Trevino v. Gonzalez

• Decision Date: 30 March 1988
• Docket Number: No. 04-87-00149-CV,04-87-00149-CV
• Citation: 749 S.W.2d 221
• Parties: Hector TREVINO and Saul Trevino, Appellants, v. Melquiades GONZALEZ, Jr., et al., Appellees.
• Court: Texas Court of Appeals

Page 221

749 S.W.2d 221

Hector TREVINO and Saul Trevino, Appellants, v. Melquiades GONZALEZ, Jr., et al., Appellees.

No. 04-87-00149-CV.

Court of Appeals of Texas San Antonio.

March 30, 1988.

Rehearing Denied May 11, 1988.

Guadalupe Castillo, Zaffirini, Cuellar & Castillo, Laredo, for appellants.

Thomas Crofts, Jr., Groce, Locke & Hebdon, San Antonio, John Pope, Pope, Guerrero & Molina, Margil Sanchez, Jr., Rio Grande City, Nago L. Alaniz, San Diego, Arnulfo Guerra, Roma, Abelardo Garza, San Diego, Thomas H. Lee, Houston, Emilio F. Gutierrez, Laredo, R.E. Lopez, Jr., Alice, for appellees.

Before REEVES, DIAL and CHAPA, JJ.

OPINION

CHAPA, Justice.

Appellants, Hector Trevino and Saul Trevino, appeal from a judgment awarding a certain parcel of land to appellees, Melquiades Gonzalez, Jr., Dora R. Gonzalez, Aide E. Escobar, Octavio Garza, and Bertha G. Garza. Trial was to the court on appellees' cross-action in which they claimed title to 29.44 acres of land by adverse possession under the ten-year statute of limitations.

The issues before us are:

1) whether appellants were given adequate notice of the trial setting;

2) whether the trial judge, who signed the judgment, had voluntarily recused himself earlier in the proceedings;

3) whether the trial court lacked jurisdiction to render the judgment; and

4) whether the evidence was legally and factually sufficient to support the judgment.

This cause originated in 1956 when the Roma Independent School District filed suit seeking collection of delinquent taxes and partition of approximately 4647 acres of land located in Starr County, Texas. Since the initial suit was filed, over 2000 defendants, including appellants and appellees, who have possible ownership interests in the land, have been named as parties. Appellees filed their cross-action to establish title in 29.44 acres situated on the 4647 acre tract of land. Trial of appellees' cross-action commenced on November 25, 1986. At the conclusion of the trial, the trial judge signed an "ORDER FOR SEVERANCE AND FINAL JUDGMENT ..." which awarded appellees title to the 29.44 acres and severed the cause involving title to the 29.44 acres from the original cause which involved the entire 4647 acre tract of land.

In the first two points of error, appellants contend that the trial court erred in denying appellants' motion for new trial and in entering judgment for appellees because appellants were not provided reasonable notice of the trial setting in violation of both Tex.R.Civ.P. 245 and the due process requirements of the United States Constitution.

Rule 245 provides:

The court may set contested cases on motion of any party, or on the court's own motion, with reasonable notice of not less than ten days to the parties, ...

Failure to give the required notice of the trial setting constitutes lack of due process and is grounds for reversal. Morris v. Morris, 554 S.W.2d 792 (Tex.Civ.App.--San Antonio 1977, no writ). Lack of notice, however, must be demonstrated. The trial court is presumed to have heard the case only after proper notice, and to overcome the presumption the record must affirmatively show by undisputed evidence lack of notice of the setting. Alexander v. Russell, 682 S.W.2d 370, 375 (Tex.App.--El Paso 1984), rev'd on other grounds, 699 S.W.2d 209 (Tex.1985); Williams v. Holley, 653 S.W.2d 639, 641 (Tex.App.--Waco 1983, writ ref'd n.r.e.).

Appellants rely on Morris v. Morris, 554 S.W.2d 792 (Tex.Civ.App.--4th Dist.1977) and Read v. Gee, 551 S.W.2d 496 (Tex.Civ.App.--Fort Worth 1977, writ ref'd n.r.e.). These cases, however, involved a record which affirmatively showed a lack of notice of the setting. In the case before us, appellants' argument is based solely on statements in the motion for new trial which merely allege that reasonable notice was not provided. We hold that appellants have failed in their burden of overcoming the presumption of proper notice. The points are overruled.

In their third point of error, appellants contend that the trial court erred in denying appellants' motion for new trial and in entering judgment for appellees because the judge who signed the judgment had voluntarily recused himself earlier in the proceedings.

The record reflects that the Honorable Ricardo H. Garcia entered an order on September 11, 1985, granting a motion to name a visiting judge. During the hearing on the motion, the following dialogue transpired:

THE COURT: These are the porcion cases.

MR. ROCHA: Yes, sir, that is correct. We have this morning filed a motion for this Court's consideration to appoint a visiting judge to hear these cases.

* * *

* * *

THE COURT: Well, once I do this I can't hold any other pretrial.

MR. ROCHA: I understand.

THE COURT: It's out of my hands.

MR. ROCHA: I understand.

THE COURT: So any pretrial will be handled by the visiting judge and by the way I thank you for this.

MR. ROCHA: Thank you, sir.

Appellants contend that Judge Garcia recused himself. We disagree.

The order to name a visiting judge directed the clerk of the court to contact the administrative judge to arrange for the appointment of a visiting judge. The clerk was further directed to report to the court no later than thirty days from the date of the order and advise the court on his efforts to secure the services of a visiting judge. On November 25, 1986, the date on which the cause came to trial, Judge Garcia noted in the record that a visiting judge could not be located.

THE COURT: First of all, the last entry I have in this says that a motion to name visiting judge granted. Let the record reflect that the chief justice of the fifth judicial administrative district has not been able to find a judge and appoint [sic] so he therefore sent it back to me for hearing or until they can find someone.... [T]his Court still has jurisdiction of this case until another judge is appointed.

It is apparent from the record that Judge Garcia did not recuse himself but merely requested a visiting judge. The point of error is overruled.

Appellants next contend that the trial court lacked jurisdiction since 28 U.S.C § 2409A (1982) AND 28 U.S.C. 1346(F) (1982)¹

²

vest exclusive original jurisdiction of this suit in the federal district courts.

We note that the United States was not made a party to this suit. ³ Appellants argue however that § 2409a and § 1346(f) only require that the United States claim an interest in the land in order for the federal district courts to have exclusive original jurisdiction. Appellants conclude that because the United States claims easements, borrow sources, atomic mineral rights, and gratuitous options in the land in question, the United States is an indispensable party. California v. Arizona, 440 U.S. 59, 99 S.Ct. 919, 59 L.Ed.2d 144 (1979). Therefore, the federal district courts have exclusive original jurisdiction over appellants' cross-action. Keeping in mind that the land in question is the 29.44 acres involved in the cross-action, it is the appellants' burden to establish before this Court their contention that the United States claims an interest in the 29.44 acre tract.

Initially, appellants fail to direct this Court in their brief to any evidence in the record which supports the argument that the United States claims easements, borrow sources, atomic mineral rights, and gratuitous options in the 29.44 acre tract. Tex.R.App.P. 74(f) provides:

A brief of the argument may present separately or grouped the points relied upon for reversal. The argument shall include: (1) a fair, condensed statement of the facts pertinent to such points, with reference to the pages in the record where the same may be found; and (2) such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.... (emphasis added)

Appellants' brief cites to a number of documents in an "appendix" attached to their brief to support the argument that the United States claims these interests. We, however, are limited in our consideration to matters before us that were a part of the record made in the trial court. Sabine Offshore Service, Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979); Pipe Line Park Properties, Inc. v. Fraser, 398 S.W.2d 154, 155 (Tex.Civ.App.--Dallas 1965, no writ). The "appendix" is not a part of the record and therefore may not be considered by this Court. Nixon v. Royal Coach Inn of Houston, 464 S.W.2d 900, 901 (Tex.Civ.App.--Houston [14th Dist.] 1971, no writ).

Even assuming that this Court were to consider the "appendix" attached to appellants' brief, appellants' argument would still fail. Many of the documents which appellants refer to in the "appendix" are not legible. Of the documents which are legible, only one, a "JUDGMENT ON DECLARATION OF TAKING NO. 3," establishes an interest in any part of the original 4647 acre tract of land. It shows that in 1952 the United States took a perpetual easement in 67.45 acres situated on the 4647 acre tract of land. This judgment, however, fails to establish that the easement taken by the United States involves the 29.44 acres awarded to appellees and made the basis of this appeal. Appellants have therefore failed in their burden of sufficiently demonstrating facts in the record which would vest exclusive original jurisdiction of the cause before us in the federal courts.

Furthermore, we have examined the entire record, and fail to find any evidence that the United States has an interest in the 29.44 acre tract which is the subject of the appeal. We note that a transcript of the removal hearing in the United States District Court involving the entire 4647 acre tract and a copy of the "JUDGMENT ON DECLARATION OF TAKING NO. 3" were admitted into evidence at the state court hearing for leave to join the United States as a party. The transcript of the federal court hearing reflects that one "Ms. Stacey" stated the United States had an interest, but the transcript is unclear...