Pensive Properties LP v. Terry Barnhart and All Occupants

Opinion

ACCEPTED

03-15-00463-CV

7233411

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/5/2015 3:25:33 PM

JEFFREY D. KYLE

CLERK

No. 03-15-00465-CV

FILED IN

IN THE 3rd COURT OF APPEALS AUSTIN, TEXAS

THIRD COURT OF APPEALS 10/5/2015 3:25:33 PM AT AUSTIN, TEXAS JEFFREY D. KYLE Clerk

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.

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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.

Pensive Properties LP JOHN M. DAVES Plaintiff/Appellant State Bar No. 00794991 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

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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

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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

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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.

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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?

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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).

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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

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).

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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

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).

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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

3 Terry Barnhart did not file an answer or any pleadings asserting a life estate or ownership interest in the property.

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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

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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. TEX. BUS. & COM. CODE ANN. § 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. TEX. PROP. CODE ANN. § 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

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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

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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

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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).