### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00731- CV

Juana Mendez Valdez, et vir Juan Vald ez, A ppellan ts

v. Melody Mueller Moer be, Appellee

F ROM TH E DISTRI CT COURT O F F AY ETTE COUNTY , 155 TH JUDICI AL DISTRICT

NO. 201 3V-0 52, H ONO RAB LE DAN R. B ECK, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is a trespass to try title suit in which J uana Mendez Valdez and her husband J uan Valdez (collec tively , the Valdezes) soug ht to establish title to cer tain proper

ty in Fa y ette County 1
based on the five and ten-y ear adver se possession limit ations statutes. See Tex. Civ. Prac. & Rem. Code §§ 16.025 (adve rse possession five-y ear limit ations period), .026 (adve rse possession ten-y ear limit ations period). The case was submitt ed to a jury , which returne d neg ative answ ers to the Valdezes’ adve rs e p o s s essi on issues. On appea l, the Valdezes asser t that they proved title to the
proper ty under both the five and ten-y ear adver se possession limit ations statutes as a matter of law and that ther e wa s reve rsible er ror in the jury

char g e. We will affir

m.

Unless otherw ise indicated, the name “ Valdez” r efe rs to J uana Me ndez Valdez. 1F ACTUAL AND P ROCEDURAL BACK GR OUND
I n 1999, Arnie Marie Gordon convey ed to Valdez a piece of proper ty in Flatonia (the Valdez Property

). The Gordon Dee d contained the following metes and bounds descr iption of the
proper ty convey ed:

All that cer

t ai n t ra ct or parcel of land, being the west half of a trac t sold by Milam McVe y and wife, L izz ie McVe y , to Amanda Evans and being descr ibed as follows, to wit:
BEG I NNI NG at the North East corne r of a trac t sold to Adeline Dillard from which a black jack marke d X brs. South 60 East 5 vrs; thence South 83 vrs. to a s t ake; B thence East 33 1⁄2 vrs; thence North 83 vrs. to a stake; thence West 33 1⁄2 vrs. to place of beg inning.
Be ing the same proper

ty descr ibed in Dee d, Amanda Evans to Fa nnie Evans Tay lor, dated J anu ar y 3 , 1 9 14, of rec ord in Volume 96, Pag e 440 of the Dee d Records of Fa y ette County , Texas. Also being the same proper ty descr ibed in a W arr anty Dee d, Christopher Ray Houston to Mi ke Steinhauser, dated May 22, 1984, of rec ord in volume 662, Pag e 134 of the De ed Rec ords of F ay ette County , Texas.
A ls o b e in g th e s a

me p r o p e r ty d e s c r ib e d in a Sp e c ia l Wa r r a n ty D e e d , M ik e St e in

h a u s e r et ux to Arnie Marie Gordon, dated J anuar y 6, 1992, of rec ord in Volume 837, Pag e 710, Dee d Records of

Fa y ette County , Texas.

Neither Gordon nor Valdez obtained a survey of the Valdez Property

. I n May 2000, Valdez place d

a mobile home on what she believed to be a portion of the Va l dez Property

. I n fac t, this mobile
h ome was located on the easte rn boundary of a trac t of land north of and partially adjac en t t o t h e Valdez Property that was at that time owned by Melody Mueller Moerbe an d h er u n cl e R.G. Seeber g er, J r. (the Seeber g er P ro p er t y ). Moerbe and Seeber g er had inherited the proper ty from

2Moerbe ’s m other, L illie S. Seeber g er, in 1992. The S eebe rg er P roperty is descr ibed i n metes and

bounds as:

All that cer

tain trac t of land s i t u ated in Fa y ette County , Texas, and descr ibed as follows, to wit:
A part of the Muldoon L eag ue #14 and a part of 2-1/2 acr es more or less, convey ed to Armin, et al, September 1, 1891, by the Sheriff of Fa y ette County , and descr ibed by metes and bounds a s follows:
BEG I NNI NG at a stake for corne r, the northwest corne r of L onnie Houston’s 1⁄2 acr e trac t; THENCE Nor

th 75 vara s; THENCE Ea st 75 varas; THENCE South 75 vara s to a sta k e fo r t h e northea st corne r of L onnie Houston’s trac t; THENCE W est 75 vara s to the place of beg inning, c ontaining 1 a cre of l and, more or less.
Be ing the same proper

ty descr ibed in Dee d date d J an u ary 26, 1957, executed by Travis F. Colli ns and wife, Be ulah C o l l i ns, to L illie S. Seeber g er, rec orded in Volume 294, Pag e 479, De ed Rec ords of F ay ette County , Texas.
L ESS, HOWEVER, all that cer tain trac t or parc el of land ly ing and being situated in the C ounty of Fay ette, S tate of Texas, containing 0.008 acr e of land, and being the same proper

ty descr ibed in Dee d dated J an u ar y 16, 1967, executed by L illie Seeber g er to the State of

Texas, rec orded in Volume 384, Page 499, Dee d Records of F ay ette County , Texas. 2

Both the Valdez Property and the Seeber g er Property are located within a larg er are a bounded on the

n orth side by I nterstate Hig hway 10 and on the west, south, and east sides by Hac kberr y Street,

L illi e S

. S ee berg er had convey ed this 0.008 acr e portion of her proper ty to the State of 2 Texas for use in the c onstruction of an a cce ss road to I nterstate H ighw ay 10. 3Colli ns Street, and Walnut Street respe ctively

. When Valdez place d her mobile home on the easte rn

boundary of the Seeber g er Property in May 2000, the are a was undevelope d and cover ed with thick brush. Valdez testified that her husband spent three months clea ring by hand the section wher e the first mobile home was to be located. L ater , in Dec ember 2005, Va l dez’s husband cleare d an area for a second mobile home on the southern boundary of the Seeber g er Property

. Valdez testified that,

over time, her husband clea red the entirety of the Seeber g er Property , along with the Valdez Property and the rema inder of the proper ty bounded b y I H 10 and Hac kberr y , Colli ns, and Walnut Streets.
S h e did not, howeve r, provide a timeline for the clea ring activities other than to associat e t h em
g ener ally with the place ment of mobile homes. Acc ording to Valdez, in late 2005 her husband built a small storag e shed, w hich is located on the west side of the Seeber g er Prope rty

.

Valdez testif

i ed that she believed that Gordon had convey ed to her all the land bounded by I H 10 and Hac kberr y , Colli ns, and Walnut Streets. She testified that she believed this
to be the case not based on the metes and bound s d es cr i p t i o n contained in the Gordon Dee d, but beca use Gordon had “showe d [her] the four corne rs” o f t h e p roper ty Valdez was purcha sing. I n 2006, Valdez soug ht to have the City of Flatonia annex the proper ty she believed she owned in order
to obtain city utilit y service s for the two exis ting mobile homes and for other mobile ho m es s he intended to place on the property

. The City told her that she ne eded to pr ovide it with a survey of the proper

ty she soug ht to have annexed. Valdez reta ined Tim Hea ritag e to prepa

re a survey of her
proper ty

. Hea ritag e testified that Va ldez showed him the proper ty she believed she owned, which b y that time was mostly clea red. Hea ritag e testified that afte r he prepa red a survey th at d ep i ct ed
t h e proper

ty descr ibed in the Gordon Dee d, it beca me appar ent that the proper ty Valdez b el i ev ed

4she owned, and was occupy ing, was much larg er than t h e 0

. 2 2 3 ac re trac t descr ibed in Gordon’s
convey ance to her. Although Valdez believed s h e o wned the entire are a bounded by I H 10 and
Hac kberr y , Colli ns, and Walnut Streets, the proper ty actua lly convey ed to her by Gordon was only a portion of that a

rea . Valdez then went to se e Flatonia a ttorney Mike Steinhauser. Steinhause r had be en advising Valdez with respe ct to her attempts to have the City annex the proper ty Valdez believed she owned. S t ei n h au ser had also, in 1992, sold to Gordon the proper ty Gordon convey ed to Valdez in 1999, and S teinhauser ’s brother had pre pare d the Gordon D eed. Steinhause r testified that a fter he looked at t he survey Hea ritag e prepare d he tol d Valdez t hat “she h ad a p ro b l em.” Steinhauser testified that he then “did what lawy ers do” and attempted to help Valdez “cur e h er title” to the
proper ty she had been under the impression that she had purcha sed from Gordon. To accomplish that g oal, Steinhauser prepa red an Affida vit of Use and Possession in which Valdez aver red that she

was the owner of a 1.93 acr e trac t of land bounded by I H 10, Walnut Street, Colli ns Street, and
Hac kberr y Street (the 1.93 Acr e Trac t). Attache d as an exhibi t to the Affida vit is the following metes and bounds de scription of the 1.93 Ac re Tr act:

1.93 acr es of land, more or less, City of Flatonia, M. Muldoon L eag ue No. 14, A-76, Fa y ette County , Texas, including the same land descr ibed in Special Warranty Dee d, Arnie Marie Gordon to J uana Melende z, dated Fe bruar y 16, 1999 of rec ord in Volume 1055, Pag e 381, Offic ial Records of Fa y ette County , Texas and being more particula rly descr ibed by

metes and bounds a s follows, to-wit:
BEG I NNI NG at an iron rod found for t he Northea st corne r of a 1.76 acr e trac t descr ibed i n a dee d to Kaplena M. Patel and Manish M. Patel of record in Volume 1307, Pag e 589, Offic ial Records of Fa y et t e C o u n ty , Texas, same being in the southern boundary of the acc ess road of I nterstate Hig hway 10 and the wester n boundary of Ha ckber

ry Street.

5THENCE North 84 00'0 0 " E as t 283.40 fee t along the southern boundary of the B acc ess road of I nterstate Hig hway No. 10 to a point f or the northe ast corne r her eof;
THENCE South 332.52 fee t bis ecting Walnut Street to a point for the southeast corne r her eof;
THENCE West 246 fee t along the northern boundary of Colli ns Street to a point for the Southwest corne r her eof;
THENCE North 302 fee t to the Point of Be g inning and containing 1.93 acr es of land more or le ss.

Steinhauser testified tha t he pre pare d this “perimeter descr iption” of the 1.93 Acr e Trac t “ to try to match up what J uana thought she boug ht.” Acc ording to Steinhauser, the purpose of the Affidavit of Use and Possession, which he later filed in the Offic ial Records of Fa y ette County , was to provide notice to the world that Valdez was clai m ing owner ship of the 1.93 Acr e Trac t. Steinhauser also
prepa red a “D ee d W ithout Warranty ” from Gordon to Valdez purporting to convey the 1.93 Acr e Trac t. Gordon executed the Dee d Wit hout Warranty on May 4, 2007, and it was filed in the Offic ial Records of Fa

y ette County , on May 16, 2007. Steinhauser sent a copy of the Dee d Wit hout Warranty
to the Fa y ette County Appra isal District, which then beg an assessing proper ty taxes on the 1.93 Acr e Trac t. The appr aisal district sent the tax notices to Valdez and she pa id them. 3

After lear ning of the discrepa

ncy betwee n the desc ription of the proper ty convey ed
to her in the Gordon Dee d and the 1.93 Ac re Tr act, Valdez continued with her plan to place more mobile homes on the 1.93 Acr e Trac t. I n 2007, she place d a third mobile home on land that was part

The Fa y ette County Appra isal District continued to assess taxes on the Seeber g er Property , 3 which Moerbe paid. Thus, althoug h there is no evidenc e that the County was awa re that the Seeber g er P ro p erty was subsumed in the 1.93 Acr e Trac t, it was rec eiving tax pay ments on that proper ty from two diffe rent pe ople. 6of t he Valdez Propert y and, after that, place d two more mobi le hom es along the easte rn boundary

of the Seeber g er Property south of the first mobile home. Finally , in 2008, Valdez place d a mobile home near

the cor ner of Hac kberr y Street and Collins Stree t on land that was not pa rt of either the Valdez Property

or the See berg er Prope rty

. Moerbe test i fi ed t h at while s he was awa re of the gene ral location of t he S eebe rg er Property , she did not know wher e the proper ty lines actua lly wer e. She testified that her uncle and another rela tive periodica lly

chec ked on the proper

ty , and that she drove by

it in the late 1990s on her way from her home in L a Gra ng e to family reunions in Schulenber g . Moerbe testified that at

some time around 2009, her husband discovere d that there might be someone occupy ing part of the Seeber g er Property

. Moerbe testified that she saw mobile homes in the are a near wher e she believed the Seeber g er Property was located, but was not cer tain that they wer e actua lly on her land. Moerbe attempted to contac t the occupa nts of the first mob i l e home to try to “wor k something out,” but
g o t no response . These attempts included leaving a note on the mobile home’s door, speaking to Valdez’s daug hter, and stopping by periodica lly to try to meet with Valdez. I n J anuar y 2012, Moerbe ’s attorney sent a letter to Valdez by cer t i fi ed m ail advising her that Moerbe owned the Seeber g er Property and that Valdez was occupy ing that pro p er t y wi t hout Moerbe ’s permissi on or
consent. The letter demande d that Valdez vacate the Seeber g er Property or Moerbe would initiate leg al proce eding s to have her and her belong ings remove d. When Valdez did not respond, Moerbe filed a for cible entr

y and deta iner a ction in Fay ette County J ustice Court on Marc h 1, 2012. After being serve d wi th the forc ible entry and detainer action, Valdez ag ain went to Steinhauser. Steinhauser then se nt Moerbe’ s attorney a letter stating:

7J uana broug ht me y ou r p et i t i on. Ask Melody [Moerbe] to spend a few hundred

dollars on a g ood survey . I f J uana has trespasse d I will tell her she has to move

. I n that section of town, the le g al desc riptions are ve ry irreg ular. Tha

nk y ou.

Steinhauser also filed a g ener al denial in the forc ible entry and detainer action on Valdez’s behalf , which stated:

Def endant does not dispute Plaintiff’s “owne rship” o f h er proper ty

. Def endant disputes that Def

endant is “in possession” of Plaintiff’s proper ty

. Plaintiff should provide written proof via a bona fide up to date survey perf ormed by a Reg istered P rofessional L icense d Survey or to deter mine the actua l boundarie s of Plaintiff’ s proper ty and De fenda

nt’s proper

ty

. Def endant is the owner of the rea l proper ty descr ibed i n a S p ec i al Warranty Dee d from ARNI E MARI E GORDON dated Fe bruar y 16, 1999 of rec ord in Volume 1055 Pag e 381, Of

ficial Rec ord of F ay ette County , Texas [ the Gordon D eed]. 4
Although the rec ord does not include all the justice court filings, the parties do n o t d i spute that Moerbe preva iled in her forc ible detainer suit and that Valdez filed an appea l to the Fa y ette County
Court seeking a trial de novo. See Tex. R. Civ. P. 510.10 (providing for trial de novo from judgme nt in eviction case ). Whil e that case was pending , the Valdezes filed the underly ing trespass to try title suit in Fa y ette County District Court c laiming they had obtained title to the Seeber g er Property (as well as the rest of the 1.93 Acr e Trac t) by adver se possession. There afte r, Valdez filed a plea to the j u ri sdiction in the county court forc ible entry and detainer action asser ting that the court l ac k ed subject-matter jurisdiction beca use the issues o f t i t l e and possession wer e intertwined such that possession could not be adjudicated without first d eter mining ti tle. See Dormady v. Dinero L and

This pleading made no mention of the Dee d Wit hout Warranty that, unlike the Gordon 4 Dee d, contained a

proper ty descr iption that included the Seeber g er Prope rty

.

8& Cattl e Co. , 61 S.W .3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.) (question of

title may be so intertwined with issue of possession that possession may not be adjudicate d without first deter mining title and neither j ustice court nor county court on appea l from forc ible detainer action has jurisdiction to make adjudication reg arding title). The county court then abate d the case pending resolution of the que stion of titl e to the Seebe rg er Prope rty

.

T h e u n d e r ly in g tr e s p a s s to tr

y ti tl e s u it w a s tr

ie d to a ju r y . A t th e c lo s e o f th e e v id e n c e , the Valdezes moved for an instructed verdic t on their claim to have established title to the Seeber g er Property based on the ten y ear limit ations statute. See Tex. Civ. Prac. & Rem. Code § 16.026. The Valdezes did not move for an instru ct ed v er d i ct on their claim to have established title based on the five y ear

limit ations statute. See id. § 16.025. The trial c ourt denied the motion for instructed

v e r d ic t. T h e tr

ia l c o u r t s u b mi tt e d to th e ju

r y a c h a r g e th a t a s k e d : ( 1 ) w h e th e r th e V a ld e ze s ma in ta in e d
peac eable and adver se possession of the Seeber g er Property for any ten y ear perio d b e tw e e n F e bruar y 16, 1999 (the date the Gordon Dee d was executed) and Marc h 1, 2012 (the date Moerbe filed the forc ible detainer suit) and (2) whether the Valdezes maintained peace able and adver se possession

o f t h e Seeber g er Property for any five y ear period beg inning on or afte r May 16, 2007 (the date the Deed Wit hout Warranty was filed). Both questions wer e acc ompanied by the instruction that “pea cea ble possession” means “the possession, use and enjoy ment of rea l proper

ty that is continuous and i s n o t i n terrupte d by an adver se suit to rec over the proper ty .” The jury answe red “No” to both questions. The Valdezes then filed a motion for judgme nt notwithstanding the verdic t asser ting that they had prese nted evidenc e establishing, as a matter of law, that they had title to the Seeber g er

9Property throug h both the five and the ten-y ear limit ations statutes. The Valdezes asked the trial

court to disreg ard the jury ’s answe rs and rende r judgme nt in their favor

. The appellate rec ord does
not include an order on the Valdezes’ motion for judgme nt notwithstanding the verdic t. There afte r, the trial court rende red judgme nt on the jury ’s verdic t that the Valdezes had not adver sely possessed the Seeber g er Property and that Moerbe had clea r and indefe asible title to it. This appea l followed.

DISCUSSIO N

Stan dard of Revie w

I n their first issue, the Valdezes asser t that the trial court err ed in deny ing the motion fo r i nstructed verdic t and the motion for judgme nt notwithstanding the verdic t. A mot i o n fo r instructed verdict, authorized by Texas Rule of C ivil Procedur e 268, remove s t h e matters at issue from the jury and leads t o re n d i t i o n o f judgme nt as a matter of law. See Tex. R. Civ. P. 268. A plaintiff is entitled to an instructed verdic t only when she has conc lusively proven the elements of her claim and rea sonable minds could draw only one concl u s i o n from the evidenc e. Collora v. Navarro , 574 S.W .2d 65, 68 (Tex. 1978). A motion for judgme nt not wi t h s t an ding the verdic t, which asks the trial court to disreg ard the jury ’s finding s and rende r judgme nt as a matter of law, is authorized if a direc ted verdic t would have been proper . See Tex. R. Civ. P. 301. Thus , t h e Valdezes’ complaint that the trial court err ed by deny ing both the motion for instructed verdic t and the motion for judgme nt n o twithstanding the verdic t is an asser tion that the evidenc e admitted at trial demonstrates, as a matter of law, that they established ti tle to the S eebe rg er Property throug h either the five or the ten-y ear limit ations statutes. See F ort Be nd Cnty. Drainage Dist. v

. Sbrusch , 818 S.W .2d 392, 394 (Tex. 1991). Be cause we revie w the denial of a motion for j u d gm en t not
10withstanding the verdic t under leg al sufficie ncy principles, we may reve rse only when “the law does

not allow rea sonable jurors to decide otherwise.” C i t y of Keller v. W

ilson , 168 S.W .3d 802, 823 (Tex. 2005). We must therefor e conside r whe ther the e vidence at trial prove d, as a matter of law, the elements re q uired to establish title throug h the five or ten-y ear limit ations statutes. I n our 5
revie w, we cre dit evidenc e favor able to the verdic t if rea sonable jurors could and disreg ard contra ry evidenc e unless rea sonable jurors could not. Id. at 827; see Tanner v. Nationw ide Mut. Fire Ins. Co. , 289 S.W .3d 828, 830 (Tex. 2009).
Applicable Law

Adver se posses sion means an actua l and visible appropr iation of rea l proper ty ,

commence d and continued under a claim of rig ht that is inconsistent with and hostile to the claim of another person. Tex. Civ. Prac. & Rem. Code § 16.021(1). T o p re v ai l o n a claim of adver se possession, a claimant must establish actua l and visible possession of the disp u t ed proper ty that is (1) adver se and h o s t i l e t o t he claim of the owner of rec ord title; (2) open and notorious; (3) peac eable ; (4) exclusive; and (5) involves continuous cultivation, use, or enjoy ment throug hout
t h e s t at utory period. Anderton v. Lane , 439 S.W .3d 514, 517 (Tex. App.—El Paso 2014, pet.

We observe that the motion for instructed verdic t addre ssed only the clai m o f ad v er s e 5 p o ssession under the ten-y ear limit ations statute. The motion for judgme nt notwithstanding the verdic t addre ssed both the five y ea r an d the ten-y ear limit ations statutes, but the appellate rec ord does not inc lude an or der or other notation r efle cting the trial court’s ruling on that motion. Thus, arg uably , the Valdezes have failed to prese rve the complaint that the trial cour t errone ously

failed to rende r judgme nt in their favor on their claim based on the five-y ea r l i m i t at ions statute. See Quintero v. Citi

zens & S. Factors, Inc. , 596 S.W .2d 277, 279 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ ) (h o l d i ng that beca use appellate rec ord did not ref lect that motion for judgme nt notwithstanding verdic t was prese nted to and ruled on by trial court there was no action of trial court befor e appe llate cour

t for re view). N ever

theless, we w ill address the Va ldezes’ complaint. 11denied)

. One seeking to establish title to land by virtue of the limit ations statutes has the burden of

proving ever

y fac t essential to that claim. Rhodes v. Cahill , 802 S.W .2d 643, 645 (Tex. 1990).

Ten-Year Stat ute

To establish title under the ten-y ear statute, the Valdezes must ha ve proved that the fac tual elements of an adver se possession claim wer e met as to the Seeber g er Property for a ten y ear period during which no suit was broug ht to rec over that proper ty

. See Tex. Civ. Prac. & Rem. Code § 16.026. On appeal, t he Valdezes contend that they established as a

matter of la

w that they

wer e in peac eable and adve rse possession of the entirety of t he 1.93 Acr e Tract betwe en June 2000 and
Fe bruar y 28, 2012. Thus, acc ording to the Valdezes, they have established t itl e t o t h e enti re 1.93
Acr e Tra ct. The question in this case , though, is limit ed to whether the evi d en ce conclusively establishes that the Valdezes wer e in peac eable and adver se possession of a particula r portion of the
1.93 Acr e Trac t, sp ec i fi ca l l y t h e Seeber g er Property

. We conclude that it does not. There was evidenc e at trial that Valdez put a trailer house on the easte rn b o u n d ar y l i n e of the Seeber g er Property in 2000 and that an o t h er trailer was place d on the southern portion of the Seeber g er Property i n 2 0 0 5

. There was no evidenc e, howeve r, that the Valdezes wer e using, cultivating, or enjoy ing any other part of the Seeber g er Property for a ten y ear perio d o f t ime. Although the Valdezes conce de that the jury may have believed that they “did not use all of th e p ro p er t y at the
outset of t h eir occupa

ncy , and conseque ntly did not have exclusive possession of all of [t he Seeber g er Property ] from the beg inning,” they contend that such a finding is irrele vant beca use they

wer e not r equire d to use the entirety of the trac t for the entire ten-y ear period. Rely ing on Doyle v.
12Ellis , 549 S.W .2d 62 (Tex. Civ. App.—Waco 1977, no writ), the Valdezes contend that they wer e only require d “to use the land for a purpose to which it is adapta ble and capa

ble of being used” and that the “use of so much of it as they could over

the per iod of time that it took t o clea r it a nd put it
to other use was sufficie nt.” Doyle does not, howeve r, support the notion of cre eping ad v er s e possession the Valdezes advoca te. Whil e Doyle does stand for the proposition that the land claimed by adver se possession nee d only have be en used f

or a pur pose to which it is adapta ble, i t does not stand for the proposition that the land claimed by adver se possession need not have been used at all. 6

I n the prese nt case the jury could rea sonably have deter mined that the Valdezes did
not use larg e portions of the Seeber g er Property at all from 2000 to 2005. I n any event, the evidenc e does not conclusively establish that the Valdezes used the entire Seeber g er Property for the ten-y ear statutory period. The trial court did not er r in deny ing the Valdezes’ motion for instructed ver dict

or motion for judgme nt notwithstanding the verdic t with reg ard to their claim to adver se possession of the See berg er Prope rty under the ten-y ear

limit ations statute.

Five-Year Statu te

The Valdezes also claim that they established conclusively the el ements of their claim of adver se possession under the five-y ear limit ations statute. See Tex. Civ. Prac. & Rem. Code

Unlike a person claiming title under the ten-y ear bare possession statute, a person claiming 6 title under the five-y ear reg istered deed statute is considere d t o h ave constructive possession of all the land within the boundarie s o f h i s deed not under another ’s actua l possession if he has actua l possession of any of those lands. See Sun Operating Ltd. P’ship v. Oatman , 911 S.W .2d 749, 7 5 8 (T ex . App.—S an Antonio 1995, writ denied)

. The Valdezes did not have a reg istered deed purporting to cover the Seeber g er Property until May 2007 and, conseque ntly , may not be considere d to have been in constructive possession of any of the Seeber g er Property they wer e not actua lly using until that date. 13§ 16.025. That statu t e p ro v i d es t hat the rec ord owner of a parc el of rea l proper ty must bring suit
ag ainst a person who adversely and peace ably possesses t he property within five y ear s of t he date

on which the cause of action acc rued or the rec ord owner ’s claim is barr ed, provided that the adver se possessor (1) claims the property un d er a duly reg istered deed; (2) pay s the t axes on the property ; and (3) cultivates, uses, or enjoy s the proper ty

. Id. Thus, the adve rse possessor can e stablish tit le under this statute by proving these elements in ad d i t i o n t o the g ener al elements of an adver se possession cl ai m . Be cause it is dispositi ve, we first consider whether the Valdezes conclusively established the element of peac eable possession und er a d u l y reg istered deed for the statutory period. “Peac eable possession” is de fined as “possession of rea l proper ty that is continuous and is
not interrupted by an adver se suit to rec over the proper ty .” Id. § 16.021(3). The Valdezes filed the
Dee d Wit hout Warranty descr ibing the 1.93 Acr e Trac t that included the Seeber g er Propert y on May 16, 2007. On Marc h 1, 2012, befor e five y ear s had elapse d, Moerbe filed a forc ible entry and detainer action ag ainst the Valdezes in justice court seeking immediate possession of the Seeber g er Property

. The Valdezes maintain, howeve r, that the forc ible entry and detainer suit did not interrupt their peac eable possession of the Seeber g er Property bec au s e the forc ible entry and detainer suit
“wa s a non entity .” Essentially , the Valdezes arg ue that beca use the issue of title was so intertwined with the rig ht to possession of the Seeber g er Property , neither the county court nor the justice court had subject-matter jurisdiction over the suit. The Valdezes asser t that, as a conseque nce, Moerbe ’s fi ling of the forcible entry and detainer action was a “noneve nt” t hat di d not serve to interrupt th e Valdezes’ pe ace able possession.

The Valdezes are corr ect that the only issue the justice court may decide in a forc ible entry and detainer action is the rig ht to possession and that it does not have jurisdiction to adjudicate
14title to land. See Tex. Gov’t Code § 27.031(b)( 4). That does not, howeve r, mean that the justice

court and the county court lacke d subject-matter jurisdiction over Moerbe ’s action to deter mine the rig ht to possession of the Seeber g er Property

. Rather, a forc ible detainer action is c umulative, not exclusive, of other reme dies that a party may have and the parties may pursue both a forc ible detainer action in justice court and a sui t to quiet title in a dis trict court. See Dormady , 61 S.W .3d at 557.
“Ac cording ly , forc ible detainer actions in justice court may be prosec uted concur rently with title d is p u te s in d is tr ic t c o u

r t. ” I d

. ( c it in g H a it h v
. D r a k e , 5 9 6 S. W. 2 d 1 9 4 , 1 9 6 ( T e x. Ci v . A p p . — H o u s to n [1st Dist.] 1980, writ ref

’d n.r.e.) ). Whil e the county court did not have jurisdiction to deter mine title
to the S eebe rg er Property , it did have jurisdiction over the forc ible detainer action. The Valdezes

are simply

incorre ct that Moerbe ’s forc ible detainer action should have been dismissed for lack of subject-matter jurisdiction rathe r than abate d pending the district court’s resolution of the question of title to the Seeber g er Prope rty

.

Finally , the Valdezes cite no authority , and we are not awa re of any , that supports the proposition that a forc ible entry and detainer action d o es n o t co n s titute a “suit to rec over the property ” that interrupted the Valdezes’ peac eable p o s s es s i on of t he S eebe rg er Property

. The forc ible entry and detainer action was plainly an at t em p t b y Moerbe to asser t an interest to the
proper ty adver se and superior to the Valdezes’ and to interrupt their occupa tion of land she claimed
to own. The Valdezes failed to conclusively establish the element of peace able poss es s i o n o f the Seeber g er Property for the five-y ear period require d by the statute. The trial court did not err in deny ing the Valdezes’ motion for instructed verdic t or motion fo r judgme nt notwithstanding the verdic t with reg ard to their claim to adver se possession of the Seeber g er Property under the five y ear limit ations statute. We overrule the Valde zes’ first issue.
15Jury Char ge Error
I n their second i s s u e, t he Valdezes complain that the trial court “cha rg ed the jury with inadequa te and incomplete instructions reg ardin g t h e ef fect and eff

icac y of the justice court

case , and with respe ct to the require d amount of use that claimants must put the proper ty to establish
use, poss es s i o n, and ex clusivity .” The Valdezes’ brief does not elabor ate further on the nature of the alleg ed char g e err or. They provide no leg al arg ument supporting this issue, nor do they provide this Court with citations to any supporting authorities or to the rec ord. To comply with Texas Rule of Appellate Procedur e 38.1, an appellant must articula te the issue we are asked to decide so that we
may discern what question of law we are called upon to answe r. See Tex. R. App. P. 38.1(f)

. I f an appellant fails to articula

te the question to be answe red, then the brief fails at that point. I f the issue is identified, then rule 38.1(i) require s that the brief g uide the Court, at least to some deg ree , throug h appellant’ s arg ument with clea r and understanda

ble statements of the contentions being made. Her e, the most we can do is g uess or specula te reg arding the manner in which the Valdezes claim that the jury inst ructions were deficient. This issue is there fore inadequa tely briefe d and presents nothing for this Court to revie w. We do observe , howeve r, that we have alre ady explained that the forc ible entry and detainer action serve d to interrupt the Valdezes’ peac eable possession of the Seeber g er Property and that the Valdezes wer e require d to demonstrate that they had pu t the entirety of the Seeber g er Property to at least some ty pe of use in order to make a claim of adver se possession under the ten y ear limit ations statute. To the exte n t t he Valdezes’ second issue constitutes a complaint that the trial cour

t erre d by ref using to instruct the jury

differ ently , it is overruled.

16CONCLUSION
For the rea sons sta ted in this opi nion, we conc lude that the trial c ourt did not err in deny ing the Valdezes’ motion for inst ru cted verdic t or motion for judgme nt notwithstanding the verdic t. We also conclude tha t the Valdezes ha ve failed to de monstrate any reve rsible err or in the jury char g e. Consequently , we a ffirm the tria l court’s judg ment.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field
Affir med Filed: Apr il 6, 2016

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