                                                                              ACCEPTED
                                                                          03-14-00731-CV
                                                                                  4943224
                                                               THIRD COURT OF APPEALS
                                                                          AUSTIN, TEXAS
                                                                    4/20/2015 12:00:00 AM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK
                     CAUSE NO. 03-14-00731-CV

                    IN THE COURT OF APPEALS              FILED IN
                                                  3rd COURT OF APPEALS
                    THIRD DISTRICT OF TEXAS            AUSTIN, TEXAS
                         AUSTIN, TEXAS            4/20/2015 12:00:00 AM
                                                      JEFFREY D. KYLE
                                                           Clerk


__________________________________________________________________

                     JUANA MENDEZ VALDEZ
                      ET VIR JUAN VALDEZ
                                         APPELLANTS,
                               VS.
                     MELODY MUELLER MOERBE
                                         APPELLEE,
__________________________________________________________________


                    APPELLANT’S REPLY BRIEF

__________________________________________________________________


                                         O. F. JONES III
                                         ATTORNEY AT LAW
                                         109 W. SANTA ROSA
                                         P. O. DRAWER E
                                         VICTORIA, TEXAS 77902
                                         361-573-6381 (Phone)
                                         361-576-4607 (Fax)
                                         OFJones360@gmail.com
                                         State Bar No. 10974000

                                    ATTORNEY FOR APPELLANT




                                1
                                     TABLE OF CONTENTS
                                                                                                      PAGE


REPLY ARGUMENT (Paragraphs 1 through 15)................................ 6

PRAYER ................................................................................................ 20

CERTIFICATE OF SERVICE .............................................................. 21




                                                           2
                                       LIST OF AUTHORITIES
Case                                                                                                       Page(s)

Brohlin v. McMinn, 341 S. W. 2d 420, ( Tex. 1960) ........................................... 13, 16

Christi v. Brewer, 374 S. W. 2d 908, 914 (Tex. Civ.
       App. - Austin, 1964, wr. ref. n. r. e.); ........................................................ 8

Coleman v. Waddell, 151 Tex. 337, 249 S. W. 2d 912 (Texas 1952) ................... 17

Davis v. Howe, 213 S. W. 609 (Commission of Appeals 1919). .......................... 13, 16,

De Alonzo v. Solis, 709 S. W. 2d 690, (Tex. App. -San
      Antonio, 1986, wr. ref. n. r. e) ................................................................... 17

Dickson v. Dickson, 993 S. W. 2d 735 (Tex. App. - Houston
      [14th Dist.] 1999. ........................................................................................ 17

Doyle v. Ellis, 549 S. W. 2d 62 (Tex. Civ. App. - Waco, 1977) .......................... 17

Dreihs v. State, 301 S. W. 2d 123, (Tex. Ct. Crim, App. 1957) ........................... 8

Davidson v. Great National Life Insurance Company,
      737 S. W. 2d 312, 314 (Tex. 1987) ............................................................ 8

Harmon v. Overton Refining Co., 130 Tex. 365,
     109 S. W. 2d 457 (1937) ............................................................................ 18

Mortenson v. Trammell, 604 S. W. 2d 269, 277, (Tex. Civ.
      App. - Corpus Christi, 1980, no wr. hist.); .............................................. 8

Padilla v. NCJ Dev., Inc. 218 S. W. 3d 811, 815, (Tex.
      App. - El Paso, 2007, pet dism). ............................................................ 6,7

Spiritas v. Robinowitz, 544 S. W. 2d 710, 721, (Tex.
       Civ. App. - Dallas , 1976, wr. ref. n. r. e.); ................................................ 8

Statham v. City of Tyler, 257 S. w. 2d 742, 745 (Tex. Civ.
      App. - Texarkana, 1953 n. r .e . ................................................................. 13



                                                              3
Villalon v. Bank One, 176 S. W. 3d 66, 70 (Tex. App. - Houston
       [1st Dist.], 2004, pet den.) .................................................................. 6


Tex. Jur 3rd, Adverse Possession, §112, ............................................................... 13




                                                         4
                            CAUSE NO. 03-14-00731-CV

                    IN THE COURT OF APPEALS
                    THIRD DISTRICT OF TEXAS
                          AUSTIN, TEXAS
__________________________________________________________________

                             JUANA MENDEZ VALDEZ
                              ET VIR JUAN VALDEZ

                                                                       APPELLANTS,
                                            VS.

                          MELODY MUELLER MOERBE

                                                   APPELLEE,
__________________________________________________________________

                   APPELLANT’S REPLY BRIEF
__________________________________________________________________

TO THE HONORABLE JUDGES OF SAID COURT:

       Appellants JUANA MENDEZ VALDEZ ET VIR JUAN VALDEZ
present herewith their Appellant’s Reply Brief.


       This Reply Brief is mainly intended to reply to the position and allegations of
Appellee in her Brief. Appellant has not repeated, and does not recite, all of the
authorities cited in their Appellant’s Brief and its appendices, except where specifically
pertinent to Appellee‘s allegations. For the most part, we address Appellee’s arguments
in the order in which they are found in that Brief.




                                              5
       1.      As set forth in Appellant’s Brief and the pleadings in the trial court, after
Appellee filed a Forcible Entry and Detainer suit in the Justice Court in Fayette County,
Appellants filed this suit in Trespass to Try Title, and for a Declaratory Judgment, to
establish that they had perfected title to the property that they had been living on for
fourteen years. Because there was no landlord tenant relationship between the parties
which would have given Appellee a basis to claim the right to immediate possession of
the premises, the right to possession could only be determined by an inquiry as to who
had the greater title to the property; as a result, the Forcible Entry and Detainer Suit was
an invalid attempt to establish title in a “cheap’ manner, and was in actuality no lawsuit to
interrupt the time claim of Appellants because the justice court had no jurisdiction.
Thus, the plaintiff Appellants’ action was not time barred, and their title in fact
established by the five year statute of limitations; they had already perfected title under
the ten year statute when that justice court case was filed.
       It may be important to particularly note that the two statutes of limitations
involved, Texas Civil Practice and Remedies § Code 16.025 and §16.026 use the
language “ a person must bring suit . . . . to recover real property held in peaceable and
adverse possession by another . . . ”, thus presuming that possession has already been
appropriated by the person so sued, to the extent that title has been gained thereby.
On the other hand, Forcible Entry suits, as governed by §24.001 and§ 24.002 of the Texas
Property Code, only deal with a person without a legal claim refusing to surrender
possession, thus presuming that the person seeking eviction is the true owner. Thus, the
rationale of the cases cited previously that a suit in Forcible Entry and Detainer under
either of these two Property Code sections cannot and does not invoke a title question so
as to interrupt the claim of title of an adverse possessor, and if title is an issue, then the
justice court has no jurisdiction over the controversy, and the case is a “nonentity”. See
cases cited on page 33 of Appellant’s Brief, particularly Villalon v. Bank One, 176 S.
W. 3d 66, 70 (Tex. App. - Houston [1st Dist.], 2004, pet den.) and Padilla v. NCJ


                                                6
Dev., Inc. 218 S. W. 3d 811, 815, (Tex. App. - El Paso, 2007, pet dism).


       2.     In addition, on trial Appellants clearly established that they had occupied
the premises for more than ten consecutive years, that they had met all of the elements to
establish title based on the ten year statute of limitations, and now assert that the jury’s
answer to the Question regarding the ten year statute was clearly not only contrary to the
undisputed great weight of the evidence, but that there was absolutely no evidence to
support the jury’s negative answer.
              Counsel for Appellee rails at great length about how the Appellants
testimony could be given no credence because it was not “clear, direct, positive, and with
no issue of credibility”. Appellee completely ignores the fact that Appellant’s testimony
was completely clear, direct and positive with respect to each element of both statutes that
had to be proven in order to establish adverse possession, and that it was also fully
corroborated by the exhibits produced which reflected the date of their entry on the
property when their utility services began, by the testimony of the surveyor Mr. Tim
Hearitage, by the tax appraisal district tax records and by the testimony of the Chief Tax
Appraiser. Instead, he concentrated his cross examination of Appellant Valdez on
collateral immaterial issues, where he admittedly did mix her up, and on his own
characterization of her testimony and acts as lies and fraud.
              Mrs. Valdez is of Mexican descent. She barely has any schooling or
education. She testified through an interpreter. She speaks only broken English and has
very little reading comprehension of English. These facts apparently were considered by
the jury, in addition to the rest of the evidence presented by counsel for both sides. But
counsel for Appellee has characterized her as a liar and a cheat, and guilty of fraudulent
activity ( putting her in the position of being responsible for the legal acts of her then
counsel, Mike Steinhauser) without any real justification for any of that, and counsel for
Appellants believes that this was inappropriate on his part.


                                               7
       3.      It is singularly significant that nowhere in counsel for Appellee’s argument
does he ever raise the issue or argue the evidence to support the defendant’s burden to
file suit to “recover” title to the property within a certain time frame. (In point of fact, she
has never done that.) The entire thrust of the Appellee’s appellate argument, which was
also his theory and trial tactic, was to try to discredit the credibility of the Plaintiff Juana
Mendez Valdez. But attempting to collaterally attack on non relevant side issues does
not effect her credibility on the crucial issues, particularly when there is other supporting
and corroborating evidence. See Christi v. Brewer, 374 S. W. 2d 908, 914 (Tex. Civ.
App. - Austin, 1964, wr. ref. n. r. e.); Spiritas v. Robinowitz, 544 S. W. 2d 710, 721,
(Tex. Civ. App. - Dallas , 1976, wr. ref. n. r. e.); Mortenson v. Trammell, 604 S. W. 2d
269, 277, (Tex. Civ. App. - Corpus Christi, 1980, no wr. hist.); Dreihs v. State, 301 S. W.
2d 123, (Tex. Ct. Crim, App. 1957); see also Davidson v. Great National Life Insurance
Company, 737 S. W. 2d 312, 314 (Tex. 1987).


       4.      The appellate standard of review in a case where the jury verdict is
against the party with the burden of proof is to first determine whether there is any
evidence to support the contrary verdict. The appellate rule is that if there any evidence
to support the verdict, then the appeal fails, because the Appellant has the appellate
burden to establish the case as a matter of law. Appellant submits that there is absolutely
no evidence to establish that Appellee is entitled to a verdict or a judgment. The record is
very clear and the evidence is undisputed that Appellee did nothing at all to protect and
preserve her claimed record title interest in the 0.92 are tract at issue. The reason that
Appellants had to clear the property from its heavy brush and trash cover which was on it
when they first went on the property was because between 1992 and 2000, and in fact
2009, Appellee did nothing in the way of maintenance or clearing. In fact, Appellee’s
evidence is perhaps even more conflicting than Appellee claims Appellant’s side to be;
for example, Appellee’s sole contention really is that she did not know where to look and


                                                8
therefore was not aware that anyone was occupying “her” property until late 2009, when
her husband for the first time spotted the Appellant’s mobile home on the property, but
the evidence is that Appellant had moved her mobile home on the property in 2000, and
had paid water and sewer fees to the City of Flatonia in that year, ( as well as ad valorem
taxes as assessed by the County Tax assessor); yet Appellee testified that she had listed
the property for sale in 1995 with a Realtor, and then again in 2001 (after the Appellant’s
mobile home was already there) and after Appellants were in the process of clearing the
heavy brush that covered that part of the property that they had not already cleared and
located their mobile home upon. But to believe she never went on the property, never had
any discussion with the realtor about is actual location on the ground, never considered its
location next to the Interstate highway and the next door motel, and just paid the tax
notices that were sent to her, is hardly credible, and if credible is proof of gross neglect.
No wonder counsel for Appellee could not defend that position.
       Appellee testified that her mother died in 1992 (RR. Vol 4, p. 20, l. 9) and that the
responsibility for paying the taxes passed to her (RR Vol. 4, p. 22, l. 14). Her efforts to
monitor the property, prior to 2009, according to her, was to look at where she thought
the property was when she drove by on the way to a family reunion in Schulenberg. (RR
Vol 4, p. 22, l. 23) She had the obligation not only to look, but to see. She said that she
had a relative who had walked on the property with her uncle in 1998 (RR Vol 4, p. 22, l.
23). She said that in 2009, after her husband had seen the Valdez mobile home on the
property and they went by and looked at it, that the “upper left hand corner” was still
covered with brush and it was hard to tell where it was without a survey, (RR Vol 4, p.
27) but Mr. Hearitage had testified that it was already mostly cleared when he did his
survey work in 2006 (RR Vol 3, p. 112, ls. 8 - 12) as did Mrs. Valdez; Mr. Hearitage
also said that the buildings shown on his plat (Exhibit 6) on the Seeberger part of the
property, which consisted of two mobile homes and two sheds, were there in 2006. It is
very clear that Mrs. Moerbe did nothing to maintain, monitor or see after her property


                                              9
from 1992 until at least 2009, and then, when put on notice, still did nothing until finally
in March, 2012, she had her attorney employer file an ineffective suit in the Justice Court.
She admitted that from 1992 until 2009 that she did nothing to physically inspect the
property herself. (RR Vol 4, p. 36, l. 17) Appellant now suggests that the reason that was
done, by people knowledgeable of the law, (RR Vol 4, p. 43) was that they already knew
the ten year statute had run on them and that a suit in trespass to try title to “recover” the
property would be defeated.
       The 1.93 acre tract claimed by Appellant is shown on the Hearitage plat to be
roughly 283' by 332', about the size of a football field. The Seeberger tract deed
described it as 75 varas by 75 varas; the length of a vara has some controversy, but is
generally considered to be about 2' 9", so this distance would have been roughly 206'
square. It was not, and is not, a big tract. It could easily have been seen in its entirety
from the car on Interstate 10, or from a car on Hackberry Street. See also the photographs
in evidence, reflecting the current (at the time of trial) condition, which Appellant
testified looked the same as it did after her husband had finished clearing out the front
part where they put their home in 2000.


       5.     The evidence is clear, undisputed and Appellee’s counsel did not ever
even discuss the subject, that in 2006 Appellant desired to obtain city utility services from
the City of Flatonia. She went to the city, and she was told that she had to have a survey.
Not knowing what that was all about, she went to lawyer Mike Steinhauser, who had
handled the real estate transaction when she bought the property from Mrs. Gordon, who
in turn had bought the property from Mr. Steinhauser. Mr. Steinhauser arranged to get
the property surveyed for her, by the surveyor Timothy Hearitage. So far, so good; no
contest from Appellee or her counsel about this.


       6.     Problem arises. After Appellant told the surveyor where the property


                                              10
was that she was claiming as hers, and the surveyor did his work, he told her that the deed
that she had did not convey to her the property that she was claiming. Why did
Appellant tell the surveyor where the property was that she was claiming? She says that
it was because that was where Mrs. Gordon told her the four corners were that she was
buying. Counsel for Appellee now lights in to Appellant and accuses her of lying. He
says that Mrs. Gordon could not have told her that, because Mr. Steinhauser said that no
one could know where the property was without a survey. But in fact, Appellant says,
without dispute, that the property that she bought was the property that Mrs. Gordon had
a “For Sale” sign on, and how else would Appellant have had any idea whatsoever where
the property boundary lines were but for some representation by Mrs. Gordon. It makes
no difference at all whether Mrs. Gordon was “brutally honest” or not, or whether she
was really accurate or honest when she told Appellant what she was buying; Appellant
understood and believed that she was buying the “four corners” and that was why she put
her mobile home in that location. There is absolutely no other evidence to suggest that
Appellant located there for any other reason. So all of Appellee’s counsel’s argument
about whether Appellant was “lying” or not is a red herring; whether it did in fact
persuade the jury or not is not relevant, although apparently it may have. His
presumption that Mrs. Gordon could not have told Appellant the location has no basis in
fact, and is purely speculative, and the entire premise was collateral and not relevant. See
cases cited above, p. 4.


       7.     Appellee attempted to attack Appellant’s credibility on other issues as
well, but Appellant now argues that such attack’s were totally irrelevant. Even assuming
that he was successful in establishing that Appellant had misidentified the “black jack
tree” in the very early deed description, so what. How did that effect when she and her
present husband moved on the property and began to clear it and use it and pay taxes on it
and claim it as against all the world?


                                             11
       8.     When Hearitage told Appellant that the deed that she was claiming
under did not convey to her the property upon which she was living, what did she do?
What would any reasonably prudent person do? Hopefully they would go to a competent
lawyer, and ask how to fix the problem. She did. She went back to Steinhauser, and in
effect, said, “ what do I do now?’ Steinhauser did what needed to be done. He prepared
and had her sign an affidavit of possession and occupancy; counsel’s argument that
Valdez prepared, and filed, a false, fraudulent affidavit is simply not true. Steinhauser
incorporated what the facts actually were, as he knew them, which were legally important
to clearing the title; he did make a mistake with regard to the amount of the acreage that
the tax office included in the tax rendition, but that was not the Appellant’s fault, or even
within her knowledge, and not a fatal error in any way. Clearly Juana Mendez Valdez,
who speaks broken partial English, and does not read English well, and had no knowledge
of the law, could not do any more than what her lawyer told her to do. He prepared a
“corroborating affidavit” and told Appellant to get someone to sign it; was this fraud?
Was the Appellant’s actions in locating someone who knew her to sign the affidavit
fraud? Not legally, but how would a lay juror know that? And then, how does that
impact the burden of proof in this case? It should not have, but perhaps it did. The
corroborating affidavit plays no significant legal impact on the issues in this case before
the jury.


       9.     Counsel for Appellee spent a great deal of time in his brief arguing that
Appellant Juana Valdez was guilty of fraud. First, there was no evidence of that; none of
the elements of fraud, either statutory or common law, such as a material misrepresenta-
tion, which was relied upon by someone, were established by Appellee, and no jury issue
was requested. But then even if there had been fraud on her part, fraud is not a defense to
the claims of the Appellants in this case, because the nature of the acquisition of
plaintiffs’ possession is immaterial; the only issue is whether Plaintiffs have been in


                                             12
possession for the requisite amount of time, depending on the statute relied upon.      See
Brohlin v. McMinn, 341 S. W. 2d 420, ( Tex. 1960)
               “Naked possession of the premises claimed for the requisite period of time
will secure title, no matter how tortious or wrongful may be the seizure”; Tex. Jur 3rd,
Adverse Possession, §112, citing Brohlin, supra and other cases.         Cf. Statham v. City of
Tyler, 257 S. w. 2d 742, 745 (Te. Civ. App. - Texarkana, 1953 n. r .e .) A deed that is
good on its face, and duly recorded, is sufficient to establish adverse possession under the
five year statute even if procured by fraud. Davis v. Howe, 213 S. W. 609 (Commission
of Appeals 1919). As stated by Justice Sonfield in this opinion (at page 611), the title of
the adverse possession claimant ripens into title, even based on a fraudulent deed, not
because of the good faith of the claimant or the meritoriousness of his claim, but because
of the acquiescence of the record title owner.
               So Appellant says that all of counsel for Appellee’s claims of fraud and
misconduct on the part of Appellant are included in that brief only for the purpose of
prejudicing this court into an error of law; again, it is just a red herring.


        10.    Again, counsel for Appellee spent his entire time in trying this case in
an attempt to discredit and impugn Appellant Juana Mendez Valdez’s credibility, which
he somewhat successfully did on immaterial and irrelevant issues. and he did the same
thing in his Appellee’s Brief. Admittedly, he raised some issues about whether she
understood and responded in an appropriate fashion to his questions, but the bare facts
remains; he did not establish that she had not satisfied the statute of limitations elements,
which her total evidence as presented to the jury clearly established as a matter of law.


       11.     Appellant bears the burden to establish that she has proven her case as a
matter of law. Appellant asserts that she has offered proof on each element of each of the
various statute of limitations that meets that requirement. The Appellee only has offered


                                               13
a challenge to the Appellants proof by asserting issues of credibility as to non core based
issues and which, even if non credible in some areas, do not effect or disestablish the
basis elements of proof as required. In short, the jury answers were either the result of
misinformation or prejudice, and should not stand, because Appellants have proven their
case beyond a preponderance of evidence as a matter of law, and in fact even beyond
reasonable doubt.


       12.    First at trial, and then now on appeal, Appellee has three options for
defending herself. First, she could affirmatively prove that she had complied with the
rule of law that required her to timely interrupt the Appellant’s occupancy of the
premises. Second, she could establish and prove that Appellant’s burden of proof had not
been substantively met, I. e. that her claim was not hostile, or open, for example. Or
third, if she failed on the first two, she could attempt to assassinate Appellant and
impeach her credibility so that her proof on essential elements might fail, at least with the
jury. At trial, that apparently worked; Appellant can only hope that tactic is not
persuasive to this court. This is what her counsel choose; substantively, Appellee did not
have a defense, so her counsel choose to attempt to vilify and crucify Appellant; he called
her a liar, a fraud, and a conspiracist with her lawyer at the time, Mike Steinhauser. By
inference, he also then attempted to do the same to Mr. Steinhauser. Through out the
trial, in final argument, and now throughout his Appellate Brief, his only real defense and
tactic was to attach Mrs. Valdez on a personal level, As shown by the cases cited above,
that is not enough.
              Appellant asks the court to keep in mind that there were actually only two
witnesses who testified, who had any knowledge regarding the essential elements
necessary to establish title by adverse possession, namely Appellant and Appellee. And
Appellee testified such that it was clear that she had no knowledge or ability to contradict
any of the Appellant’s testimony concerning these elements; Appellee’s position was that


                                             14
she did not know Appellant was there, which in itself is a self inflicted shot in the foot.
So counsel for Appellee, by default really, had no defense except to attempt to establish
that Appellant’s testimony did not meet the legal requirement set out above, of being
“clear, direct, positive, otherwise credible and free from contradiction and inconsistences
and could have been readily controverted.” Since Appellee could have readily
controverted Appellant if she had facts with which to do so, because she said she did not
know about Appellant, that aspect failed. Appellant’s testimony was clear, it was direct,
and it was positive, so Appellee’s ability to disprove that aspect failed. So he had to fall
back on the idea that her testimony, as an interested party, was not “Otherwise credible
and free from contradiction and inconsistencies”.     But her testimony on the essential
elements was credible and consistent. The “big” issue of whether the tree in her front
yard was the “black jack tree” in the 100 year old property description was a red herring;
clearly it was not, but counsel successfully confused and mislead Mrs. Valdez on this
issue and now would make a big deal out of this; it was not a relevant inconsistency, and
this was what the phrase “otherwise credible” has reference to.
              For example, on page 2 of his Brief, he says that Appellant was “caught in
multiple lies”. He says that she lied because she said that Mrs. Gordon showed her the
four corners, and that because Mr. Steinhauser said that no one could have determined the
corners without a survey, that Mrs. Valdez lied. But he has no proof of that; Mrs.
Gordon is dead, and so no one alive could establish that Mrs. Gordon did not tell Mrs.
Valdez that. Mrs. Gordon had a “for sale” sign on the property, so obviously she did
think that she owned it, and so why would she not tell a prospective buyer where the
property was and where the boundaries and corners were? Who is to say, today, that
Mrs. Gordon did not actually think that the property within the horse shoe, within the
“four corners” was where the property was that she had acquired from Steinhauser.
Actually, as shown by the plat, the property that Mrs. Valdez was claiming is essentially
within the horseshoe that the streets make, and the four corners are defined by the street


                                              15
corners, so why would Mrs. Valdez not believe that her property was within this area, and
Mrs. Gordon could well have told her that; calling this a lie is simply a way to build an
argument and it has no foundation, is deceptive on counsel’s part, and it fails. His efforts
to discredit and impeach Appellant on these insignificant, collateral issues, even if
successful, do not go to the heart of the case, and clearly do not have any impact on
Appellant’s proof that she had in fact met the tests of adverse possession for the ten year
and the five year statutes.
              He argued that Mrs. Valdez “set about to take the property by false
affidavit. . “. and that she “encouraged Mrs. Gordon to execute a deed without warranty
..”. The facts are that Mr. Steinhauser did that; it is absolutely true that he did so in order
to start the five year period of limitation; “that is what lawyer’s do”. There was nothing
illegal, immoral, unethical or wrong about that course of conduct. See Brohlin supra and
Davis v. Howe, supra.
              Again, for example, his argument about her “lie” about paying the taxes on
the 1.93 acre tract, when she in fact was only being taxed on the 0.493 acre tract, prior to
2006. The facts are clear that she paid the taxes that the Tax Appraisal District sent her
notices about, and that she paid them on a timely basis. She did not “lie” about this
matter. She was claiming what turned out to be a 1.93 acre tract, which she thought was
what was described in the deed that Mr. Steinhauser had prepared for Mrs. Gordon to
convey to her, and which at that time the Tax Appraisal District thought was only a 0.493
acre tract also. There were clearly some mistakes of knowledge, but there was no “lie”
and particularly no intentional “lie” or misrepresentation.
              Appellants now argue that, assuming arguendo that every one of the “lies”
that counsel for Appellee claimed he established was in fact a “lie”, that does not disprove
any of the Appellant’s proof of the essential elements of her case for adverse possession
title.




                                              16
       13.     Appellee’s argument that Appellant did not use the entirety of the tract from
the outset, and thus did not use enough of it to satisfy the requirement that she had to use
the entirety of the tract an entire ten year period is again an effort to make a silk purse out
of a sow’s ear. He claimed that they did not use the lower part of the tract until they put
the second mobile home on the property in 2005 (Brief, p. 2); that is not what the
evidence is. Appellant Valdez testified that her husband began to clear the property when
they first acquired it, and over a period of time that they cleared the entirety of it. Thus
they were in fact using the entirety of the tract; the cases previously cited make it clear
that the use of the property must be in accord with its susceptibility. This football size
field is not like a 160 acre tract that is used for pasture.
               On page 16 and 17 of his Brief, Appellee’s counsel cites the case of
Coleman v. Waddell, 151 Tex. 337, 249 S. W. 2d 912 (Texas 1952); however, he does not
cite the case correctly and refers to it for the wrong purpose. He acknowledged that
Appellant had cited Doyle v. Ellis, 549 S. W. 2d 62, (Tex. Civ. App. - Waco, 1977),
no wr. hist), and he says that to the extent that Doyle conflicts with Coleman, that Doyle
is not good law. But he is wrong; there is no conflict. The Coleman case does not stand
for what counsel says it does. In Coleman, the claimant was only claiming a two acre
tract out of a larger, 100 acre tract; the claimant did not seek to establish title to the 100
acre tract by his use of a part of the tract, and then, the salient part is that the Supreme
Court held that claimant lost because there was no legal description offered to establish
what and where the two acre garden tract was. This decision is not on point with the
issue in this case, is not in conflict with the Doyle decision, and Appellants did properly
describe the tract that they were claiming and seeking to prove title to in this case.
Appellee’s characterization of Doyle as not good law does not seem appropriate; it and its
progeny have been cited subsequently on several occasions; see De Alonso v. Soils, 709
S. W. 2d 690, (Tex. App. -San Antonio, 1986, wr. ref. n. r. e) and Dickson v. Dickson,
993 S. W. 2d 735, 738 (Tex. App. - Houston [14th Dist.] 1999.


                                                17
              And again, Appellee’s reference to Harmon v. Overtone Refining Co., 130
Tex. 365, 109 S. W. 2 457 (1937) misses the point. Appellants are actually entirely in
compliance with the rule announced in Harmon. The deed that Appellant initially got
from Mrs. Gordon did not describe the property that Appellants were claiming, and thus
they did establish that they were claiming the property described in their pleading by
metes and bounds and that they had actually occupied the entirety of that tract for the
requisite amount of time under each statute; their proof of use was in accordance with the
rule that their use had to be in accordance with what the property was susceptible of being
put to, which in this case was first, clearing, and thereafter, habitable occupancy.
Appellants requested that the court properly instruct the jury as to the nature of the usage
as well as the issue regarding the forcible entry suit, and submitted proper instructions
therefor to the judge, who only submitted what he chose to do as shown in the Clerk’s
Record of the jury charge.
              Appellee makes a point that the Appellant’s mobile home was “partially” on
the Seeberger tract. In actuality, according to the evidence from Mr. Hearitage, that
depends on whether you use his plat, or that supplied by the State when it took the .008
acre tract for the Interstate highway, because it would have been entirely on the Seeberger
tract by use of the state plat. But all of that is totally not relevant, because Mrs. Moerbe
claimed that she did not know where it was under any circumstances, or by using either of
those plats, and either before or after Hearitage did his work. If she is making the
contention now that she did not know that the Appellants mobile home was on the
Seeberger tract until 2009 because it was not entirely on the whole tract, that is entirely
contrary to her previous testimony, and in fact, is just pretty lame.
              Appellee makes an issue about there being no fencing put up by appellants.
Fencing was not an issue nor an essential element of this case; Appellants were not
seeking to separate their tract from another, larger one.




                                              18
        14.   With regard to the 5 year statute, Appellee says, on page 21, “Appellants
do not contest the facts relating to the denial of their claim of adverse possession under
the five (5) year rule”. Appellants do not know what that means; Appellants clearly do,
and strongly, contest the denial of that claim by the court and the jury. Appellants spent a
lot of time in their Appellants’ Brief on that point. Then Appellee goes on to say that the
issue is whether the forcible entry filing stopped the five year time frame, and says
“Clearly it does”. Appellants say that “Clearly it did not”. Again, we will not repeat all
that was said in the original briefing, but all of the case law is opposite to Appellee’s
position.
              On page 22, Appellee’s argue that Appellants requested instruction would
have amounted to an instructed verdict. That is correct; Appellants were entitled to an
instructed verdict, They requested one, and it was denied. They requested judgment not
withstanding, and it was denied. Both rulings were wrong, and should be reversed
              Appellee argues that Appellant did not offer any evidence regarding the
status of the justice court case; it is true that Appellant did not offer any such evidence to
the jury, because that was not a jury issue. It was offered and was before the court, and it
was a question of law that the judge had to rule on, and he ruled erroneously. Appellee
argued in his brief that Appellant only filed a general denial in the justice of the peace
court, and did not plead title.   The justice of the peace ruled in favor of Mrs. Moerbe,
and that judgment was appealed to the county court, where the issue of title and
jurisdiction were raised, and so the issues were clearly before that court; that court did
not dismiss as it should have, but instead abated the case; therefore the language quoted
by Appellee was partially inapplicable, because the case had not been abandoned,
dismissed, or settled, but it had been “otherwise not prosecuted to a final judgment”, and
therefore for that reason alone it was not sufficient to interrupt the statutory period of
time.
              Starting on page 22 of their brief, through p. 28, Appellee argues that the


                                              19
justice court case was sufficient to interrupt the statute and therefore the claim under the 5
year statute fails. Appellant has already briefed and described why this position is
wrong, in the original Brief filed in this court, and in the various pleadings and briefs filed
in the trial court and in the county court, which are set forth in the Clerk’s Record and in
the appendix to the Appellants Brief. They will not be repeated here. Suffice it to say
that if Appellee were to be found to be correct in the ruling that he seeks, more than 150
years of Texas jurisprudence would be overruled and set on its head. The Justice Court
has no jurisdiction to determine title, and a suit to determine title in that court is a non
entity.


          15.   Appellants did present to the Court requested instructions for the jury;
those instructions are found in the Plaintiff’s Requested Charge in the Supplemental
Clerk’s Record, p. 14 et seq. and are discussed at length in the Charge Conference in the
Reporters Record, (RR. Vol 4, page 59 et seq.) Once again, Appellee’s argument in the
brief is just not in accord with the facts and the record, and should be disregarded.


          15.   One more time. The jury verdict was not in accordance with the evidence
that was presented. It is obvious that the jury acted out of prejudice or some other reason
outside of the record. Unfortunately, the trial court did not see fit to rectify that erroneous
verdict, although given ample opportunity, so Appellant now asks this court to render the
judgment that should have been rendered by the trial court.


       WHEREFORE PREMISES CONSIDERED, Appellants pray that this Court
reverse the Judgment of the trial court, grant judgment to Appellants on the liability
issues, and remand this case to the trial court for trial of the issue as to the amount of
Appellant’s reasonable attorney fees for which they are entitled to recover, and for general
relief at law and in equity.


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                                           Respectfully submitted,

                                           Law Office of O. F. Jones III
                                           109 W. Santa Rosa
                                           P. O. Drawer E
                                           Victoria, Texas 77902
                                           (361) 573-6381
                                           (361) 576-4507(fax)


                                       By:___/s/ O. F. Jones III________________
                                          O. F. Jones III
                                          State Bar No. 10974000

                                           Attorney for Appellants



                              CERTIFICATE OF SERVICE

       I hereby certify that a copy of the foregoing Appellant’s Reply Brief has been
served on Appellee, by and through her Attorney of Record, Mr. Michael Trefny,
Attorney at Law, P. O. Box 458, Columbus, Texas 78934 via First Class Mail on this
16th day of April, 2015.

                                           ___/s/ O. F. Jones III______________
                                                  O. F. Jones III


                                    Certificate of Word Count

       Pursuant to Rule 9.4 (l)(2)(B), Appellant certifies that the total word court of all of
the contents of this Appellant’s Reply Brief is 5.982 words.

                                           __/s/ O. F. Jones III______________
                                                 O. F. Jones III




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