Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/5/2015 3:25:33 PM JEFFREY D. KYLE Clerk THIRD COURT OF APPEALS 10/5/2015 3:25:33 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00463-CV *1 ACCEPTED [7233411] CLERK
No. 03-15-00465-CV IN THE
THIRD COURT OF APPEALS AT AUSTIN, TEXAS
PENSIVE PROPERTIES, LP Appellant v .
TERRY BARNHART AND ALL OCCUPANTS Appellees Appeal from the County Court at Law No. 2, Travis County, Texas The Honorable Eric Shepperd, Judge Presiding ________________________________________________________________
BRIEF OF APPELLANT, PENSIVE PROPERTIES, LP JOHN M. DAVES JOHN DAVES & ASSOCIATES , PLLC State Bar No. 00794991 3624 North Hills Drive, Suite B-100 Austin, Texas 78731 (512) 346-6000 (512) 346-6005 (fax) john@johndaveslaw.com ATTORNEY FOR APELLANT ORAL ARGUMENT IS REQUESTED.
IDENTITY OF PARTIES AND COUNSEL The following is a list of all parties to the judgment appealed from and the names and addresses of all trial and appellate counsel.
JOHN M. DAVES Pensive Properties LP State Bar No. 00794991
Plaintiff/Appellant
3624 North Hills Drive, Suite B-100 Austin, Texas 78731 (512) 346-6000 (512) 346-6005 (fax) john@johndaveslaw.com Terry Barnhart Counsel in County Court and on Appeal
Defendant/Appellee
Michael Probus Probus Law Firm 1701 Directors Blvd, Suite 290 Austin, Texas 78744 (512) 480-9504 (512) 320-0100 (fax) Counsel in County Court and on Appeal *3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL............................................................ 2
TABLE OF CONTENTS .......................................................................................... 3
INDEX OF AUTHORITIES..................................................................................... 4
STATEMENT OF THE CASE................................................................................. 5
STATEMENT REGARDING ORAL ARGUMENT............................................... 5
ISSUES PRESENTED.............................................................................................. 6
SUMMMARY OF ARGUMENT............................................................................. 7
STATEMENT OF FACTS ....................................................................................... 8
LAW AND ANALYSIS ......................................................................................... 10
PRAYER ................................................................................................................. 12
CERTIFICATE OF SERVICE ............................................................................... 14
APPENDIX ............................................................................................................. 15
INDEX OF AUTHORITIES Cases
Holcombe v. Lorino , 124 Tex. 446, 79 S.W.2d 307, 310 (1935). ........................... 9
Providence Land Servs. LLC v. Jones , 353 S.W.3d 538 (Tex. App., 2011) ........... 9
Nitschke v. Doggett, 489 S.W.2d 335, 337 (Tex. Civ. App.-Austin 1972), vacated
on other grounds, 498 S.W.2d 339 (Tex.1973)......................................................... 9
Sherrod v. Powell, No 10-10-00173 CV, (Tex. Civ. App.- Waco 2012) ............... 9
Effel v. Rosberg, 360 S.W.3d 626, 630 (Tex. App. 2012 ....................................... 10
Truitt v. Wilkinson, 379 S.W.2d 400 (Tex.Civ.App.—Texarkana 1964, no writ) .. 10
Carley v. Carley, 705 S.W.2d 371, 373 (Tex. App. 1986). .................................... 10
Norwood v. Childress, 250 S.W.2d 927, 928 (Tex. Civ. App. 1952), writ refused
NRE. ...................................................................................................................... 11
Statutes
Tex. Prop. Code §24.005......................................................................................... 10
Tex. Bus. & Com. Code Ann. § 26.01 (West). .................................................... 11
Tex. Prop. Code Ann. § 5.021 (West)..................................................................... 11
STATEMENT OF THE CASE This is a forcible detainer action in which the tenant claims the owner of the four-unit apartment complex, who is now deceased, gave the tenant a lifetime
tenancy in an apartment as long as the tenant performed maintenance work on the
property. The current owner, who is the wife of the deceased, filed a forcible detainer
action in justice court and possession was granted to the owner. The tenant appealed
and in a trial de novo, the county court denied possession to the owner.
STATEMENT REGARDING ORAL ARGUMENT Oral argument is requested.
RECORD
The Court Record (“CR”) is comprised of the Clerks Record pages 1-85 and Plaintiff’s Exhibits 1- 3. The trial transcript (“R”) is comprised of pages 1-52.
CERTIFICATE OF COMPLIANCE Pursuant to Tex. R. App. P. 9.4(i), the word count in this brief is 1567.
ISSUES PRESENTED Did the trial court err in denying Appellant possession of the property in this forcible detainer action based on Appellee’s claim of a lifetime tenancy in the
property?
SUMMARY OF ARGUMENT All of the evidence presented at trial demonstrates that Terry Barnhart’s legal status in connection with the property is solely that of a tenant. Because the tenancy
was for an indeterminable time, i.e. as long as he wished in exchange for yard
maintenance, he was a tenant-at-will and the lease could be terminated by either
party. Pensive Properties gave Barnhart a 30-day notice of Intent to Terminate
Occupancy and a three day notice to vacate as required by the Chapter 24.005 of the
Texas Property Code. As no evidence was presented suggesting that Terry Barnhart
had a life estate in the property, his tenancy was terminable at will. Therefore, the
trial court erred in denying possession to Appellant. See Effel v. Rosberg , 360
S.W.3d 626 (Tex.App.-Dallas 2012)(trial court did not err in awarding possession
of the property to the owner where lifetime tenancy was terminable at any time and
where the property owner notified the tenant of the termination of the lease under
section 24.005 of the Texas Property Code).
STATEMENT OF FACTS Pensive Properties, LP, represented by Melinda Blake Kaiser, is the owner of a four-plex and unit located at 722-B Shelby Lane Austin, Texas by virtue of a
written and properly recorded deed. (Plaintiff’s Exhibit 1). Defendant Terry Barnhart
resides at the property pursuant to an oral agreement with Jeff Blake, former owner
of Pensive Properties, who is now deceased. (R 33, 34) It is undisputed that no
written lease existed between Barnhart and Pensive Properties. (R 33-34) It is also
undisputed that the term of the agreement was indefinite and that Barnhart performed
yard maintenance work in exchange for free rent. (R 27, 32-34). [1]
Melinda Kaiser is the widow of Jeff Blake and current owner of the property.
(R 8-9). She testified that this arrangement began around the time her husband
became ill with cancer in July 2010 and continued after his death in October 2010.
(R 9, 15) Terry Barnhart, although disputing the timing as to when the arrangement
began, testified that Jeff Blake told him as long as he maintained the yard, he could
*9 stay in the apartment as long as he wished.(R 28). [2] Eventually however, according
to Melinda Kaiser, Terry Barnhart’s maintenance services became unsatisfactory to
Pensive Properties LP. (R 9). Melinda Kaiser discussed with Terry Barnhart the
problems with his work on more than one occasion and no improvements or changes
were made. (R 9).
Melinda Kaiser testified she had to hire a lawn service to keep up the lawn.
(R 10). Terry Barnhart acknowledged that he refused to do the work when Ms. Kaiser
hired the lawn service. (R 30). He testified that when Ms. Kaiser hired a lawn
service, he “went in refusal to do anything.” (R 30). Pensive Properties thereafter
provided a 30-day Notice of Intent to Terminate Occupancy as the lease agreement
was on a month to month basis. (R 11, Plaintiff’s Exhibit 2). Terry Barnhart refused
to vacate the premises. Pensive Properties thereafter served a Notice to Vacate
allowing Plaintiff three days to vacate the premises in accordance with the Texas
Property Code. (R 11, Plaintiff’s Exhibit 3). Terry Barnhart failed to vacate the
premises and Pensive Properties was forced to file a forcible detainer action to regain
possession of the property wrongfully occupied by Terry Barnhart. (R 25). At trial
*10 Barnhart claimed to have been granted a lifetime tenancy in the property by Jeff
Blake in exchange for performing maintenance work. [3]
LAW AND ANALYSIS A. Barnhart’s tenancy for a term equal to the remainder of his life as long as he performs maintenance is a tenancy at will.
Assuming Plaintiff established he was granted a tenancy for the remainder of his life, or as long as he continued to perform yard maintenance, it is the long-
standing rule in Texas that a lease must be for a certain period of time or it will be
considered a tenancy at will. See Holcombe v. Lorino , 124 Tex. 446, 79 S.W.2d 307,
310 (1935). If the lease is for an indefinite time period, the tenant is merely a tenant
at will, and the tenancy may be terminated at the will of either party. Providence
Land Servs. LLC v. Jones , 353 S.W.3d 538 (Tex. App., 2011), citing Holcombe, 79
S.W.2d at 310. Courts have applied this rule to leases that state they are for the term
of the lessee's life because the uncertainty of the date of the lessee's death rendered
the lease terminable at will by either party. See Nitschke v. Doggett, 489 S.W.2d 335,
337 (Tex. Civ. App.-Austin 1972), vacated on other grounds, 498 S.W.2d 339
(Tex.1973); Sherrod v. Powell, No 10-10-00173 CV, (Tex. Civ. App.- Waco
2012)(stating a lease must be for a certain period of time or it will be considered a
*11 tenancy at will). This case is no different. Terry Barnhart had a lease terminable at
will with Pensive Properties. He was given a 30-day notice by Pensive Properties
of its intent to terminate occupancy. (R. 11, Plaintiff’s Exhibit 2). As he refused to
vacate the premises after thirty days, a three day notice to vacate was served and this
forcible detainer was brought. Terry Barnhart has no life estate in the property and
his tenancy was month to month. Therefore, the trial court erred in denying
possession to Appellant. See Effel v. Rosberg , 360 S.W.3d 626 (Tex.App.-Dallas
2012)(trial court did not err in awarding possession of the property to the owner
where life estate tenancy was terminable at any time and where the property owner
notified the tenant of the termination of the lease under section 24.005 of the Texas
Property Code).
All of the evidence presented at trial demonstrates that Barnhart’s legal status in connection with the property is solely that of a tenant. Because the tenancy was
for an indeterminable time, it could be terminated by either party. Pensive Properties
gave proper notice of termination under Section 24.005 of the Property Code.
Therefore, possession should be awarded to the owner.
B. Any claimed life estate in the property violates the statute of frauds. Appellee did not plead an ownership interest in the property, nor was any evidence presented that suggests Appellee maintains an ownership interest in the
property. However, to the extent Appellee contends his life tenancy is an ownership
interest in the property in the form of a life estate, it is invalid and unenforceable. A
life estate is an interest in land and must be created in accordance with the statute of
frauds. Truitt v. Wilkinson, 379 S.W.2d 400 (Tex.Civ.App.—Texarkana 1964, no
writ); Carley v. Carley, 705 S.W.2d 371, 373 (Tex. App. 1986). Section 26 of the
Texas Business and Commerce Code states specifically that a contract for the sale
of real estate is not enforceable unless the promise or agreement, or a memorandum
of it, is (1) in writing; and (2) signed by the person to be charged with the promise
or agreement or by someone lawfully authorized to sign for him. T EX . B US . & C OM .
C ODE A NN . § 26.01 (West). Further, a conveyance of an estate of inheritance, a
freehold, or an estate for more than one year, in land and tenements, must be in
writing and must be subscribed and delivered by the conveyor or by the conveyor's
agent authorized in writing. T EX . P ROP . C ODE A NN . § 5.021 (West).
Barnhart testified that he provided yard maintenance in return for free rent and that he had an oral agreement that he could continue living in the apartment as long
as he wished in exchange for doing the maintenance. (R 27, 32-34). The warranty
deed submitted in this case does not reserve a life estate in favor of Barnhart, and
Barnhart does not challenge the validity of the deed. (Plaintiff’s Exhibit 1). Barnhart
submitted no evidence of a written agreement or document conveying a life estate.
Further, Barnhart’s evidence did not establish the requirements of the exception to
the statute of frauds bar, i.e. payment of consideration, possession, and making
valuable and permanent improvements upon the land with the consent of the seller;
or, without such improvements, the presence of such facts as would make the
transaction a fraud upon the purchaser if it were not enforced. See Norwood v.
Childress, 250 S.W.2d 927, 928 (Tex. Civ. App. 1952), writ refused NRE. As there
is no writing, it is not valid or enforceable as a life estate in the property.
PRAYER Here, the undisputed evidence established Pensive Properties is the record owner of the property; Barnhart had an oral lease for an indeterminate period; such
lease was terminable at will by either party; Pensive Properties properly gave notice
of its intent to terminate the lease and is entitled to possession.
Respectfully Submitted, ______ /s/ John M. Daves ____ JOHN M. DAVES John Daves & Associates, PLLC State Bar No. 00794991 3624 North Hills Dr., Suite B-100 Austin, Texas 78731 (512) 346-6000 (512) 346-6005 (fax) john@johndaveslaw.com ATTORNEY FOR APPELLANT *14 CERTIFICATE OF SERVICE The foregoing instrument was served on the parties below in accordance with the Texas Rules of Appellant Procedure on the 5th day of October, 2015.
Michael Probus
Probus Law Firm
1701 Directors Blvd, Suite 290
Austin, Texas 78744
(512) 480-9504
(512) 320-0100 (fax)
/s/ John M. Daves _______ John M. Daves
APPENDIX
1. County Court Judgment
2. Tex. Prop. Code §24.005
3. Tex. Bus. & Com. Code Ann. § 26.01 (West)
4. Tex. Prop. Code Ann. § 5.021 (West).
[1] The evidence was conflicting as to the extent of the work required of Mr. Barnhart. Melinda Kaiser testified he was to perform yard maintenance and other cleaning and maintenance work in exchange for free rent. (R 9). Terry Barnhart testified the free rent was for yard maintenance only. (R 34).
[2] Barnhart produced no written documentation of a life tenancy in the property and testified that he had none. (R 33). Nor could Barnhart provide any specific details of the conversation or promise in which he was purportedly granted the life tenancy. (R 33).
[3] Terry Barnhart did not file an answer or any pleadings asserting a life estate or ownership interest in the property.