NUMBER 13-22-00580-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BERTHA MALDONADO, Appellant,
v.
CRIMSON RGV I, LLC, ET AL. Appellees.
ON APPEAL FROM THE 445TH DISTRICT COURT OF CAMERON COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Longoria, Tijerina, and Peña Memorandum Opinion by Justice Tijerina
Appellant Bertha Maldonado appeals the trial court’s summary judgment in favor
of appellees Crimson RGV I, LLC, et al. By four issues, which we have reorganized,
Maldonado contends that (1) the trial court erred by striking her “timely filed amended
pleadings, without any notice of [] a hearing”; (2) she “presented evidence of a genuine
issue of material fact issue on each of the elements on her claim for title under the 10- year adverse possession claim”; (3) the trial court “improperly ordered that all claims and
all parties have been disposed of, when there are defendants who have been served and
are before this [C]ourt, and who did not participate in the Motion for No evidence Summary
Judgment”; and (4) the award of attorney fees was improper. We affirm.
I. BACKGROUND
On August 27, 2021, Maldonado filed suit to try title claiming that she had
purchased property in Santa Rosa, Texas, from a married couple, Javier de los Santos
and Tina G. de los Santos in June 1986. According to Maldonado, she and her now-
deceased husband paid the contract price in full on June 17, 1998, and they began living
and operating a business on the subject property. Maldonado alleges that she never
received a deed to the property after completing the purchase. Maldonado claims that on
May 6, 2021, appellee Hugo Xavier de los Santos on behalf of the estates of the de los
Santoses sent notice to Maldonado to vacate the property. Maldonado states that Hugo
filed a special warranty deed transferring the property to Crimson on July 29, 2021, and
Crimson filed suit seeking to have Maldonado evicted from the property the next day.
On September 22, 2021, Maldonado filed her first amended original petition suing
for trespass to try title claiming that she owned the property under the ten-year adverse
possession statute. In her amended original petition, Maldonado abandoned her claim for
breach of contract on the basis that she had purchased the property from the de los
Santoses. Crimson filed a general denial. Crimson asserted affirmative defenses of
statute of frauds, estoppel, judicial admission in the pleadings, fraud, conversion,
limitations, negligent misrepresentation, malicious prosecution, frivolous filing, illegality,
2 inconsistent theories, and waiver. Crimson requested that the trial court award it
reasonable and necessary attorney’s fees.
On May 12, 2022, Crimson filed a motion for no evidence summary judgment.
Crimson claimed that Maldonado “committed fraud by diverting the ad valorem property
tax bills for the [property] and lying to the Cameron County Tax Office and the U.S.P.S.”
Crimson stated, “Without license or authority, [Maldonado] opened a U.S.P.S. box at the
Santa Rosa U.S.P.S. in the name of” the company, “Sav-More Furniture & Appliances”
that was founded and operated by the de los Santoses during their lives. According to
Crimson, Maldonado “falsely misrepresented to the Cameron County Tax Office that Sav-
More had changed its address to the Santa Rosa post office address that [she] obtained
[by] subterfuge.”
In the motion, Crimson claimed that Maldonado had “failed and refused to make
discovery.” Crimson alleged that Maldonado presented no evidence to support her
pleading for “trespass to try title” because there is no proof that she owned the property.
Crimson said, “After adequate time for discovery, [Maldonado] cannot provide any
evidence to support the element of ownership of a headright certificate, land script or
bounty warrant or other evidence of legal right to the Subject Res.” Crimson argued that
Maldonado “has produced an unsigned contract that [she] purports constitutes a sales
agreement by and between one Santiago Maldonado, as buyer, and Javier de los Santos,
as seller. There is no document evidencing title and [Maldonado] has produced no
‘headright certificate, land script or bounty warrant.’” Next, Crimson argued that
Maldonado’s “trespass to try title action fails because in order to maintain an action under
3 Chapter 22 of the Texas Property Code, [she] may not rely on any alleged weakness of
[Crimson’s] title and must prove that [she] has superior title to the Subject Res,” which
according to Crimson, she could not do. Crimson challenged each element of
Maldonado’s claim for adverse possession. Crimson sought attorney’s fees pursuant to
§ 132.001 of the civil practices and remedies code.
The trial court set a hearing on Crimson’s motion for a no evidence summary
judgment for June 2, 2022. On May 20, 2022, Maldonado filed a second amended original
petition adding Hugo, in his capacity as the “Independent Executor of the Estate of Tina
G. [d]e [l]os Santos, Deceased.” Then on May 26, 2022, Maldonado filed her third
amended petition adding appellees, “the heir[s] and beneficiar[ies] of the Estate of Tina
G. [d]e [l]os Santos, Deceased,” Rafic Cesar de los Santos, Rene de los Santos, Tina
Roselle de los Santos, and Kirk Renier de los Santos (the heirs).
On May 26, 2022, Maldonado filed her response to Crimson’s motion for no
evidence summary judgment claiming that she has evidence of her legal right to the
property through adverse possession. Maldonado alleged that on February 17, 1995, she
and her deceased husband “took peaceable, exclusive and adverse possession of the
property”; “Since February 17, 1995, [she has] enjoyed and used the property for
commercial purposes of operating a business, and [has] had continuous open,
peaceable, exclusive, and adverse possession [of] the property since that date”; “On or
about May 6, 2021, [Hugo], on behalf of his purported clients, the Estates of Javier and
Tina G. [d]e [l]os Santos, sent a Notice to Vacate to [Maldonado].” Maldonado attached
Crimson’s motion for no evidence summary judgment, her third amended petition, and
4 her affidavit to her response.
Crimson filed special exceptions and a reply to Maldonado’s response. Crimson
argued that Maldonado improperly filed her second and third amended petitions seeking
“to add third parties who have no interest in the subject matter of the case at bar,” and “to
delay the proceedings and to avoid summary judgment by subterfuge and delay tactics.”
Additionally, Crimson argued that by filing the second and third amended petitions,
Maldonado sought “to omit . . . the sworn judicial admission that [Maldonado] has
heretofore made, in particular, that [Maldonado] claims that [she] purchased the subject
property and had permission to enter and possess same by or under the purported
purchase contract.” Crimson further argued that Maldonado’s affidavit was conclusory
and self-serving and requested that it be stricken. Finally, Crimson asked the trial court
to strike Maldonado’s second and third amended petition on the basis that she added five
parties, “without demonstrating what interest, if any, that any of the said five additional
parties have in the subject property or the subject matter of the case at bar” without leave
of the trial court. Crimson said, “Nowhere in either of [her] said pleadings does
[Maldonado] relate any particular facts or cause of action [to] any of the five (5) [additional]
defendants that [she] seeks to add to the lawsuit, in particular defendants,” the heirs.
Moreover, “[t]he only averments concerning Hugo X de los Santos was that he prepared
and signed a deed acting in his capacity as Independent Administrator of the Estate of
Tina G. de los Santos and Independent Administer of the Estate of Javier de los Santos.
However, [Maldonado] alleges no facts or causes that make this an actionable event.”
Crimson stated, “Furthermore, [Maldonado] fails to allege that [Hugo] or either of the two
5 referenced estates make any claim to the subject property.”
Maldonado moved for a continuance, which the trial court granted. The trial court
held a summary judgment hearing, and it granted Crimson’s motion for no evidence
summary judgment in a written judgment on August 17, 2022. The trial court ordered that
Maldonado take nothing in her suit, and it awarded attorney’s fees to Crimson. The trial
court filed an amended order on September 22, 2022. In its amended order, the trial court
granted Crimson’s motion to strike Maldonado’s second and third amended petitions, and
it dismissed with prejudice Maldonado’s “action against” Hugo and the heirs. Maldonado
filed a motion for reconsideration and to set aside the take nothing summary judgment.
This appeal followed.
II. ORDER TO STRIKE
By her first issue, Maldonado contends that the trial court abused its discretion
when it struck her second and third amended petitions because they were filed more than
seven days before trial. See TEX. R. CIV. P. 63. Next, citing Rule 21(b) Maldonado argues
that the trial court failed to provide notice of a hearing. See id. 21(b) (requiring that parties
be provided notice of any hearings). Maldonado states, “There is no indication in the
record that [Crimson] filed the proposed 9/22/22 Order or gave prior notice to [her].” This
is the extent of Maldonado’s argument. See TEX. R. APP. P. 38.1(i).
“Rule 63 provides for the denial of leave to file an amended pleading when the
opposing party objects and there is evidence of surprise or prejudice or the amendment
would be prejudicial on its face. . . .” Mosaic Baybrook One, L.P. v. Cessor, 668 S.W.3d
611, 625 (Tex. 2023). The party challenging the amendment has the burden to show
6 surprise or prejudice. Patino v. Texas Employers Insurance Association, 491 S.W.2d 754,
756 (Tex. Civ. App.—Austin 1973, writ ref'd n.r.e.). “[T]he trial court may conclude the
amendment is on its face calculated to surprise or that the amendment would reshape
the cause of action, prejudicing the opposing party and unnecessarily delaying the trial.
Hakemy Bros., Ltd. v. State Bank & Tr. Co., Dallas, 189 S.W.3d 920, 924 (Tex. App.—
Dallas 2006, pet. denied). “A trial court’s decision on whether to allow the amendment of
pleadings is reviewed under an abuse-of-discretion standard.” Perez v. Embree Constr.
Grp., 228 S.W.3d 875, 882–83 (Tex. App.—Austin 2007, pet. denied).
Here, Crimson argued to the trial court that Maldonado added parties who had no
interest in the subject property. Specifically, Crimson stated, that Maldonado failed to
demonstrate “what interest, if any, that any of the said five additional parties have in the
subject property or the subject matter of the case at bar”; and Maldonado “fail[ed[ to allege
that [Hugo] or either of the two referenced estates ma[d]e any claim to the subject
property.” On appeal, Maldonado does not argue that the trial court incorrectly determined
that adding five people who were unrelated to the suit was not prejudicial, as she does
not even cite Rule 63.
Nonetheless, the trial court may have concluded that adding unrelated parties
would reshape Maldonado’s cause of action, prejudicing Crimson and unnecessarily
delaying the trial. See Hakemy Bros., Ltd., 189 S.W.3d 920, 924. As Maldonado does not
challenge this basis for the trial court’s ruling, we are unable to conclude that it abused
its discretion when it struck Maldonado’s amended petitions. See Trevino v. City of San
Antonio, 685 S.W.3d 863, 867 (Tex. App.—San Antonio 2023, no pet.) (“In the absence
7 of a challenge to all asserted grounds, ‘we must accept the validity of the unchallenged
independent grounds and affirm the adverse ruling.’” (citing In re Elamex, S.A. de C.V.,
367 S.W.3d 879, 888 (Tex. App.—El Paso 2012, orig. proceeding); and then citing Harris
v. Gen. Motors Corp., 924 S.W.2d 187, 188 (Tex. App.—San Antonio 1996, writ denied))).
Moreover, Maldonado does not challenge with legal argument and citation to
appropriate authority the trial court’s dismissal with prejudice of her claims against Hugo
and the heirs. See TEX. R. APP. P. 38.1; Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.
1993) (“We have held repeatedly that the courts of appeals may not reverse the judgment
of a trial court for a reason not raised in a point of error.”). Therefore, we cannot conclude
that the trial court abused its discretion in this regard. See Strange v. HRsmart, Inc., 400
S.W.3d 125, 131 (Tex. App.—Dallas 2013, no pet.) (“We review a trial court’s ruling on
amended pleadings under an abuse-of-discretion standard.” (first citing Hardin v. Hardin,
597 S.W.2d 347, 349–50 (Tex.1980); and then citing Halmos v. Bombardier Aerospace
Corp., 314 S.W.3d 606, 622 (Tex. App.—Dallas 2010, no pet.))). We overrule
Maldonado’s first issue.
III. ISSUE OF MATERIAL FACT
By her second issue, Maldonado contends that she raised an issue of material fact
on each element of her adverse possession cause of action. Crimson responds that the
only evidence attached to her response to its motion for no evidence summary judgment
is conclusory.
A. Standard of Review and Applicable Law
When an adequate time for discovery ceases, “a party without presenting summary
8 judgment evidence may move for summary judgment on the ground that there is no
evidence of one or more essential elements of a claim . . . on which an adverse party
would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i); see Oasis Oil Corp. v.
Koch Ref. Co., 60 S.W.3d 248, 250 (Tex. App.—Corpus Christi–Edinburg 2001, pet.
denied). Once a no evidence motion for summary judgment has been filed, the burden
shifts to the non-moving party to present evidence raising an issue of material fact as to
the challenged elements. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex.
2006). We consider the evidence in the light most favorable to the non-movant, crediting
such evidence if reasonable jurors could and disregarding all contrary evidence and
inferences unless reasonable jurors could not. King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003); see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
“When a trial court’s order granting summary judgment does not specify the grounds upon
which it was granted, we will affirm the judgment if any of the theories advanced are
meritorious.” Doherty v. Old Place, Inc., 316 S.W.3d 840, 843 (2010).
“A person must bring suit not later than” ten years “after the day the cause of action
accrues to recover real property held in peaceable and adverse possession by another
who cultivates, uses or enjoys the property.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.030(a). Adverse possession requires “an actual and visible appropriation of real
property, commenced and continued under a claim of right that is inconsistent with and
is hostile to the claim of another person.” BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59,
69 (Tex. 2011) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1)).
“[T]he acts which are relied upon to thus acquire title must be such as are open,
9 notorious and even inconsistent with a similar claim that may be made by other persons
who enjoy in common the same privileges of use, as claimant.” Felts v. Whitaker, 129
S.W.2d 682, 688 (Tex. App.—Fort Worth 1939), aff’d, 155 S.W.2d 604 (Tex. 1941). “The
test of hostility is whether acts performed by the claimant on the land, and the use made
of the land, was of such a nature and character as to reasonably notify the true owner of
the land that a hostile claim was being asserted to the property.” Martin v. McDonnold,
247 S.W.3d 224, 235 (Tex. App.—El Paso 2006, no pet.); Villarreal v. Chesapeake
Zapata, L.P., No. 04-08-00171-CV, 2009 WL 1956387, at *3 (Tex. App.—San Antonio
July 8, 2009, no pet.) (mem. op.). “Possession must not only be actual, but also 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.”
Martin, 247 S.W.3d at 235. The possession must be sufficiently hostile as to cause the
owner to question the claimant’s possession for the term of the limitations period.
Cherokee Water Co. v. Freeman, 145 S.W.3d 809, 817 (Tex. App.—Texarkana 2004,
pet. denied).
B. Discussion
In its motion for summary judgment, Crimson challenged each element of
Maldonado’s adverse possession claim. In response, Maldonado first cited her petition
alleging it served as evidence that raised an issue of material fact on each element of her
claim. However, “[p]leadings do not constitute summary judgment evidence.” MGA Ins.
Co. v. Charles R. Chesnutt, P.C., 358 S.W.3d 808, 815 (Tex. App.—Dallas 2012, no pet.);
see Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 819
10 (Tex. 2021) (noting that a “party cannot rely on its own pleadings allegations as evidence
of facts” in opposition to a motion for summary judgment); see also Campise v. Davila,
No. 10-23-00025-CV, 2023 WL 2916688, at *2 (Tex. App.—Waco Apr. 12, 2023, no pet.)
(mem. op.) (“[T]he assertions made by Campise in his petitions are not evidence that
create a fact issue so as to defeat summary judgment.”); Heavenly Homes of S. Tex.,
LLC v. Infinity Custom Constr., LLC, No. 13-21-00298-CV, 2022 WL 2069232, at *8 (Tex.
App.—Corpus Christi–Edinburg June 9, 2022, no pet.) (mem. op.) (“But pleadings do not
constitute evidence, even if they are sworn or verified.”). Therefore, the trial court could
not consider her petition. See MGA Ins. Co., 358 S.W.3d at 815.
Next, Maldonado cited her affidavit attached to her response to Crimson’s motion
as raising issues of material fact on each element of her adverse possession claim. In her
affidavit, Maldonado stated:
“On or about June 20, 1986, Javier de los Santos and wife, Tina G. de los Santos, as husband and wife, and as owners, filed a Designation of Homestead, wherein, they both swore under oath, that the listed property therein was owned by both of them . . . [in] Santa Rosa, Cameron County, Texas 78593.”
“On or about February 17, 1996 I and my husband (now deceased) took peaceable, exclusive and adverse possession of the property . . . .
“Since February 17, 1996, [we] have enjoyed and used the property for commercial purposes and I have operated a business on the property and have had continuous, open, exclusive, peaceable and adverse possession the property since that date.”
Maldonado cited no other purported summary judgment evidence.
The Texas Supreme Court determined that a very similar affidavit was conclusory
and not supported by factual evidence. See Doherty, 316 S.W.3d at 845. In that case, the
11 affiant claimed, “fee simple title to the 9.93 acres of land . . . because [he] possessed and
used [the] land since that land was deeded to [him] and [his] wife on March 21, 1978.” Id.
at 844. The affiant stated, “I have used, enjoyed, and possessed said 9.93 acres of land
for my own use and benefit and have claimed said land as my own since March 21, 1978,
without abandonment of such use and possession at any time.” Id. The affiant said that
in the alternative, he claimed, “fee simple title” to the land “by adverse possession,
because [he] occupied the Subject Property in peaceable and adverse possession” and
that he “used, enjoyed, and appropriated” the land for his “own use and benefit.” Id. The
affiant alleged that his “use and possession of the Subject Property . . . continued without
abandonment until the present time.” Id. at 844–45. The affiant further asserted in the
alternative that he had “possessed” the land “in peaceable and adverse possession and
[had] used and appropriated [the land] for [his] own exclusive use and benefit and
continuously [had] claimed that land as [his] own for more than ten (10) years. . . .” Id. at
845. The court held that the affiant’s statements did “not constitute competent summary
judgment evidence.” Id. Therefore, the court concluded that “the trial court did not err in
granting appellee’s no evidence motion for summary judgment on his trespass to try title
claim because [the affiant] failed to present any evidence that created a genuine issue of
material fact.” Id.
Likewise, here, Maldonado’s statements lack factual support. She states, “I and
my husband (now deceased) took peaceable, exclusive and adverse possession of the
property,” and “I have enjoyed and used the property for commercial purposes [,] and I
have operated a business on the property and have had continuous, open, exclusive,
12 peaceable and adverse possession the property since that date.” These statements are
indistinguishable from those made by the affiant in Doherty. See id. They are conclusory,
not credible, and not susceptible to being readily controverted. See id. For example,
Maldonado does not state any facts to establish that she performed acts on the land or
that her use of the land was of such a nature and character as to reasonably notify the
true owner that a hostile claim was being asserted to the property. See Martin, 247
S.W.3d at 235; Villarreal, 2009 WL 1956387, at *3. She merely claims that her
undisclosed acts were hostile. Additionally, Maldonado does not set out facts showing
that she committed any acts that were open, notorious, or “inconsistent with a similar
claim that may be made by other persons who enjoy in common the same privileges of
use” as she enjoyed and instead merely claims that her undisclosed acts were open.
Felts, 129 S.W.2d at 688. Finally, Maldonado does not set out any factual evidence to
support a finding that her possession of the property was “of such a character as to
indicate unmistakably” that she asserted a claim of exclusive ownership of the property.
See Martin, 247 S.W.3d at 235. Therefore, Maldonado’s statements do not constitute
competent summary judgment evidence. See id. We conclude that the trial did not err in
granting Crimson’s motion for no evidence summary judgment on Maldonado’s trespass
to try title claim because she failed to present any evidence that created a genuine issue
of material fact. See id. We overrule Maldonado’s second issue.
IV. FINALITY OF THE JUDGMENT
By her third issue, Maldonado contends that the trial court abused its discretion by
“improperly order[ing] that all claims and all parties have been disposed of, when there
13 are defendants who have been served and are before this court, and who did not
participate in the Motion for No evidence Summary Judgment.” This is the extent of
Maldonado’s argument. We are not allowed to make the appellant’s argument or conduct
legal research on her behalf. See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El
Paso 2007, no pet.) (“An appellate court has no duty-or even right-to perform an
independent review of the record and applicable law to determine whether there was
error.”). The trial court struck Maldonado’s second and third amended petitions that
sought to add Hugo and the heirs to her lawsuit. Maldonado does not provide any
argument or authority supporting a conclusion that the trial court abused its discretion by
then dismissing Hugo and the heirs from this cause. See TEX. R. APP. P. 38.1(i).
Accordingly, we overrule Maldonado’s third issue.
V. ATTORNEY’S FEES
By her fourth issue Maldonado contends that the trial court improperly awarded
attorney’s fees to Crimson because attorney’s fees are barred in a trespass to try title
action, a party cannot recover prejudgment interest on attorney’s fees, and “[t]here is no
evidence in the record that any attorney fees were paid prior to the date of the judgment.”
This is the extent of Maldonado’s argument. See id.
Section 16.034(a) allows a trial court to award costs and reasonable attorney’s
fees in a suit for adverse possession. TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a)(2);
see Pierce v. Gillespie, 761 S.W.2d 390, 397 (Tex. App.—Corpus Christi–Edinburg 1988,
no writ). The decision to award attorney’s fees pursuant to § 16.034(a) is discretionary.
Pierce, 761 S.W.2d at 397. Maldonado does not challenge the trial court’s award of
14 attorney’s fees on this basis. See Trevino, 685 S.W.3d at 867 (“To obtain a reversal of a
trial court’s judgment or order, ‘[a]n appellant must challenge all independent bases or
grounds that fully support a judgment or appealable order.’”). Accordingly, we are unable
to conclude that the trial court abused its discretion in this manner. See Pierce, 761
S.W.2d at 397. We overrule Maldonado’s fourth issue.
VI. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA Justice
Delivered and filed on the 5th day of December, 2024.