                                                                                      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.

                                    1
                   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




                                          2
                                         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




                                                            3
                                        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




                                                              4
                          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.



                                           5
                             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?




                                         6
                          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).




                                          7
                               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).
                                              8
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).

                                                9
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.
                                                10
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
                                          11
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


                                           12
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




                                            13
                           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




                                       14
                                     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).




                                          15
