Bernabe Felix Serna v. Martha Serna

NUMBER 13-24-00449-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

BERNABE FELIX SERNA, Appellant,

v.

MARTHA SERNA, Appellee.

ON APPEAL FROM THE 398TH DISTRICT COURT
OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Fonseca
Memorandum Opinion by Justice West

Appellant Bernabe Felix Serna argues the trial court improperly dismissed his

action for division of out-of-state property undisposed by his 2009 divorce decree from

appellee Martha Serna. By three issues, which we address together, Bernabe argues the

trial court erred. We reverse and remand.
I. BACKGROUND

Bernabe initiated the underlying lawsuit against Martha, seeking division of

community property and a claim for fraud on the community. He pleaded the following

facts:

• He and Martha were married in 1981.

• Martha purchased property in Colorado during the marriage.

• He and Martha were divorced in 2009.

• The 2009 divorce decree did not address the Colorado property because

the parties “agreed to divide the property among themselves later.”

• Martha informed Bernabe in 2023 that she would not follow their

agreement and thereafter “transferred the property to a third party.”

Bernabe’s pleading sought a declaration that the Colorado property was community

property and requested that Bernabe “receive his ½ interest in said property” as well

attorney’s fees and costs of court.

Martha filed a motion to dismiss under Rule 91a, arguing that Bernabe “failed to

state a claim upon which relief can be granted” and that the subject property is her

separate property because “Colorado is not a community property state.” See TEX. R. CIV.

P. 91a. The trial court granted Martha’s motion, and this appeal followed.

II. STANDARD OF REVIEW & APPLICABLE LAW

We review the merits of a Rule 91a ruling de novo. Davis v. Homeowners of Am.

Ins., 700 S.W.3d 837, 842 (Tex. App.—Dallas 2023, no pet.); Flores v. Bank of Am., N.A.,

697 S.W.3d 243, 249 (Tex. App.—El Paso 2023, no pet.). In de novo review, no deference

is given to the trial court’s decision. See In re Est. of Slaughter, 305 S.W.3d 804, 808 (Tex.
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App.—Texarkana 2010, no pet.) (citing Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.

1998)).

Dismissal is appropriate under Rule 91a “if the allegations, taken as true, together

with inferences reasonably drawn from them, do not entitle the claimant to the relief

sought . . . [or] if no reasonable person could believe the facts pleaded.” TEX. R. CIV. P.

91a.1. Under a Rule 91a analysis, we look at no evidence but are confined to the

allegations in plaintiff’s pleading “together with any pleading exhibits permitted by Rule

59.” 1 TEX. R. CIV. P. 91a.6; see Flores, 697 S.W.3d at 249 (quoting In re Farmers Tex.

Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding)). We construe

pleadings liberally in plaintiff’s favor, look to the pleader’s intent, and accept as true the

pleading’s factual allegations. Flores, 697 S.W.3d at 249 (citing In re Facebook, Inc., 625

S.W.3d 80, 83 (Tex. 2021)). “[I]f nothing in the pleading itself triggers a clear legal bar to

the claim, then there is a basis in law and the motion should be denied.” Id. (quoting In re

Jordan Foster Constr., LLC, No. 08-22-002010CV, 2023 WL 2366610, at *3 (Tex. App.—

El Paso Mar. 6, 2023, no pet.) (orig. proceeding) (mem. op.)); see Reaves v. City of

Corpus Christi, 518 S.W.3d 594, 611 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.)

(“[W]hile Rule 91a requires courts to take all factual allegations in the pleadings as true,

legal conclusions need not be taken as true.” (internal quotation omitted)). “Because Rule

91a provides a harsh remedy, its requirements must be strictly construed.” Flores, 697

1 We note that the trial court and the parties relied extensively upon evidence and engaged in two

evidentiary hearings. However, such is improper under a Rule 91a analysis, see TEX. R. CIV. P. 91a.6, and
we therefore disregard the evidence.

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S.W.3d at 249 (citing Darnell v. Rogers, 588 S.W.3d 295, 304 (Tex. App.—El Paso 2019,

no pet.)).

III. DISCUSSION

A. Pleading Sufficiency

We first address Martha’s argument, made in her Rule 91a motion, that Bernabe

failed to plead a legally cognizable cause of action. On appeal, she specifically complains

that Bernabe failed to invoke specific statutes to support his claims, such as Texas Family

Code § 9.201(a) (allowing for post-judgment division of property undivided by a final

divorce decree) or Texas Civil Practices and Remedies Code § 37.003 (declaratory

judgment statute).

“When, as here, special exceptions are not filed, we construe the petition liberally

in favor of the pleader.” Huff Energy Fund, L.P. v. Longview Energy Co., 482 S.W.3d 184,

195 (Tex. App.—San Antonio 2015), aff’d sub nom. Longview Energy Co. v. Huff Energy

Fund LP, 533 S.W.3d 866 (Tex. 2017). The Texas Rules of Civil Procedure provide that

a pleading which sets forth a claim for relief shall contain “a short statement of the cause

of action sufficient to give fair notice of the claim involved.” TEX. R. CIV. P. 47. A pleading

is not required to cite law. Wal-Mart Stores, Inc. v. McKenzie, 22 S.W.3d 566, 571 (Tex.

App.—Eastland 2000, pet. denied). The petition is sufficiently detailed if a cause of action

may be “reasonably inferred from what is specifically stated, even if an element of the

cause of action is not specifically alleged.” Longview Energy Co., 482 S.W.3d at 195. “In

determining whether a pleading is adequate, we examine whether an opposing attorney

of reasonable competence, on review of the pleadings, can ascertain the nature and the

basic issues of the controversy.” Id.

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Bernabe’s pleading set forth the facts detailed above and provided in relevant part:

Plaintiff request [sic] the Court to declare the above property to be
community property, that said property was purchased during the marriage.
That said property be divided 50/50 among Plaintiff and Defendant. Plaintiff
request [sic] reasonable attorney’s fees.

(Emphasis added).

There are two legal theories allowing for division of property omitted from a final

divorce decree: Chapter 23 of the Property Code and Subchapter C of Chapter 9 of the

Family Code. S.C. v. M.B., 650 S.W.3d 428, 434 (Tex. 2022) (explaining the history of

post-divorce property division procedures). Bernabe argues on appeal that he is entitled

to a division of the property under § 9.201 of the Family Code. It provides: “Either former

spouse may file a suit as provided by this subchapter to divide property not divided or

awarded to a spouse in a final decree of divorce or annulment.” TEX. FAM. CODE ANN.

§ 9.201 (emphasis added). Considering Bernabe’s pleading, the declaratory judgment

statute, and the division procedure in the Family Code, we find an attorney of reasonable

competence would be able to ascertain the nature and basic issues of Bernabe’s claim.

See Longview Energy Co., 482 S.W.3d at 195. The trial court erred if it granted Martha's

Rule 91a motion on this basis.

B. Division of Out-of-State Property

In her Rule 91a motion, Martha argued that Bernabe’s suit must fail because the

subject property was her separate property under Colorado law, and separate property is

not subject to division. On appeal, she argues that the trial court lacked “jurisdiction to

order conveyance” of the property for the same reasons.

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First, while Texas courts lack jurisdiction to adjudicate title to land located outside

the state, “Texas courts may enforce an in personam obligation by ordering a party to

convey land located in another state.” Martinez Jardon v. Pfister, 593 S.W.3d 810, 835

(Tex. App.—El Paso 2019, no pet.) (holding trial court had jurisdiction to order Mother to

execute documents necessary for Father to obtain a security interest against Mexico

properties); Griffith v. Griffith, 341 S.W.3d 43, 56–57 (Tex. App.—San Antonio 2011, no

pet.) (holding trial court did not err in dividing community property located in Florida).

Second, in a Texas divorce, the characterization of property is not based on the

law applicable in its location. See Zorilla v. Wahid, 83 S.W.3d 247, 251 (Tex. App.—

Corpus Christi–Edinburg 2002, no pet.) (“Under Texas Family Code [§] 7.002, the ‘quasi-

community property statute,’ Texas courts apply a ‘just and right’ property division

regardless of the nature of the legal system of the previous domicile of the parties.”),

disapproved of on other grounds by Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011). Instead, out-

of-state property acquired by a spouse during the marriage—even when it would be

considered separate property under that state’s laws—is community property if it “would

have been community property [had the acquiring spouse been] domiciled in [Texas] at

the time of the acquisition.” TEX. FAM. CODE ANN. § 7.002(a)(1); see Zorilla, 83 S.W.3d at

251; Griffith, 341 S.W.3d at 57 (finding Florida property was community property).

Here, Bernabe pleaded that the Colorado property was purchased by Martha

during their marriage. The parties obtained a divorce in Texas, and the final divorce

decree omitted the Colorado property. Taking the pleading as true and considering the

Family Code, the property is community property and therefore subject to division under

§ 9.201. See id. §§ 3.001, 3.002, 7.002(a)(1); Zorilla, 83 S.W.3d at 251; Griffith, 341

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S.W.3d at 57. Further, while the trial court lacks jurisdiction to adjudicate title to the

Colorado property, it can order Martha to execute documents necessary to divide the

property. See TEX. FAM. CODE ANN. § 9.203(a). Thus, the trial court erred if it granted

Martha’s Rule 91a motion on this basis.

C. Statute of Limitations

Bernabe next argues his claim is not barred by the statute of limitations. However,

though Martha noted in her Rule 91a motion that Bernabe’s suit was “filed over 14 years

after the parties’ divorce,” she did not argue his suit was barred by limitations. See TEX.

R. APP. P. 33.1(a) (regarding preservation of error for appeal). Moreover, she did not plead

limitations as an affirmative defense in her answer. See TEX. R. CIV. P. 94. Accordingly,

the trial court erred if it granted the Rule 91a motion on this basis.

Even if she had pleaded this defense in her answer and preserved it in her Rule

91a motion, it would not support dismissal under Rule 91a. The limitations period under

the relevant statute begins running on “the date a former spouse unequivocally repudiates

the existence of the ownership interest of the other former spouse and communicates

that repudiation to the other former spouse.” TEX. FAM. CODE ANN. § 9.202. And “[i]t can

take well over a decade following divorce for some parties to seek to divide the property.”

S.C., 650 S.W.3d at 449 (citing three cases where suit to divide property unincluded in

the final divorce decree was properly brought fifteen to thirty-two years after entry of the

final divorce decree). Here, Bernabe pleaded facts demonstrating that Martha

unequivocally repudiated his ownership interest in 2023, and he filed his lawsuit the same

year. Thus—solely considering the pleadings—the limitation period was not expired.

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D. Res Judicata

Lastly, Martha argues on appeal that Bernabe’s claim is barred by res judicata

because the parties’ final divorce decree was entered in 2009. She did not plead this

affirmative defense in her answer or make this argument in her Rule 91a motion. See

TEX. R. CIV. P. 94; TEX. R. APP. P. 33.1(a). Therefore, the trial court erred if it granted the

motion on this basis.

In any event, Bernabe pleaded that the divorce decree did not divide the Colorado

property, a fact which Martha does not contest. And case law is clear that res judicata is

not implicated when a party seeks post-decree division of property that was not

adjudicated in the final divorce decree. See S.C., 650 S.W.3d at 441 (finding Subchapter

C does not implicate res judicata where it merely “allows property that was never divided

to be divided for the first time”); Appleton v. Appleton, 76 S.W.3d 78, 84 (Tex. App.—

Houston [14th Dist.] 2002, no pet.) (“Res judicata does not apply to post-divorce partitions

where the divorce decree has not disposed of an asset.”). Thus, Bernabe’s claim as

pleaded was not barred by res judicata.

IV. CONCLUSION

For the foregoing reasons, the trial court erred in granting Martha’s Rule 91a

motion to dismiss. Accordingly, we sustain Bernabe’s issues. We reverse the trial court’s

judgment and remand for further proceedings consistent with this opinion.

JON WEST
Justice

Delivered and filed on the
21st day of August, 2025.

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