 513 S.W.2d at 204. Thus, as

the movants, Appellants had the burden to prove that the absent defendants were

indispensable parties without whom the trial court could not proceed. See Flowers

v. Steelcraft Corp., 406 S.W.2d 199 (Tex. 1966); In re Graybar Elec. Co., Inc.,

                                        38
No. 13-08-00073-CV, 2008 WL 3970865, at *8 (Tex. App.—Corpus Christi Aug.

26, 2008, orig. proceeding) (mem. op.) (“The movant has the burden of proof to

establish the allegations in his motion to abate”). Specifically, Appellants were

required to offer evidence on the four factors outlined in Texas Rule of Civil

Procedure 39(b): “first, to what extent a judgment rendered in the person's absence

might be prejudicial to him or those already parties; second, the extent to which, by

protective provisions in the judgment, by the shaping of relief, or other measures,

the prejudice can be lessened or avoided; third, whether a judgment rendered in the

person’s absence will be adequate; fourth, whether the plaintiff will have an

adequate remedy if the action is dismissed for non-joinder.” TEX. R. CIV. P. 39(b).

The trial court must then weigh these factors to determine if it could continue with

the present parties “in equity and good conscience.” TEX. R. CIV. P. 39(b).

      “[T]he trial court has broad discretion under the rules of civil procedure in

questions regarding the joinder of parties.” Hedley Feedlot, 855 S.W.2d at 833.

Appellants, therefore, must not only conclusively demonstrate the Rule 39(b)

factors on appeal, but must show that the trial court abused its discretion to such an

extent that the judgment between the parties should be thrown away simply for

failing to “settle the whole dispute.” Cooper, 513 S.W.2d at 203–04; see also

Pirtle, 629 S.W.2d at 920 (“[P]arties who participate in the trial without complaint

will not be heard to complain at the appellate stage when “there is reason not to



                                         39
throw away a judgment just because it did not theoretically settle the whole

controversy.”); Campbell v. Jefferson, 453 S.W.2d 336, 339 (Tex. Civ. App.—

Tyler 1970, writ dism’d) (“Complete relief between the parties could be and was

had in the cause of action.”).

       Appellants have not even attempted to carry this burden. It is undisputed that

not all owners of mineral interests in Share 13 were joined in the suit.91 Moreover,

it is undisputed that the absent defendants qualified as “persons to be joined if

feasible” under Rule 39(a) of the Texas Civil Practice and Remedies Code.92

However, by the time Appellants filed their Plea in Abatement in 2013, joinder of

the absent defendants was barred by the statute of limitations and thus infeasible.93

Though Appellants feign ignorance regarding why the potential defendants were

not joined, the infeasibility of joining such parties is noted throughout the record—

including in the Garzas’ response to Appellants’ Plea in Abatement.94

       Appellants further did not establish that the absent mineral interest holders

were indispensable to the judgment. In fact, there is no evidence that Appellants

ever addressed or offered evidence regarding the Rule 39(b) factors at all in




91
      See, e.g., CR127–31, 147–55 (Plea in Abatement and response, both acknowledging that
some owners of mineral interests are not party to the suit).
92
      CR153.
93
      CR153.
94
      Appellants’ Brief at 37 (“For whatever reason, the Appellees just did not do it.”); CR153.

                                              40
presenting the issue to the trial court.95 Neither Appellants’ Plea in Abatement nor

their Brief on appeal cite or address the factors in Rule 39(b).96

       Rather, Appellants claim there is an alleged mandatory rule regarding the

joinder of mineral interest owners, citing the word “shall” in Rule 39(a) and the

San Antonio Court of Appeals’ opinion in Longoria v. Exxon Mobil Corp.97 255

S.W.3d 174 (Tex. App.–San Antonio 2008, pet. denied). In reality, the Longoria

court explicitly rejected Appellants’ proposed mandatory rule, stating:

               The trial court has broad discretion in deciding matters of
               joinder of parties. . . . . Although the rule [i.e., Rule
               39(a)] provides for joinder in mandatory terms,
               “there is no arbitrary standard or precise formula for
               determining whether a particular person falls within
               its provision. . . . If a person required to be joined under
               Rule 39(a) cannot be joined, the trial court must decide
               “whether in equity and in good conscience the action
               should proceed among the parties before it, or should be
               dismissed” by considering the factors listed in Rule
               39(b).

Id. at 179–80 (emphasis added);98 see also, e.g., Ernst v. Banker’s Servs. Group,

Inc., No. 05-98-00496-CV, 2001 WL 1256524, at *2 (Tex. App.—Dallas Oct. 22,

95
        CR127–30 (Appellants’ First Amended Plea in Abatement, discussing only Rule 39(a)
and emphasizing the word “shall” without addressing the Rule 39(b) factors).
96
        See, generally, Appellants’ Brief at 32–37 (citing and quoting only Rule 39(a), and
claiming that the phrase “shall be joined” makes joinder mandatory); see also CR127–30 (same).
97
        Id.
98
        The facts of Longoria also significantly differ from the case at hand. Here, the trial court
did not abate the case or direct the Garzas to add the absent parties. In Longoria, the Longorias
were given six months to add the omitted parties but chose not to do so. Longoria, 255 S.W.3d at
184. Additionally, the Garzas demonstrated that joinder of the absent parties was infeasible,
triggering the analysis under Rule 39(b). CR121–25, 157–58. Such analysis was never triggered
in Longoria. Longoria, 255 S.W.3d at 184. Even more importantly, the trial court in Longoria

                                                41
2001, pet. denied) (mem. op., not designated for publication) (where plaintiff

fraudulently transferred remainder interest in real property to trusts and such trusts

were not added as defendants prior to statute of limitations, the trial court properly

adjudicated the dispute before it rather than dismissing under Rule 39); Tex. Oil &

Gas Corp. v. Ostrom, 638 S.W.2d 231, 235 (Tex. App.—Tyler 1982, writ ref'd

n.r.e.) (recognizing that joining the lessors and royalty-interest interests owners

would be wise, but holding that “we do not conclude that the absence of the lessors

and royalty interest holders deprived the trial court of jurisdiction to adjudicate the

dispute between the parties before it”). The primary emphasis in Longoria was thus

on the trial court’s discretion, not the allegedly per se nature of joinder. Compare

Longoria, 255 S.W.3d at 179–80, with Appellants’ Brief at 32–37.

       The Eastland Court of Appeals reiterated the wide latitude afforded trial

courts in matters of joinder in a parallel case: Sabre Oil & Gas Corp. v. Gibson. 72

S.W.3d 812 (Tex. App.—Eastland 2002, pet. denied). In 1957, the Gibsons—along

with numerous other landowners—entered into a mineral lease with Sabre

covering 38 tracts of land. Id. at 814. In 1997, Sabre drilled a well on the Gibson’s

land and filed a Designation of Unit pooling the land with other tracts. Id. The

Gibsons sued, claiming that Sabre’s lease had terminated. Id. Sabre filed a plea in

abatement, claiming that the other royalty owners pooled with the Gibsons’ tract

exercised its discretion to grant rather than deny the plea in abatement. Id. at 183. Here, the trial
court exercised its discretion by denying Appellants’ Plea in Abatement. CR157–58.

                                                42
were indispensable. Id. at 815. The trial court denied the motion. Id. On appeal,

Sabre challenged the trial court’s denial of its plea in abatement. Id. at 815.

       The Eastland Court of Appeals however, explicitly rejected the per-se rule

that “all royalty owners are necessary parties pursuant to Texas Rule of Civil

Procedure 39.” Id. at 815. The court noted that such rule existed only prior to the

enactment of the 1971 changes to Rule 39, and recognized that “Rule 39(a) no

longer speaks of ‘necessary’ and ‘indispensable’ parties, and Texas courts have

begun to discard these terms.” Id. at 815–16. The Eastland Court then affirmed the

trial court’s exercise of discretion in denying the plea in abatement, holding:

              The trial court was able to provide the requested relief
              without joining the other royalty owners. Although they
              had an interest in that their share of the production from
              the pooled unit would be affected, presence of the other
              royalty owners was not necessary to determine whether
              Sabre pooled in bad faith and breached the terms of the
              lease.

Id. at 816.

       Similarly here, the trial court was able to provide the requested relief without

the absent mineral interest owners.99 Appellants provided no evidence to establish

that the absent mineral interest holders were indispensable to the suit under the

Rule 39(b) factors.100 Thus, even if Appellants had preserved the issue and


99
       CR195–97.
100
       See, generally, Appellants’ Brief at 32–37 (citing and quoting only Rule 39(a), and
claiming that the phrase “shall be joined” makes joinder mandatory); see also CR127–30 (same).

                                             43
provided a sufficient appellate record for review, the trial court acted within its

discretion in denying Appellants’ Plea in Abatement.

III. The judgment against the estates and trust is valid.
      Appellants next challenge the validity of the judgment against the estates of

Vicente Saenz, Hilaria Hernandez and Olivia Salinas Perez and the Eduardo Saenz

Children’s Revocable Trust.101 However, the estates waived this issue by

participating in the judgment and appeal. Moreover, Appellants have, yet again,

failed to provide an adequate record for review.

      A.     The record shows that the estates and trust participated
             in the judgment and appeal.
      The Garzas do not dispute that Vicente Saenz, Hilaria Hernandez and Olivia

Salinas Perez died prior to trial, that suggestions of death were filed, and that the

clerk should have issued a scire facias to join the administrators of the relevant

estates. See TEX. R. CIV. P. 152. Nor do the Garzas deny that their petition names

the Eduardo Saenz Children’s Revocable Trust, and the Estates of Francisca

Vasquez, Eduardo Saenz, and Librada O. Salinas as defendants, rather than the

administrators or legal representatives. However, if an estate or trust is represented

at or otherwise participates in the trial, the judgment against the estate or trust is

nonetheless valid. Werner v. Colwell, 909 S.W.2d 866, 870 (Tex. 1995) (reiterating

the rule that when a trust is named as the defendant rather than the relevant trustee,
101
      Appellants’ Brief at 37–38.

                                         44
the trust waives the issue by appearing in the case); Bernstein v. Portland Sav. &

Loan Ass’n, 850 S.W.2d 694, 699 (Tex. App.—Corpus Christi 1993, writ denied),

disapproved of on other grounds by Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378

(Tex. 2000).

      In Bernstein v. Portland Sav. & Loan Ass’n, Portland Savings and Loan

Association sued Sidney and Zayle Bernstein in 1982 for fraud, conversion, and

conspiracy. 850 S.W.2d at 697. Defendant Sidney Bernstein died in 1985, while

the suit was still pending. Id. at 699. As here, Sidney’s personal representative was

never substituted or served with a scire facias. Id. A jury then found Sidney liable,

and the trial court entered judgment against Sidney’s estate. Id. The estate

appealed, asserting the same argument that Appellants assert: that the judgment

was void because an estate is not a legal entity, and scire facias never issued.

Compare id. at 699–700, with Appellants’ Brief at 37–38. However, Sidney

Bernstein’s personal representative participated in the trial, filing motions and

amended answers via counsel. Bernstein, 850 S.W.2d at 700. The estate even

appeared and announced ready for trial. Id. The court of appeals thus held that “the

judgment against the personal representative is valid, even though it was

incorrectly entered against the estate” because the estate “had notice of and

participated sufficiently in the case.” Id. at 700.




                                           45
       Here, the estates and trust were all represented at trial. From the beginning,

Eduardo Saenz Children’s Revocable Trust, and the estates of Francisca Vasquez,

Eduardo Saenz, and Librada O. Salinas filed a response to the Garzas’ Bill of

Review by and through Richard Schnell.102 The estates and trust did not file a

special appearance, and Schnell continued to represent the estates and trust

throughout the proceedings.103 In fact, Schnell continues to represent the estates

and trust even in this appeal.104

       Similarly, regarding the estates of Vicente Saenz, Hilaria Hernandez and

Olivia Salinas Perez, Appellants filed a suggestion of death for all three individuals

on November 6, 2013.105 No motion to withdraw as counsel for these parties was

filed after this date. Appellants’ own Plea in Abatement—filed approximately six

months later—explicitly stated that Vicente Saenz’s and Hilaria Hernandez’s

interests were still represented by Richard D. Schell.106 Appellants’ Notice of

Appeal then confirmed that Schnell not only represented Olivia Salinas Perez




102
        CR53 (reflecting Schnell as the attorney for the Estate of Francisca Vasquez, the Estate
of Eduardo Saenz, the Estate of Librada O. Salinas, and the Eduardo Saenz Children’s Revocable
Trust).
103
        See generally CR.
104
        CR212 (Notice of Appeal, filed by Richard Schnell on behalf of the Estate of Francisca
Vasquez, Estate of Eduardo Saenz, Estate of Librada Salinas, and the Eduardo Saenz Children’s
Revocable Trust).
105
        CR82.
106
        CR132–137 (chart attached to Appellants’ First Amended Plea in Abatement on April 29,
2014, reflecting that Sanez and Hernandez were represented by Schell).

                                              46
throughout the trial, but remains her counsel in this appeal.107 Since all estates and

the relevant trust were represented and participated in the trial court proceedings,

the judgment is valid.

       B.     Regardless, the record is inadequate to reverse the
              judgment against Olivia Salinas Perez.
       Even if the record did not indicate sufficient participation in the trial court

proceedings, the inadequate state of the record impedes Appellants’ assertion of

error. Olivia Salinas Perez died on May 9, 2003, prior to the dismissal of the

original cause number.108 But Appellants have failed to provide a copy of the

record from the original cause number.109 As such, the Court must construe the

missing record in the Garzas’ favor, and assume that scire facias was issued in the

original cause. Imagine Auto. Group v. Boardwalk Motor Cars, Ltd., 430 S.W.3d

620, 632 (Tex. App.—Dallas 2014, pet. denied) (“When confronted with an

incomplete record, we presume the omitted portions are relevant to the appeal and

the evidence contained within the omitted portions of the record support the trial

court's judgment.”); McFarland v. Szakalun, 809 S.W.2d 760, 764 (Tex. App.—

Houston [14th Dist.] 1991, writ denied) (“When the record is incomplete, we must

107
        See CR198 (Request for Findings of Fact and Conclusions of Law filed on Perez’s
behalf), 201 (Notice of Past Due Findings filed on Perez’s behalf), 212 (Notice of Appeal taken
on Perez’s behalf), 215 (request for Reporter’s Record filed on Perez’s behalf), 218 (Request for
Preparation of Clerk’s Record filed on Perez’s behalf).
108
        CR29 (original cause dismissed on May 12, 2004), 42 (Perez died May 9, 2003), 82
(same).
109
        See supra, Section I(B)(2).

                                               47
assume that the portion omitted supports the correctness of the trial court's

judgment.”). Thus, the judgment against Olivia Salinas Perez must be affirmed.

IV. The damages award is valid.
       Appellants next assert numerous challenges regarding the damages awarded

by the trial court. Appellants claim that, (a) actual damages are not available for

breach of the warranty of title; (b) there is no evidence of each Appellant’s interest

in the relevant property; (c) defendants cannot be held jointly and severally liable

without specific findings of individual liability greater than fifty percent; and

(d) the expert testimony supporting the damages award is unreliable.110 These

arguments are erroneous.

       A.      Appellants have not challenged all separate and
               independent grounds supporting the damages award.
       Appellants first argue that Texas law “limits the damages available to a

plaintiff who prevails on a cause of action for breach of warranty of title.”111

However, the Garzas asserted four separate causes of action against Appellants:

breach of warranty of title, breach of covenant against encumbrances, breach of

implied covenants, and trespass to try title.112 The trial court found Appellants

110
       Appellants’ Brief at 17–24 (regarding damages available for breach of warranty of title),
40–41 (regarding expert testimony), 41–44 (joint and several liability).
111
       Appellants’ Brief at 17–24. To clarify, when land is conveyed for consideration other
than money, damages for breach of the warranty of title are limited to the value of the land at the
time of the conveyance. Compare Ledbetter v. Howard, 395 S.W.2d 951, 953 (Tex. Civ. App.—
Waco 1965, no writ), with Appellants’ Brief at 17–19.
112
       See CR94–108, 196.

                                                48
liable for all four causes of action; the damages award was not narrowly

attributed—by the evidence or the trial court’s findings—to a solitary claim.113

Thus, there are four separate and independent grounds supporting the trial court’s

award of damages.114

      A trial court’s judgment must be affirmed if it can be upheld on any legal

basis supported by the evidence. Highland Credit Opportunities CDO, L.P. v. UBS

AG, 451 S.W.3d 508, 519 (Tex. App.—Dallas 2014, no pet.) (holding “the

conclusions of law will be upheld on appeal if the judgment can be sustained on

any legal theory supported by the evidence; incorrect conclusions of law will not

require reversal if the controlling findings of fact will support a correct legal

theory”); Conseco Fin. Servicing Corp. v. J & J Mobile Homes, Inc., 120 S.W.3d

878, 880–81 (Tex. App.—Fort Worth 2003, pet. denied) (“[I]t is our duty to

uphold the judgment on any theory of law applicable to the case.”). Thus, “[w]hen

a separate and independent ground that supports a judgment is not challenged on

appeal, the appellate court must affirm.” Bechtel Corp. v. City of San Antonio, No.

04-04-00910-CV, 2006 WL 228689, at *3 (Tex. App.—San Antonio Feb. 1, 2006,

no pet.) (mem. op.); Nichols v. Byrne, No. 13-97-456-CV, 1999 WL 58570, at *1

(Tex. App.—Corpus Christi Jan. 28, 1999, no pet.) (mem. op.) (same); see also

Nobility Homes, 557 S.W.2d at 83; San Antonio Press, 852 S.W.2d at 65 (“If the

113
      CR195–97, 223–26.
114
      CR195–97, 223–26.

                                        49
rule were otherwise, an appellant could avoid the adverse effect of a separate and

independent basis for the judgment by ignoring it and leaving it unchallenged.”).

      Here, Appellants attack only a single ground, claiming that the damages

awarded in a breach of warranty of title action may be no more than each

defendants’ proportional share of the compensation paid by the grantee.115

Appellants do not claim that this purported limit applies to damages awarded for a

breach of the covenant against encumbrances, breach of implied covenants, or

trespass to try title.116 In fact, Appellants do not even acknowledge these separate

and independent bases for the damages award.117 The Court is thus required to

affirm the judgment even if Appellants’ challenges to the damages for breach of

warranty of title had merit. Gillett v. Achterberg, 325 S.W.2d 384, 385 (Tex.

1959).

      B.     The Garzas are entitled to recover damages for trespass
             to try title and mineral trespass.
      Even if Appellants had addressed all the separate and independent bases for

the judgment, their challenge would nonetheless lack merit. The Garzas are entitled

to recover damages.

      “The plaintiff in a trespass to try title suit, by pleading facts showing it is

entitled, may recover rents and profits or damages incurred from loss of use.”

115
      Appellants’ Brief at 17–24.
116
      Id.
117
      Id.

                                        50
Victory Energy Corp. v. Oz Gas Corp., 461 S.W.3d 159, 177 (Tex. App.—El Paso

2014, pet. denied); Musquiz v. Marroquin, 124 S.W.3d 906, 912 (Tex. App.—

Corpus Christi 2004, pet. denied); United Sav. Ass’n of Tex. v. Villanueva, 878

S.W.2d 619, 623 (Tex. App.—Corpus Christi 1994, no writ); see also TEX. R. CIV.

P. 783(f) (a petition for trespass to try title may include, “[i]f rents and profits or

damages are claimed, such facts as show the plaintiff to be entitled thereto and the

amount thereof”). Furthermore, the Garzas expressly pleaded a mineral trespass,

which the trial court found occurred, and this valid legal theory would also support

the damages. See Victory Energy Corp., 461 S.W.3d at 177.118

      Here, Richard Cortez offered extensive expert testimony regarding

“plaintiffs’ share of the royalties for the period of ownership of this mineral

interest,” which totaled more than $1.578 million in light of the Litigation

Participation Agreement.119 Although Appellants claim there are limitations on the

damages for a breach of warranty of title action, they have offered no reason why

the Garzas are not entitled to recover actual damages in the form of lost royalty

payments for Appellants’ trespass to try title or mineral trespass.120 Thus, even if

Appellants had attacked each independent bases supporting the judgment, their

challenge would fail. And, a valid legal theory—mineral trespass—would support


118
      CR104 (pleading trespass), 225 (Finding of Fact #8).
119
      3RR77–79; 5RR Ex. PX-19–22.
120
      See, e.g., Appellants’ Brief at 17–24.

                                             51
the judgment anyway. Highland Credit Opportunities CDO, L.P., 451 S.W.3d at

519.

       C.      There is legally sufficient evidence showing Appellants’
               interest in Share 13.
       Amazingly, Appellants next claim there is “not a shred of evidence . . . that

showed who the Appellants were, what they owned, what they inherited, where

they lived, [or] what their relationship was to Eleuterio Salinas.”121 This statement

could not be farther from the truth. Not only was there ample evidence regarding

Appellants’ identify, property ownership, and relationship to Eleuterio Salinas, but

much of it was proffered by Appellants themselves.

       Even prior to the trial, Appellants judicially admitted on numerous occasions

that they were the predecessors in interest to Eleuterio Salinas; not “names out of

[a] phone book,” as they now allege.122 Appellants’ Plea in Abatement—a plea

they still champion in this appeal—states:

               Defendants would show the court that, in addition to the
               named defendants in this suit, there are many other
               persons who are record title owners of surface or mineral
               interests in Share 13.123

121
        Appellants’ Brief at 43–44.
122
        Compare, e.g., CR129, 3RR41:20–22, 45:12–25; 5RR Ex. DX-8, with Appellants’ Brief
at 43–44 (“[N]ot a shred of evidence was introduced that showed who the Appellants were. . . .
They could have just as easily picked names out of [the] phone book.”).
123
        CR129 (First Amended Plea in Abatement) (emphasis added); see also CR87 (initial Plea
in Abatement, stating “Defendants would show the court that, in addition to the named
defendants in this suit, the following persons are record title owners of the mineral interests that
Plaintiffs claim to own in this suit.”)

                                                52
At trial, Margarito Salinas—a defendant and Appellant, called to the stand by the

Appellants—testified on direct examination that “Eleuterio Salinas was my

grandfather,” and that Eleuterio died without a will, leaving his portion of Share 13

to his children.124 Appellants then offered and admitted into evidence an affidavit

of heirship, signed by Margarito Salinas and tracing the decedents of Eleuterio

Salinas in detail.125

       Margarito proceeded to testify regarding Eleuterio Salinas’ descendants,

their families, and their interests in Share 13, confirming that “[t]he Salinas family

has property in Share 13.”126 Later, Appellants agreed to the admission of a map of

Share 13, and Appellants’ counsel explained to the trial court that “all of these

people on the right side of the courtroom, along with Mr. [Margarito] Salinas, own

the remainder of Share 13” and are “descendants of Eleuterio Salinas.”127 When the

Garzas offered a second map showing Appellants’ family cemetery and residences,

located on Share 13, Appellants did not object.128 Then, in their closing argument,

Appellants reiterated that the named defendants were “owners of the property in



124
       3RR41:20–22 (stating that Salinas was his grandfather), 45:12–25 (stating that Salinas
died without a will as a single man, leaving the property to pass to his children); 5RR Ex. DX-8.
125
       5RR Ex. DX-8.
126
       3RR53:24–54:24 (testifying that the Salinas family has about 451 acres from Eleuterio,
divided among the heirs as family members passed away), 65:7–10, 66:17–20 (testifying that he
does not know of any Salinas family members who have conveyed the property outside the
family).
127
       4RR26:16–20.
128
       4RR27:11–28:16; 5RR Ex. PX-27.

                                               53
Share 13 that at one time belonged to Eleuterio Salinas.”129 Appellants’ assertion

that there is “no evidence” of their identity, property ownership, or relation to

Eleuterio Salinas is thus absurd. Not only is there legally sufficient evidence to

show the Appellants’ identity, property ownership, and relationship to Eleuterio

Salinas, but much of the evidence was offered by Appellants themselves.

      D.     Appellants were properly held jointly and severally liable
             for the damages.
      Next, Appellants challenge the trial court’s imposition of joint and several

liability.130 Specifically, Appellants assert that joint and several liability may only

be imposed under Chapter 33 of the Texas Civil Practice and Remedies Code, and

claim that the Garzas did not establish each Appellant’s liability on an individual

basis, nor prove that a singular Appellant was more than fifty percent liable.

Appellants fail to recognize however, that joint and several liability may be

imposed on joint parties to a trespass.

      The trial court did not err by holding Appellants jointly and severally liable.

Rather, “[t]he imposition of joint and several liability turns upon the actions of the

joint-trespassers as parties to the trespass;” not the extent of their individual

violation. Victory Energy, 461 S.W.3d at 180–81; see also Walker v. Read, 59 Tex.

187, 191 (Tex. 1883); Plebian Partners, Ltd. v. McCorkle, No. 9-98-320 CV, 1999


129
      CR184.
130
      Appellants’ Brief at 41–44.

                                          54
WL 199641, at *3 (Tex. App.—Beaumont Apr. 1, 1999, pet. denied) (mem. op.,

not designated for publication) (quoting and applying Parker v. Kangerga to hold

parties to trespass jointly and severally liable); Hexamer v. Topographic Land

Surveyors, No. 05-97-00108-CV, 1999 WL 114390, at *2 (Tex. App.—Dallas

Mar. 4, 1999, no pet.) (mem. op., not designated for publication) (“Liability for

trespass is not dependent upon personal participation and one who causes another

to trespass by aiding, assisting, advising or encouraging the trespass is equally

liable for the trespass.”); Parker v. Kangerga, 482 S.W.2d 43, 47 (Tex. Civ.

App.—Tyler 1972, writ ref'd n.r.e.); 70 Tex. Jur. 3d Trespass to Realty § 12 (2016)

(“Liability for trespass is not dependent upon personal participation.”); 70 Tex. Jur.

3d Trespass to Realty § 14 (2016) (“The imposition of joint and several liability for

a trespass turns upon the actions of the joint-trespassers as parties to the trespass,

and personal participation is not required.”).

      For example, in Victory Energy Corp. v. Oz Gas Corporation, the Oz Gas

Corporation filed a trespass to try title suit against Victory Energy Corporation,

SmartGas, LLC, and HCP Investments, LLC, among others. 461 S.W.3d at 159–

69. Oz held a leasehold interest in 160 acres of land, and claimed that the

defendants trespassed by operating wells on the property. Id. at 168–69. However,

a third party had purported to convey an interest to the defendants. Id. The trial

court entered summary judgment regarding the defendants’ liability, then held a



                                          55
bench trial on damages. Id. at 169. The defendants were held jointly and severally

liable for the actual damages resulting from their trespass. Id. On appeal, the

defendants challenged the imposition of joint and several liability, claiming that

the trial court erred by failing to impose liability specific to each party or well. Id.

at 180.

      The El Paso Court of Appeals rejected this argument, reiterating the century-

old rule that “all who aid or abet the commission of a trespass are liable jointly or

severally.” Id. (citing Cunningham v. Coyle, 1884 WL 8399, at *1 (Tex. Ct. App.

1884)). The court thus held:

             The imposition of joint and several liability turns upon
             the actions of the joint-trespassers as parties to the
             trespass. Thus, the legal or factual insufficiency of the
             evidence showing whether appellants actually trespassed
             as to both wells or benefitted is not directly relevant to
             the issue of whether the damages may be assessed jointly
             and severally given that personal participation is not
             required.

Victory Energy, 461 S.W.3d at 180–81.

      Similarly, here Appellants were parties to the trespass. Margarito Salinas—a

defendant and appellant—testified regarding the operation of wells on Share 13,

confirming that Eleuterio Salinas’ decedents executed and profited from the oil and

gas leases on Share 13.131 The Garzas presented detailed production data from the

U.S. Data Library—a resource that aggregates information from the Texas

131
      3RR67:7–68:14; 5RR Ex. DX-6.

                                          56
Railroad Commission—regarding the producing wells on the Appellants’ portion

of Share 13.132 Richard Cortez provided expert testimony, a report, and

calculations regarding the production and royalties collected by the Appellants for

oil and gas wells on Share 13.133 The defendants offered no controverting data or

expert testimony.134

          As in Victory Energy, the trial court held all those who participated in the

trespass—i.e., all Appellants—jointly and severally liable.135 Appellants were

parties to trespass; specific findings regarding the extent of each trespasser’s

individual participation were not necessary. Victory Energy, 461 S.W.3d at 180–

81. Thus, the trial court did not err in holding Appellants jointly and severally

liable.

          E.    Appellants did not preserve their challenge to Cortez’s
                foundational data.136
          Finally, Appellants claim that the “expert testimony of Richard Cortez on

damages was not reliable,” “would not have survived a Daubert challenge,” and




132
         3RR75–76; 5RR Ex. PX-18–22.
133
         5RR Ex. PX-18 (expert report, detailing production data, calculations, and profits), P-19–
20 (production data for Salinas wells), P-21–22 (expert calculations regarding royalties, taxes,
profit).
134
         See, generally, 3RR105:15–106:5 (Cortez testifying that he was unaware of any other
experts in the case).
135
         CR195–97, 223–226.
136
         The admission of expert testimony is reviewed for an abuse of discretion. Cooper Tire &
Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006).

                                                57
“is no evidence of damages.”137 Specifically, Appellants criticize Cortez for relying

on data provided to him by the Garzas “who got it from a website operated by a

private company,” while alleging that Cortez himself “had no prior experience

with that website and did no investigation of how such data was obtained or

whether it was reliable.”138 This is a challenge to the admissibility of Cortez’s

testimony based on his foundational data. See, e.g., Mar. Overseas Corp. v. Ellis,

971 S.W.2d 402, 409 (Tex. 1998) (“Daubert’s focus is on the trial court’s

discretion, when faced with an objection to scientific evidence, to admit or exclude

such evidence before or during the trial.”). This type of challenge must be properly

objected to and preserved at trial, or it is waived. Coastal Transport, Inc. v. Crown

Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004); see also E.I. du Pont de

Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1996).

       The Texas Supreme Court has held that, even in the context of no-evidence

attacks on expert testimony, a Daubert/Robinson challenge to the reliability of the

underlying data “must be timely made in order to allow the court to exercise its

gatekeeper function.” Coastal Transport, 136 S.W.3d at 229 (citing Mar.

Overseas, 971 S.W.2d at 411); see also Merrell Dow Pharm. v. Havner, 953

S.W.2d 706 (Tex. 1997). The Court explained:
137
        Appellants’ Brief at 40–41.
138
        Appellants’ Brief at 40; see also 4RR37:19-39:2 (Appellants’ closing argument, in which
counsel stated: “In terms of damages, the only evidence they have on damages is their expert
witness, the mayor, Mayor Cortez, who did a great job in math but admitted to the Court that . . .
all he did was rely on printouts from a website that were provided to him from the plaintiffs.”).

                                               58
             When the expert's underlying methodology is challenged,
             the court “necessarily looks beyond what the expert said”
             to evaluate the reliability of the expert's opinion. . . . We
             therefore conclude that when a reliability challenge
             requires the court to evaluate the underlying
             methodology, technique, or foundational data used by
             the expert, an objection must be timely made so that
             the trial court has the opportunity to conduct this
             analysis. However, when the challenge is restricted to
             the face of the record, for example, when expert
             testimony is speculative or conclusory on its face, then a
             party may challenge the legal sufficiency of the evidence
             even in the absence of any objection to its admissibility.

Coastal Transport, 136 S.W.3d at 229 (emphasis added) (internal citations

omitted). Thus, the only no-evidence challenge to expert testimony that can be

asserted for the first time on appeal is an attack on the evidence as conclusory or

speculative on its face. Id.

      Here however, Appellants have not and do not argue that Cortez’s testimony

was speculative, conclusory, or otherwise non-probative on its face.139 Rather,

Appellants attack Cortez’s testimony only as to the foundational data upon which

Cortez relied.140 Yet, Appellants never filed a pretrial Daubert motion to strike

Cortez’s testimony, nor did they make an oral objection during trial.141 Appellants

cross-examined Cortez regarding the data he relied upon, but did not object to or




139
      Appellants’ Brief at 40–41.
140
      Id.
141
      See, generally, CR; 3RR72–105.

                                          59
secure a ruling on the reliability of such testimony.142 In fact, although Appellants

condemn Cortez’s use of information “provided to him by the Plaintiff who got it

from a website operated by a private company,” Appellants did not actually object

to the admission of the allegedly unreliable website data as trial exhibits, nor did

they object to the admission of Cortez’s documented calculations made in reliance

on such data.143 Consequently, Appellants’ challenge to Cortez’s foundational data

has been waived. See TEX. R. APP. P. 33.1.

       This case is similar to Maritime Overseas Corp. v. Ellis. There, Maritime

employee Richard Ellis was awarded $12.6 million in damages for overexposure to

a roach pesticide that caused him neurological issues. Mar. Overseas, 971 S.W.2d

at 404–05. Maritime appealed, complaining that there was no evidence to support

Ellis’s actual damages. Id. at 408. The Texas Supreme Court refused to analyze the

reliability of Ellis’s expert testimony. Id. at 411. Instead, the Court held that

Maritime had waived the issue by not objecting to the reliability of Ellis’s experts

before or during trial. Id. at 410–11 (contrasting Maritime with Merrell Dow,

142
        3RR76 (“Your Honor, we don’t have any problems in admitting it as a summary of
Mayor Cortez’s testimony, but we’re not—we’re not agreeing to the truth of the matters stated in
the report.”), 3RR77:12 (Appellants did not object when the U.S. Data Library reports were
admitted into evidence), 3RR79:12–80:25 (no objection when charts of Cortez’s calculations of
lost royalties based on the reports were admitted), 80–103 (Appellants’ cross examination);
4RR37:19-39:2 (Appellants’ closing argument, in which counsel stated “Mayor Cortez, who did
a great job in math but admitted to the Court that . . . all he did was rely on printouts from a
website that were provided to him from the plaintiffs.”).
143
        Appellants’ Brief at 40–41; 3RR77:12 (no objection when the U.S. Data Library reports
were admitted into evidence), 3RR79:12–80:25 (no objection when charts of Cortez’s
calculations of lost royalties based on the reports were admitted).

                                              60
where the appellant “objected to the Havners’ scientific evidence at several

junctures during the litigation,” including filing numerous pretrial Daubert

motions). Maritime could not “complain for the first time after the verdict that the

testimony from Ellis’s five experts does not support the judgment.” Maritime, 971

S.W.2d at 411.

        Appellants never filed a Daubert motion, never made formal objections on

the record regarding the reliability of Cortez’s expert opinion, and did not even

object to the U.S. Data Library reports when they were admitted into evidence by

the trial court.144 Thus, Appellants’ attack on the reliability of Cortez’s

foundational data is an attempt to bypass and undermine the “gate-keeper.”

Accordingly, this issue has been waived and must be overruled. See TEX. R. APP. P.

33.1.

                       CONCLUSION AND PRAYER
        Appellants assert a multiplicity of scattered arguments, none of which

provide a legal basis for reversing the trial court’s final judgment. Thus, for the

reasons set forth above, Appellees respectfully request that this Court affirm the

trial court’s judgment, and grant any other relief to which they are entitled.




144
        3RR77:12.

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Respectfully submitted,

/s/ Brandy Wingate Voss
Brandy Wingate Voss
State Bar No. 24037046
Allegra Hill
State Bar No. 24075965
LAW OFFICE OF BRANDY WINGATE VOSS
820 E. Hackberry Ave.
McAllen, TX 78501
(956) 688-9033
(956) 331-2230 (fax)
brandy@brandyvosslaw.com
allegra@brandyvosslaw.com

Counsel for Appellees




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                  CERTIFICATE OF COMPLIANCE
      This document complies with the typeface requirements of Texas Rule of

Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface

no smaller than 14-point for text and 12-point for footnotes. This document also

complies with the word-count limitations of Rule 9.4(i), if applicable, because it

contains 14,670 words, excluding any parts exempted by Rule 9.4(i)(1).

                                     /s/ Brandy Wingate Voss
                                     Brandy Wingate Voss




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                        CERTIFICATE OF SERVICE
      On December 29, 2016, in compliance with Texas Rule of Appellate

Procedure 9.5, I served a copy of this petition for writ of mandamus by e-service,

e-mail, facsimile, or mail to:

      Richard D. Schell
      LAW OFFICES OF RICHARD D. SCHELL
      1801 S. 2nd Street, Suite 460
      McAllen, Texas 78503
      Fax: (956) 687-3329
      Email: rick@rickschell.com


                                     /s/ Brandy Wingate Voss
                                     Brandy Wingate Voss




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