IN THE

COURT OF APPEALS

THIRD DISTRICT OF TEXAS AT AUSTIN

NO. 03-14-00731-CV

JUANA MENDEZ VALDEZ

ET VIR JUAN VALDEZ, Appellants

V.

MELODY MUELLER MOERBE, Appellee

APPELLEE’S REJOINDER TO APPELLANTS’ REPLY BRIEF

On Appeal from the 155 th District Court of Fayette County, Texas

Trial Court Cause No. 2013V-052

GATES, STEIN, GILLESPIE &

TREFNY

MICHAEL T. TREFNY

TBN 20207650

P. O. Box 458

Columbus, Texas 78934

Telephone: (979) 732-2301

Facsimile: (979) 732-2303

Email: mtrefny@gsgtlawfirm.com

ATTORNEYS FOR APPELLEE,

MELODY MUELLER MOERBE ACCEPTED

03-14-00731-CV

5084966

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/29/2015 2:42:24 PM

JEFFREY D. KYLE

CLERKii TABLE OF CONTENTS

Page(s)

INDEX OF AUTHORITIES

............................................................ . iii

ARGUMENT AND AUTHORITIES

.................................................... 1

PRAYER

...................................................................................... 5

CERTIFICATE OF COMPLIANCE

...................................................... 5

CERTIFICATE OF SERVICE

............................................................ 6iii INDEX OF AUTHORITIES

Cases

(Tex. App.

– El Paso, 2007, pet dism)

.......................................................................................................... 2

Falcon v. Ensigna

, 976 S. W. 2d 336, 338 (Tex. App.

– Corpus Christi 1998, now pet.)

............................ 2

Heard v. State

, 146 Tex. 139, 146, 204 S. W. 2d 344, 348 (1947)

............................................................... 1

Mapco v. Marek

, 797 S. W. 2d 700, 702, 33 Tex. Sup. Ct. J. 303 (Tex. 1990)

............................................ 2

Satterwhite v. Rosser

, 61 Tex. 166, at 171, (1884)

....................................................................................... 1

Sparkman v. State

, 968 S. W. 2d 373, 377-78 (Tex. App.

– Tyler 1997, pet. Ref’d)

................................... 2

Villalon v. Bank One

, 176 S. W. 3d 66 (Tex. App.

– Houston [1 st Dist.], 2004, pet. denied)

....................... 2

Rules

Texas Rules of Civil Procedure 166a(c)

....................................................................................................... 3

Code

Texas Civil Practice and Remedies Code Section 16.025 and 16.026

.......................................................... 3

Texas Civil Practice and Remedies Code Section 16.025 or 16.026

............................................................ 1

Texas Property Code Chapter 24

.................................................................................................................. 11

Appellee, Melody Mueller Moerbe, files this her Rejoinder to the Reply

Brief of Appellants.

ARGUMENT AND AUTHORITIES

This Rejoinder is intended to address only those arguments and authorities

raised in Appellants’ Reply Brief. There are three simple points. First, Appellants

have wholly failed to point this Court to any case which holds that filing suit in

Justice Court to recover possession of real property under the Texas Property Code

Chapter 24

, commonly called an eviction case, is not sufficient to toll limitations

under Texas Civil Practice and Remedies Code Section 16.025 or 16.026

.

Secondly, Appellants argue that just because the testimony of Appellant Juana

Mendez Valdez was full of inconsistencies and outright lies on some issues, she

should still be believed on other issues. Third, Appellants urge that lack of

exercise of control over the property by Ms. Moerbe somehow lowers Appellants’

burden to show that they exercised sufficient use and control over the property to

establish the requisite possession and control over the property, to-wit:

“visible, continuous, notorious, distinct, hostile (i.e., adverse), and of such a

character as to indicate unmistakably an assertion of a claim of exclusive

ownership in the occupant.”

Satterwhite v. Rosser

, 61 Tex. 166, at 171, (1884)

. Cited with approval in Heard v.

State

, 146 Tex. 139, 146, 204 S. W. 2d 344, 348 (1947)

.2

Regarding the first point, Appellants have now cited the Court to two cases

which really do them no good, and in fact help establish that filing suit in Justice

Court is sufficient. In Padilla v. NCJ Dev., Inc. 218 S. W. 3d 811 (Tex. App.

– El

Paso, 2007, pet dism)

, the Eighth District Court of Appeals clearly held that

“Specific evidence of a title dispute is required to raise an issue of a justice court’s

jurisdiction.” Id. at 815. HN 4. Citing with approval, Falcon v. Ensigna

, 976 S. W.

2d 336, 338 (Tex. App.

– Corpus Christi 1998, now pet.) and Sparkman v. State

,

968 S. W. 2d 373, 377-78 (Tex. App.

– Tyler 1997, pet. Ref’d)

. In this case, no

issue of title was raised in the Justice Court and the Justice Court suit was a suit to

recover real property tolling limitation. The tolling of limitations never ceased as

the suit in District Court below was filed while the appeal to the County Court was

pending. The second case, Villalon v. Bank One

, 176 S. W. 3d 66 (Tex. App.

–

Houston [1 st Dist.], 2004, pet. denied)

, merely recites that “A judgment is void only

when it is apparent that the court rendering the judgement had no jurisdiction of

the parties, no jurisdiction of the subject matter, no jurisdiction to enter the

judgment, or no capacity to act as a court.” Id. at 69. Citing Mapco v. Marek

, 797

S. W. 2d 700, 702, 33 Tex. Sup. Ct. J. 303 (Tex. 1990)

. Under Villalon and

Mapco

, the Justice Court had jurisdiction until an issue of title was raised, which it

was not until after the appeal to County Court. The filing of the suit clearly was a

suit to recover property, if just possession, which tolled limitations under Texas3

Civil Practice and Remedies Code Section 16.025 and 16.026

. Appellants have yet

to cite any case to the contrary.

On the issue of credibility of Appellant Juana Mendez Valdez, Appellants’

only witness on their possession and use of the property, Appellants are now

admitting that she testified falsely, but offer the excuse that such testimony was not

relevant and that her testimony was clear, direct and positive when it counted. See

Reply Brief at Page 3, Paragraph 2. However, the standard which Appellants must

prove is that her testimony, where there is no opposing evidence, also is:

“clear, direct, and positive and otherwise credible and free from

contradiction and inconsistencies and could have readily been controverted.”

Texas Rules of Civil Procedure 166a(c)

. What Mrs. Valdez heard from Ms.

Gordon or did with the property early on could not be “readily controverted.” Ms.

Gordon is dead. Mr. and Mrs. Valdez are admittedly the only people who were

paying attention to the use of the property in 2000. However, Mrs. Valdez’

evidence is not clear and there is a lot of testimony tending to discredit or impeach

such testimony. Mrs. Valdez repeatedly contradicted her testimony given in direct

and upon cross, and on extremely material issues such as what use she made of the

property. In direct she said she and her husband cleared the land when they

purchased it. Under cross examination, she admitted that the brush was thick and

they only cleared enough to get the trailers in as they built them. The evidence of4

the contradictions and lies by Mrs. Valdez was overwhelming. See Appellee’s

Brief Pages 9-15 which detail many of the most clearly established lies.

Notwithstanding Mrs. Valdez’ various testimony, she clearly admitted that

the Seeberger tract was all grown up in brush and they did not clear it right away.

(RR Vol. 3, P. 29, LL 24-P. 30, LL 10) Appellants did not clear the entire property

when they first took possession in 2000, but rather only cleared a little area for the

first trailer in 2000 (RR Vol. 3, P. 32, LL 10-21), which is situated very close to

the edge of the Seeberger tract along an area of unknown ownership, and only

partially on the Seeberger tract. (RR Vol. 3, P. 65, LL 5-14) As such, even if all

of her other testimony was credible, by her own admissions adequate evidence

exists to support the jury’s finding that Appellants’ possession was not so “visible,

continuous, notorious, distinct, hostile (i.e., adverse), and of such a character as to

indicate unmistakably an assertion of a claim of exclusive ownership in the

occupant.” It is on this issue the jury properly considered not only the lack of

credibility of Mrs. Valdez, but also the self-defeating testimony of her limited use.

Without the benefit of the presumption of use of the entire tract, which is

allowed under Texas Civil Practice and Remedies Code 16.025, Appellants had the

burden under the ten (10) year statute, Texas Civil Practice and Remedies Code

16.026, of establishing that their use to the above standard applied not only to

some corner, but to the entirety of the tract. Mrs. Valdez’ own testimony shows5

that Appellants did not do so, and would compel such a finding even if the jury had

not so found.

PRAYER

Appellee, Melody Mueller Moerbe, prays that for the foregoing reasons,

Appellants’ appeal should be in all things denied.

Respectfully submitted,

G A T E S

, S T E I N

, G I L L E S P I E &

T R E F N Y

By /s/ Michael T. Trefny

MICHAEL T. TREFNY

SBN 20207650

P. O. Box 458

Columbus, Texas 78934

Telephone: (979) 732-2301

Facsimile: (979) 732-2303

Email: mtrefny@gsgtlawfirm.com

ATTORNEYS FOR APPELLEE,

MELODY MUELLER MOERBE

CERTIFICATE OF COMPLIANCE

Pursuant to T EXAS R ULES OF A PPELLATE P ROCEDURE 9.4(i)(3), I hereby

certify that Appellee’s Rejoinder to Appellants’ Reply Brief contains 1,071 words,

as computed by the word processing program Microsoft Word, commencing with

the Argument and Authorities and, except for footnotes, is in Times New Roman

font text, 14-point typeface.

/s/ Michael T. Trefny

MICHAEL T. TREFNY6 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has

been served on Appellants, pursuant to the T EXAS R ULES OF A PPELLATE

P ROCEDURE on this 29 th day of April, 2015, as follows:

E-filing through Pro-Doc, on OF JONES III, at ofjones360@gmail.com

.

/s/ Michael T. Trefny

MICHAEL T. TREFNY