Sabino Alvarez, Sr., et al. v. Estela Margo Guerra, et al.--Appeal from 229th Judicial District Court of Starr County

MEMORANDUM OPINION

No. 04-04-00647-CV

Sabino ALVAREZ, Jr., Manuel G. Alvarez; Marta A. Gain;

Eloisa Alvarez Perez; Maria Guadalupe Alvarez; Mrs. Alberto Longoria;

Jorge Alvarez; Joel Alvarez; Javier Alvarez; Jose Adan Alvarez;

Juan A. Alvarez; Sylvia Alvarez Cox; Raul Alvarez, Jr., Marial Ofelia Alvarez Perez,

Geraldo Alvarez, Graciela A. Campos, as Heirs of Raul Alvarez;

all as Heirs of the Estate of Sabino Alvarez, Sr.,

Appellants

v.

Fidencio M. GUERRA, Individually and as Co-Executor of the Estate of

Estela Margo Guerra, Devisee and Co-Exectuor under the Last Will and Testament of

R. Saul Margo; Robert James Margo, Marilyn Margo Flores, Carolyn Margo Trumbley,

heirs of R.R. Margo, Jr.; Sister Marian Frances Margo (formerly Elsie Margo),

Frederick J. Margo, Richard L. Margo, A.E. Margo and Virginia Margo Jones,

Individually, and as Trustees of the Hortensia Guerra Margo Trust,

Appellees

From the 229th Judicial District Court, Starr County, Texas

Trial Court No. 7597

Honorable Joaquin Villarreal, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and filed: September 28, 2005

AFFIRMED

This appeal arises from a dispute over tracts of land located in Starr County, Texas. The original suit was brought against Sabino Alvarez, Sr. (Alvarez) in July 1986 in a trespass to try title action. In answering the suit, Alvarez claimed title to the land by adverse possession under Civil Practice and Remedies Code section 16.026. Various plaintiffs died prior to trial and their heirs were substituted as plaintiffs. Similarly, Alvarez died prior to trial and his heirs were substituted as defendants. After a jury found Alvarez did not obtain title to the land by adverse possession, a final judgment was entered awarding appellees possession of the land, reasonable rental values for the time Alvarez was in possession of the land, and attorney s fees in the amount of $38,000. In a single issue, appellants assert the trial court erred in awarding attorney s fees. We affirm.

ATTORNEY S FEES

In general, attorney s fees are not recoverable unless provided for by statute or between the parties. Epperson v. Greer, 626 S.W.2d 884, 886 (Tex. App. San Antonio 1981, no writ). Appellants contend the trial court erred in awarding the appellees attorney s fees pursuant to Texas Civil Practice and Remedies Code section 16.034. Under section 16.034, a prevailing party is entitled to attorney s fees [i]n a suit for the possession of real property between a person claiming under record title to the property and one claiming by adverse possession, if the prevailing party recovers possession of the property from a person unlawfully in actual possession. Tex. Civ. Prac. Rem. Code Ann. 16.034(a) (Vernon 2002). To recover attorney s fees, the person seeking possession must give a written demand for that person to vacate the premises at least ten days before filing the claim for recovery of possession. Id. 16.034(b). The demand must state that if the person unlawfully in possession does not vacate the premises within ten days and a claim is filed by the person seeking possession, the court may enter a judgment against the person unlawfully in possession for costs and attorney s fees in an amount determined by the court to be reasonable. Id. 16.034(c).
Appellants do not challenge the fact that the 16.034 notice was sent to the original defendant, Alvarez, prior to the filing of this suit. Instead, appellants assert they were not given additional individual notices when they were substituted as defendants upon the death of Alvarez and they continued to assert a claim for title to the land under adverse possession. //

Adverse possession in the context of section 16.034 is viewed at the time of the filing of the suit. City of Carrollton v. Duncan, 742 S.W.2d 70, 79 (Tex. App. Fort Worth 1987, no writ). At the time of this suit, Alvarez was in actual possession of the land in dispute, claimed title to the land by adverse possession, and was given the required ten-day notice by the original plaintiffs before they filed the claim for recovery of possession of the land. Alvarez s heirs, as substituted defendants, continued to assert claims for adverse possession that were derivative of his claim. Nothing in section 16.034 requires that an additional, separate notice be given to persons maintaining a derivative adverse possession claim after the original suit has been filed and notice has been provided to the original defendant. Because we do not have the authority to add such a provision and the Legislature could have, but did not, provide such a requirement, we cannot say the trial court abused its discretion in awarding attorney s fees to the appellees. A.M. Servicing Corp. of Dallas v. State, 380 S.W.2d 747, 748 (Tex. Civ. App. Dallas 1964, no writ) (a court does not have the authority under the guise of construction to amend a statute by adding provisions, no matter how desirable they might seem); Gov t Pers. Mutual Life Ins. Co. v. Wear, 151 Tex. 454, 460, 251 S.W.2d 525 (1952) ( courts must construe a statute as written and ascertain its intention from the language used therein ).

CONCLUSION

We overrule appellants issue on appeal and affirm the trial court s judgment.

Sandee Bryan Marion, Justice