Velma San Miguel and Alexis Rendon v. PlainsCapital Bank, Trustee of the Guerra Mineral Trust ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-18-00450-CV
Velma SAN MIGUEL and Alexis Rendon,
Appellants
v.
PLAINSCAPITAL BANK, Trustee of the Guerra Mineral Trust,
Appellee
From the 381st Judicial District Court, Starr County, Texas
Trial Court No. DC-16-19
Honorable Everardo Garcia, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Dissenting Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: July 10, 2019
To reverse the trial court’s judgment, the majority rejects each of the grounds in the Bank’s
motion for summary judgment, including the Bank’s theory of title by prior possession. But the
Bank presented prima facie evidence of prior possession, and nothing in San Miguel’s summary
judgment proof raises a fact question on her ownership of the mineral interest at issue. Thus, the
Bank was entitled to summary judgment and I would affirm the trial court’s judgment. Because
the majority decides otherwise, I respectfully dissent.
Dissenting Opinion 04-18-00450-CV
TITLE BY PRIOR POSSESSION
In this case, where “the trial court’s order does not specify the grounds for its summary
judgment, we must affirm the summary judgment if any of the theories presented to the trial court
and preserved for appellate review are meritorious.” Provident Life & Acc. Ins. Co. v. Knott, 128
S.W.3d 211, 216 (Tex. 2003); accord Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520
S.W.3d 39, 45 (Tex. 2017). The Bank moved for summary judgment on four grounds, but because
a single meritorious ground is sufficient for this court to affirm the trial court’s judgment, Lightning
Oil Co., 520 S.W.3d at 45, I will address only the Bank’s theory of title by prior possession.
A. Applicable Law
“The plaintiff may recover on a trespass to try title claim through several methods of proof,
one of which is a showing of prior and unabandoned possession.” Volunteer Council of Denton
State Sch., Inc. v. Berry, 795 S.W.2d 230, 233 (Tex. App.—Dallas 1990, writ denied) (citing Land
v. Turner, 377 S.W.2d 181, 183 (Tex. 1964) (stating that a plaintiff may recover in a trespass-to-
try-title action “by proving prior possession, and that the possession had not been abandoned”).
“[T]o establish ‘prior possession,’ there must be an actual possession of the property which
is exclusive, and peaceable.” Land, 377 S.W.2d at 186; accord Berry, 795 S.W.2d at 233; Walsh
v. Austin, 590 S.W.2d 612, 614 (Tex. App.—Houston [1st Dist.] 1979, writ dism’d) (“To invoke
the rule of prior possession, there must appear prior possession, exclusive dominion and the
absence of a superior title in the opposing party.”).
“Actual possession to satisfy requirements of prior possession may be through agents or
tenants.” Walsh, 590 S.W.2d at 615. “[A]n exclusive and peaceable possession of land furnishes
prima facie evidence of ownership.” Land, 377 S.W.2d at 186 (quoting Pac. Exp. Co. v. Dunn, 16
S.W. 792, 792 (Tex. 1891)); accord House v. Reavis, 35 S.W. 1063, 1064 (Tex. 1896) (determining
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that the plaintiffs’ “possession of the land in controversy under a claim of title . . . [was] prima
facie evidence of title in [the plaintiffs]”).
“The prima facie showing actually shifts the burden of persuasion to the defendant to show
that the plaintiff’s prior possession claim is inferior to the defendant’s.” Berry, 795 S.W.2d at 234;
accord Walsh, 590 S.W.2d at 615–16. “[W]hen the plaintiff establishes a prima facie case, the
defendant must introduce evidence raising a material issue of fact if it wishes to avoid a summary
judgment . . . in the plaintiff’s favor.” Berry, 795 S.W.2d at 234; accord Walsh, 590 S.W.2d at
616.
B. Bank’s Evidence of Prior Possession
To be entitled to summary judgment, the Bank had to prove a prima facie case of prior
possession. See Berry, 795 S.W.2d at 233; Walsh, 590 S.W.2d at 614. The Bank submitted
affidavits from William Thomas Guerra Sr. and Bill Douglas Pope Sr.
1. W.T. Guerra Sr.’s Affidavit
In his affidavit, W.T. Guerra Sr. began by stating “I have personal knowledge of the facts
stated herein.” He continued and testified to the following facts.
The land described in the 1956 deed, which includes the 781.11 acres at issue, is known to
his family as the Los Barrosos Pasture. It was completely fenced in on three sides and partially
fenced in on the fourth side.
His family did not live on the property but they “were there continuously throughout each
year from 1932 (or at least 1948) until 1969.” They hunted on the property; “controlled, used, and
occupied the Property for raising cattle”; built stock pens and stock tanks on the property; and built
a cabin on the property where one or more of their ranch hands lived full-time.
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Dissenting Opinion 04-18-00450-CV
His family continuously paid taxes on the property before they claimed title by prior
possession, and no one else, including San Miguel or Rendon, have ever “occupied, used, or
possessed the Property.” Before the instant lawsuit, none of the defendants ever challenged his
family’s ownership of the property.
2. Majority’s Criticisms of Guerra’s Affidavit
a. Lack of Specificity
The majority first criticizes W.T. Guerra Sr.’s affidavit because he “does not attest to
whether the use and cultivation of the property occurred specifically on the 781.11-acre tract,” but
his testimony is prima facie evidence of prior possession of the entire Los Barrosos Pasture, within
which the 787.11-acre tract is wholly contained.
b. Personal Knowledge
The majority also criticizes W.T. Guerra Sr.’s use of “to the best of my knowledge” in
three of his twenty-four statements in his affidavit. An affidavit is required to be based on personal
knowledge, Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam) (citing TEX.
R. CIV. P. 166a(f)), and W.T. Guerra Sr. swears that he has “personal knowledge of the facts stated
herein.” “The inclusion of the phrase ‘to the best of my knowledge’ does not negate [W.T. Guerra
Sr.’s] earlier assertion that the affidavit was based on [his] personal knowledge.” See Taylor v.
Discover Bank, No. 03-17-00677-CV, 2018 WL 4016611, at *1 (Tex. App.—Austin Aug. 23,
2018, no pet.) (mem. op.) (citing Ermisch v. HSBC Bank USA, No. 03-16-00080-CV, 2016 WL
6575232, at *3 (Tex. App.—Austin Nov. 4, 2016, pet. denied) (mem. op.)).
In only one of twenty-four paragraphs of his affidavit, and with reference to only the ten-
year period before he was born, W.T. Guerra Sr. testified that his “belief [that his grandfather
initially claimed Los Barrosos Pasture in 1932] is based upon multiple statements made to me
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during my childhood . . . and upon my understanding of the Guerra family history.” To the degree
that W.T. Guerra Sr.’s statements about that ten-year period were based on his belief and not his
personal knowledge, they were legally insufficient. See Kerlin v. Arias, 274 S.W.3d 666, 668
(Tex. 2008).
But in every other paragraph, W.T. Guerra Sr. testifies to facts based on his personal
knowledge—which is sufficient. See id.; Ryland Grp., 924 S.W.2d at 122.
W.T. Guerra Sr.’s affidavit stated specific facts within his personal knowledge—which
comprised prima facie evidence of prior possession. See Berry, 795 S.W.2d at 234; Walsh, 590
S.W.2d at 616.
c. Mortgage Land & Investment Co. v. Spears
The majority also criticizes W.T. Guerra Sr.’s affidavit using Spears’s proposition that “the
testimony of one witness was not sufficient to prove actual possession as a matter of law,” but
Spears’s facts are dramatically different. See Mortg. Land & Inv. Co. v. Spears, 162 S.W.2d 1015
(Tex. App.—San Antonio 1942, writ ref’d w.o.m.).
In Spears, the only evidence of prior possession was from a single witness—a ranch hand—
whose “testimony [was] very brief.” Id. at 1016. Spears concluded the evidence did not establish
prior possession as a matter of law because of “the meagerness of the testimony [about] the location
and nature of the fence mentioned by the [only] witness” and the fact that “the witness’ knowledge
of the nature of the Pasture Company’s possession from 1909 to 1926 is based on nothing more
than the fact that he passed through the pasture since 1909.” Id. at 1017.
A single ranch hand’s testimony about passing through an area sometime during a
seventeen-year period is not even a shadow of the evidence in W.T. Guerra Sr.’s affidavit—which
is supplemented by, inter alia, the 1956 deed and B.D. Pope Sr.’s affidavit.
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Dissenting Opinion 04-18-00450-CV
3. B.D. Pope Sr.’s Affidavit
In his affidavit. B.D. Pope Sr. testified he was born and raised in Starr County, and he lived
most of his adult life there. When he visited the adjoining ranch, he saw the Guerras’ cattle—
identifiable by their distinctive brand—on the property, he saw the Guerras’ vaqueros herding and
running the cattle on the property, the Guerras’ vaqueros were on the “Guerra property quite often,
and [they] were frequently there whenever I would visit the [adjoining] ranch.” Pope also testified
that in the 1960s, he helped his father, an attorney, to “compile an inventory of all of the Guerra
family lands held under fence,” and he was familiar with who owned the property at issue in this
case.
4. Hearsay Objections to Affidavits
San Miguel filed written objections to both affidavits as containing hearsay, but she did not
obtain a ruling from the trial court on her objections. Her hearsay objections are waived for
purposes of appellate review. See Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 498 (Tex.
App.—Fort Worth 2002, no pet.) (citing Harris By & Through Harris v. Spires Council of Co-
Owners, 981 S.W.2d 892, 897 (Tex. App.—Houston [1st Dist.] 1998, no pet.)).
Assuming without deciding that San Miguel’s hearsay objections were not waived, the
affidavits’ family history statements were admissible under hearsay exceptions. See TEX. R. EVID.
803(19), (20); Akers v. Stevenson, 54 S.W.3d 880, 885–86 (Tex. App.—Beaumont 2001, pet.
denied) (admitting family history and boundary deposition testimony for events occurring before
the deponent’s birth based on hearsay exceptions (19) and (20)).
5. Other Objections to Affidavits
San Miguel also argues the affidavits are largely conclusory, are not based on personal
knowledge, and W.T. Guerra Sr.’s interested witness affidavit could not be readily controverted.
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Dissenting Opinion 04-18-00450-CV
In W.T. Guerra Sr.’s affidavit, he avers that the facts he recites are based on his growing
up in the area, visiting the land, talking with ancestors and relatives who worked the land, and
listening to the oral histories related by his ancestors and relatives. His statements of specific facts
regarding his birth, ancestry, family histories, and personal observations were based on his
personal knowledge; they were not merely conclusory, and they are competent summary judgment
evidence. See Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 242 (Tex. App.—Waco
2003, no pet.) (quoting Rodriguez v. Wal-Mart Stores, Inc., 52 S.W.3d 814, 823 (Tex. App.—San
Antonio 2001), rev’d in part on other grounds, 92 S.W.3d 502 (Tex. 2002)) (“A conclusory
statement is one that does not provide the underlying facts to support the conclusion.”).
Further, his statements regarding the ownership and use of the property were clear,
positive, and direct; internally consistent; and could have been readily controverted. See TEX. R.
CIV. P. 166a(c); Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989) (teaching that “could have been
readily controverted” means could have been “effectively countered by opposing evidence”).
Similarly, the statements recited above from Pope’s affidavit were based on his personal
knowledge and supported by specific facts; they were competent summary judgment evidence.
See Choctaw Props., 127 S.W.3d at 242; cf. Winchek v. Am. Exp. Travel Related Servs. Co., Inc.,
232 S.W.3d 197, 206 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
6. Prima Facie Evidence of Prior Possession
The Bank’s burden was to produce prima facie evidence of prior possession of the mineral
estate, see Walsh, 590 S.W.2d at 614; see also Berry, 795 S.W.2d at 233, and Land and its cited
cases show the Bank met its burden.
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Dissenting Opinion 04-18-00450-CV
a. Lockett v. Glenn
In Lockett v. Glenn, neither party pled title from the sovereign; the plaintiff “sought to
recover upon the ground of prior possession.” Lockett v. Glenn, 65 S.W. 482, 482 (Tex. 1901)
(cited by Land, 377 S.W.2d at 187). In a bench trial, the trial court “found that [the plaintiff] had
such possession” because “the land was inclosed by fences erected by the plaintiff at the time the
defendant entered and took possession.” Id. Lockett affirmed the trial court’s judgment based on
prior possession. Id. Lockett necessarily concluded that fencing and occupation were sufficient
to show prior possession. Id.
b. Teagarden v. Patten
In Teagarden v. Patten, the plaintiff took possession of the land, and the plaintiff’s “tenant
remained upon the land about two years [during which time] he dug a well, built a house, and
cleared and cultivated three or four acres of land.” Teagarden v. Patten, 107 S.W. 909, 912 (Tex.
App.—Dallas 1908, writ ref’d). After the tenant left the land, the plaintiff “continued to exercise
acts of ownership over it by paying taxes, selling the tie timber, and placing the purchasers of it
upon the land to cut and remove said timber.” Id. The court referred to this evidence as “prima
facie evidence of title afforded by appellees’ prior possession of the land” and noted the
defendant’s proof failed to overcome the presumption of prior title. Id.
c. Evidence of Prior Possession
In this case, the affidavits show the Guerras had actual, exclusive, and peaceable possession
of the property for decades. See Land, 377 S.W.2d at 186; Lockett, 65 S.W. at 482; Berry, 795
S.W.2d at 233; Teagarden, 107 S.W. at 912. The Bank’s summary judgment evidence also shows
the property’s mineral estate was not severed until 1968, so the Guerras’ possession of the surface
estate was possession of the mineral estate for purposes of limitations. See Gulley v. Davis, 321
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S.W.3d 213, 220 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing Rio Bravo Oil Co. v.
Staley Oil Co., 158 S.W.2d 293, 295 (Tex. [Comm’n Op.] 1942)) (“When adverse possession
commences before a severance of the mineral estate, the adverse possession includes both the
surface and mineral estate. . . . Adverse possession commenced prior to limitations will extend to
the mineral estate even if the titleholder severs the mineral estate before the limitations period has
fully run.”).
I conclude the Bank produced prima facie evidence of prior possession—the Guerras’ prior
actual, exclusive, and peaceable possession of the mineral interest, which they had not
abandoned—sufficient to support summary judgment. See Land, 377 S.W.2d at 186; Lockett, 65
S.W. at 482; Berry, 795 S.W.2d at 233; Walsh, 590 S.W.2d at 614; Teagarden, 107 S.W. at 912.
C. San Miguel’s Lack of Evidence of Superior Title
Because the Bank produced prima facie evidence of prior possession, the burden of
persuasion shifted to Appellants. See Berry, 795 S.W.2d at 234 (“[W]hen the plaintiff establishes
a prima facie case, the defendant must introduce evidence raising a material issue of fact if it
wishes to avoid a summary judgment . . . in the plaintiff’s favor.”). San Miguel’s burden was to
produce some evidence of a superior title in herself sufficient to raise a genuine issue of material
fact. See id. (citing Walsh, 590 S.W.2d at 616).
We take her evidence as true, see Knott, 128 S.W.3d at 215, but we do not consider
conclusory statements, see Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied) (“A conclusory statement is one that does not provide the underlying
facts to support the conclusion. Conclusory statements in affidavits are not proper as summary
judgment proof if there are no facts to support the conclusions.”).
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San Miguel produced a personal affidavit, an expert affidavit, and an abstract of title.
1. San Miguel’s Affidavit
In her affidavit, San Miguel testified that “[her] family has been in possession of some,
part, or all the Property at issue in this lawsuit since 1776,” but she provides no facts to support
her vague conclusion. See id. San Miguel does not say who in her family has possessed the land
for the last two and one-half centuries, how she has ownership based on some potentially distant
relative’s alleged ownership interest, what part of the land her family possessed, or how they
allegedly possessed the mineral interest at issue. San Miguel’s statement is conclusory; it is not
competent summary judgment evidence. See id.; Choctaw Props., 127 S.W.3d at 242.
2. Tax Records
San Miguel also attached some tax records, but none refers to the mineral interest:
• a tax record from 2002 (which references dates as early as 1976) but for an
unknown number of acres that are part of Abstract No. 289, Porcion 58, but
with no further identification of the property’s location;
• a tax record from 2006 for 4.73 acres that are part of Porcion 58, but with no
further identification of the property’s location;
• some Roma ISD tax statements for 2012 and 2017 which pertain to twenty
acres that are part of Porcion 58, but with no further identification of the
property’s location; and
• some Starr County tax statements for 2012 and 2017 which pertain to twenty
acres that are part of Porcion 58, but with no further identification of the
property’s location.
Porcion 58 comprises over 5,733 acres, but the acreage at issue here is only about 781.11 acres.
San Miguel does not aver that her family paid taxes on all the 5,733 acres (including the 781.11
acres), and nothing in the proffered tax records show that the property on which she asserts her
grandmother or her family have paid taxes are part of the 781.11 acres at issue in this case. Cf.
Walsh, 590 S.W.2d at 615. Further, the mineral estate was severed in 1968, but none of San
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Miguel’s tax records show that San Miguel’s grandmother or family were paying taxes on a
severed mineral interest.
San Miguel’s affidavit is no evidence of any title to the mineral interest in this case. See
Dolcefino, 19 S.W.3d at 930.
3. San Miguel’s Expert’s Affidavit
San Miguel also produced an affidavit from Michael Cies, an expert witness.
Cies observed that the Bank’s “abstract of title contains large gaps in ownership,” but any
gap in the Bank’s chain of title is no evidence of title in San Miguel. See Walsh, 590 S.W.2d at
614–15 (requiring the defendant to produce evidence of a superior right and title in themselves);
see also Berry, 795 S.W.2d at 241. Cies testified that “[San Miguel] inherited from her ancestors
an interest in the surface and minerals in, on and under Porcion 58, Starr County, Texas,” but he
provides no facts to support his legal conclusion. See Dolcefino, 19 S.W.3d at 930.
As already noted, Porcion 58 is over 5,733 acres, but Cies does not state which part of
Porcion 58 San Miguel allegedly inherited. Cies states that San Miguel told him “she has always
defended her claim to this property” and she and her family have “always been openly, vigorously
and notoriously object[ing] to” the Guerras’ claims of ownership of the property.
Assuming without deciding that San Miguel’s statements to Cies are not hearsay and could
be considered by the court, neither Cies nor San Miguel provide any facts to support these broad
assertions. See Dolcefino, 19 S.W.3d at 930 (requiring facts to support conclusions).
Cies also asserts that “[in] the absence of conveying documents at the Starr County, Texas
courthouse, the heirs and descendants of Joaquin Chapa own an interest in the minerals in, on and
under Porcion 58, . . . and the Property subject to this lawsuit,” but he provides no facts or
authorities to support his conclusory statement.
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Cies’s affidavit is no evidence that San Miguel’s right and title are superior to the Bank’s.
Cf. Berry, 795 S.W.2d at 241.
4. San Miguel’s Abstract of Title Evidence
San Miguel filed an abstract of title which includes some run sheets from the property
records and a “Supplemental Abstract of Title.” The run sheets appear to be search results from a
key word search of the Starr County property records for “Porcion 58” or “Porcion 59.” The
Supplemental Abstract of Title shows conveyances pertaining to the “Lavor de Tio Carpio,” which
is within Porcion 58.
Even assuming that San Miguel can trace her interest to the Lavor de Tio Carpio, the
supplemental abstract does not point to any record that shows that the Lavor de Tio Carpio is
located within the 781.11 acres at issue here.
5. No Evidence of San Miguel’s Superior Claim to Mineral Interest
The Bank’s summary judgment evidence shows the Guerras’ dominion over the surface
estate—and its unsevered mineral estate—for approximately thirty-five years “without any
assertion of right or claim to the [property] by [San Miguel].” Cf. House, 35 S.W. at 1065. The
Bank established a prima facie case of prior possession, and the burden shifted to San Miguel to
produce “evidence to raise an issue of material fact in order to prevent the rendition of a summary
judgment.” See Berry, 795 S.W.2d at 241; Walsh, 590 S.W.2d at 616. Nothing in San Miguel’s
summary judgment proof raises a fact question on whether San Miguel has any ownership of the
mineral interest at issue. See Berry, 795 S.W.2d at 237; Walsh, 590 S.W.2d at 616.
Taking San Miguel’s evidence as true, I nevertheless conclude she failed to raise a genuine
issue of material fact on her claim of superior title to the mineral interest.
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D. Rendon’s Arguments
Because the Bank met its burden to show prima facie evidence of its prior possession, the
burden shifted to Rendon to produce evidence of her superior right and title to the property. See
Berry, 795 S.W.2d at 241; Walsh, 590 S.W.2d at 616. Rendon does not assert that she produced
any summary judgment evidence of her own superior title. Instead, she argues that the Bank failed
to conclusively prove at least one essential element for each of its ownership theories.
Because the Bank produced prima facie evidence of prior possession, and Rendon does not
even argue that she produced any evidence of superior title in herself, her issue challenging the
Bank’s title by prior possession should be overruled and her other issues dismissed as moot.
CONCLUSION
The Bank met its burden to produce prima facie evidence of prior possession, and the
burden shifted to San Miguel. But she failed to raise a genuine issue of material fact, and the trial
court properly granted summary judgment for the Bank.
Because the majority concludes otherwise, I respectfully dissent.
Patricia O. Alvarez, Justice
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