                            NUMBER 13-08-00077-CV

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


ABEL LUCIO, JR., ET AL,                                                     Appellants,

                                            v.

THE JOHN G. AND MARIE STELLA
KENEDY MEMORIAL FOUNDATION,                                                    Appellee.


                   On appeal from the 135th District Court
                         of Victoria County, Texas.


                                    OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
                   Opinion by Chief Justice Valdez


      Appellants, the Lucios (a group of plaintiffs defined in footnote 3), appeal a summary

judgment rendered in favor of the appellee, the John G. and Marie Stella Kenedy

Foundation (the “Foundation”). In seven issues, which may be properly categorized as
three, the Lucios contend that the trial court: (1) abused its discretion by denying their

motion for continuance; (2) erred in granting summary judgment; and (3) abused its

discretion in denying their motion for new trial. We affirm.

                                                I. BACKGROUND

       On April 14, 2003, 154 plaintiffs1 sued the Foundation claiming to be the

descendants of Lieutenant Jose Francisco Balli (“the Lieutenant”) and the heirs to his

interest in La Barreta, a Spanish land grant that the Foundation had acquired. The

       1
           The original plaintiffs included the following individuals:

       Conception Trevino Lucio, Abel Lucio Jr., Gilberto Lucio, Juan Jose Lucio, San Juana Lucio
       Zepeda, Pablo Baltazar Lucio, Marycela Lucio Miller, Jose Luis Lucio, Maria Veronica Lucio
       Long, Jesus Lucio, Maria Delores Lucio, Oralia Lucio Van Hoy, Ram iro Lucio, Rene Lucio,
       Berta G. Lucio, Maria Luisa Lucio, Cynthia Aguilera, Hayley Aguirre, Selm a Anzaldua, Nora
       S. Argullin, Cynthia Balli Arroyo, Evie Silva Ayala, Clem ente M. Balli Jr., Bertha A. Balli, Jaim e
       Balli Sr., Juan Ernesto Balli, Phillip Molina Balli, Ram iro A. Balli, Richard Molina Balli, Diana
       S. Benavidez, Flora Balli Benavidez, Claudia Berm ea, Sylvia Dee Cam pbell, Dora Rodriguez
       Casanova, Jaim e N. Castaneda, Juan P. Castaneda, Olga N. Castaneda, Rebecca G.
       Castillo, Laura E. De La Fuente, Andrea Balli Delgado, Paula Aurora Noyola Dom inguez,
       Clem ente G. Galvan Jr., Feliz Galvan, Gilberto G. Galvan, Pedro Galvan Sr., Felipe Garcia,
       Felipe M. Garcia Jr., Fidencio M. Garcia, Gualdalupe J. Garcia Jr., Gum ecindo S. Garcia,
       Lucinda A. Garcia, Lydia Ann Garcia, Maria Garcia, M aria Tom osita Silva Garcia, Rogerio
       Balli Garcia, Zoila Garcia, Rosa de la Creda Garza, Sylvia B. Salivar-Garza, Sandra L.
       George, Melinda G. Silva Godoy, Leticia Ybarra Gom ez, Delia Silva Gonzalez, Elisa Balli
       G onzalez, Julia Balli Gonzalez, Ovalia S. Gonzalez, Maria Olivia Hill, Angelica G. Juarez,
       Melissa C. Kirk, Melva G. Silva Kunkle, Maria Em elda G. Silva Lacy, Jose S. Leal, Rafael
       Silva Leal Jr., Gracilla G. Ledesna, M ationa Noyla Loy, Marinda Elm a Silva Lynn, Juanita
       Martinez, Martha Balli Martinez, Adela Galvan Menchaca, Joann S. Mendez, Am elia S.
       Garcia Mireles, Alberta Y. Moreno, Yolanda Garcia Moreno, David Saul Munoz Sr., Raul Balli
       Munoz Jr., Ofelia Balli Nacey, Joe Frank Noyola, Kenny Ray Noyola, Jose Noyla Sr., Juan
       Jose Noyola, Marcos Edio Noyola Jr., Maria Margarita Noyola, Natividad C. Noyola, Maria
       A. Parker, Arm inda Galvan Pena, Maria Luisa Perez, Maria Raquel Vallejo Ram irez, Virginia
       S. Ram os, Arm inda Balli Rangel, Elda Balli Renteria, Gloria G. Reyez, Rebecca de la Cerda
       Reyes, Juanitia Noyola Rivera, Lourdes Galvan Robinson, Defina S. Rodriguez, Elidia Balli
       Rodriguez, Maricela Rodriguez, M inerva Silva Rodriguez, Norm a Linda Powell Rodriguez,
       Ram iro Rodriguez, Rum aldo Rodriguez, Maricella G. Silva Ross, Yolanda Galvan Saenz,
       Eloy B. Salvidar, Joel Balli Saldivar, Obed B. Saldivar, Om ar B. Saldivar, Sam uel B. Saldivar,
       Olvia Rodriguez Santana, Ernestine Balli Schm idt, Gracie Siazon, Alberto Torres Silva,
       Alberto Silva Jr., Alford G. Silva, Daniel V. Silva, David V. Silva Jr., Diego Silva, Dilia Silva,
       Dim as V. Silva, Dionicio Silva, George G. Silva, Guadalupe G. Silva, Gum esindo Garcia
       Silva, Jam ie G. Silva, Javier G. Silva, Jeronim o G. Silva, Joel Silva, Joel G. Silva, Jose David
       Silva, Jose G. Silva Jr., Juan de Dios Silva, Juan G. Silva Sr., Marina G. Silva, Maria de
       Jesus G. Soward, Miredla G. Silva Trevino, Diana Balli Angele Tafoya, Enrique W eaver Jr.,
       Ernesto W eaver, Geralberto W eaver, Mario Silva Ybarra, Nilda Ybarra, Ram iro Ybarra,
       Rebecca Ybarra
                                                         2
plaintiffs alleged that the Foundation engaged in fraud and dispossessed them of their

land; they asserted a trespass to try title action, brought claims for “conversion of real and

personal property,” sought a declaratory judgment on their alleged interest in La Barreta,

and requested attorneys’ fees.

        The Foundation initially answered with a general denial. During the summer of

2003, the plaintiffs responded to the Foundation’s requests for disclosure, interrogatories,

and admissions. See generally TEX . R. CIV. P. 194, 197, 198. Through the discovery

process, the plaintiffs tendered, among other things, a handwritten deed, dated March 10,

1866 (the “1866 deed”), through which the Lieutenant purportedly conveyed his interest in

La Barreta to Clement Balli, who is also an alleged ancestor of the plaintiffs. Part of the

legal description of the 1866 deed provides that La Barreta is located “. . . along and

parallel with north boundary line of San Juan De Carricitos Grant, across State Highway

and Missouri Pacific Railroad at 48975 varas a large post . . . .” On June 10, 2005, Eleazar

Balli and Rosa Maria Balli Rivas (the “intervenors”) filed a plea in intervention.2

        On November 9, 2006, the Foundation filed its first amended answer, pleading the

affirmative defenses of limitations, adverse possession, and res judicata as to ownership

of La Barreta and the plaintiffs’ and intervenors’ lineage; it also denied the authenticity of

the 1866 deed. Included in the Foundation’s first amended answer was a counter-claim

requesting a judgment declaring that the plaintiffs and intervenors were the descendants

of the Lieutenant’s brother, Jose Manuel Balli Villarreal (“Manuel”) and removing any cloud

on the Foundation’s title to La Barreta that the 1866 deed possibly imposed. Like the

plaintiffs, the Foundation sought to recover attorneys’ fees.

        2
        The following six individuals subsequently joined the plea in intervention: Raul Munoz, David Munoz,
Martha Martinez, Ofelia Nacey, Andrea Delgado, and Arm inda Rangel.
                                                     3
         Also on November 9, 2006, the Foundation filed a hybrid motion for summary

judgment on both no-evidence and traditional grounds. As to its no-evidence grounds, the

Foundation asserted that there was no evidence of a disruption in its ownership of La

Barreta and that it or its predecessors-in-title had owned La Barreta for nearly 200 years.

The Foundation also asserted that the plaintiffs and intervenors could not maintain a

trespass to try title action under chapter 22 of the property code because they had not

produced evidence of superior title to the land. See TEX . PROP. CODE ANN . § 22.002

(Vernon 2000) (“A headright certificate, land scrip, bounty warrant, or other evidence of

legal right to located and surveyed land is sufficient title to maintain a trespass to try title

action.”). The Foundation’s third no-evidence ground for summary judgment was that

Texas law does not recognize a claim for conversion of real property, see Cage Brothers

v. Whiteman, 139 Tex. 522, 163 S.W.2d 638, 641 (1942); Lighthouse Church v. Texas

Bank, 889 S.W.2d 595, 599 n.4 (Tex. App.–Houston [14th Dist.] 1994, writ denied), and

the Lucios did not have any evidence as to any element of a personal property conversion

claim.

         Under its traditional grounds, the Foundation argued that the plaintiffs and

intervenors lacked standing to sue on the ground that they descended from Manuel, not

the Lieutenant.    The Foundation argued that the plaintiffs and intervenors judicially

admitted they descended from Manuel in two suits, which had previously been brought by

them and adjudicated in Zapata and Kenedy Counties, and that the doctrine of res judicata

precluded the current suit (the “res judicata ground”). The Foundation also argued that it

was entitled to a declaratory judgment clearing title to La Barreta on the ground that the

1866 deed was fraudulent because it allegedly contained anachronistic references to a


                                               4
state highway and railway that did not exist in 1866, was executed by Manuel instead of

the Lieutenant, and did not accurately describe La Barreta’s acreage (the “fraudulent 1866

deed ground”).

        On March 23, 2007, the trial court granted a motion to withdraw, which had been

filed by the plaintiffs’ counsel, and substituted counsel for Abel Lucio Jr. and thirteen others

(hereinafter the “Lucios”).3 Under the trial court’s order, the remaining plaintiffs were

notified of their counsel’s withdrawal; they proceeded unrepresented and did not formally

participate in further trial court proceedings. On July 13, 2007, the trial court signed an

order setting a summary judgment hearing for September 4, 2007.

        In August 2007, the Lucios and intervenors moved for a continuance and to sever

their suits from each other and the unrepresented plaintiffs. In support of their verified

motion for continuance, the Lucios submitted: (1) an affidavit by an attorney for the Lucios,

(2) an affidavit by the foregoing attorney’s legal assistant, and (3) an affidavit by Michael

Allen, a “consultant.” The attorney’s affidavit stated that “we [the Lucios’s attorneys] have

been diligent in reviewing not only the [Foundation’s] Motion and voluminous exhibits filed

with the Motion, but also the hundreds of pages of documents provided to us by our clients

and former counsel.” The attorney’s affidavit also stated that he hired Allen to investigate

and evaluate the validity of the 1866 deed. The legal assistant stated that she was

attempting to obtain copies of nine clerk’s records that the Foundation cited in its summary

judgment motions. Allen stated in relevant part:

        While I have made some preliminary investigation into the records, I am
        unable to complete my research and prepare my report and affidavit before

        3
          The fourteen Lucio plaintiffs included the following indiviudals: Conception Trevino Lucio, Abel Lucio
Jr., Gilberto Lucio, Juan Jose Lucio, San Juana Lucio Zepeda, Pablo Baltazar Lucio, Marycela Lucio Miller,
Jose Luis Lucio, Maria Veronica Lucio Long, Jesus Lucio, Maria Delores Lucio, Oralia Lucio Van Hoy, Ram iro
Lucio, Rene Lucio.
                                                       5
       August 28, 2007. I believe that I will be able to complete these tasks on or
       before October 5, 2007.

       I have preliminarily reviewed records that indicate that the railroad line in the
       area in question was originally the St. Louis Brownsville and Mexico Railway
       Company.

       . . . From a review of the public record, [what was the St. Louis Brownsville
       and Mexico Railway Company] was sold to the Missouri pacific in 1925 and
       merged in 1956.

       The Foundation objected to any continuance on the grounds that the case had been

pending before the trial court for over four years, there was no good cause for a

continuance, and the Lucios and intervenors had not demonstrated diligence in pursuing

the suit.

       Only the intervenors timely responded to the summary judgment motion and

attached as summary judgment evidence affidavits from family members averring to their

lineage, various birth certificates, a letter from a chemist claiming that “no evidence exists

that the [1866 deed] was written at any time other than on its purported date,” and a

website printout stating, in relevant part, that the Missouri Pacific Railway was chartered

in 1849. The Foundation objected to the summary judgment evidence offered by the

intervenors.

       The Lucios did not timely respond to the summary judgment motion. Rather, on

September 4, 2007, the date the trial court considered the Foundation’s motion, the Lucios

filed a memorandum opposing summary judgment. The record does not contain a motion

or order granting leave of court to file an untimely response. See TEX . R. CIV. P. 166a(c)

(“Except on leave of court, the adverse party, not later than seven days prior to the day of

hearing may file and serve opposing affidavits or other written response.”). Additionally,

there is no indication that the trial court considered the Lucios’s memorandum.
                                         6
Accordingly, we will not consider it. See id. (“Issues not expressly presented to the trial

court by written motion, answer or other response shall not be considered on appeal as

grounds for reversal.”).

       On October 5, 2007, the trial court rendered a final judgment that: (1) granted the

Foundation summary judgment on all grounds except its request for attorneys’ fees, (2)

denied the continuance motions, (3) denied the severance motions, and (4) sustained the

Foundation’s objections to the intervenors’s summary judgment evidence. The trial court

also declared that the unrepresented plaintiffs, the Lucios, and the intervenors are not the

descendants of the Lieutenant but instead are the descendants of Manuel, that the 1866

deed is not valid and is void, and that the Foundation conclusively established its chain of

title to La Barreta. The only parties appealing the underlying judgment are the Lucios.

                                       II. CONTINUANCE

       In their first three issues, the Lucios contend that the trial court abused its discretion

by denying their motion for continuance because it was justified, supported by ample

grounds and sworn testimony, and would not result in prejudice. The Foundation contends

that the Lucios have not demonstrated how the trial court abused its discretion.

A.     Standard of Review

       When reviewing a trial court’s order denying a motion for continuance, we consider

whether the trial court committed a clear abuse of discretion on a case-by-case basis. See

BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). A trial court

abuses its discretion when it reaches a decision so arbitrary and unreasonable that it

amounts to a clear and prejudicial error of law. Id. Before we will reverse the trial court’s

ruling, it should clearly appear from the record that the trial court has disregarded the

                                               7
party’s rights. See Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986).

B.    Applicable Law

      All courts have inherent power to grant or deny a continuance. McClure v. Attebury,

20 S.W.3d 722, 729 (Tex. App.–Amarillo 1999, no pet.) (citing Bray v. Miller, 397 S.W.2d

103, 105 (Tex. Civ. App.–Dallas 1965, no writ)). Texas Rule of Civil Procedure 166a(i)

provides that a party, after adequate time for discovery, may move for summary judgment

on the ground that there is no evidence of one or more essential elements of a claim or

defense on which the adverse party would have the burden of proof at trial. See TEX . R.

CIV. P. 166a(i). There is no specific minimum amount of time that a case must be pending

before a trial court may entertain a no-evidence summary judgment motion. See id.; see

also McInnis v. Mallia, 261 S.W.3d 197, 202 (Tex. App.–Houston [14th Dist.] 2008, no

pet.). The amount of time necessary to constitute “adequate time” depends on the facts

and circumstances of each case. See, e.g., Restaurant Teams Int’l, Inc. v. MG Secs.

Corp., 95 S.W.3d 336, 340 (Tex. App.–Dallas 2002, no pet.); McClure, 20 S.W.3d at 729

(concluding that adequate time had passed when a case was pending for seven months).

      Texas Rule of Civil Procedure 166a(b) provides that a defending party may move

for traditional summary judgment at any time. See TEX . R. CIV. P. 166a(b). Thus,

discovery deadlines have no impact on a trial court’s decision to deny a motion for

continuance based upon inadequate time for discovery and proceed to a hearing on the

merits of a motion for traditional summary judgment. See Clemons v. Citizens Med. Ctr.,

54 S.W.3d 463, 466 (Tex. App.–Corpus Christi 2001, no pet.). But see Nelson v. PNC

Mortgage Corp., 139 S.W.3d 442, 446 (Tex. App.–Dallas 2004, no pet.) (holding, in

extreme, fact-specific case, that traditional summary judgment was improper when

                                           8
discovery motions were outstanding and the trial court ignored all motions filed by pro se

inmate, yet promptly set and responded to all motions filed by civil defendants).

       When a party contends that it has not had adequate opportunity for discovery before

a summary judgment hearing, it must file either an affidavit explaining the need for further

discovery or a verified motion for continuance. See TEX . R. CIV. P. 166a(g), 251, 252;

Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). The affidavit must

describe the evidence sought, explain its materiality, and set forth facts showing the due

diligence used to obtain the evidence. See MKC Energy Invs., Inc. v. Sheldon, 182

S.W.3d 372, 379 (Tex. App.–Beaumont 2005, no pet.) (“The affidavit must show why the

continuance is necessary; conclusory allegations are not sufficient.”).

       The Texas Supreme Court has considered the following nonexclusive factors in

deciding whether a trial court abused its discretion in denying a motion for continuance

seeking additional time to conduct discovery: (1) the length of time the case has been on

file; (2) the materiality and purpose of the discovery sought; and (3) whether the party

seeking the continuance has exercised due diligence to obtain the discovery sought. BMC

Software, 83 S.W.3d at 800 (diligence and length of time on file); Tenneco Inc., 925

S.W.2d at 647 (materiality and purpose); Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907

S.W.2d 517, 521-22 (Tex. 1995) (materiality); State v. Wood Oil Distrib., Inc., 751 S.W.2d

863, 865 (Tex. 1988) (diligence); see Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 576

(Tex. App.–Houston [1st Dist.] 2001, no pet.) (applying these factors to decide whether a

trial court abused its discretion in denying a motion for continuance).

C.     Analysis

       The Lucios first argue that because (1) their motion for continuance factually alleged
                                             9
that the case was still in the “discovery period” and (2) the Foundation did not contest that

allegation, the trial court, as a matter of law, prematurely considered the Foundation’s no-

evidence motion summary judgment. The Lucios’s argument demonstrates a fundamental

misunderstanding of the no-evidence summary judgment rule. Rule 166a(i) begins with

the phrase, “[a]fter adequate time for discovery” not “after a pretrial scheduling order’s

discovery period has concluded,” and therefore, it does not support the Lucios’s argument.4

See TEX . R. CIV. P. 166a(i).

        The Lucios next argue that the trial court abused its discretion in denying their

continuance motion because it was supported by the affidavit testimony of a legal assistant

and Allen. The Foundation contends that the Lucios did not meet the three factors

articulated by the supreme court in BMC Software. See 83 S.W.3d at 800. We conclude

that the affidavits attached to the continuance motion seek evidence regarding the

Foundation’s traditional grounds for summary judgment, and they do not allege a need for

further discovery into the no-evidence grounds. The Lucios’s continuance motion claimed

that they sought additional discovery in the form of clerk’s records and Allen’s research.

However, neither discovery product is material to the Foundation’s no-evidence grounds

for summary judgment. The Foundation relied on the clerk’s records to advance its res

judicata ground, and it relied on the 1866 deed, with its anachronistic references, to

advance its fraudulent 1866 deed ground. Both grounds are part of the traditional portion

of the Foundation’s summary judgment motion.

        4
          The 1997 com m ent to Rule 166a(i) states, in part, that “[a] discovery period set by pretrial order
should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a m otion
under paragraph (i) would be perm itted after the period but not before.” T EX . R. C IV . P. 166a, cm t. to 1997
change. The com m ent does not support the Lucios’s argum ent because the rule would, under ordinary
circum stances, preclude consideration of a no-evidence m otion for sum m ary judgm ent before the discovery
period has started, but it would allow consideration during the discovery period after “adequate tim e for
discovery.”
                                                      10
            Because a defending party may move for traditional summary judgment at any

time, see TEX . R. CIV. P. 166a(b); Clemons, 54 S.W.3d at 466, and the motion for

continuance and supporting affidavits alleged a need for further discovery into only

traditional grounds, we hold that the trial court did not abuse its discretion in denying the

motion.

        The Lucios’s first, second, and third issues are overruled.

                                          III. SUMMARY JUDGMENT

        In their fourth, fifth, and sixth issues, the Lucios contend that summary judgment

was improper because it is not supported by a preponderance of the evidence, there were

genuine issues of material fact concerning the Lucios’s ownership of La Barreta, and there

was no evidence of the Foundation’s ownership of the land. Specifically, the Lucios argue

that the trial court improperly granted the Foundation a traditional summary judgment on

its res judicata and adverse possession grounds.

        At this point, we must recognize three circumstances that affect the procedural

posture of this case and our analysis of the foregoing issues.                           First, although the

Foundation pleaded the affirmative defense of adverse possession in its first amended

answer, it did not move for summary judgment on that ground. Thus, we need not address

that ground because the Foundation did not obtain a judgment on it. Second, the Lucios

do not challenge the Foundation’s no-evidence grounds for summary judgment because

their attack of the res judicata ground sounds against only a portion of the traditional

motion for summary judgment.5 Third, the Lucios do not challenge the trial court’s rendition

        5
           Under certain circum stances, res judicata, or “claim preclusion,” prevents relitigation of claim s that
(1) have been finally adjudicated, or (2) could have been raised with proper diligence in the course of previous
litigation over the sam e subject m atter. Barr v. Resolution Trust Corp., 837 S.W .2d 627, 628 (Tex. 1992);
Maxson v. Travis County Rent Account, 21 S.W .3d 311, 315 (Tex.App.–Austin 1999, pet. dism ’d by agr.).
                                                       11
of declaratory relief. Bearing these predicaments in mind, we now turn to the standard of

review and the procedural merit of the Lucios’s summary judgment issues.

A.      Standard of Review

        In this case, the trial court granted summary judgment on all grounds, including the

Foundation’s no-evidence grounds regarding the Lucios’s trespass to try title action and

conversion of real and personal property claims. Under Texas Rule of Civil Procedure

166a(i), the trial court may render a summary judgment by default for lack of an evidentiary

response by the nonmovant, provided the movant’s motion warranted rendition of a final

summary judgment based on lack of evidence to support the nonmovant’s claim or

defense. TEX . R. CIV. P. 166a(i) (“The court must grant the motion unless the respondent

produces summary judgment evidence raising a genuine issue of material fact.”); see

Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex. App.–Austin 1998, no pet.).

        We will first review the trial court’s summary judgment under the standards of Rule

166a(i) because in this case, if the Lucios failed to produce more than a scintilla of

evidence under that burden on their trespass to try title action and conversion claims, then

there is no need to analyze whether the Foundation’s proof satisfied the Rule 166a(c)

burden on its affirmative defense of res judicata. See Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004). Furthermore, when, as in this case, the nonmovant does

not respond to the no-evidence motion for summary judgment, the first controlling issue

is whether the movant’s motion was sufficient to warrant the no-evidence summary

judgment and thus shifted the burden to the respondent to produce evidence that raised

Res judicata requires proof of the following elem ents: (1) a prior final judgm ent on the m erits by a court of
com petent jurisdiction; (2) identity of parties or those in privity with them ; and (3) a second action based on
claim s that were raised or could have been raised in the first action. Amstadt v. U.S. Brass Corp., 919 S.W .2d
644, 652 (Tex.1996).
                                                      12
a genuine issue of material fact. Roventini v. Ocular Scis., Inc., 111 S.W.3d 719, 723 (Tex.

App.–Houston [1st Dist.] 2003, no pet.) (citing Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68,

71 (Tex. App.–Austin 1998, no pet.)).

B.     Analysis

       As to the Lucios’s trespass to try title action, the Foundation asserted, under its no-

evidence ground, that the Lucios had no evidence of any element to support their claim.

To prevail in a trespass to try title action, a plaintiff must usually (1) prove a regular chain

of conveyances from the sovereign, (2) establish superior title out of a common source, (3)

prove title by limitations, or (4) prove title by prior possession coupled with proof that

possession was not abandoned. Plumb v. Stuessy, 617 S.W.2d 667, 668 (Tex. 1981)

(citing Land v. Turner, 377 S.W.2d 181, 183, 7 Tex. Sup. Ct. J. 237 (Tex. 1964)). The

Foundation also asserted that the Lucios had not produced any of the documents that

section 22.002 of property code requires in order to maintain a trespass to try title action.

Section 22.002 provides that a “headright certificate, land scrip, bounty warrant, or other

evidence of legal right to located and surveyed land is sufficient title to maintain a trespass

to try title action.” See TEX . PROP. CODE ANN . § 22.002.

       In attacking the Lucios’s conversion claims, the Foundation argued that Texas does

not recognize a cause of action for conversion of real property and that the Lucios had no

evidence of any element to support their claim for conversion of personal property. The

Foundation correctly stated the law regarding conversion of real property. See Cage Bros.

v. Whiteman, 139 Tex. 522, 163 S.W.2d at 641; Lighthouse Church, 889 S.W.2d at 599

n.4. To establish conversion of personal property, a plaintiff must prove that: (1) the

plaintiff owned or had legal possession of the property or entitlement to possession; (2) the

                                              13
defendant unlawfully and without authorization assumed and exercised dominion and

control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an

owner; and (3) the plaintiff suffered injury. United Mobile Networks, L.P. v. Deaton, 939

S.W.2d 146, 147-48 (Tex. 1997); Apple Imports, Inc. v. Koole, 945 S.W.2d 895, 899 (Tex.

App.–Austin 1997, pet. denied). If the defendant originally acquired possession of the

plaintiff’s property legally, the plaintiff must establish that the defendant refused to return

the property after the plaintiff demanded its return. Presley v. Cooper, 155 Tex. 168, 284

S.W.2d 138, 141 (1955); Apple Imports, 945 S.W.2d at 899.

       A review of the hybrid motion for summary judgment reveals that, in moving for no-

evidence summary judgment, the Foundation specified all essential elements of the

trespass to try title action and conversion of personal property claim alleged by the Lucios

in their petition and on which they would have the burden of proof at trial. Accordingly, the

motion complied with Rule 166a(i) and was sufficient to warrant a no-evidence summary

judgment on each of those claims. See Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d

862, 866 (Tex. App.–Houston [1st Dist.] 1999, no pet.). Because the motion was sufficient

to warrant a no-evidence summary judgment, the burden shifted to the Lucios to respond

to the motion by producing more than a scintilla of evidence on each of the challenged

elements. Id.; see also Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp.,

994 S.W.2d 830, 834 (Tex. App.–Houston [1st Dist.] 1999, no pet.). The Lucios, however,

filed no response to the motion. Based on this record, the express provisions of Rule

166a(i) required that the trial court grant the no-evidence motion and render judgment in

favor of the Foundation. See TEX . R. CIV. P. 166a(i); Brewer & Pritchard, P.C., 7 S.W.3d

at 867; Flameout Design & Fabrication, Inc., 994 S.W.2d at 834; Jackson, 979 S.W.2d at

                                               14
71.

       Accordingly, we hold that the trial court did not err in rendering a no-evidence

summary judgment in favor of the Foundation. The Lucios’s fourth, fifth, and sixth issues

are overruled. Our affirmation of the no-evidence summary judgment means that we need

not review the traditional summary judgment because a review of it would not further affect

the outcome of this appeal. See TEX . R. APP. P. 47.1; Ridgway, 135 S.W.3d at 600.

                                 IV. MOTION FOR NEW TRIAL

       In their seventh issue, the Lucios contend that the trial court abused its discretion

by denying their motion for new trial. Although the seventh issue is listed in the table of

contents section of the Lucios’s brief, it is not raised in the argument section of the brief.

See TEX . R. APP. P. 38.1(i). Therefore, the seventh issue is waived.

                                      V. CONCLUSION

       The trial court’s judgment is affirmed.


                                                  ROGELIO VALDEZ
                                                  Chief Justice


Opinion delivered and filed on
this the 25th day of June, 2009.




                                             15
