                                  MEMORANDUM OPINION
                                         No. 04-09-00497-CV

                      Eva MARTINEZ and Mary Alice Alcorta, Individually and
                as Independent Executrix of the Estate of Tomas A. Fuentes, Deceased,
                                              Appellants

                                                  v.

                             Guadalupe GALVAN and Reynaldo Alcorta,
                                           Appellees

                      From the 45th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CI-16254
                        Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 7, 2010

REVERSED AND RENDERED

           Eva Martinez and Mary Alice Alcorta, Individually and as Independent Executrix of the

Estate of Tomas A. Fuentes, Deceased, appeal a judgment decreeing that Guadalupe Galvan and

Reynaldo Alcorta (“Alcorta”) were vested with title to a certain tract of real property. The

judgment is based on a jury’s finding that Galvan and Alcorta held the property in peaceable and

adverse possession for a period of ten years. Because the evidence is legally insufficient to

support the jury’s finding that the possession of the property by Galvan and Alcorta was adverse
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and hostile to the Eva Martinez’s ownership of record title, we reverse the trial court’s judgment

and render a take nothing judgment. 1

                                                  BACKGROUND

         Eva Martinez and her father, Tomas Fuentes, Sr., jointly purchased a house in 1988.

Martinez lived in the house for approximately one year before moving to California. The

testimony was conflicting as to whether Martinez was one month or four months behind on her

mortgage payment in 1992, but the evidence is undisputed that Martinez allowed Galvan to

move into the house if Galvan agreed to pay the mortgage payments. The parties disagree,

however, about the details of the arrangement.

         According to Martinez, she told Galvan she could move into the house if she would make

the mortgage payments, and Galvan could buy the house later if she wanted. Martinez testified

that she offered to sell the house to Galvan and Alcorta on numerous occasions, but they never

did anything. According to Galvan and Alcorta, Martinez told them the house was theirs if they

paid the mortgage payments.

         The evidence is undisputed that neither Martinez nor Fuentes went to the house until

Martinez went by to inquire about a late mortgage payment in 2006. The evidence also is

undisputed that neither Martinez nor Fuentes had keys to the house. Galvan and Alcorta testified

regarding the numerous improvements they made to the house, including adding a driveway and

a private fence, painting the interior and exterior of the house, and converting the garage into an

additional bedroom.

         After Martinez sent a notice that she intended to take possession of the house in February

of 2007, Alcorta filed a notice of interest in property in the deed records. Martinez subsequently


1
  We do not address the second issue raised by the appellants relating to the exclusion of a requested question from
the jury charge because it is not necessary to our disposition of this appeal. TEX. R. APP. P. 47.1.

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filed a forcible entry and detainer action which is pending on appeal. In October of 2007,

Galvan and Alcorta filed the underlying trespass to try title case in which they asserted a claim

for adverse possession but not for breach of an oral contract or fraud. See Chau v. Tran, No.

01-98-01325-CV, 2001 WL 392690 (Tex. App.—Houston [1st Dist.] Apr. 19, 2001, no. pet.).

After a jury found that Galvan and Alcorta had been in peaceable and adverse possession of the

property for ten years, the trial court entered a judgment in favor of Galvan and Alcorta.

                                               DISCUSSION

       “The final test for legal sufficiency must always be whether the evidence at trial would

enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In reviewing a legal sufficiency challenge, “appellate

courts must view the evidence in the light favorable to the verdict, crediting favorable evidence if

reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.”

Id. at 807. “For legal sufficiency points, if there is more than a scintilla of evidence to support

the finding, the no evidence challenge fails.” BMC Software Belgium, N.V. v. Marchand, 83

S.W.3d 789, 795 (Tex. 2002).

       In order to establish adverse possession under the ten-year adverse possession statute, a

plaintiff must prove: (1) actual and visible possession of the disputed property; (2) that is adverse

and hostile to the claim of the owner of record title; (3) that is open and notorious; (4) that is

peaceable; (5) that is exclusive; and (6) involves continuous cultivation, use, or enjoyment for

ten years. See Tran v. Macha, 213 S.W.3d 913, 914 (Tex. 2006); Kazmar v. Benavides, 288

S.W.3d 557, 561 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Therefore, to establish

adverse possession, a claimant must enter the land with a claim of right that is hostile and

inconsistent with the claim of another person. Kazmar, 288 S.W.3d at 561.



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       In this case, it is undisputed that Galvan’s and Alcorta’s entry onto the property in 1992

was with Martinez’s permission having entered into some arrangement whereby Galvan and

Alcorta could purchase the property by paying the mortgage payments. This court addressed a

similar situation in Bustamante v. Gutierrez Flores, 770 S.W.2d 934 (Tex. App.—San Antonio

1989, no writ). In that case, Matiana Bustamante entered into an oral contract for the purchase of

a lot from the previous title owner, Emilia Gutierrez, for $275.00. Id. at 936. Bustamante paid

$157.50 of the purchase price on January 7, 1962, and took possession of the property. Id. On

August 9, 1964, Bustamante made one additional payment of $25.00, but made no other

payments thereafter. Id. In 1985, the appellees, who were Gutierrez’s heirs-at-law, fenced the

lot, and Bustamante’s son removed the fence. Id. The appellees then sued Bustamante seeking

injunctive relief and to clear title. Id. at 936. Bustamante counter-claimed that she owned title to

the property by adverse possession under the 10 year statute. Id.

       This court noted that it was undisputed that Bustamante’s entry onto the lot in 1962 was

with the permission of Gutierrez, having purchased the lot via an oral installment contract. Id. at

937. When an adverse claimant enters upon land without asserting a claim at the outset, the

claimant’s possession of the land is not commenced under a claim of right inconsistent with and

hostile to the claim of the owner within the meaning of the ten year adverse possession statute.

Id. Therefore, in order for the adverse claimant to prevail against the record owner, the adverse

claimant must prove: (1) a repudiation of the owner’s title and commencement of the assertion of

an open and notorious claim to the land; (2) with notice thereof clearly brought home to the

owner, either actually or constructively; and (3) with the further proof that there had been

adverse possession of the land for the necessary limitation period subsequent to the time of

notice. Id.



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        “No matter how exclusive and hostile to the true owner possession may be in appearance,

it is not adverse unless accompanied by intent on the part of the occupant to make it so.” Id. at

938. “And mere use, no matter how long continued, will not satisfy [the] requisites of adverse

possession; rather, use must be adverse for the statutory period.” Id.

        In this case, there is no evidence that adverse possession ever commenced before Alcorta

filed the notice of interest in property in February of 2007. Prior to the filing of that notice, there

is no evidence in the record that Galvan and Alcorta repudiated Martinez’s ownership or brought

notice of such a repudiation home to Martinez. Under the circumstances of this case, mere use

of the property and payment of the mortgage payments pursuant to a prior agreement is legally

insufficient evidence to establish an adverse or hostile claim. 2

        Although the requirements to prove adverse possession appear harsh given the

circumstances of this case, the doctrine itself is a harsh one because it results in “taking real

estate from a record owner without express consent or compensation.” Tran, 213 S.W.3d at 915.

“Before taking such a severe step, the law reasonably requires that the parties’ intentions be very

clear.” Id.

                                                      CONCLUSION

        Because no evidence was presented to prove that Galvan and Alcorta repudiated

Martinez’s title or brought home such notice to Martinez, the evidence is legally insufficient to

support the jury’s finding that Galvan and Alcorta held the property in question in peaceable and

adverse possession for a period of ten years. Accordingly, the trial court’s judgment is reversed,




2
  We note that Martinez and her father purchased the property for $26,000.00. At the time of trial, $16,000.00
remained owing on the mortgage.

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and judgment is rendered that Galvan and Alcorta take nothing in regard to their trespass to try

title claim based on adverse possession.

                                               Phylis J. Speedlin, Justice




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