Houston International Management & Trade, Inc. v. Peacock Shipping and Trading, Inc., Celestial Holdings, LTD., and Celestial Company

Opinion issued April 14, 2026




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-24-00542-CV
                         ———————————
    HOUSTON INTERNATIONAL MANAGEMENT & TRADE, INC.,
                       Appellant
                                     V.
 PEACOCK SHIPPING AND TRADING, INC., CELESTIAL HOLDINGS,
          LTD., AND CELESTIAL COMPANY, Appellees


                  On Appeal from the 151st District Court
                           Harris County, Texas
                     Trial Court Case No. 2018-70719


                       MEMORANDUM OPINION

     This trespass to try title case involves companies owned by family members

and an assertion of adverse possession. Peacock Shipping and Trading, Inc.,
Celestial Holdings, Ltd., and Celestial Company (the Peacock parties) are record

title holders to 23 lots of commercial property in Houston. Marios Giakoumakos1

owns these companies. His nephew, Spiro Giakoumakos, owns Houston

International Management & Trade, Inc. (HIM), a company that leases space on the

properties to third parties and to a company owned by both Spiro and Marios.

       After operating on the properties for years, HIM filed suit seeking a

declaration that it owns the properties, and it asserted a trespass to try title claim

based on adverse possession. A jury did not find that HIM had held the properties in

peaceable and adverse possession for at least ten years. The jury further found that

HIM and the Peacock parties had agreed that HIM would manage the properties for

the Peacock parties. The trial court rendered judgment on the jury verdict, and its

final judgment included declarations that the Peacock parties owned the properties

at issue.

       In four issues, HIM argues that the trial court erred by (1) denying its motion

for judgment notwithstanding the verdict on the issue of adverse possession;

(2) submitting two jury questions relating to a management agreement between HIM

and the Peacock parties and denying HIM’s motion for JNOV relating to the jury’s



1
       Marios Giakoumakos is referred to as “Marios,” “Mario,” and “Marcos”
       interchangeably throughout the appellate record. We refer to him as “Marios,” the
       name that his counsel uses in the Peacock parties’ appellate brief and the trial court
       used in the final judgment.
                                             2
findings on the management agreement; (3) denying its motion for new trial based

on juror misconduct and newly discovered evidence; and (4) declaring that the

Peacock parties owned the properties.

      We affirm.

                                    Background

      Marios and John Giakoumakos were twin brothers who moved to the Houston

area from Greece. In 1974, they formed a company called Twins Marine Repairs &

Supplies, Inc., which provided repair and supply services to ships arriving at the Port

of Houston. Marios is a mechanical engineer, and in the early days of the company,

he handled the actual repair, construction, and inspection work done on ships. John

focused on the administrative responsibilities of operating the business.

      At some point, Twins Marine acquired 21 lots on Mayfair Street in southeast

Houston, and it operated from these properties. In September 1988, Twins Marine

executed three separate warranty deeds. In the first deed, Twins Marine conveyed

12 lots to Peacock Shipping and Trading, Inc. In the second deed, Twins Marine

conveyed 8 lots to Celestial Holdings Limited. And in the third deed, Twins Marine

conveyed an additional lot to Celestial Holdings. In an unrelated transaction that

occurred nine months earlier in December 1987, Ellen and Billy Ipes conveyed two




                                          3
lots on Mayfair to Celestial Company. These 23 lots are the properties at issue in

this appeal. Marios owns Peacock and Celestial Holdings.2

      On the same date that Twins Marine conveyed the properties to Peacock and

Celestial Holdings, Twins Marine signed agreements leasing the properties from

Peacock and Celestial Holdings for one year. The leases contained provisions

allowing Twins Marine to holdover after the lease term, with Twins Marine “to be

occupying the premises on the basis of a month-to-month tenancy.” Twins Marine

continued operating at the properties beyond the one-year lease term. In the mid-

1990s, John’s son Spiro Giakoumakos began working at Twins Marine while he was

in college, primarily doing office work and deliveries.

      In 1999, Stylianos Kallergis, a “trusted figure” to the Giakoumakos family,

formed HIM at John’s urging. By this time, Twins Marine had dramatically reduced

its physical footprint on the properties, and it occupied only a small portion of the

lots. HIM took the lead in renting out the remaining space on the properties to third

parties. In 2008, Kallergis left HIM, and Spiro assumed ownership of that company.

      Twins Marine also underwent changes in ownership. Although Marios had

helped form the company, he had not held an ownership interest in it since the 1970s.



2
      Celestial Company does not appear to have an actual corporate existence. The
      Peacock parties acknowledged as much in their written pleadings, calling Celestial
      Company “an entity that does not exist.” Likewise, in his petition in intervention,
      Marios referred to Celestial Company as “an unknown entity.”
                                           4
Instead, John and the twins’ mother owned equal interests in the company. In 2010,

Marios obtained his mother’s interest, and he and John owned Twins Marine in equal

shares until 2016, when Spiro received John’s interest. John died in 2018.

      HIM sued the Peacock parties in October 2018. It alleged that the Peacock

parties did not take any actions concerning the properties, forfeited their corporate

charters, and ceased doing business in Texas. HIM, on the other hand, effectively

owned and operated the properties since its inception in 1999, leasing space to Twins

Marine and third parties, collecting rent, and maintaining the properties. HIM

requested that the trial court enter a declaration that HIM owned the properties and

render judgment establishing HIM as the properties’ owner under Property Code

Chapter 22. HIM later amended its petition to assert a trespass to try title claim

against the Peacock parties based on adverse possession.

      On February 20, 2020, the Peacock parties filed a counterclaim. They alleged

that Peacock and Celestial Holdings agreed to have HIM manage the properties,

“including collecting rents and paying taxes.” The Peacock parties allegedly

terminated this management agreement in December 2019—after HIM had filed

suit—and demanded that HIM turn over various documents and direct all future

payments from tenants to the Peacock parties, but HIM refused. The Peacock parties

asserted claims against HIM for money had and received, conversion, and breach of

contract, and it sought imposition of a constructive trust, an accounting, injunctive


                                         5
relief, and exemplary damages. Marios later intervened in the suit and asserted

identical claims against HIM.

      At trial, two fact witnesses testified: Spiro and Marios. Spiro testified

concerning HIM’s actions on the properties, including its extensive dealings as

landlord to third parties that rented space on the properties. Marios worked for HIM

for several years, and his duties included helping collect rent from tenants and

deposit these amounts. According to Spiro, Marios never questioned why he was

depositing rental payments in HIM’s bank account, as opposed to an account

maintained by one of the Peacock parties. Twins Marine also assisted with

management, maintenance, and repairs on the properties, and it received a monthly

management fee from HIM. Although yearly property tax statements for the

properties were addressed to the Peacock parties, either Twins Marine or HIM paid

the property taxes. Spiro testified that, when he questioned Marios about why the

statements were in the name of the Peacock parties, Marios was unresponsive.

      The facts were largely undisputed, although Spiro and Marios disagreed on

one key point. When asked why HIM collected rent from tenants on the properties,

Marios testified that HIM managed the properties for the Peacock parties. He

acknowledged that no written management agreement existed between HIM and any

of the Peacock parties. Instead, the parties had a verbal agreement. Marios testified

that HIM was supposed to make repairs on the properties and collect rental


                                         6
payments. After paying expenses and property taxes, HIM was then supposed to pay

the remaining money first to Twins Marine and then to John, who had moved back

to Greece and had ongoing financial difficulties. Spiro, on the other hand, disagreed

that a management agreement existed between HIM and the Peacock parties, and he

instead asserted that HIM owned the properties.

      The charge asked the jury fourteen questions, six of which are relevant to this

appeal.3 Question One asked whether HIM held the properties in peaceable and

adverse possession for a period of at least ten years before February 20, 2020, the

date the Peacock parties filed their original counterclaim. The court defined

“peaceable possession,” “adverse possession,” and “claim of right,” and it instructed

the jury on when a claim of right is hostile. The jury answered “no” to this question.

      Questions Two and Three were related. Question Two asked whether HIM

and the Peacock parties agreed that HIM would manage the properties for the

Peacock parties, and the jury answered “yes.” In response to Question Three, the

jury found that HIM and the Peacock parties entered into a management agreement

in “1999—HIM’s formation date.”




3
      Six questions related to the Peacock parties’ affirmative claims, but the jury did not
      answer any of those questions in favor of the Peacock parties. The Peacock parties
      do not challenge these adverse findings on appeal. Two other questions in the charge
      asked about HIM’s and the Peacock parties’ attorney’s fees.
                                            7
      Questions Twelve, Thirteen, and Fourteen all asked whether Peacock,

Celestial Holdings, and Celestial Company were the owners of the respective

properties deeded to them by Twins Marine (Peacock and Celestial Holdings) and

Ipes (Celestial Company). The jury answered “yes” for all three questions.

      HIM moved for judgment notwithstanding the verdict, arguing that no

evidence supported the jury’s finding on Question One, no evidence supported the

submission of Question Two or the jury’s finding on that question, and the answers

to Questions Twelve, Thirteen, and Fourteen were immaterial. Alternatively, HIM

argued that any evidence relating to these questions was factually insufficient to

support the jury’s answers.

      In its final judgment, the trial court rendered judgment in favor of the Peacock

parties.4 The court denied HIM’s request for a declaration that it owned the

properties and instead declared that HIM did not own the properties and did not hold

the properties in peaceable and adverse possession for at least ten years before the

Peacock parties asserted claims to the properties. The court further declared and

ordered that Peacock was the owner of 12 specified lots, Celestial Holdings was the

owner of 9 specified lots, and Celestial Company was the owner of 2 specified lots.



4
      Although the trial court initially awarded the Peacock parties $42,500 in attorney’s
      fees, as found by the jury, the court later granted HIM’s motion to reform the
      judgment and removed the award of attorney’s fees to the Peacock parties. The
      Peacock parties do not challenge this ruling on appeal.
                                           8
         HIM then moved for a new trial and asserted two grounds that it had not raised

in its JNOV motion: juror misconduct and newly discovered evidence. As support

for its juror misconduct argument, HIM attached the affidavit of a juror who

described the deliberation process, conditions in the jury room, and concerns that the

jurors felt rushed to deliberate late into the night and quickly reach a verdict because

one juror had to leave town the next morning for several weeks and no alternate was

available. In support of its newly-discovered-evidence argument, HIM attached an

unsworn declaration from Stylianos Kallergis (HIM’s founder) that contradicted

Marios’ testimony that a management agreement existed between HIM and the

Peacock parties. The trial court did not hold a hearing on HIM’s motion for new

trial.

         The trial court denied the new trial motion. This appeal followed.

            Denial of Motion for Judgment Notwithstanding the Verdict

         HIM challenges the trial court’s denial of its JNOV motion in its first two

issues. HIM first argues that insufficient evidence supported the jury’s “no” finding

to Question One relating to adverse possession. Next, HIM argues that the court

erred in submitting Questions Two and Three and in denying HIM’s JNOV motion

because insufficient evidence supported the jury’s findings that a management

agreement existed between HIM and the Peacock parties since HIM’s formation.




                                            9
A.    Standard of Review

      The trial court may render judgment notwithstanding the verdict if a directed

verdict would have been proper, and the court may disregard any jury finding on a

question that does not have evidentiary support. TEX. R. CIV. P. 301. We review the

denial of a motion for JNOV under a legal sufficiency or “no evidence” standard of

review. Austin Bridge & Rd., LP v. Suarez, 556 S.W.3d 363, 376 (Tex. App.—

Houston [1st Dist.] 2018, pet. denied); see City of Keller v. Wilson, 168 S.W.3d 802,

823 (Tex. 2005).

      A party that has the burden of proof at trial is entitled to judgment

notwithstanding the verdict on an issue only if the evidence establishes that issue as

a matter of law. Henry v. Masson, 333 S.W.3d 825, 849 (Tex. App.—Houston [1st

Dist.] 2010, no pet.); see Cuadra v. Declaration Title Co., 682 S.W.3d 628, 633

(Tex. App.—Houston [1st Dist.] 2023, no pet.) (“The trial court should grant a

JNOV when the evidence is conclusive and one party is entitled to recover as a

matter of law or when a legal principle precludes recovery.”) (quotation omitted).

Under a no-evidence standard of review, we credit evidence supporting the jury

verdict if reasonable jurors could, and we disregard contrary evidence unless

reasonable jurors could not. Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d

828, 830 (Tex. 2009) (quotation omitted). We will uphold the jury’s verdict if more

than a scintilla of competent evidence supports it. Id.; see Merrell Dow Pharms., Inc.


                                         10
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (“More than a scintilla of evidence

exists when the evidence supporting the finding, as a whole, rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions.”)

(quotation omitted).

B.    Adverse Possession

      A party seeking to establish title to land by adverse possession bears the

burden to prove every fact essential to that claim by a preponderance of the evidence.

Masonic Bldg. Ass’n of Houston, Inc. v. McWhorter, 177 S.W.3d 465, 471 (Tex.

App.—Houston [1st Dist.] 2005, no pet.). Question One of the jury charge asked

about adverse possession with the following language:

      Did [HIM] hold the Property [defined to include the 23 lots at issue] in
      peaceable and adverse possession for a period of at least ten years
      before February 20, 2020?
      “Peaceable possession” means possession of real property that is
      continuous and is not interrupted by an adverse suit to recover the
      property.
      “Adverse possession” means an actual and visible appropriation of real
      property, commenced and continued under a claim of right that is
      inconsistent with and hostile to the claim of another person.
      “Claim of right” means an intention to claim the real property as one’s
      own to the exclusion of all others.
      A claim of right is hostile only if either (1) it provides notice, either
      actual or by implication, of a hostile claim of right to the true owner; or
      (2) the acts performed on the real property, and the use made of the real
      property, were of such a nature and character that would reasonably
      notify the true owner of the real property that a hostile claim is being
      asserted to the property.

                                          11
      To establish peaceable and adverse possession, a claimant must also
      have cultivated, used, or enjoyed the property.

The jury answered “no” to this question. HIM disagrees with that answer and

contends that adverse possession was proved as a matter of law.

      The wording of Question One guides the analysis here because HIM did not

object to that wording. See Allen v. Am. Nat’l Ins. Co., 380 S.W.2d 604, 609 (Tex.

1964); Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (op. on reh’g) (“[I]t is the

court’s charge, not some other unidentified law, that measures the sufficiency of the

evidence when the opposing party fails to object to the charge.”). With this principle

in mind, we turn to the key words and phrases found in Question One, many of which

have been explored by the courts.

      Adverse possession is “an actual and visible appropriation of real property,

commenced and continued under a claim of right that is inconsistent with and is

hostile to the claim of another person.” TEX. CIV. PRAC. & REM. CODE § 16.021(1);

McWhorter, 177 S.W.3d at 472. “Peaceable possession” is “possession of real

property that is continuous and is not interrupted by an adverse suit to recover the

property.” TEX. CIV. PRAC. & REM. CODE § 16.021(3).

      Establishing title to property by adverse possession “requires proof of actual

possession of the disputed real property that is open and notorious, peaceable, under

a claim of right, adverse or hostile to the claim of the owner, and consistent and

continuous for the duration of the statutory period.” Estrada v. Cheshire, 470 S.W.3d
                                         12
109, 123 (Tex. App.—Houston [1st Dist.] 2015, pet. denied); Dyer v. Cotton, 333

S.W.3d 703, 710 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In this case, the

relevant statutory period is ten years. See TEX. CIV. PRAC. & REM. CODE § 16.026(a)

(“A person must bring suit not later than 10 years after the day the cause of action

accrues to recover real property held in peaceable and adverse possession by another

who cultivates, uses, or enjoys the property.”). Ordinarily, whether a party

established adverse possession is a fact question. Estrada, 470 S.W.3d at 123.

      This case turns on whether HIM’s possession of the properties was hostile to

the Peacock parties’ claim. Possession is hostile when the acts performed by the

claimant on the land and the use made of the land is “of such a nature and character

as to reasonably notify the true owner of the land that a hostile claim was being

asserted to the property.” Id. (quoting McWhorter, 177 S.W.3d at 472). The claimant

must show that it “acted in a way that visibly appropriated the disputed property in

a manner that gave notice to any other person that [it] claimed a right in the

property.” Id.

      Although “hostile” use does not require an intention to dispossess the rightful

owner, the claimant must intend “to claim the property as one’s own to the exclusion

of all others.” Id. (quoting Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006) (per

curiam)). Merely occupying the land without an intent to appropriate it does not

support the statute of limitations. Tran, 213 S.W.3d at 915 (quotation omitted). Joint


                                         13
use of property is also not enough to establish adverse possession because the

“possession must be of such character as to indicate unmistakably an assertion of a

claim of exclusive ownership in the occupant.” Id. at 914 (quoting Rhodes v. Cahill,

802 S.W.2d 643, 645 (Tex. 1990) (op. on reh’g)). Because the doctrine of adverse

possession “is a harsh one” that permits “taking real estate from a record owner

without express consent or compensation,” the law “reasonably requires that the

parties’ intentions be very clear.” Id. at 915.

      Many of the relevant facts in this case are undisputed. The Peacock parties did

not contradict HIM’s evidence that it had, over the course of decades, operated on

the properties by leasing space on the properties to third parties, collecting rent, and

arranging for needed repairs and maintenance on the properties. They also did not

contradict HIM’s evidence that it had a management agreement with Twins Marine,

it paid regular management or maintenance fees to Twins Marine, and either it or

Twins Marine paid the property taxes for the properties. The Peacock parties did,

however, challenge HIM’s assertion that it took these actions as an owner of the

properties. They contended, rather, that HIM acted as it did because it and the

Peacock parties agreed that HIM would manage the properties, and all the actions it

took on and relating to the properties were done in a management capacity.

      The Peacock parties presented evidence supporting its theory, specifically,

testimony from Marios concerning a management agreement between HIM and the


                                           14
Peacock parties. The Peacock parties’ counsel asked Marios whether HIM owned

the properties, and Marios answered that HIM never had ownership. Counsel asked

what HIM did for the properties and why it collected rent. Marios responded,

“Because they’re managing—the managing of the buildings.” Because Marios had

earlier testified that there was “no agreement,” counsel asked whether Marios meant

a “written agreement or no agreement at all.” Marios clarified: “No written

agreement. Verbal agreement, they had [a] verbal agreement.”

      Marios testified that the owner of the properties “always” was “Peacock and

Celestial,” and HIM managed the properties. HIM’s responsibilities included

collecting money from tenants, completing repairs, and “all [it was] supposed to do

as managers.” HIM was supposed to pay the money that it collected from tenants to

the Peacock parties, but instead Marios made a different arrangement with his

brother John, who had ongoing financial difficulties. Under their arrangement, after

payment of expenses (including property taxes), HIM was supposed to pay any

remaining amounts to Twins Marine, which would then send the money to John in

Greece.

      This testimony is some evidence that a management agreement existed

between HIM and the Peacock parties, under which HIM would take actions on the

properties that included collecting rent from tenants and paying necessary expenses,

such as property taxes. There is therefore some evidence in the record that HIM’s


                                        15
possession of the properties was not hostile because HIM’s acts were not “of such a

nature and character as to reasonably notify the true owner of the land that a hostile

claim was being asserted to the property.” See Estrada, 470 S.W.3d at 123.

      The jury was faced with conflicting evidence. Spiro testified that HIM owned

the properties and took actions consistent with ownership. Marios testified that

Peacock and Celestial Holdings always owned the properties, a verbal management

agreement existed between HIM and the Peacock parties, and all HIM’s actions on

the properties—including collecting rent from tenants, making repairs, and paying

property taxes—were part of HIM’s responsibilities under the management

agreement. Under this evidentiary record, the jury was free to find HIM’s possession

of the properties was not “of such character as to indicate unmistakably an assertion

of a claim of exclusive ownership in the occupant.” See Tran, 213 S.W.3d at 914

(quotation omitted).

      Because the record contains some evidence that HIM’s possession of the

properties was not hostile to the claims of the Peacock parties, we conclude that the

trial court did not err by denying HIM’s motion for JNOV. See Tanner, 289 S.W.3d

at 830 (stating that jury’s finding will be upheld if more than scintilla of competent

evidence supports it); Cuadra, 682 S.W.3d at 633 (“The trial court should grant a

JNOV when the evidence is conclusive and one party is entitled to recover as a

matter of law or when a legal principle precludes recovery.”) (quotation omitted).


                                         16
      A similar ruling is in order with respect to HIM’s great weight and

preponderance challenge to the jury’s No answer to Question One. Strictly speaking,

the pertinent statement of the issue by HIM does not mention great weight and

preponderance: HIM’s first issue raises only a legal challenge, not a factual

challenge. However, in the argument section of the brief, HIM contends that the

great weight and preponderance of the evidence established a Yes answer to

Question One, so we will construe the brief as having formally presented such a

complaint about the No answer. See Pool v. Ford Motor Co., 715 S.W.2d 629, 633

(Tex. 1986) (op. on reh’g) (“It is our practice to liberally construe the points of error

in order to obtain a just, fair and equitable adjudication of the rights of the litigants.

We look not only at the wording of the points of error, but to the argument under

each point to determine as best we can the intent of the party.”) (quotation and

internal citation omitted).

      When so construed, the great weight complaint fails on the merits. According

to HIM, the testimony adduced by the Peacock parties simply was not “credible

evidence.” HIM emphasizes this point about credibility. For example, HIM

acknowledges that Marios testified in a way that would allow the jury to answer No

to Question One, but HIM counters that there is literally nothing to corroborate that

testimony “other than it was spoken out loud at trial” and that the “statement is not

credible evidence.” HIM presses this argument with genuine conviction, and we


                                           17
fully understand the position. But at bottom, HIM’s argument asks us to climb over

the rail and get into the jury box as a thirteenth juror. This we cannot do.

      The very first paragraph of the instructions given to the jury promise the jurors

that credibility determinations belong to them and them alone: “You are the sole

judges of the credibility of the witnesses and the weight to be given to their

testimony.” That promise would be broken if we accepted HIM’s argument. See In

re Rudolph Auto., LLC, 674 S.W.3d 289, 306 (Tex. 2023) (orig. proceeding) (“[T]he

jurors alone must assess the credibility of the witnesses and the weight to afford their

testimony.”); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.

2003) (“It is a familiar principle that in conducting a factual sufficiency review, a

court must not merely substitute its judgment for that of the jury.”). We conclude the

jury’s No answer to Question One is not against the great weight and preponderance

of the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)

(per curiam) (“When a party attacks the factual sufficiency of an adverse finding on

an issue on which she has the burden of proof, she must demonstrate on appeal that

the adverse finding is against the great weight and preponderance of the evidence.”).

      We overrule HIM’s first issue.

C.    Existence of a Management Agreement

      HIM next argues that the trial court should not have submitted Questions Two

and Three and should have granted HIM’s motion for JNOV relating to these


                                          18
questions because no evidence supported the existence of a management agreement

between HIM and the Peacock parties.

      Question Two asked whether HIM and the Peacock parties, as owners of the

properties, agreed that HIM would manage the properties for the Peacock parties.

Question Three, which was predicated on a “yes” answer to Question Two, asked

when HIM and the Peacock parties “enter[ed] into such agreement.” The jury

answered “yes” to Question Two and “1999—HIM’s formation date” to Question

Three.

      The trial court “shall submit the questions, instructions and definitions” that

“are raised by the written pleadings and the evidence.” TEX. R. CIV. P. 278; Brumley

v. McDuff, 616 S.W.3d 826, 831 (Tex. 2021). Rule 278 “provides a substantive, non-

discretionary directive to trial courts requiring them to submit requested questions

to the jury if the pleadings and any evidence support them.” Elbaor v. Smith, 845

S.W.2d 240, 243 (Tex. 1992). A trial court may refuse to submit an issue only if the

record contains no evidence to warrant its submission. Id.; Zoanni v. Hogan, 715

S.W.3d 47, 81 (Tex. App.—Houston [1st Dist.] 2024, pet. denied) (op. on reh’g). If

the record contains some evidence to support a jury question, the trial court commits

reversible error if it does not submit the question. Pitts & Collard, L.L.P. v.

Schechter, 369 S.W.3d 301, 318 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (op.

on reh’g). In determining whether record evidence supports submission of a


                                         19
question, we examine the record for evidence supporting the question and ignore all

evidence to the contrary. Elbaor, 845 S.W.2d at 243; Pitts & Collard, 369 S.W.3d

at 318. “Conflicting evidence presents a fact question for the jury.” Pitts & Collard,

369 S.W.3d at 318.

      As we have already discussed, the record includes some evidence that HIM

and the Peacock parties had a verbal agreement for HIM to manage the properties

for the Peacock parties. The trial court was therefore required to submit Questions

Two and Three to the jury. See Elbaor, 845 S.W.2d at 243; Pitts & Collard, 369

S.W.3d at 318. The conflicting evidence on this point presented a fact question for

the jury, and because some evidence existed that HIM and the Peacock parties made

a verbal management agreement, the trial court properly denied HIM’s motion for

JNOV on this basis. See Tanner, 289 S.W.3d at 830 (stating that jury’s finding will

be upheld if more than scintilla of competent evidence supports it).

      As it did in its first issue, HIM also argues that the jury’s answers to Questions

Two and Three are against the great weight and preponderance of the evidence. HIM

again argues that “[t]here is simply no credible evidence of a management agreement

between HIM” and the Peacock parties, and “there is nothing to support the

statement other than it was spoken out loud by” Marios. For the reasons stated above,

we cannot reweigh the jury’s credibility determinations. See In re Rudolph Auto.,

674 S.W.3d at 306; Golden Eagle Archery, 116 S.W.3d at 761. We conclude that the


                                          20
jury’s answers to Questions Two and Three were not against the great weight and

preponderance of the evidence.

      We overrule HIM’s second issue.

                         Denial of Motion for New Trial

      In its third issue, HIM argues that the trial court erred by denying its motion

for new trial. This complaint has two strands: one alleges jury misconduct and the

other alleges newly discovered evidence. Neither strand has any merit.

A.    Standard of Review

      We review a trial court’s denial of a motion for new trial for an abuse of

discretion. B. Gregg Price, P.C. v. Series 1 – Virage Master LP, 661 S.W.3d 419,

423 (Tex. 2023) (per curiam); Powell v. Comm’n for Law. Discipline, 710 S.W.3d

288, 333 (Tex. App.—Houston [1st Dist.] 2024, no pet.) (per curiam) (“We review

a trial court’s denial of a motion for new trial based on newly[] discovered evidence

under an abuse of discretion standard[,] and we indulge every reasonable

presumption in favor of the trial court’s refusal to grant a new trial.”) (quotation

omitted).

B.    Juror Misconduct

      In arguing that it deserved a new trial based on jury misconduct, HIM relied

on an affidavit from a juror. The affidavit incorporated by reference an email that

the juror sent to the trial court (and HIM’s counsel) a few days after the trial


                                         21
concluded. The juror recounted problems that allegedly occurred during

deliberations, including beginning deliberations after 5:00 p.m., the need to conclude

deliberations that evening because a juror was leaving town the next morning and

would not return for nearly two months, no meals, a very hot deliberation room,

transportation concerns, concerns about medications, and calls and texts from

spouses angry that deliberations were lasting so long on Valentine’s Day. The juror

stated that she did not “believe the verdict was based on the evidence but rather

because we felt forced to make a decision that evening.”

      Rule of Civil Procedure 327 sets out a procedure for raising issues of jury

misconduct:

      a.      When the ground of a motion for new trial, supported by
              affidavit, is misconduct of the jury or of the officer in charge of
              them, or because of any communication made to the jury, or that
              a juror gave an erroneous or incorrect answer on voir dire
              examination, the court shall hear evidence thereof from the jury
              or others in open court, and may grant a new trial if such
              misconduct proved, or the communication made, or the
              erroneous or incorrect answer on voir dire examination, be
              material, and if it reasonably appears from the evidence both on
              the hearing of the motion and the trial of the case and from the
              record as a whole that injury probably resulted to the
              complaining party.
      b.      A juror may not testify as to any matter or statement occurring
              during the course of the jury’s deliberations or to the effect of
              anything upon his or any other juror’s mind or emotions as
              influencing him to assent to or dissent from the verdict
              concerning his mental processes in connection therewith, except
              that a juror may testify whether any outside influence was
              improperly brought to bear upon any juror. Nor may his affidavit

                                           22
             or evidence of any statement by him concerning a matter about
             which he would be precluded from testifying be received for
             these purposes.

TEX. R. CIV. P. 327. Rule of Evidence 606(b) contains a similar prohibition,

providing that a juror “may not testify about any statement made or incident that

occurred during the jury’s deliberations,” “the effect of anything on that juror’s or

another juror’s vote,” or “any juror’s mental processes concerning the verdict,” but

the juror may testify “about whether an outside influence was improperly brought to

bear on any juror.” TEX. R. EVID. 606(b).

      HIM’s complaint of jury misconduct fails for want of evidence. The record

contains a juror affidavit attached to the motion for new trial, but it does not contain

any testimony to support the factual assertions of misconduct.

      Under settled tenets of Texas procedure, an affidavit attached to a new trial

motion furnishes a starting point for proving jury misconduct but not an endpoint.

See In re Zimmer, Inc., 451 S.W.3d 893, 901 (Tex. App.—Dallas 2014, orig.

proceeding) (stating that to obtain hearing on alleged juror misconduct, party raising

claim must provide assurance to trial court that it will probably be able to support

allegations in motion by providing affidavits that tend to establish misconduct). The

affidavit simply provokes the right to a hearing so that the movant can have a chance

to prove up the allegations with evidence. In other words, after the filing of such a

motion and affidavit, the next step is for the court to “hear evidence” about the matter


                                          23
“in open court.” TEX. R. CIV. P. 327(a); In re Zimmer, 451 S.W.3d at 901 (“A

proceeding under rule 327 is not complete, however, upon the filing of the

affidavits.”).

       HIM does not point us to any such evidence. Instead, HIM cites only the

affidavit from the juror, which will not do. “Affidavits alleging jury misconduct do

not constitute evidence of the facts therein stated.” Innes v. Greiner, 449 S.W.2d 83,

85 (Tex. Civ. App.—Amarillo 1969, no writ); see McNutt v. Qualls, 433 S.W.2d

521, 524 (Tex. Civ. App.—Dallas 1968, no writ) (“The [juror] misconduct is not

provable by affidavit alone.”). As the Dallas Court of Appeals has pointed out, a trial

court ruling on a motion for new trial based solely on affidavits alleging juror

misconduct “cannot perform the critical function of assessing the credibility of the

affiants, who are making serious charges about the manner in which their fellow

jurors have discharged their duties.” In re Zimmer, 451 S.W.3d at 901. This refusal

to consider the affidavit as evidence has been the law in this district for decades. See

City of Houston v. Fondren, 198 S.W.2d 480, 483 (Tex. Civ. App.—Galveston 1946,

writ ref’d n.r.e.) (“The affidavits [alleging juror misconduct] were neither evidence

nor admissible as such on the hearing for a new trial.”); see also In re Zimmer, 451

S.W.3d at 901 (“[A]ffidavits attached to a motion for new trial alleging juror

misconduct are neither evidence nor admissible as such on the hearing for a new trial

on the ground of jury misconduct.”) (quotation omitted).


                                          24
      Thus, “when, as here, a party files a motion for new trial supported by

affidavits but presents no live evidence at the hearing, that party fails to prove the

alleged misconduct, and the trial court cannot grant a new trial based on that

conduct.” In re R.E.S., 725 S.W.3d 471, 492 (Tex. App.—El Paso 2025, orig.

proceeding); see In re Zimmer, 451 S.W.3d at 902 (“[A] trial court may properly

deny a motion for new trial when a party alleging jury misconduct relies only on

affidavits and fails to request a hearing on his motion and offer live testimony

proving misconduct.”); Allison v. Gulf Liquid Fertilizer Co., 381 S.W.2d 684, 686

(Tex. Civ. App.—Fort Worth 1964, no writ) (“The witnesses must be timely

presented in court.”). We overrule HIM’s complaint of jury misconduct.

C.    Newly Discovered Evidence

      As for newly discovered evidence, this complaint fares no better. After the

final judgment, HIM submitted an unsworn declaration of a third party for the

purpose of controverting the testimony of Marios. Specifically, Stylianos Kallergis

wrote the following:

      It was not until recently that I learned of the testimony of Mario
      Giakoumakos, (“Mario”), at the trial of this case, as it relates to any
      agreements regarding the properties at issue in this case. His testimony,
      e.g., that a management agreement existed between H.I.M., and the
      Defendants in this case regarding the properties at issue is not true and
      misleading. I was the first owner of Houston International Management
      & Trade, Inc., (“H.I.M.”), from the years 1999 to 2008, which company
      I owned and operated as a 100% owner. As the owner of H.I.M., during
      1999 to 2008, I never made or entered into any verbal or written
      agreements between myself and/or H.I.M., and Peacock Shipping and

                                         25
      Trade, Inc., nor Celestial Holdings, LTD, nor Celestial Company, nor
      Mario Giakoumakos, and particularly none regarding the management
      of the properties at issue.
      I live in Greece and was unavailable for the trial of this case, but offer
      this Unsworn Declaration so that justice may prevail. Had I been
      available for the trial, I would have voluntarily contradicted Mr. Mario
      Giakoumakos’ testimony in these regards as it was simply
      manufactured.

      A party seeking a new trial based on newly discovered evidence must

demonstrate that (1) the evidence has come to its knowledge since the trial; (2) its

failure to discover the evidence sooner was not due to lack of diligence; (3) the

evidence is not cumulative; and (4) the evidence is so material it would probably

produce a different result if a new trial were granted. Waffle House, Inc. v. Williams,

313 S.W.3d 796, 813 (Tex. 2010). The evidence from Kallergis fails at least the first

of these prongs because it constitutes “new evidence” rather than “newly

discovered” evidence.

      This Court has held that “evidence not in existence prior to judgment cannot

support a new trial.” Creative Chateau, LLC v. City of Houston, No. 01-21-00327-

CV, 2023 WL 162741, at *9 (Tex. App.—Houston [1st Dist.] Jan. 12, 2023, no pet.)

(mem. op.) (brackets and quotation omitted); see also In re S.M.V., 287 S.W.3d 435,

452 (Tex. App.—Dallas 2009, no pet.) (“[T]he record shows the evidence of Vo’s

conviction was not in existence prior to the trial court’s order. Therefore, that

evidence does not satisfy the burden that must be met to obtain a new trial on the


                                          26
ground of newly discovered evidence.”); Sifuentes v. Tex. Emps.’ Ins. Ass’n, 754

S.W.2d 784, 787 (Tex. App.—Dallas 1988, no writ) (concluding that evidence could

not form basis for new trial because evidence was “new evidence rather than newly

discovered evidence”).

      In addition, the trial court had the discretion to find the fourth prong unmet.

See Creative Chateau, 2023 WL 162741, at *8 (“Whether a motion for new trial

based on newly discovered evidence will be granted or refused generally is a matter

left to the sound discretion of the trial court.”). To establish this prong, a movant

must show that the evidence “would probably produce a different result.” Waffle

House, 313 S.W.3d at 813. Texas has required this “different result” showing for

more than 175 years. See Watts v. Johnson, 4 Tex. 311, 319 (1849) (requiring movant

to prove that newly discovered evidence “would probably change the result upon a

new trial”); Madden v. Shapard, 3 Tex. 49, 50 (1848) (requiring showing that

evidence “would, probably, produce a different result upon a new trial, if granted”).

      The Texas Supreme Court explained its rationale for requiring newly

discovered evidence to meet certain requirements:

      [I]f it is left even doubtful that [the movant] knew of the evidence, or
      that he might but for negligence have known and produced it, his
      application may well be refused. It can never be permitted to a party to
      produce just so much evidence as he may think proper, and ultimately
      obtain a new trial on the ground that he did not on the first trial give all
      the evidence which he then might and which he has since found he
      ought to have given. Such a practice, it has been truly said, would be of
      most dangerous consequence.
                                          27
Sweeney v. Jarvis, 6 Tex. 36, 42 (1851).

      These principles persuade us that both sides had a full day in court and that

HIM has no right to a do-over. HIM called all the witnesses it wanted. First, it called

Spiro to testify to his version of the facts (which he did at length), and then it called

Marios as the trial’s other witness (and he too testified at length). HIM deposed

Marios before trial and impeached him with deposition answers on the stand.

      HIM’s briefing identifies various points that call Marios’ testimony into

question, and the jury heard those criticisms at length. HIM had ample latitude to

test Marios’ credibility during trial. HIM plainly knew about Kallergis, in that Spiro

testified about him on numerous occasions throughout the trial.5 The record does not

persuade us that putting Stylianos Kallergis on the stand probably would have

produced a different result. The trial court certainly had the discretion to conclude

that HIM did not establish such a probability.

      We overrule HIM’s third issue.

                            Ownership of the Properties

      Finally, in its fourth issue, HIM contends that the trial court erred in decreeing

that any of the Peacock parties owned the properties.



5
      We also note that the Peacock parties alleged that “Peacock and Celestial agreed to
      have Houston International manage” the properties in its original counterclaim filed
      in February 2020, approximately four years before trial.
                                           28
      HIM asserted a claim for trespass to try title, and the final judgment expressly

rejected that claim. The trial court declared that HIM was not the owner of the

properties and did not hold title to the properties based on adverse possession. The

court further declared that the Peacock parties are the owners of the properties.

      On appeal, HIM challenges this aspect of the judgment. Its complaint takes

aim at the jury’s “yes” answers to Questions 12–14. Question 12 asked whether

Peacock is the owner of the Peacock properties, specifically defined in the charge as

the 12 lots deeded to Peacock by Twins Marine. Question 13 posed a similar inquiry

about Celestial Holdings, and Question 14 did so about Celestial Company. Based

on its premise that the jury answered these questions incorrectly, or perhaps on its

alternate premise that the questions were immaterial, HIM concludes that the trial

court should not have declared the Peacock parties the property owners.

      Regardless of what one may say about Questions 12–14, the inescapable

reality remains that HIM sought relief in trespass to try title and lost. That fact alone

drives the outcome. A plaintiff’s right to recover on a trespass to try title claim

depends on the strength of its own title, not on the weaknesses of the title of its

adversary. Ramsey v. Grizzle, 313 S.W.3d 498, 505 (Tex. App.—Texarkana 2010,

no pet.) (citing Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994)).

Thus, if the plaintiff fails to satisfy its “burden of proof of superior title, the

defendant is entitled to judgment without proving any right of title of possession.”


                                           29
Wells v. Kan. Univ. Endowment Ass’n, 825 S.W.2d 483, 486 (Tex. App.—Houston

[1st Dist.] 1992, writ denied); see Hejl v. Wirth, 343 S.W.2d 226, 226 (Tex. 1961)

(“If the plaintiff under the circumstances fails to establish his title, the effect of a

judgment of take nothing against him is to vest title in the defendant.”).

      In this case, HIM did not meet its burden to establish that it had obtained title

to the properties through adverse possession. The trial court properly entered a take-

nothing judgment against it, and the portions of the final judgment declaring the

Peacock parties to be owners of their respective lots were not erroneous. See Lile v.

Smith, 291 S.W.3d 75, 79 (Tex. App.—Texarkana 2009, no pet.) (“The effect of a

take-nothing judgment in a suit for trespass to try title is to vest whatever claim or

title to the lands which the plaintiff possesses in the defendant. This harsh rule has

remained the law in Texas for well over a century.”).

      We overrule HIM’s fourth issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               David Gunn
                                               Justice

Panel consists of Chief Justice Adams and Justices Gunn and Johnson.



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