Marco A. Delgado v. Juan Lino Garza Sr.

NUMBER 13-15-00344-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARCO A. DELGADO, ET AL., Appellants,
v.
JUAN LINO GARZA SR., ET AL., Appellees.
On appeal from the 93rd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Hinojosa
Memorandum Opinion by Justice Benavides
This is a suit for breach of a warranty of title, breach of the covenant against
encumbrances, breach of implied covenants, and trespass to try title, all stemming from
a land transaction between an ancestor of the appellants, the Salinases,1 and an ancestor
of the appellees, the Garzas.2 After a bench trial, the court signed a judgment in favor of
the Garzas on all causes of action. By nine issues, which we have reorganized, the
Salinases challenge (1) Juan Lino Garza Sr.’s standing to sue; (2) the validity of the
judgment against deceased defendants Vicente Saenz, Hilaria Hernandez, and Olivia
Salinas Perez; (3) the validity of the judgment against the defendant estates of Francisca
Vasquez, Eduardo Saenz, and Librada Salinas and the defendant Eduardo Saenz
Children’s Rev. Trust; and (4) the trial court’s denial of their plea to the jurisdiction for
failure to sue all indispensable parties. They also contend that (5) the trial court erred in
denying their statute-of-limitations defense as to the co-trustees of the Juan Lino Garza
Energy Trusts A-1 and A-2 (Trusts A-1 and A-2). Finally, the Salinases challenge (6) the
damages awarded in what they claim is “fundamentally a breach of warranty claim,” (7)
the reliability of the Garzas’ expert testimony on damages, and (8–9) the finding of joint
and several liability against the Salinases. We affirm in part and reverse and render in
part.
I. BACKGROUND
1 Appellants, defendants below, include Marco A. Delgado, Miguel A. Salinas, Maria Rosa Salinas,
Margarito Salinas, Meliton Lopez, Norberto Lopez, Hilaria Salinas, Brady Salinas, Maria Elva S. Delgado,
Maria Matilde S. Guerrero, Luis Humberto Delgado, Aurelia S. Sendejo, Lydia Robbins, Olivia Salinas
Perez, the Estate of Francisca Vasquez, the Estate of Eduardo Saenz, the Estate of Librada Salinas, and
the Eduardo Saenz Children’s Rev. Trust (the Salinases).
2Appellees, plaintiffs below, include Juan Lino Garza Sr.; Juan Lino Garza Jr., as trustee of the
Juan Lino Garza Trust; Juan Lino Garza Jr. and Elma Irene Garza, as co-trustees of the Juan Lino Garza
Energy Trusts A-1 and A-2 (the Garzas).
2
This case arises from a legal dispute that began in 1942 between Eleuterio Salinas
and Guadalupe Garza Zamora. Because of a 1942 suit, Eleuterio conveyed 271 acres
out of Share 13 of the Schunior Subdivision in Porciones Nos. 73, 74, and 75 in Hidalgo
County, Texas, to Guadalupe. The 1942 Deed described the conveyance of the property
in terms of metes and bounds and warrantied the conveyance.
In 1988, the Garzas sued the Madduxes3 alleging, among other things, that they
owned the mineral rights to 108 acres that were part of 271 acres in Share 13, acreage
that they claim was conveyed by the 1942 Deed. Garza v. Maddux, 988 S.W.2d 280,
287–91 (Tex. App.—Corpus Christi 1999, writ denied) (op. on reh’g) (the Maddux
Litigation). The Madduxes argued that the disputed 108 acres were in Share 15, not in
Share 13, and thus the acreage was never Eleuterio’s property to convey. Id. The trial
court granted summary judgment in favor of the Madduxes on the Garzas’ title question.
Id. at 286–87. In 1999, we affirmed the decision of the trial court, agreeing that 108 acres
out of the original 271 acres belonged to the Madduxes. Id. at 291.
On November 13, 2001, the Garzas filed the present suit against the Salinases,
seeking damages for the loss of the 108 acres out of the 271 acres. The trial court
dismissed the suit for want of prosecution in 2004 but granted the Garzas’ petition for bill
of review in 2010. In February 2014, the Garzas filed their fourth amended original
3 The Madduxes included Elizabeth H. Coates Maddux, independent executrix of the estate of
George H. Coates, deceased; Barry Coates Roberts and George L. Stieren, trustees of the Coates Energy
Trust, being the successors to Elizabeth H. Coates Maddux; Arthur T. Stieren, Jr., and Betty Ann Stieren
Kelso, as trustees of the Coates Energy Trust; Elizabeth H. Coates Maddux, Arthur T. Stieren, Jr., and
Betty Ann Stieren Kelso, beneficiaries of the Coates Energy Trust; and Republic Royalty Company,
successor to Newmont Oil Company and Sasi Minerals Company.
3
petition, asserting breach of warranty of title, breach of the covenant against
encumbrances, breach of implied covenants, and trespass to try title claims based on an
improper conveyance of 108 acres of Share 13. In October 2014, the trial court denied
the Salinases’ plea in abatement or, alternatively, motion to dismiss for misjoinder that
claimed the Garzas needed to join additional, indispensable defendants.
The case proceeded to a bench trial in November 2014. On April 30, 2015, the
trial court signed a judgment in favor of the Garzas and against the Salinases, jointly and
severally, on all causes of action. It also declared that the Garzas had “an undivided
surface and mineral ownership interest in 13.5 acres in Share 13” in addition to their
“uncontested ownership interest in 163 acres located within Share 13.” The judgment
awarded actual damages of $3,062,129.43, attorney fees for trial and appeal, and
interest. The Salinases requested findings of fact and conclusions of law, which the trial
court entered on August 26, 2015.4 No additional findings of fact or conclusions of law
were requested. This appeal ensued.
4 Findings of fact include the following, among others: (1) “[o]n November 12, 1999, the Texas
Supreme Court denied the [Salinases’] application for writ of error, thus terminating the appeals process
and confirming the [Garzas’] right of title to the 108 acres,” (2) “[the Garzas] initiated the instant litigation on
November 13, 2001”; (3) “[the Garzas] have a 1/8 interest in the 108 acres in Share 13 that were not
properly conveyed”; (4) “[the Garzas] did not acquire knowledge of the fact that the Subject Property was
not fully and properly conveyed to them and their predecessors-in-interest until appeals were exhausted in
the Maddux Suit. There was no failure of title until the appeals process was completed”; and (5) “[the
Salinases] and their predecessors-in-interest have used and occupied all of Share 13 and have entered
into oil and gas leases with certain oil companies that have drained valuable minerals from Share 13.”
Relevant conclusions of law include: (1) the “Deed’s warranty of title was breached in that 108
acres of the Subject Property was in Share 15—rather than Share 13—of the Schunior Subdivision of
Porciones 73, 74, and 75”; (2) the Salinases “breached the covenant against encumbrances” and
“committed a breach of implied covenants” for the same reasons; (3) “[a]ll pertinent statute of limitations
were tolled and began to run once appeals were exhausted in the Maddux Suit. That is when failure of title
occurred and when the Supreme Court of Texas said title was cleared”; (4) “[a]ny Plaintiff first named
through an amended petition filed after November 2003 represents the correction of a misnomer”; and (5)
4
II. STANDING TO SUE
By their first issue, the Salinases contend that Juan Lino Garza Sr. had no standing
to sue as a successor in interest to the warranty of title. They claim that there is no
evidence in the record that Garza Sr. was the record owner of any interest in the mineral
estate of the property in question and that the damages awarded relate only to the mineral
estate. In response, the Garzas acknowledge that Garza Sr. has no standing to sue as
a record owner of the mineral interest at issue; instead, they claim that by the 1993
Litigation Participation Agreement (LPA) signed in the Maddux Litigation, the Garza family
members assigned their claims for recovery of the 108 acres to Garza Sr. and, thus, he
has standing to sue as an assignee in this case.5
A. Standard of Review
Standing is a question of law subject to de novo review. Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Standing “may be raised for the first time
on appeal by the parties or by the court.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993). When we review the standing of a party for the first time
on appeal, we “must construe the petition in favor of the party,” understanding that it is
the plaintiff’s burden to allege facts affirmatively demonstrating the trial court’s jurisdiction
the Garzas are entitled to recover from the Salinases, jointly and severally, certain damages, including
among others, $3,062,129.43 in actual damages.
5 We note that the Litigation Participation Agreement identifies Juan Lino Garza, not Juan Lino
Garza Sr., as the recipient. On appeal, the parties refer to the Litigation Participation Agreement recipient
only as Juan Lino Garza Sr., and we will do likewise.
5
to hear the case. Id. And, if necessary, we must “review the entire record to determine
if any evidence supports standing.” Id.
B. Discussion
1. The Petition
The Garzas’ fourth amended original petition identifies Garza Sr., individually, as
a plaintiff. The petition does not identify Garza Sr. as an assignee under the LPA, and it
alleges no facts that affirmatively demonstrate the trial court’s jurisdiction on the basis
that Garza Sr. has standing to sue as an assignee. See id. at 445–46. Therefore, even
construing the petition in favor of the Garzas, we find no support for their position that
Garza Sr. has standing to sue as an assignee, such that the trial court has jurisdiction
over him. See id.
2. The Record
The Garzas argue that the LPA and supporting trial testimony establish the
assignment of their claims to Garza Sr. for recovery of the 108 acres. We disagree.
a. Applicable Law
Texas has long allowed the assignment of causes of action. HSBC Bank USA,
N.A. v. Watson, 377 S.W.3d 766, 774 (Tex. App.—Dallas 2012, pet. dism’d) (“As a
general rule, causes of action are freely assignable.”). An assignment is interpreted as a
contract between the assignor and assignee and may be shown by evidence of a party’s
intention to transfer the right at issue. Commercial Structures & Interiors, Inc. v. Liberty
Educ. Ministries, Inc., 192 S.W.3d 827, 833 (Tex. App.—Fort Worth 2006, no pet.); Univ.
of Tex. Med. Branch at Galveston v. Allan, 777 S.W.2d 450, 453 (Tex. App.—Houston
6
[14th Dist.] 1989, no writ) (“An assignment is a contract between the assignor and
assignee, and operates by way of agreement or contract.”). However, the parties’
interpretations of the contract are irrelevant if the meaning of the contract is plain from its
face. Affiliated Capital Corp. v. Sw., Inc., 862 S.W.2d 30, 33 (Tex. App.—Houston [1st
Dist.] 1993, writ denied); see Sun Oil Co. v. Madeley, 626 S.W.2d 726, 732 (Tex. 1981).
b. The Litigation Participation Agreement
The Garzas claim that the Garza family members assigned their claims for
recovery of the 108 acres to Garza Sr. through the LPA. The Garza family members
signed the LPA in 1993 during the Maddux Litigation. The terms of the LPA delegated
control and decision-making authority to Garza Sr., as well as payment of the litigation
costs, that were subject to reimbursement in the event of a recovery in the Maddux
Litigation. The LPA also provided that Garza Sr. was entitled to “30% of any gross
recovery” from the Maddux Litigation, out of which Garza Sr. would pay any contingent
attorney’s fees.
However, the Garzas argue that the effect of the LPA did not end with the Maddux
Litigation. They assert that the “recovery” referenced in the LPA extends from the Maddux
Litigation to the present suit. The Garzas reason that this “recovery” assignment provides
standing for Garza Sr. to assert the right to recover 30% of any gross recovery in this suit.
Our review of the LPA reveals no assignment language; instead, the parties
intended only to outline how the Maddux Litigation was to be managed by Garza Sr., how
he was to pay expenses related to the Maddux Litigation, and how the parties were to
recover proceeds, if any, from the Maddux Litigation. See Commercial Structures &
7
Interiors, Inc., 192 S.W.3d at 833. We cannot conclude that it was the intent of the Garza
family to assign their claims for recovery of the 108 acres to Garza Sr. See id. To the
extent we could construe the LPA as an assignment of rights, it would only be an
assignment or transfer of rights to proceeds in the Maddux Litigation. The LPA, which
delegated to Garza Sr. all control and decision-making authority regarding the Maddux
Litigation, is not enough to provide him standing as an assignee in the present suit.
c. Trial Testimony
The Garzas also assert that they offered extensive trial testimony that established
the assignment. They direct us to the testimony of Garza Jr., who testified that he
understood “that Juan Lino Garza[] Sr., contracted with his brothers and sisters to get 30
percent of the proceeds that would be recovered of the 108 acres.” Garza Jr. testified
that “[i]n our interpretation, [the LPA] gives [Garza Sr.] 30 percent of the 108 acres.”
Although evidence of a party’s intention to transfer a right may assist us in
interpreting a contract, see id., Garza Jr.’s interpretation or understanding of the
agreement is irrelevant because the LPA’s meaning is plain from its face. See Affiliated
Capital Corp., 862 S.W.2d at 33; see also J.M. Davidson, Inc. v. Webster, 128 S.W.3d
223, 229 (Tex. 2003) (“A contract is unambiguous if it can be given a definite or certain
legal meaning.”). We cannot conclude that this evidence established an assignment in
this case.6
d. Summary
6 Furthermore, one of the Garzas’ experts testified that as he understood the LPA, it “relates to
another lawsuit.”
8
From our de novo review of the appellate record, see Mayhew, 964 S.W.2d at 928,
we conclude that through the LPA the Garza family delegated control and decision-
making authority to Garza Sr. to manage the Maddux Litigation, to recoup any expenses
incurred in that litigation, and to receive a percentage from any recovery in that litigation.
We cannot conclude that the LPA served as an assignment to extend the 30% gross-
recovery term to any recovery of the 108 acres—specifically any recovery of the 108
acres in the present litigation, as the Garzas argue.7 And we cannot construe the petition
or Garza Jr.’s testimony more broadly to include an assignment to Garza Sr. of any family
claims for recovery of the 108 acres in any subsequent litigation. Garza Sr., thus, has no
standing to sue as an assignee in this case. We sustain the Salinases’ first issue.
III. VALIDITY OF THE JUDGMENT AGAINST DECEASED DEFENDANTS
By their second issue, the Salinases challenge the validity of the judgment entered
against Vicente Saenz, Hilaria Hernandez, and Olivia Salinas Perez, defendants who
were sued individually and died prior to trial.8 The Garzas assert that the judgment is
valid because their estates continued to participate through the deceased parties’
7 The Salinases do not challenge the trial court’s Finding of Fact number 11 that provides, “[The
Garzas] have incurred legal fees in related litigation that resulted from the failure to fully and properly convey
the Subject Property to Plaintiffs and their predecessor-in-interest. Plaintiffs’ share of the legal fees has
totaled $607,143.22.” Nothing in our analysis of the first issue should be construed as disavowing that
finding or the judgment to the extent it awards such damages. See TEX. R. APP. P. 47.1.
8 We note that Olivia Salinas Perez is identified as an appellant; Hilaria Hernandez and Vicente
Saenz are not. However, because Hernandez’s name and Saenz’s name are on the judgment, we address
this issue as being relevant to all three.
9
counsel; counsel did not file a motion to withdraw but, instead, continued to represent
each estate during trial and now on appeal.9
A. Applicable Law
“It is well-settled that the estate of a decedent is not a legal entity and may not sue
or be sued as such.” Supak v. Zboril, 56 S.W.3d 785, 792–93 (Tex. App.—Houston [14
Dist.] 2001, no pet.) (citing Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975));
see Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987). “A suit seeking to
establish the decedent’s liability on a claim and subject property of the estate to its
payment should ordinarily be instituted against the personal representative or, under
appropriate circumstances, against the heirs or beneficiaries.” Price, 522 S.W.2d at 691.
However, when the suit is not instituted against the personal representative, heirs, or
beneficiaries of the deceased defendant, a judgment involving “the estate” may validly
bind the personal representative of the estate if he appears and participates in the case
in his official capacity as personal representative of the estate. Price, 522 S.W.2d at 692;
Dueitt v. Dueitt, 802 S.W.2d 859, 861 (Tex. App.—Houston [1st Dist.] 1991, no writ); see
also Henson, 734 S.W.2d at 649.
B. Discussion
9 The Garzas do not dispute that Saenz, Hernandez, and Perez died prior to trial, that the Salinases
filed suggestions of death for each of the three individuals on November 6, 2013, and that the clerk should
have issued a scire facias for the administrator or executor or heir of each to appear and defend the suit.
See TEX. R. CIV. P. 152 (“[W]here the defendant shall die [before the verdict], upon the suggestion of death
being entered of record in open court, or upon petition of the plaintiff, the clerk shall issue a scire facias for
the administrator or executor or heir requiring him to appear and defend the suit and upon the return of
such service, the suit shall proceed against such administrator or executor or heir.”).
10
Here, the suit was not instituted against the personal representative, heirs, or
beneficiaries of any of the three deceased defendants. So, we must determine whether
any personal representative of any of the three estates actively appeared and participated
in the case. See Price, 522 S.W.2d at 692; Dueitt, 802 S.W.2d at 861; see also Henson,
734 S.W.2d at 649.
Relying on Bernstein v. Portland Savings and Loan Association, the Garzas argue
that Richard D. Schell’s legal representation of Saenz, Hernandez, and Perez throughout
the trial proceedings and now on appeal is evidence of notice and of sufficient
participation by each estate. See 850 S.W.2d 694, 699 (Tex. App.—Corpus Christi 1993,
writ denied), disapproved on other grounds by Crown Life Ins. Co. v. Casteel, 22 S.W.3d
378, 388 (Tex. 2000). Their reliance on Bernstein is misplaced.
In Bernstein, this Court concluded that Sidney T. Bernstein’s personal
representative, Zayle Bernstein, participated in the lawsuit by filing, through his attorneys,
a motion for sanctions “individually and as Personal Representative of the Estate,” by
filing a supplemental memorandum in support of that motion, and by later filing motions
and amended answers on behalf of the personal representative and the estate. Id. at
700. And the judgment set out that “Sidney T. Bernstein (actually, the personal
representative of the Estate of Sidney T. Bernstein having been properly served by writ
of scire facias) appeared by and through its attorney of record and announced ready for
trial.” Id.
We find no authority for the proposition that legal representation, without more, or
continuation of the trial, by default, satisfies the personal representative requirement. The
11
representation relied upon by the Garzas in support of their position does not reflect the
same quality of participation as that of the personal representative in Bernstein. See id.;
see also Miller v. Estate of Self, 113 S.W.3d 554, 558 (Tex. App.—Texarkana 2003, no
pet.) (determining that the temporary administrator’s conduct was insufficient
participation); Supak, 56 S.W.3d 794 (deciding that evidence of the decedent’s son
having been introduced to the jury as “representing that family” and testifying as a fact
witness was insufficient to support the conclusion that he participated as representative
of the estate); Dueitt, 802 S.W.2d at 861 (holding that a personal representative
participated in the proceeding based on an affidavit of a co-executor of decedent’s estate
verifying the petition rather than the attorney’s signature on the petition); Bevers v.
Brodbeck, No. 07-04-0475-CV, 2006 WL 2795347, at *3 (Tex. App.—Amarillo 2006, pet.
denied) (mem. op.). Unlike the present case, Bernstein focused on the fact that the
deceased defendant had a personal representative other than his attorney. 850 S.W.2d
at 699–700.
On November 6, 2013, Schell filed a suggestion of death for Saenz, Hernandez,
and Perez.10 The suggestion of death requested that a personal representative appear
and defend the suit for their estates. It did not serve as Schell’s appearance as personal
representative for these estates. Moreover, as discussed below, we find no record
support for the conclusion that Schell appeared and actively participated in the capacity
of the estates’ personal representative.
10 The record shows that Perez died on May 9, 2003. The dates Saenz and Hernandez died were
not located in the record.
12
No pleadings or other documents were filed identifying Schell as a personal
representative of any of the estates. See Henson, 734 S.W.2d at 649. As the Garzas
point out, on April 13, 2010, Schell did file a response to the Garzas’ Bill of Review, setting
out that he was the attorney for Saenz and Hernandez.11 However, Schell did not
represent that he was filing in the capacity of personal representative for Saenz’s or
Hernandez’s estate.12 In addition, the Garzas rely on an attachment filed in support of
the Salinases’ first amended plea in abatement or, alternatively, motion to dismiss for
misjoinder. They claim that because the chart explicitly reflected that Schell represented
Saenz and Hernandez, it supported their argument that estates of each deceased
defendant participated sufficiently in the case. Yet the chart showed that Schell
represented some owner/defendants, including Saenz and Hernandez, in a legal
capacity; it did not show that he represented Saenz and Hernandez in the capacity of a
personal representative of their estates.13 Finally, the Garzas direct us to the notice of
appeal and appellants’ brief filed by Schell, as appellants’ attorney. But both list only
Perez, individually, as an appellant; Schell does not identify Saenz and Hernandez or
their estates as appellants.
11 The Bill of Review did not identify Perez as a defendant in its style or in the list of defendants for
whom Schell provided legal representation.
12 It is unclear from the record, whether Saenz or Hernandez was deceased at this time. And the
Bill of Review does not identify Perez as a defendant in its style or in the list of defendants for whom Schell
provided legal representation.
13 We note that Perez was identified as a defendant but the “Represented by” column remained
blank. Also, in several instances, when an estate was listed as a defendant and was represented by Schell,
the following notation was added: “The suit must be against the named executor or administrator. If there
is no administration, then the heirs must be named as party Defendants.”
13
The confusing record before us simply does not support the conclusion that Schell
participated sufficiently in this case as the purported representative of the estates of
Saenz, Hernandez, or Perez to make the judgment binding against him in that capacity.14
See Price, 522 S.W.2d at 692; Bernstein, 850 S.W.2d at 699–700; see also Estate of
C.M. v. S.G., 937 S.W.2d 8, 10–11 (Tex. App.—Houston [14th Dist.] 1996, no writ)
(corrected op.) (distinguishing C.M. facts from Bernstein facts and concluding no
representation). We sustain the Salinases’ second issue.
IV. VALIDITY OF THE JUDGMENT AGAINST THREE ESTATES AND ONE TRUST
By their third issue, the Salinases complain of the judgment entered against the
estates of Francisca Vasquez, Eduardo Saenz, and Librada Salinas and against the
Eduardo Saenz Children’s Rev. Trust. They argue that the judgment against these
defendants is void because the Garzas failed to sue the representatives or trustees of
those defendants. We disagree.
As set out above, a suit against an estate “should ordinarily be instituted against
the personal representative or, under appropriate circumstances, against the heirs or
beneficiaries.” Price, 522 S.W.2d at 691. Furthermore, “[t]he general rule in Texas (and
elsewhere) has long been that suits against a trust must be brought against its legal
14 The Garzas assert that even if the appellate record did not indicate sufficient participation in the
trial court proceedings, it is inadequate to reverse the judgment against Perez because she died on May 9,
2003, prior to the dismissal of the original cause number and that record is not before us. They argue we
must construe the missing record in their favor and assume that scire facias was issued in the original
cause. We disagree. Although Perez died on May 9, 2003, prior to the dismissal of the original cause
number, the suggestion of death was not filed until November 6, 2013, after which scire facias should have
issued. In other words, the record from the relevant time is before us.
14
representative, the trustee.” Ray Malooly Trust v. Juhl, 186 S.W.3d 568, 570 (Tex. 2006)
(per curiam).
The Garzas’ fourth amended petition set out the following:
Defendant the Estate of Francisca Vasquez was served with process
by serving its Executor, Hector E. Vasquez, who resides in Mission, Hidalgo
County, Texas. Said individual has answered herein, and no further service
of process is needed.
...
Defendant the Estate of Eduardo Saenz, Deceased, has been
served with process by serving its representative, Maria Irma C. Saenz who
resides in La Joya, Hidalgo County, Texas. Maria Irma Saenz has
answered herein, and no further service of process is needed.
Defendant Eduardo Saenz Children’s Rev. Trust has been served
with process by serving its trustees, Eduardo Saenz, Jr. and Norma Torres,
who reside in La Joya, Hidalgo County, Texas. Said trustees have
answered herein, and no further service of process is needed.
...
Defendant the Estate of Libradia Salinas, Deceased, was served
with process by serving its Executor M. Elva S. Delgado, who resides in La
Joya, Hidalgo County, Texas. Said individual has answered herein, and no
further service of process is needed.
Because the Garzas instituted suit against the representatives of the estates of
Francisca Vasquez, Eduardo Saenz, and Librada Salinas and against the trustee for the
Eduardo Saenz Children’s Rev. Trust, we cannot conclude that the judgment is invalid as
to those defendants. See id.; Price, 522 S.W.2d at 691; Casillas, 79 S.W.3d at 590. We
overrule the Salinases’ third issue.
VI. INDISPENSABLE PARTY-DEFENDANTS
By their fourth issue, the Salinases contend that the trial court abused its discretion
15
when it denied their plea in abatement or, alternatively, their motion to dismiss because
the Garzas did not join indispensable party-defendants who held mineral ownership
interests in the subject property. They argue that the evidence fails to support the trial
court’s ruling.
On October 8, 2014, the trial court heard the Salinases’ plea and alternative motion
for misjoinder. See TEX. R. CIV. P. 39(a) (providing for joinder of persons needed for just
adjudication). The law is well settled; the Salinases, who urged the plea, had the burden
of proving their allegations in the trial court.15 See Flowers v. Steelcraft Corp., 406 S.W.2d
199, 199 (Tex. 1966); Bernal v. Garrison, 818 S.W.2d 79, 82 (Tex. App.—Corpus Christi
1991, writ denied). The Salinases also had the burden to provide a sufficient appellate
record, showing error that requires reversal. See Christiansen v. Prezelski, 782 S.W.2d
842, 843 (Tex. 1990) (per curiam).
In this appeal, the Salinases have not provided us with a transcript of the
October 2014 hearing, and they have not directed us to any supporting evidence that was
offered at the hearing that showed certain parties that the Garzas did not join were
indispensable. See id. On this insufficient record, it is impossible for us to determine
15 To establish that a person is indispensable, the movants, the Salinases in this case, must have
shown that: (1) the person’s presence was needed to adjudicate the dispute and accord complete relief to
those already parties; (2) his ability to protect his interests may be impaired or impeded if he was absent;
or (3) his absence left one already a party subject to a substantial risk of multiple or inconsistent obligations.
See Longoria v. Exxon Mobil Corp., 255 S.W.3d 174, 179–80 (Tex. App.—San Antonio 2008, pet. denied)
(citing TEX. R. CIV. P. 39(a); Brooks v. Northglen Ass’n, 141 S.W.3d 158, 162 (Tex. 2004)). The Salinases
attached one exhibit to their plea and motion. It was titled “Analysis of Party Defendants.” The plea
described the exhibit as “[a] partial listing of owners” that reflected which owners were parties to the suit
and which owners had never been joined.
16
what evidence the parties offered regarding the necessity or feasibility of the remaining
mineral interest owners. Accordingly, we overrule the Salinases’ fourth issue.
VII. STATUTE OF LIMITATIONS
A. Misnomer
By the fifth issue, the Salinases contend that the four-year statute of limitations16
ran before Juan Lino Garza Jr. and Elma Iren Garza, co-trustees of Trusts A-1 and A-2,
joined the lawsuit as plaintiffs in 2014. They acknowledge that the co-trustees, as
successors in title to the interests originally conveyed by Eleuterio to Guadalupe, had
standing to assert a claim under the 1942 deed. However, the Salinases contend that
because the Juan Lino Garza Sr. Trust expired in 2004 and the eligible co-trustees of
Trusts A-1 and A-2 did not join the suit until 2014, their claims were barred by limitations.
The Garzas respond, arguing, among other things, that their amended petition in
2014 corrected a misnomer regarding the Garza Trusts and, with the error corrected, the
amended pleading related back to the original date of filing. The Garzas assert that the
Salinases cannot take advantage of a cured misnomer in the pleadings when they actively
participated in the litigation for nearly a decade without raising the issue and did not
appear confused, disadvantaged, or even impacted by the misnomer. We agree with the
Garzas.
When a plaintiff misnames itself in a pleading, but the correct parties are served
and involved in the suit, the matter is a simple misnomer and does not negate the
16
The limitation periods for the causes of action brought are not disputed.
17
plaintiff’s standing and does not implicate the statute of limitations. In re Greater Houston
Orthopedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig. proceeding) (per
curiam); Pierson v. SMS Fin. II, L.L.C., 959 S.W.2d 343, 347–48 (Tex. App.—Texarkana
1998, no pet.) (explaining that when a misnomer occurs, the statute of limitations does
not apply when “the correct parties are involved” and “received notice of the suit”). When
the error is corrected, the amended pleading relates back to the original date of filing. In
re Greater Houston Orthopedic Specialists, 295 S.W.3d at 326.
During trial, Garza Jr. testified as follows:
Q. [Counsel for the Salinases] When were those mineral interests
conveyed into A-1 and A-2?
A. [Garza Jr.] Those minerals were actually originally in the Garza
Energy Trust, which was conveyed by the—well, it was gifted by the
Parents Trust to the Garza Energy Trust in 1994 and ‘95. Then
during that interim, Juan Lino Garza[] Sr., gifted those minerals into
the Juan Lino Garza Energy Trust[s] A-1 and A-2.
...
Q. All right. So, is there any reason then why Trust[s] A-1 and A-2 were
not plaintiffs in 2001 when this action was first brought?
A. When this action was first brought, the minerals were under the
Garza Energy Trust, a holding trust.
...
Q. All right. So, whatever mineral interests were in the Garza Energy
Trust, upon termination of that trust, those passed to Trust[s] A-1 and
A-2?
A. Correct.
Q. All right. So, that would have been in 2004; is that right?
18
A. Yes.
When the case was initially filed in 2001, the Garza Energy Trust was properly
named as a plaintiff. Similarly, when the case went to trial in 2014, Trusts A-1 and A-2
were properly named as plaintiffs. See Massad v. Bumpus, 146 S.W.2d 1073, 1075 (Tex.
Civ. App.—Texarkana 1940, writ dism’d) (setting out that it has long been held that a
covenant of general warranty runs with the land) (citing Flanniken v. Neal, 4 S.W. 212,
214–15 (Tex. 1887)). The Salinases offered into evidence a chart that summarized the
parties named in the case since 2001, the year the Garzas filed suit. The chart confirmed
Garza Jr.’s testimony that individuals representing the respective trusts were involved
since the case began. The Salinases do not complain that the wrong plaintiffs were
involved in the suit, that they lacked notice of the complaints against them, or that they
were otherwise misled or disadvantaged by the pleadings. See Pierson, 959 S.W.2d at
347–48. The correct parties were served and were involved in the suit, responding to
discovery, taking depositions, designating expert witnesses, and participating in pretrial
hearings prior to correcting the misnomer in their petition. The Salinases did not
challenge the misnomer in the trial court and have not shown that the pleading error has
had any detrimental effect on the case.
The Garzas do not dispute that it would have been prudent to update the parties
in their pleadings to reflect Trusts A-1 and A-2 as soon as the Garza Energy Trust
terminated in 2004. However, “in a case like this, in which the plaintiff misnames itself,
the rationale for flexibility . . . applies with even greater force.” In re Greater Houston
Orthopedic Specialists, 295 S.W.3d at 326. Allowing for such flexibility, we conclude that
19
the Garzas’ initial pleading tolled the statute of limitations, and the subsequent
amendment of the petition, which did not add new parties but corrected a misnomer,
relates back to the date of the original petition. See Pierson, 959 S.W.2d at 347.
B. The Maddux Litigation
During oral argument, the Panel raised the question of whether the Garzas’ claims
were barred by the statute of limitations based on language in this Court’s opinion in the
Maddux Litigation. See Maddux, 988 S.W.2d at 287–88. Specifically, the Panel
questioned whether the Garzas and their predecessors-in-interest were on notice of a title
defect as early as 1982 when defendants, including Guadalupe Garza, in an earlier
litigation agreed upon a mineral deed that clarified and confirmed mineral interests out of
Shares 13 and 15, or in 1986 when certain mineral interests were conveyed from an
earlier Garza trust to the Garza Energy Trust which placed the disputed acreage within
Share 15. See id. Although addressed during oral argument and in requested post-
submission briefing, we do not reach this limitations argument here.
In this case, the trial court made the following Finding of Fact number 10: “Plaintiffs
did not acquire knowledge of the fact that the Subject Property was not fully and properly
conveyed to them and their predecessors-in-interest until appeals were exhausted in the
Maddux Suit. There was no failure of title until the appeals process was completed.” On
appeal, the Salinases do not challenge this finding.
Based on our Maddux opinion, which became final when the petition for review
was denied in 1999, the present suit was timely filed in 2001 with the Garza Energy Trust
as a plaintiff. Nowhere do the Salinases contend that the Garzas were on notice of a
20
failure of title prior to 1999. And they neither argue that Maddux is the “law of the case”
nor challenge the sufficiency of the evidence supporting Finding of Fact number 10.
Rather, the Salinases’ brief sets out in its background section that title failed at the end of
the Maddux Litigation and, in support of its limitations issue, quotes testimony from Frank
Enriquez, one of the Garzas’ experts. Enriquez testified that in 1999 the supreme court
decided that the 108 acres did not belong to the Garza family, see Maddux, 988 S.W.2d
at 287–91, and agreed that “it would seem” that a lawsuit brought in 2014 would be
beyond the applicable statute of limitations.
Nonetheless, “[w]hen findings of fact are filed and are unchallenged, they occupy
the same position and are entitled to the same weight as the verdict of a jury. Findings
of fact which are unchallenged are binding on the appellate court.” De Los Santos v. De
Los Santos, 794 S.W.2d 528, 529 (Tex. App.—Corpus Christi 1990, no writ) (citing Katz
v. Rodriguez, 563 S.W.2d 627, 630–31 (Tex. Civ. App.—Corpus Christi 1977, writ ref’d
n.r.e.)). Because Finding of Fact number 10 is unchallenged, it is binding on this Court,
and we cannot disregard it. See id.
Moreover, “[a]ny unchallenged finding of fact which will support the judgment will
preclude a reversal of the case.” Id. Conclusion of Law number 5 holds: “All pertinent
statute of limitations were tolled and began to run once appeals were exhausted in the
Maddux suit. That is when failure of title occurred and when the Supreme Court of Texas
said title was cleared.”17 The unchallenged Finding of Fact Number 10 supports the trial
17
The trial court cited Coastal Oil & Gas Corp. v. Garza Energy Trust in support of this conclusion.
See 268 S.W.3d 1, 5–6 & n.8 (Tex. 2008) (noting that disagreements among the Salinases and the Garzas
21
court’s conclusion of law that limitations was tolled and, therefore, supports the judgment.
See id. As such, we are precluded from reversing on this basis. See id.
C. Summary
Because the Garzas’ misnomer did not implicate the statute of limitations and
because we are bound by unchallenged Finding of Fact number 10, a finding that
supports the judgment, we overrule the Salinases’ fifth issue.
VII. DAMAGES
A. Basis for the Damages Awarded
By their sixth issue, the Salinases contend that the Garzas’ claims for breach of
warranty, breach of covenant against encumbrances, and breach of implied covenants
were treated together and are governed by the same legal defenses. Based on this
premise, the Salinases claim that the trial court erred in awarding damages because in a
breach-of-warranty-of-title action, damages are limited to, at most, the compensation paid
for the 108 acres lost in the Maddux Litigation. See Sun Exploration and Prod. Co. v.
Benton, 728 S.W.2d 35, 37 (Tex. 1987) (“The proper measure of damages for breach of
the covenants of seisin and warranty of good title is the consideration paid for the
conveyance.”). They also assert that the judgment should be reversed because the
Garzas “failed to put on any evidence of what amount was paid for the 108 acres.”
over their respective interests in Share 13 were not resolved until 1999 when the Maddux opinion was
issued) (citing Garza v. Maddux, 988 S.W.2d 280 (Tex. App.—Corpus Christi 1999, pet. denied) (affirming
summary judgment in the Juan Lino Garza suit)).
22
In response, the Garzas argue that because the Salinases have not challenged all
grounds that support the damage award, specifically their trespass-to-try-title ground, the
issue should be overruled. We agree with the Garzas.
We must affirm a trial court’s judgment if it can be upheld on any legal basis
supported by the evidence. Conseco Fin. Servicing Corp. v. J & J Mobile Homes, Inc.,
120 S.W.3d 878, 880–81 (Tex. App.—Fort Worth 2003, pet. denied); San Antonio Press,
Inc. v. Custom Bilt Mach., 852 S.W.2d 64, 65 (Tex. App.—San Antonio 1993, no pet.).
“When a separate and independent ground that supports a judgment is not challenged
on appeal, the appellate court must affirm. If the rule were otherwise, an appellant could
avoid the adverse effect of a separate and independent basis for the judgment by ignoring
it and leaving it unchallenged.” San Antonio Press, 852 S.W.2d at 65; see Britton v. Tex.
Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no
pet.); see also Nichols v. Byrne, No. 13-97-456-CV, 1999 WL 58570, at *1 (Tex. App.—
Corpus Christi Jan. 28, 1999, no pet.) (mem. op.).
The Garzas pleaded and sought damages for four distinct causes of action,
including breach of warranty of title, breach of covenant against encumbrances, breach
of implied covenants, and trespass to try title. The final judgment found the Salinases
liable to the Garzas “for breach of warranty of title, breach of covenant against
encumbrances, breach of implied covenants, and trespass to try title.” (Emphasis added.)
So, even assuming without deciding that the breach claims should be treated as one,
because the Salinases have not challenged damages based on the Garzas’ trespass-to-
try-title claim, they have not attacked every independent basis on which the damages
23
could have been awarded. See San Antonio Press, 852 S.W.2d at 65. Moreover, they
do not argue that the purported damage limit applies to trespass-to-try-title damages.
Therefore, we must determine whether this legal basis—trespass to try title—supports
the judgment and the damages awarded in this case. See id.
While the judgment found the Salinases liable for trespass to try title, the trial court,
in its conclusions of law, did not expressly identify trespass to try title as a basis for its
damage award. Instead, its conclusions set out that the Salinases breached the deed’s
warranty of title, the covenant against encumbrances, and the implied covenants.
However, in unchallenged Finding of Fact number 7, the trial court found that “[the
Garzas] and their predecessors-in-interest were, and are, owners and/or persons entitled
to clear title and possession of 271 acres within Share 13”; in unchallenged Finding of
Fact number 8, it found that “[a]side from the 173 acres out of Share 13 that were properly
conveyed to [the Garzas] and their predecessors-in-interest, [the Salinases] and their
predecessors-in-interest have used and occupied all of Share 13 and have entered into
oil and gas leases with certain oil companies that have drained valuable minerals from
Share 13”; and in unchallenged Finding of Fact number 9, it found that “[the Garzas] have
a 1/8 interest in the 108 acres in Share 13 that were not properly conveyed.” See Martin
v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004) (setting out ways “[t]o prevail in a trespass-
to-try-title action,” including “establish[ing] superior title out of a common source”).
Furthermore, in Conclusion of Law number 7, the trial court concluded that “[the Garzas]
24
have sustained actual damages in the amount of $3,062,129.43, for which [the Salinases]
are jointly and severally liable.”18
The unchallenged findings, which we cannot disregard, support the conclusion that
the Garzas sustained actual damages based on their trespass-to-try-title claim. See De
Los Santos, 794 S.W.2d at 529. The judgment correctly included “trespass to try title” as
a legal theory that provided a basis for the judgment and for the damages awarded.19
See Highland Credit Opportunities CDO, L.P. v. UBS AG, 451 S.W.3d 508, 519 (Tex.
App.—Dallas 2014, no pet.) (providing that “the conclusions of law will be upheld on
appeal if the judgment can be sustained on any legal theory supported by the evidence;
incorrect conclusions of law [or in this case omitted conclusions of law] will not require
reversal if the controlling findings of fact will support a correct legal theory”); see also
Mays v. Mays, No. 13-05-558-CV, 2007 WL 776684, at *2 (Tex. App.—Corpus Christi
Mar. 15, 2007, pet. denied) (mem. op.) (same). Because the Salinases did not challenge
the judgment on the basis of this independent ground, we overrule the sixth issue.
B. Expert Testimony
By their seventh issue, the Salinases argue that the testimony of the Garzas’
expert “Richard Cortez on damages was not reliable,” “would not have survived a Daubert
18 Lost rents and royalties are available in a trespass to try title suit and in a mineral trespass.
Victory Energy Corp. v. Oz Gas Corp., 461 S.W.3d 159, 177 (Tex. App.—El Paso 2014, pet. denied);
Musquiz v. Marroquin, 124 S.W.3d 906, 912 (Tex. App.—Corpus Christi 2004, pet. denied); United Sav.
Ass’n of Tex. v. Villanueva, 878 S.W.2d 619, 623 (Tex. App.—Corpus Christi 1994, no writ); see also TEX.
R. CIV. P. 783(f). The Garzas’ expert witness Richard Cortez testified regarding royalty payments that
would support a damage award based on a trespass-to-try-title ground.
19The Salinases do not complain of the amount of actual damages awarded for trespass to try title.
That issue is not before us. See TEX. R. APP. P. 47.1.
25
challenge,” and “[a]s such it is not evidence of damages.” Specifically, the Salinases
contend Cortez relied on foundational data provided by the Garzas “who got it from a
website operated by a private company.” They allege that Cortez himself “had no prior
experience with that website and did no investigation of how such data was obtained or
whether it was reliable.” This is a challenge to the admissibility of Cortez’s testimony
based on his foundational data. See, e.g., Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402,
409 (Tex. 1998) (“Daubert’s focus is on the trial court’s discretion, when faced with an
objection to scientific evidence, to admit or exclude such evidence before or during the
trial.”).
The Texas Supreme Court has concluded that a Daubert-Robinson challenge is
required “only when a challenge to expert testimony questions the underlying
methodology, technique, or foundational data used by the witness.” Coastal Transport,
Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 229 (Tex. 2004) (citing Mar.
Overseas Corp., 971 S.W.2d at 411); see Merrell Dow Pharm. v. Havner, 953 S.W.2d
706, 711–30 (Tex. 1997); E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d
549, 554–56 (Tex. 1996); see also Moore v. Moore, 383 S.W.3d 190, 199–200 (Tex.
App.—Dallas 2012, pet. denied) (applying Maritime proposition at bench trial). Such a
challenge “must be timely made in order to allow the court to exercise its gatekeeper
function.” Coastal Transport, 136 S.W.3d at 229 (citing Mar. Overseas Corp., 971 S.W.2d
at 411).
In Coastal Transport, our supreme court explained:
26
When the expert’s underlying methodology is challenged, the court
“necessarily looks beyond what the expert said” to evaluate the reliability of
the expert’s opinion. . . . We therefore conclude that when a reliability
challenge requires the court to evaluate the underlying methodology,
technique, or foundational data used by the expert, an objection must be
timely made so that the trial court has the opportunity to conduct this
analysis. However, when the challenge is restricted to the face of the
record, for example, when expert testimony is speculative or conclusory on
its face, then a party may challenge the legal sufficiency of the evidence
even in the absence of any objection to its admissibility.
136 S.W.3d at 233 (emphasis added) (internal citations omitted).
Here, the Salinases do not argue that Cortez’s testimony was speculative,
conclusory, or otherwise non-probative on its face. Rather, they attack Cortez’s testimony
as to the foundational data upon which Cortez relied.
The Salinases, however, did not file a pretrial Daubert motion to strike Cortez’s
testimony, and they did not make an oral objection during trial. They cross-examined
Cortez regarding the data he relied upon but did not object to or secure a ruling on the
reliability of Cortez’s trial testimony. Because no timely objection was made before or
during trial, the Salinases’ challenge to Cortez’s foundational data has been waived.20
See TEX. R. APP. P. 33.1. We overrule the seventh issue.
VIII. JOINT AND SEVERAL LIABILITY
A. The Trespass-Claim Basis
By their eighth issue, the Salinases assert that joint and several liability may only
20 To the extent we could construe the Salinases’ argument as a challenge to the legal sufficiency
of the evidence supporting Cortez’s testimony, we find that argument has been waived because it is not
properly before the Court. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the record.”).
27
be imposed under Chapter 33 of the Texas Civil Practice and Remedies Code for tort
liability, which was not pleaded by the Garzas. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 33.002(a)(1) (West, Westlaw through 2017 1st C.S.) (apportioning responsibility among
those responsible for damages in “any cause of action based on tort”). In response, the
Garzas claim that the trial court properly held the Salinases jointly and severally liable as
parties to the trespass of the Garzas’ property. Again, we agree with the Garzas.
In a trespass-to-try-title case, “[t]he imposition of joint and several liability turns
upon the actions of the joint-trespassers as parties to the trespass,” not on the extent of
their individual violation. Victory Energy Corp. v. Oz Gas Corp., 461 S.W.3d 159, 180–
81 (Tex. App.—El Paso 2014, pet. denied). In Victory Energy, the Oz Gas Corporation
filed a trespass-to-try-title suit against Victory Energy Corporation and others. See id. at
159–69. Oz held a leasehold interest in 160 acres of land and claimed that the defendants
trespassed by operating wells on the property. Id. at 168–69. However, a third party had
purported to convey an interest to the defendants. Id. The trial court granted summary
judgment on the defendants’ liability and then held a bench trial on damages. Id. at 169.
The defendants were held jointly and severally liable for the actual damages resulting
from their trespass. Id. On appeal, the defendants challenged the imposition of joint and
several liability, claiming that the trial court erred by failing to impose liability specific to
each party or well. Id. at 180.
The Eighth Court of Appeals rejected this argument, reiterating the century-old rule
that “all who aid or abet the commission of a trespass are liable jointly or severally.” Id.
(citing Cunningham v. Coyle, 2 Willson 371, 1884 WL 8399, at *1 (Tex. Ct. App. 1884)).
28
The court held: “The imposition of joint and several liability turns upon the actions of the
joint-trespassers as parties to the trespass. Thus, the legal or factual insufficiency of the
evidence showing whether appellants trespassed as to both wells or benefitted is not
directly relevant to the issue of whether the damages may be assessed jointly and
severally given that personal participation is not required.” Id. at 180–81.
Similarly, the trial court found that the Salinases were parties to the trespass.
Margarito Salinas testified regarding the operation of wells on Share 13, confirming that
Eleuterio Salinas’s descendants executed and profited from the oil and gas leases on
Share 13. The Garzas presented detailed production data from the U.S. Data Library—
a resource that aggregates information from the Texas Railroad Commission—regarding
the producing wells on the Salinases’ portion of Share 13. Cortez provided expert
testimony, a report, and calculations regarding the production and royalties collected by
the Salinases for oil and gas wells on Share 13. The Salinases offered no controverting
data or expert testimony.
As in Victory Energy, the trial court held all those who participated in the trespass—
i.e., the Salinases in this case—jointly and severally liable. The Salinases were parties
to trespass; specific findings regarding the extent of each trespasser’s individual
participation were not necessary. See id.
We conclude that the trial court did not err in holding the Salinases jointly and
severally liable.21 We overrule the Salinases’ eighth issue.
21 In their reply brief, the Salinases claim that there is no evidence supporting any cause of action
for which joint and several liability would apply. However, they did not present this complaint in their brief
29
B. Evidence of Portion of Estate Inherited Not Required
By their final issue, the Salinases claim that the Garzas failed to offer any evidence
of what each of the Salinases received from Eleuterio’s estate. However, the Salinases
base this argument on the proposition that, in a suit for breach of warranty, liability of each
heir/descendant of Eleuterio Salinas is limited to the value of the interest each received.
We have concluded that the basis for damages in this case could be controlled by the
Garzas’ uncontested trespass-to-try-title claim, for which joint and several liability applies.
See id. Therefore, failure to offer any evidence regarding the extent of the inheritance of
each of the Salinases is not relevant. See id. We overrule the Salinases’ ninth issue.
IX. CONCLUSION
We affirm in part; reverse and render judgment in part that the Garzas take nothing
from Vicente Saenz, Hilaria Hernandez, and Olivia Salinas Perez, and dismiss that
portion of the appeal; and reverse and render judgment in part that Garza Sr. take nothing
on his claims against the Salinases.
GINA M. BENAVIDES
Justice
Delivered and filed the 27th
day of November, 2018.
on appeal but raised it for the first time in their reply brief. The appellate rules of procedure do not allow a
reply brief to be used to raise new issues. See Dallas Cty. v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.—
Dallas 2006, pet. denied) (op. on reh’g). This argument is not properly before us. See id.; see also ZZ &
Z Props., Ltd v. Jang, No. 13-16-00043-CV, 2018 WL 286256, at *2 (Tex. App.—Corpus Christi Jan. 4,
2018, pet. denied) (mem. op.).
30