Lucio v. Kenedy Memorial Foundation

• Decision Date: 25 June 2009
• Docket Number: No. 13-08-00077-CV.,13-08-00077-CV.
• Citation: 298 S.W.3d 663
• Parties: Abel LUCIO, Jr., et al., Appellants, v. The JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION, Appellee.
• Court: Texas Court of Appeals

298 S.W.3d 663

Abel LUCIO, Jr., et al., Appellants, v. The JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION, Appellee.

No. 13-08-00077-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

June 25, 2009.

Rehearing Overruled September 17, 2009.

Charles B. Frye, Lindeman & Frye, Houston, TX, for Appellants.

Russell H. McMains, Law Offices of Russell H. McMains, Jorge C. Rangel, The Rangel Law Firm, Richard L. Leshin, Welder Leshin LLP, Corpus Christi, TX, for Appellees.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and BENAVIDES.

OPINION

Opinion by Chief Justice VALDEZ.

Appellants, the Lucios (a group of plaintiffs defined in footnote 3), appeal a summary judgment rendered in favor of the appellee, the John G. and Marie Stella Kenedy Foundation (the "Foundation"). In seven issues, which may be properly categorized as three, the Lucios contend that the trial court: (1) abused its discretion by denying their motion for continuance; (2) erred in granting summary judgment; and (3) abused its discretion in denying their motion for new trial. We affirm.

I. BACKGROUND

On April 14, 2003, 154 plaintiffs¹ sued the Foundation claiming to be the descendants of Lieutenant Jose Francisco Balli ("the Lieutenant") and the heirs to his interest in La Barreta, a Spanish land grant that the Foundation had acquired. The plaintiffs alleged that the Foundation engaged in fraud and dispossessed them of their land; they asserted a trespass to try title action, brought claims for "conversion of real and personal property," sought a declaratory judgment on their alleged interest in La Barreta, and requested attorneys' fees.

The Foundation initially answered with a general denial. During the summer of 2003, the plaintiffs responded to the Foundation's requests for disclosure, interrogatories, and admissions. See generally TEX.R. CIV. P. 194, 197, 198. Through the discovery process, the plaintiffs tendered, among other things, a handwritten deed, dated March 10, 1866 (the "1866 deed"), through which the Lieutenant purportedly conveyed his interest in La Barreta to Clement Balli, who is also an alleged ancestor of the plaintiffs. Part of the legal description of the 1866 deed provides that La Barreta is located "... along and parallel with north boundary line of San Juan De Carricitos Grant, across State Highway and Missouri Pacific Railroad at 48975 varas a large post...." On June 10, 2005, Eleazar Balli and Rosa Maria Balli Rivas (the "intervenors") filed a plea in intervention.²

On November 9, 2006, the Foundation filed its first amended answer, pleading the affirmative defenses of limitations, adverse possession, and res judicata as to ownership of La Barreta and the plaintiffs' and intervenors' lineage; it also denied the authenticity of the 1866 deed. Included in the Foundation's first amended answer was a counter-claim requesting a judgment declaring that the plaintiffs and intervenors were the descendants of the Lieutenant's brother, Jose Manuel Balli Villarreal ("Manuel") and removing any cloud on the Foundation's title to La Barreta that the 1866 deed possibly imposed. Like the plaintiffs, the Foundation sought to recover attorneys' fees.

Also on November 9, 2006, the Foundation filed a hybrid motion for summary judgment on both no-evidence and traditional grounds. As to its no-evidence grounds, the Foundation asserted that there was no evidence of a disruption in its ownership of La Barreta and that it or its predecessors-in-title had owned La Barreta for nearly 200 years. The Foundation also asserted that the plaintiffs and intervenors could not maintain a trespass to try title action under chapter 22 of the property code because they had not produced evidence of superior title to the land. See TEX. PROP.CODE ANN. § 22.002 (Vernon 2000) ("A headright certificate, land scrip, bounty warrant, or other evidence of legal right to located and surveyed land is sufficient title to maintain a trespass to try title action."). The Foundation's third no-evidence ground for summary judgment was that Texas law does not recognize a claim for conversion of real property, see Cage Brothers v. Whiteman, 139 Tex. 522, 163 S.W.2d 638, 641 (1942); Lighthouse Church v. Texas Bank, 889 S.W.2d 595, 599 n. 4 (Tex.App.-Houston [14th Dist.] 1994, writ denied), and the Lucios did not have any evidence as to any element of a personal property conversion claim.

Under its traditional grounds, the Foundation argued that the plaintiffs and intervenors lacked standing to sue on the ground that they descended from Manuel, not the Lieutenant. The Foundation argued that the plaintiffs and intervenors judicially admitted they descended from Manuel in two suits, which had previously been brought by them and adjudicated in Zapata and Kenedy Counties, and that the doctrine of res judicata precluded the current suit (the "res judicata ground"). The Foundation also argued that it was entitled to a declaratory judgment clearing title to La Barreta on the ground that the 1866 deed was fraudulent because it allegedly contained anachronistic references to a state highway and railway that did not exist in 1866, was executed by Manuel instead of the Lieutenant, and did not accurately describe La Barreta's acreage (the "fraudulent 1866 deed ground").

On March 23, 2007, the trial court granted a motion to withdraw, which had been filed by the plaintiffs' counsel, and substituted counsel for Abel Lucio Jr. and thirteen others (hereinafter the "Lucios").³ Under the trial court's order, the remaining plaintiffs were notified of their counsel's withdrawal; they proceeded unrepresented and did not formally participate in further trial court proceedings. On July 13, 2007, the trial court signed an order setting a summary judgment hearing for September 4, 2007.

In August 2007, the Lucios and intervenors moved for a continuance and to sever their suits from each other and the unrepresented plaintiffs. In support of their verified motion for continuance, the Lucios submitted: (1) an affidavit by an attorney for the Lucios, (2) an affidavit by the foregoing attorney's legal assistant, and (3) an affidavit by Michael Allen, a "consultant." The attorney's affidavit stated that "we [the Lucios's attorneys] have been diligent in reviewing not only the [Foundation's] Motion and voluminous exhibits filed with the Motion, but also the hundreds of pages of documents provided to us by our clients and former counsel." The attorney's affidavit also stated that he hired Allen to investigate and evaluate the validity of the 1866 deed. The legal assistant stated that she was attempting to obtain copies of nine clerk's records that the Foundation cited in its summary judgment motions. Allen stated in relevant part:

While I have made some preliminary investigation into the records, I am unable to complete my research and prepare my report and affidavit before August 28, 2007. I believe that I will be able to complete these tasks on or before October 5, 2007.

I have preliminarily reviewed records that indicate that the railroad line in the area in question was originally the St Louis Brownsville and Mexico Railway Company.

... From a review of the public record, [what was the St. Louis Brownsville and Mexico Railway Company] was sold to the Missouri pacific in 1925 and merged in 1956.

The Foundation objected to any continuance on the grounds that the case had been pending before the trial court for over four years, there was no good cause for a continuance, and the Lucios and intervenors had not demonstrated diligence in pursuing the suit.

Only the intervenors timely responded to the summary judgment motion and attached as summary judgment evidence affidavits from family members averring to their lineage, various birth certificates, a letter from a chemist claiming that "no evidence exists that the [1866 deed] was written at any time other than on its purported date," and a website printout stating, in relevant part, that the Missouri Pacific Railway was chartered in 1849. The Foundation objected to the summary judgment evidence offered by the intervenors.

The Lucios did not timely respond to the summary judgment motion. Rather, on September 4, 2007, the date the trial court considered the Foundation's motion, the Lucios filed a memorandum opposing summary judgment. The record does not contain a motion or order granting leave of court to file an untimely response. See TEX.R. CIV. P. 166a(c) ("Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response."). Additionally, there is no indication that the trial court considered the Lucios's memorandum. Accordingly, we will not consider it. See id. ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.").

On October 5, 2007, the trial court rendered a final judgment that: (1) granted the Foundation summary judgment on all grounds except its request for attorneys' fees, (2) denied the continuance motions, (3) denied the severance motions, and (4) sustained the Foundation's objections to the intervenors's summary judgment evidence. The trial court also declared that the unrepresented plaintiffs, the Lucios, and the intervenors are not the descendants of the Lieutenant but instead are the descendants of Manuel, that the 1866 deed is not valid and is void, and that the Foundation conclusively established its chain of title to La Barreta. The only parties appealing the underlying judgment are the Lucios.

II. CONTINUANCE

In their first three issues, the Lucios contend that the trial court abused its discretion by denying their motion for continuance because it was justified, supported by ample grounds and sworn testimony, and would not result in prejudice. The Foundation contends that the Lucios have not demonstrated how the...