1

 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

__________________________________________________________________

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

ACCEPTED

03-14-00731-CV

4943224

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/20/2015 12:00:00 AM

JEFFREY D. KYLE

CLERK

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

PAGE

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

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

CERTIFICATE OF SERVICE .............................................................. 21
3

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
4

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
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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. 
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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
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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.
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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
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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
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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 
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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?
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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 misrepresentation, 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
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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
14

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
15

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
16

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.
17

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.
18

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. 
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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
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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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