                             NUMBER 13-12-00495-CV

                               COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


IGLESIA CRISTIANA CRISTO
VIVE, INC.,                                                                    Appellant,

                                                v.

CHURCH OF GOD OF THE APOSTOLIC
FAITH LATIN CONFERENCE, INC.,
ET AL.,                                                                       Appellees.


                    On appeal from the 139th District Court
                         Of Hidalgo County, Texas.


                                MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Longoria
           Memorandum Opinion by Chief Justice Valdez

      By three issues, appellant, Iglesia Cristiana Cristo Vive, Inc., appeals from a verdict

in favor of appellees, Church of God of the Apostolic Faith Latin Conference, Inc. (“Church

of God”) and Pablo Sanchez. We affirm.
                                  I.     BACKGROUND

        Rebecca Robles testified that she served as secretary of a church named the

Centro De Adoracion Hosanna (“Hosanna”) with the Reverend Hilario Chacon serving as

the pastor. Hosanna was a member of the Texas Latin American Conference of the

International Pentacostal Holiness Church (“TLAC”). On June 9, 1993, Pastor Chacon,

on behalf of Hosanna, purchased five acres of land from Border Farms. On that date, a

contract for deed was executed between Border Farms and Hosanna. The law offices of

Jones, Galligan, and Key (“the Firm”) prepared the contract for deed that required the

Firm to serve as escrow agents and to hold a warranty deed until the land was paid for in

full. The contract for deed was filed in the official records of Hidalgo County, Texas on

June 18, 1993. According to appellant’s witnesses, the congregation made some of the

payments on the contract for deed and also paid for the construction of a building on the

land.

        The Reverend Roberto Sanchez, Pablo’s son and pastor at El Tabernaculo Church

in San Juan, Texas and member of the Church of God, stated that he had visited the

Hosanna congregation “a number of times and participated in their services.” Roberto

stated that he met with the congregation and discussed “whether the congregation was

in agreement to become part of the Church of God and join with the congregation that

was in Donna and become one, and become part of the Church of God.” Roberto claimed

that at that time he informed the congregation that Hosanna would have to transfer title

of the land to the Church of God. Roberto testified that Robles attended this meeting.

Roberto explained that the Church of God’s procedures include: (1) meeting with the

congregation that wishes to become affiliated with the Church of God; (2) giving the



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congregation the Church of God’s bylaws; and (3) allowing the congregation to read the

bylaws and go through them. Roberto testified that the Hosanna congregation agreed to

become affiliated with the Church of God and agreed that the property should be put in

the Church of God’s name as required for affiliation. Hosanna was then renamed Centro

de Adoracion Gracia Abundante (“Gracia”).

       The trial court admitted into evidence plaintiff’s exhibit three, which included an

assignment of the buyer’s interest in the contract for deed dated March 30, 1995 and an

affidavit from attorney Anita G. Lozano explaining what she recalled regarding the March

30, 1995 assignment. In her affidavit, Lozano stated that on November 16, 1994, Pablo

and Pastor Chacon contacted her indicating that “they were in the process of changing

the affiliation of [Gracia]” and asking “if the only signature required was that of Pastor

Hilario Chacon.” Lozano advised them that they would also need the signature of an

authorized representative of TLAC, which was then president, David Avila. Lozano stated

that Avila executed “the Assignment of Buyer’s Interest assigning ‘all of Assignor’s

interest in the contract for deed and conveyed to Assignee all of the Assignor’s interest in

the property.’” Lozano explained that “[t]his assignment was returned to our office and

subsequently executed by [Border Farms and Pablo] as Superintendent of [Gracia] and

[Jorge Ricardez], as a member of [Gracia].” The document shows that Hosanna assigned

its buyer’s interest in the five acre tract of land to Gracia.

       According to Lozano on March 21, 1997, Gary L. Jackson, Border Farms’

representative, then informed her that the contract for deed had been assigned to the

Church of God. However, Lozano did not prepare any of those documents. The trial

court admitted plaintiff’s exhibit four, a warranty deed with vendor’s lien dated February



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9, 1997. That document shows that Border Farms granted a warranty deed with vendor’s

lien to Church of God. This document was recorded in Hidalgo County on September 1,

1999 and was witnessed by Robles.

       In August 1999, Pastor Ricardez left Gracia and the church closed temporarily

because it had no pastor. However, shortly thereafter, the Reverend Ramon Martinez

Mendoza then became Gracia’s pastor. Evidence was presented that the Church of God

ensured that the bills for the church were paid when Gracia did not have a pastor and that

it made the final payment of $5,400 on the real property. Evidence also showed that the

note and deed of trust were paid in full and that Border Farms executed a release of lien.

       Pastor Martinez formed a corporation on August 5, 2002. Martinez testified that

he “wanted to have [the congregation] have the things done right because they were not

incorporated before, so that’s how we come up with the name” Iglesia Cristiana Cristo

Vive, Inc. Appellant then sued for title to the real property at issue.

       The jury found that appellees had committed fraud and that appellant should have

discovered the fraud on March 30, 1995. The jury also found that appellant had acquired

the real property by adverse possession.           Appellees filed a motion for judgment

notwithstanding the verdict seeking to have the jury’s finding on fraud liability ignored in

light of the jury’s finding that appellant should have discovered the fraud in 1995, which

was more than four years prior to appellant’s filing of suit in 2003 and outside the statute

of limitations. Additionally, appellees asked the trial court to set aside the jury’s finding of

adverse possession because the required ten year period of possession had not passed

and because appellant had not been in existence during a ten-year period. The trial court




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granted appellees’ motion without stating the reason and entered a take-nothing judgment

against appellant. This appeal ensued.

  II.       TRIAL COURT’S FAILURE TO DISREGARD ANSWERS TO QUESTIONS TWO AND FOUR

        By its first issue, appellant contends that the trial court erred by failing to disregard

answers to jury questions two and four. Question two asked, “By what date should

[appellant], in the exercise of reasonable diligence, have discovered the fraud of [Church

of God]?” The jury answered March 30, 1995. Question four asked, “By what date should

[appellant], in the exercise of reasonable diligence, have discovered the fraud of [Pablo]?”

The jury answered March 30, 1995. Appellant argues that although its claims would have

been barred by limitations, “limitations were extended under the discovery rule.”

Appellant claims that “the jury overlooked the fact that the document dated March 30,

1995 on which they relied was not available to Appellant until after it was filed in the public

records on June 25, 2003 . . . [a]ccordingly . . . there is no evidence to support these two

jury answers.” Appellees respond that its statute of limitations defense was established

as a matter of law. Therefore, the burden then shifted to appellant to show when it

discovered the fraud.1

        “The party seeking to benefit from the discovery rule must also bear the burden of

proving and securing favorable findings thereon. The party asserting the discovery rule

should bear this burden, as it will generally have greater access to the facts necessary to

establish that it falls within the rule.” Woods v. William M. Mercer, Inc., 769 S.W.2d 515,


        1 In this case appellees requested questions two and four that addressed whether the discovery
rule should apply even though it was not mentioned in appellants’ pleadings. Therefore, we will address
the merits of appellant’s discovery rule argument. See Solares v. Solares, 232 S.W.3d 873, 880 (Tex.
App.—Dallas 2007, no pet.) (concluding that the discovery rule issue had been tried by consent because
the other party did not object to submission of jury question regarding when opposing party discovered the
injury).


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518 n.2 (Tex. 1988).           The discovery rule is a very limited exception to statutes of

limitations, and its application is generally restricted “to exceptional cases to avoid

defeating the purposes behind the limitations statutes.” Via Net v. TIG Ins. Co., 211

S.W.3d 310, 313 (Tex. 2006). Only if the injury was both inherently undiscoverable and

objectively verifiable will the discovery rule delay accrual of a cause of action. Computer

Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996).

        During the judgment notwithstanding the verdict hearing, appellant asked the trial

court to disregard the jury’s answer to questions two and four “because there’s no

probative evidence supporting them and that to find what could have been the date.” The

trial court asked, “Let’s suppose that if I disregard those two answers, then you prevail,

right?” Appellant’s trial counsel replied, “Well, no. If you disregard the answers, that’s

not enough for us to prevail. You would have to disregard the answers and find that the

dates were not dates that barred us. Because if the Court found—you know, there are

other dates. . . .” Appellant urged the trial court to find that appellant should have

discovered the fraud when an assignment of the loan on the property was filed with the

county. However, that document was filed in Hidalgo County on June 25, 2003, after

appellant filed its suit against appellees for fraud. Therefore, appellant’s claim that it did

not discover or could not have discovered the fraud until that document was filed is without

merit. Otherwise, appellant could not have sued for fraud before June 25, 2003 because

it would not have known about the fraud, but the record shows that appellant filed suit

against appellees on April 4, 2003 for fraud.2



        2 Appellant’s original petition is not included in the clerk’s record. We note that in the jury charge
the jury was informed that this suit was filed on April 4, 2003. In its brief, appellant states that it filed suit
on January 31, 2003. However, that date is still prior to June 25, 2003. Therefore, appellant had to have

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        Also, at trial and on appeal, appellant cited no evidence in the record showing that

its injury was both inherently undiscoverable and objectively verifiable. See id. Appellant

does not cite any evidence supporting a finding that it should have or did discover the

fraud outside the limitations period. Moreover, even if we were to agree that the evidence

does not support the jury’s finding that appellant should have discovered the fraud on

March 30, 1995, appellant failed to provide evidence that it should have discovered the

fraud on another date after the limitations period expired. Therefore, we cannot conclude

that appellant met its burden of proving accrual of appellant’s fraud cause of action was

delayed by the discovery rule in this case. See Childs v. Haussecker, 974 S.W.2d 31, 40

(Tex. 1998) (“[W]hen the discovery rule applies, accrual is tolled until a claimant discovers

or in the exercise of reasonable diligence should have discovered the injury and that it

was likely caused by the wrongful acts of another.”); Woods, 769 S.W.2d at 518 n.2. We

overrule appellant’s first issue.

           III.    TRIAL COURT’S DISREGARD OF JURY’S ANSWER TO QUESTION SIX

        By its second issue, appellant contends that “[t]he trial court erred in disregarding

the answer to jury question No. 6 relating to adverse possession.” Question six asked,

“Did [appellant], and those under whom it claims, have or hold peaceable and adverse

possession of the 5.00 acre tract of land in dispute in this case, cultivating, using or

enjoying the same for any period of ten consecutive years prior to April 4, 2003, the date

this suit was filed?” The jury answered, “Yes.” Appellant asserts that the trial court erred

in disregarding this answer because it “met the requirements for the ten year limitations




discovered the fraud prior to the recording of the assignment.


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periods in that Appellant was in exclusive and adverse possession of the property for

more than ten years.”

       “For a trial court to disregard a jury's findings and grant a motion for [judgment

notwithstanding the verdict] on the evidence, it must determine either there was no

evidence to support an issue, or the converse, that the evidence established an issue as

a matter of law, and the jury was not free to make a contrary findings.” John Masek Corp.

v. Davis, 848 S.W.2d 170, 173 (Tex. App.—Houston [1st Dist.] 1992, writ denied). When

the trial court does not specify its reasons for granting a judgment notwithstanding the

verdict, the appellant has the burden to discredit each ground in the appellee’s motion.

Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991) (“When

the trial court states no reason why judgment [notwithstanding the verdict] was granted,

and the motion for judgment [notwithstanding the verdict] presents multiple grounds upon

which judgment [notwithstanding the verdict] should be granted, the appellant has the

burden of showing that the judgment cannot be sustained on any of the grounds stated

in the motion.”); Friedman v. Houston Sports Ass’n, 731 S.W.2d 572, 573 (Tex. App.—

Houston [1st Dist.] 1987, writ ref’d n.r.e.).

       Appellant does not cite the record in support of its bald assertion that the evidence

established the jury’s affirmative finding on question six. Moreover, appellant has not

provided a clear and concise argument in support of this issue. Thus, we conclude that

appellant’s second issue is inadequately briefed. See TEX. R. APP. P. 38.1(i).

       Moreover, the trial court did not specify its reason for granting judgment

notwithstanding the verdict, and appellees asserted multiple grounds for the trial court to

disregard question six. In its brief, appellant has not challenged each potential ground



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for the ruling. See Fort Bend County Drainage Dist., 818 S.W.2d at 394. Therefore,

appellant has not met its appellate burden of discrediting each ground in the appellee’s

motion.3 See id. We overrule appellant’s second issue.

                     IV.      ERROR IN GRANTING JUDGMENT FOR APPELLEES

         By its third issue, appellant states the following:

                Appellant contends that the trial court erred in granting judgment for
         Appellees as Appellees failed to establish their entitlement by conclusive
         evidence. Appellants presented sufficient evidence to create disputes of
         material facts as set out in the Statement of Facts above. In such
         circumstances, the trial court may not grant judgment for the opposing party
         unless such party has shown there was no evidence supporting the jury
         findings or that the evidence conclusively proves a fact that establishes the
         verdict loser’s right to judgment as a matter of law.

         We construe this issue as being dependent on appellant prevailing on its first and

second issues. Because we have overruled those issues, we overrule appellant’s third

issue.

                                          V.       CONCLUSION

         We affirm the trial court’s judgment.

                                                                   /s/ Rogelio Valdez
                                                                   ROGELIO VALDEZ
                                                                   Chief Justice

Delivered and filed the
29th day of May, 2014.




         3We note that at the judgment notwithstanding the verdict hearing, appellant’s trial counsel stated,
“Now, we’re not asking the Court to grant judgment on the adverse possession because there wasn’t exactly
ten years. . . . Because we argued nine years and nine months . . . . We are not making a motion on that
at this point. So the issue of the adverse possession is—is we are not bringing it before the Court. . . .”
Thus, it appears that appellant abandoned its adverse possession claim.


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