                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00048-CV

                  America Amada GONZALEZ and Jamie Christina Garza McRae,
                                      Appellants

                                                   v.
                                                 Jose
                                      Jose Gilberto PEÑA, et al.,
                                              Appellees

                      From the 381st Judicial District Court, Starr County, Texas
                                     Trial Court No. DC-10-359
                             Honorable Jose Luis Garza, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: February 4, 2015

DISMISSED IN PART; AFFIRMED

           This appeal arises from a dispute over the ownership of a 49.799 acre tract of land. After

appellants America Amada Gonzalez and her daughter Jamie Christina Garza McRae asserted they

owned the entire 49.799 acres partially by deed and partially through adverse possession, appellee

Jose Gilberto Peña filed the underlying lawsuit seeking to clear his title to an undivided 24.901

acres of the land. Appellee Maria Guadalupe Escobar Villarreal was also a party to the lawsuit

and sought to defend her title to an undivided 8.2992 acres of the land.
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           On appeal, appellants America Amada Gonzalez and Jamie Christina Garza McRae

challenge findings of fact and conclusions of law made by the trial court following a bench trial

relating to the record title ownership of the land and Gonzalez’s claim of adverse possession. We

dismiss appellants’ issues on appeal regarding the record title ownership of the land based on lack

of standing. We otherwise affirm the trial court’s judgment.

                                                      BACKGROUND

           The real property involved in the underlying dispute is a 49.799 acre tract of land legally

described as Parcel No. 11, Tract No. 30, Porcion No. 78, Mier Jurisdiction, Starr County, Texas

(“Parcel No. 11”). In 1981, a final decree was entered by the Starr County District Court vesting

title to Parcel No. 11 in the following parties as tenants in common:

                              Flavio Escobar              -         12.449 acres
                              Andres Escobar              -         12.449 acres
                              Librada M. Escobar          -         12.449 acres
                              Manuel Escobar, Jr.         -          3.113 acres
                              Silvia E. Cisneros          -          3.113 acres
                              Herlinda E. Cantu           -          3.113 acres
                              Jose Angel Escobar          -          3.113 acres

           Flavio, Andres, Manuel, and Jacinto were the sons of Santos Escobar, and each were to

receive an undivided one-fourth interest in Parcel No. 11. Because Manuel died prior to 1981, the

decree vested his one-fourth interest in his four heirs, listed in the decree as Manuel Escobar, Jr.,

Silvia E. Cisneros, Herlinda E. Cantu, and Jose Angel Escobar. Similarly, Jacinto also died prior

to 1981, so the decree vested his one-fourth interest in his wife, Librada M. Escobar.

           As previously noted, appellee Jose Gilberto Peña filed the underlying lawsuit seeking to

clear his title to an undivided 24.901 acres of Parcel No. 11. Peña claimed to have purchased the

one-fourth interest owned by Andres, consisting of an undivided 12.449 acres, in 1981. 1 Peña also



1
    Peña’s title ownership to this interest was not disputed at trial and is not disputed on appeal.

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claimed to have purchased the one-fourth interest owned by Manuel’s four heirs, also consisting

of an undivided 12.449 acres, in 2009. In his petition, Peña refers to the claim of ownership to his

land being asserted by appellants America Amada Gonzalez and her daughter Jamie Christina

Garza McRae (collectively referred to herein as “Gonzalez”). Peña requests that the trial court

clear the cloud cast upon his interests by Gonzalez’s claim and further requests a partition of Parcel

No. 11.

           In her answer, Gonzalez asserted that she owned a one-fourth interest in Parcel No. 11

which she purchased from Flavio in 1985. 2 Gonzalez also claimed title to the remaining acres in

parcel No. 11 by adverse possession under the ten-year adverse possession statute.

           With regard to the one-fourth interest vested in Librada in the 1981 decree, evidence

established that Librada died before the decree was entered which fact was unknown to the trial

court that entered the 1981 decree. In view of this fact, the trial court in the underlying lawsuit

appointed an attorney at litem to represent Librada’s unknown heirs.

           Appellee Maria Guadalupe Escobar Villarreal was also a party to the underlying lawsuit,

and she alleged that she owned an undivided 8.2992 acres of Parcel No. 11. Because Librada died

before the 1981 decree was entered and because the land was to remain with the brothers, Villarreal

contended that the interest awarded to Librada in the 1981 decree was owned by Flavio, Andres,

and Manuel’s four heirs, with each owning one-third of the one-fourth interest the decree awarded

to Librada. Villarreal also contended that in 1982, she purchased Andres’s interest in the interest

awarded to Librada, and later purchased Flavio’s interest in 1986.

           After a bench trial, the trial court entered findings of fact and conclusions of law and

concluded that Parcel No. 11 was owned as follows:



2
    Gonzalez’s ownership of this interest was not disputed at trial and is not disputed on appeal.

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                       Jose Gilberto Peña and his wife       undivided 24.901 acres
                       Maria G. Villarreal                   undivided 8.2992 acres
                       Unknown Heirs of Librada Escobar      undivided 4.1498 acres
                       America Amada Gonzalez and
                       Jamie Christina Garza                 undivided 12.449 acres

The trial court concluded that Parcel No. 11 was susceptible to fair and equitable partitioning and

appointed commissioners to make the partition. The trial court rejected the adverse possession

claim asserted by Gonzalez.

                                      ADVERSE POSSESSION

       Gonzalez challenges the trial court’s adverse finding on her adverse possession claim. In

an appeal from a judgment rendered after a bench trial, the trial court’s findings of fact have the

same weight as a jury’s verdict, and we review the legal and factual sufficiency of the evidence

used to support them, just as we would review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d

295, 297 (Tex. 1994). “When a party attacks the legal sufficiency of an adverse finding on an

issue on which she has the burden of proof, she must demonstrate on appeal that the evidence

establishes, as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis,

46 S.W.3d 237, 241 (Tex. 2001). “In reviewing a ‘matter of law’ challenge, the reviewing court

must first examine the record for evidence that supports the finding, while ignoring all evidence

to the contrary.” Id. “If there is no evidence to support the finding, the reviewing court will then

examine the entire record to determine if the contrary proposition is established as a matter of

law.” Id. “The point of error should be sustained only if the contrary proposition is conclusively

established.” Id.

       In order to establish adverse possession as a matter of law, Gonzalez was required to

conclusively establish each of the following elements of the definition of adverse possession: (1)

actual and visible appropriation of real property; (2) commenced and continued under a claim of

right that is; (3) inconsistent with and hostile to the claim of another. Bywaters v. Gannon, 686
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S.W.2d 593, 595 (Tex. 1985); Schuhardt Consulting Profit Sharing Plan v. Double Knobs

Mountain Ranch, Inc., 426 S.W.3d 800, 804–05 (Tex. App.—San Antonio 2014, pet denied); TEX.

CIV. PRAC. & REM. CODE ANN. § 16.021(1) (West 2002). In addition, under the ten-year adverse

possession statute, Gonzalez was required to prove she cultivated, used, or enjoyed the property

for ten continuous years. TEX. CIV. PRAC. & REM. CODE ANN. § 16.026(a); Kazmir v. Benavides,

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

        The doctrine of adverse possession is a harsh one because it involves taking real estate

from a record owner without express consent or compensation. Tran v. Macha, 213 S.W.3d 913,

915 (Tex. 2006). “Before taking such a severe step, the law reasonably requires that the parties’

intentions be very clear.” Id.

A.      Oral Partition

        Because the trial court concluded that the 49.799 acres of Parcel No. 11 was undivided and

held by the owners as tenants in common, the trial court implicitly found that Parcel No. 11 had

not been orally partitioned. Gonzalez contends the trial court erred in failing to find an oral

partition.

        Although cotenants may voluntarily partition their land, all cotenants must participate in a

voluntary partition. Dierschke v. Cent. Nat’l Branch of First Nat’l Bank at Lubbock, 876 S.W.2d

377, 380 (Tex. App.—Austin 1994, no pet.); State v. Kirkpatrick, 299 S.W.2d 394, 397 (Tex. Civ.

App.—Dallas 1957, writ ref’d n.r.e.). In this case, Gonzalez relies on testimony by Peña that he

believed he owned the northern part of Parcel No. 11 based on statements made by Andres and

Flavio. Similarly, Gonzalez relies on Villarreal obtaining a survey of a specific section of Parcel

No. 11 which she believed to be the acreage she owned. No evidence was presented, however, to

show that Manuel’s heirs and Librada’s unknown heirs participated in a voluntary partition of



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Parcel No. 11. Because all cotenants must participate in a voluntary partition, Gonzalez failed to

conclusively establish that Parcel No. 11 had been voluntarily partitioned.

B.     Adverse Possession by Cotenant

       “Because co-tenants to an undivided estate have an equal right to ‘enter upon the common

estate and a corollary right to possession,’ a co-tenant seeking to establish title by adverse

possession must prove, in addition to the usual adverse possession requirements, an ouster of the

co-tenant not in possession or repudiation of the co-tenancy relationship.” Dyer v. Cotton, 333

S.W.3d 703, 712 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting Byrom v. Pendley, 717

S.W.2d 602, 605 (Tex. 1986)). “The ouster standard that applies to cotenants differs from the

adverse possession requirement courts impose between strangers because cotenants have rights to

ownership and use of the property a stranger would not have.” BP America Prod. Co. v. Marshall,

342 S.W.3d 59, 70 (Tex. 2011). “[A] co-tenant may not adversely possess against another co-

tenant unless it clearly appears he has repudiated the title of his co-tenant and is holding adversely

to it.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 756 (Tex. 2003). The repudiation must be

clear, unequivocal, and unmistakable. Todd v. Bruner, 365 S.W.2d 155, 160 (Tex. 1963); Thedford

v. Union Oil Co. of Calif., 3 S.W.3d 609, 612 (Tex. App.—Dallas 1999, pet. denied).

       In this case, the evidence established that Gonzalez built two structures on the southwestern

corner of Parcel No. 11. The evidence at trial also established Peña’s belief that Gonzalez was

entitled to possess and improve that acreage because Peña believed he owned acreage in the

northern section of Parcel No. 11. Any cotenant has a right to be in the possession of property in

which she owns an interest, and if a cotenant’s actions “are susceptible of explanation consistent

with the existence of the common title then such acts cannot be such as to give constructive notice

to the cotenants out of possession.” Todd, 365 S.W.2d at 160. Because Gonzalez’s actions in



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improving the southwestern corner of Parcel No. 11 are consistent with the parties’ understanding

of their common title, these actions did not constitute either an ouster or a repudiation.

       Gonzalez also testified that she repaired fences, cleared land, and grazed cattle and goats.

First, Gonzalez’s testimony was that these actions were occasional and sporadic. See Todd, 365

S.W.2d at 160 (stating repudiation must be clear, unequivocal, and unmistakable); Mendoza v.

Ramirez, 336 S.W.3d 321, 329 (Tex. App.—El Paso 2010, pet. denied) (stating sporadic, irregular,

and occasional use of land does not establish adverse possession). Second, Gonzalez’s testimony

was contradicted by the testimony of other witnesses, and the trial court’s findings of fact reveal

that the trial court discredited Gonzalez’s testimony. Most importantly, however, “[f]encing,

farming, cultivating and use of the land by one cotenant is not inconsistent with his right as

cotenant and is not, of itself, proof of such possession of the property as would start the running

of limitations against the other cotenant.” Hernandez v. Hernandez, 611 S.W.2d 732, 735 (Tex.

Civ. App.—San Antonio 1981, no writ).

       In 2007, when Gonzalez first began improving the fence in the northern section of Parcel

No. 11, Peña testified that he met with Gonzalez and she acknowledged his common ownership.

Alberto Guerra, who introduced Peña to Gonzalez at the 2007 meeting, also testified that Gonzalez

acknowledged Peña’s ownership. Although Gonzalez denied having any such conversation, the

trial court, as the sole judge of the credibility of the witnesses, discredited Gonzalez’s testimony

and expressly found that Gonzalez had acknowledged Peña’s ownership at the meeting.

Accordingly, Gonzalez’s actions in improving the fence in 2007 did not constitute a repudiation.

       Instead, the only evidence of a repudiation occurred in 2009, when Gonzalez informed

Peña that she owned all 49.799 acres of land. Because this repudiation was less than ten years

before Peña filed the underlying lawsuit, however, the evidence supports the trial court’s finding

that Gonzalez failed to prove her adverse possession claim.
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                                   STANDING AND TITLE ISSUES

       “The requirement of standing is implicit in the Texas Constitution’s open courts provision,

which contemplates access to the courts only for those litigants suffering an injury.” The M.D.

Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). “Standing is a prerequisite to

subject-matter jurisdiction, and subject-matter jurisdiction is essential to a court’s power to decide

a case.” Id. Standing, as a component of subject matter jurisdiction, is an issue that may be raised

by the court for the first time on appeal; it may not be waived by the parties. Tex. Ass’n of Bus. v.

Tex. Air Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993). Standing is a question of law that is

reviewed de novo. Heckman v. Williamson Cnty., 369 S.W.3d 137, 149–50 (Tex. 2012).

       The test for standing requires that there be a real controversy between the parties which

will actually be determined by the judicial declaration sought. See Nootsie, Ltd. v. Williamson

Cnty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). “Without breach of a legal right

belonging to the plaintiff[,] no cause of action can accrue to his benefit.” See Nobles v. Marcus,

533 S.W.2d 923, 927 (Tex. 1976). “The issue of standing focuses on whether a party has a

sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome....”

Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). Therefore, to establish

standing, a person must demonstrate he maintains a personal stake in the controversy. See Hunt

v. Bass, 664 S.W.2d 323, 324 (Tex. 1984); Njuku v. Middleton, 20 S.W.3d 176, 177 (Tex. App.—

Dallas 2000, pet. denied). Moreover, a personal stake in the controversy must “exist between the

parties at every stage of the legal proceedings, including the appeal.” Williams v. Lara, 52 S.W.3d

171, 184 (Tex. 2001).

       In the trial court below, in addition to attempting to prove her adverse possession claim,

Gonzalez also challenged the record title ownership of Peña, Villarreal, and the Unknown Heirs

of Librada Escobedo. Gonzalez, however, does not claim record title ownership to the undivided
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interests claimed by Peña, Villarreal, and the Unknown Heirs. Because we have held that the trial

court properly found against Gonzalez on her adverse possession claim, Gonzalez does not have

standing to challenge the trial court’s conclusions regarding the interests owned by Peña,

Villarreal, and the Unknown Heirs because Gonzalez does not claim to own record title to those

interests. Only a person claiming title ownership of those interests would have a sufficient

relationship to a claim asserting title ownership of those interests to have standing. See Lovato,

171 S.W.3d at 848. Accordingly, the issues Gonzalez raises on appeal regarding the title

ownership of Peña, Villarreal, and the Unknown Heirs are dismissed for lack of standing. 3

                                                   CONCLUSION

         The issues raised on appeal regarding title ownership of the land are dismissed based on

Gonzalez’s lack of standing to assert those issues, and the trial court’s judgment is affirmed.

                                                           Sandee Bryan Marion, Chief Justice




3
  During oral argument, Villarreal’s attorney also raised an argument regarding the title ownership awarded to the
Unknown Heirs of Librada Escobar, asserting that interest should have been awarded to Manuel’s four heirs. We
note, however, that any party who seeks to alter the trial court’s judgment must file a notice of appeal, and Villarreal
did not file a notice of appeal. TEX. R. APP. P. 25.1(c).

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