                              NUMBER 13-09-00285-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ROBERT SMEJKAL,                                                                Appellant,

                                             v.

GARY SMEJKAL,                                                                   Appellee.


                    On appeal from the County Court at Law
                          of Calhoun County, Texas.


                          MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Garza
                Memorandum Opinion by Justice Garza
       This is an appeal from a judgment ordering the payment of rent by appellant, Robert

Smejkal, and the sale of property jointly owned by two brothers—Robert and appellee,

Gary Smejkal. By his sole issue, Robert argues that the evidence supporting the trial

court’s finding of ouster is insufficient; therefore, the trial court erred in concluding that

Robert owed Gary monthly rental payments while Robert and his family occupy the

property. We affirm.

                                      I. BACKGROUND

       The property in question was deeded to Robert and Gary by Robert F. O’Brien and

his wife, Elsie, on February 21, 1964; it is situated in Seadrift, Texas; and it includes a
house in addition to the land. The brothers did not know about the existence of the deeded

property until the administration of their mother’s estate in 2005. Once the brothers

discovered their interests in the property, they rented it to Lisa Buddemeier until the end

of January 2007. After Buddemeier moved out of the property, Robert sent Gary several

letters requesting that Gary remit one-half of the January 2007 rent and the security

deposit paid by the tenant minus his responsibility for one-half of the expenses or, in other

words, $412.51.1 Gary responded to Robert’s letters by notifying Robert that he incurred

$1,504.88 in expenses to repair the property and that Robert owed Gary $512.64 for the

expenses.2
        In an effort to resolve the dispute, Robert filed his original petition on June 24, 2008,

alleging negligence and conversion causes of action against Gary for allegedly

mismanaging the property, declining to pay Robert money that he was owed, and refusing

to return the property to Robert. In addition, Robert requested from the trial court a judicial

partition of the property and sought temporary orders against Gary to prevent damage to

the property.3 While the case was pending in July 2008, Robert and his family moved into

the property at issue in this case; Robert testified at trial that while at the property, he made

several improvements, including painting the house, caring for the yard, fixing a water leak,

replacing curtains, and having satellite television installed.

        Gary subsequently filed an original answer to Robert’s suit and a counterclaim. In

his counterclaim, Gary requested that the trial court partition the property, appoint a

receiver, and sell the property with the proceeds to be divided equally between Robert and

Gary.       Gary also asserted a contribution claim for past expenses, rent, and future


        1
            Robert alleged that Buddem eier paid $375 rent for January 2007 and a $525 security deposit.
         2
           In his letter to Robert, Gary noted that as of March 15, 2008, he had paid $479.59 for repairs and
that the m oney was taken from the $525 security deposit paid by Buddem eier. Gary further noted that the
house on the property had a faulty slab, broken living room tiles, and a broken m ain water line, which, to
repair, would bring the total expenditures to $1,504.88.
        3
          In his request for tem porary orders, Robert alleged that Gary, in an effort to harass Robert, dam aged
the property by rem oving all doors, windows, and all personal property contained in the house.

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contribution from Robert. In particular, Gary contended that fair market rent for the

property was $400 per month, and that by moving onto the property, Robert ousted Gary

from the property and, therefore, owed rent to Gary and should be required to pay “all

utilities, ad valorem taxes, insurance, maintenance[,] and repair for the ‘Residence’ during

his occupancy . . . .” (Emphasis in original.)

        After conducting a bench trial on Robert’s petition and Gary’s counterclaim, the trial

court entered a judgment ordering the sale of the property. In its judgment, the trial court

stated that the property was “not susceptible to fair and equitable partition in kind” and

ordered that the property be sold “as is” with the proceeds from the sale to be divided
equally amongst the two brothers. In addition, the trial court concluded that: (1) Robert’s

occupation of the property at the time of trial amounted to an “ouster” of Gary, and as a

result, Gary is entitled to reasonable rental value—$187.50 per month, or, in other words,

one-half of the rent that was paid by Buddemeier—from Robert for his use of the property

until it is sold; and (2) Gary is entitled to an electric stove contained in the house as his

personal property. This appeal followed.4

                                                   II. ANALYSIS5

        By his sole issue, Robert argues that the evidence at trial demonstrates that he did

not oust or deny Gary use of the property and that Gary, in fact, agreed to allow Robert and

his family to continue living at the property free of charge. Robert further argues that

because the evidence is insufficient to support the trial court’s finding of ouster, Gary is not

entitled to fair rental value on a monthly basis for Robert’s use of the property. Robert

does not seek to overturn the court-ordered sale of the property; rather, he seeks a

modification of the judgment with respect to the rental award.



        4
          Robert also filed a post-judgm ent m otion requesting a new trial and a m odification of the trial court’s
judgm ent alleging that he discovered new evidence after trial which would have required the trial judge to
recuse him self. After a hearing, the trial court denied Robert’s post-judgm ent m otion. This m otion is not the
subject of this appeal; therefore, we need not discuss it further. See T EX . R. A PP . P. 47.1.
        5
            Gary has not filed an appellate brief in this m atter.

                                                          3
A. Legal and Factual Sufficiency of the Evidence Supporting Ouster

         When a party attacks the legal sufficiency of an adverse finding on an issue upon

which it had the burden of proof, the party must demonstrate on appeal that the evidence

establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001). In a legal sufficiency review, we review the

evidence in the light most favorable to the verdict, crediting evidence that supports the

verdict if reasonable jurors could and disregarding all contrary evidence that a reasonable

jury could have disbelieved. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005).
         In conducting a factual sufficiency review, we consider and weigh all of the evidence

in the case and set aside the verdict and remand the cause for a new trial if we conclude

that the verdict is so against the great weight and preponderance of the evidence as to be

manifestly unjust, regardless of whether the record contains some "evidence of probative

force" in support of the verdict. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757,

761-62 (Tex. 2003). The evidence supporting the verdict is to be weighed along with the

other evidence in the case, including that which is contrary to the verdict. Id.

B. Usage of Jointly-Owned Property by Cotenants

         A tenancy-in-common gives any cotenant the right to possession of the property in

which he or she owns an interest. Todd v. Bruner, 365 S.W.2d 155, 160 (Tex. 1963). A

cotenant who occupies joint property is not required to account for the value of its use

unless there is an ouster6 or denial of use to other cotenants. See Potka v. Potka, 205

S.W.2d 51, 55 (Tex. Civ. App.–Waco 1947, writ ref’d n.r.e.) (“[S]uch joint owner is entitled

alike to the possession of the common property rent free. It does not follow, however, that

he will never be liable for rents or hire even upon his own possession. Where he ousts the


         6
           Ouster is defined as a wrongful dispossession or exclusion of a party from real property; it is a
notorious and unequivocal act by which one cotenant deprives another of the right to com m on and equal
possession and enjoym ent of property. See Sadler v. Duvall, 815 S.W .2d 285, 289 (Tex. App.–Texarkana
1991, writ denied); Alexander v. Kennedy, 19 Tex. 488, 493 (1857); see also B LAC K ’S L AW D IC TIO N AR Y 903 (7th
ed. 2000).

                                                         4
other cotenants, or, what is the same thing, openly repudiates the cotenancy, he becomes

liable for hire or rent of the property to the extent of their interests.”); see also Casso v.

Fullerton, No. 04-05-00905-CV, 2006 Tex. App. LEXIS 11246, at *5 (Tex. App.–San

Antonio Sept. 13, 2006, pet. denied) (mem. op.). A tenant-in-common may use jointly-

owned property without liability for its rental value. See Eddings v. Black, 602 S.W.2d 353,

358 (Tex. Civ. App.–El Paso 1980), writ ref’d n.r.e., 615 S.W.2d 168 (Tex. 1981) (per

curiam); see also Casso, 2006 Tex. App. LEXIS 11246, at *5. However, if the tenant in

possession rents the property to a third person, he or she must account to the other

cotenant for the proceeds received, because the proceeds are profits received beyond the
permitted personal occupancy and use.7 Potka, 205 S.W.2d at 55; see Trevino v. Trevino,

64 S.W.3d 166, 174 (Tex. App.–San Antonio 2001, no pet.) (holding that cotenants are

required to share income generated from property held in common). In addition, a

cotenant must act in a manner that is not detrimental to the other cotenant’s ownership and

enjoyment of the property.             See Scott v. Scruggs, 836 S.W.2d 278, 282 (Tex.

App.–Texarkana 1992, writ denied); see also Fuqua v. Fuqua, 750 S.W.2d 238, 246 (Tex.

App.–Dallas 1988, writ denied) (“Although each tenant in common has a right to occupy

the jointly owned property, none may occupy it to the exclusion of the others.”) (citing

Sayers v. Pyland, 139 Tex. 57, 64, 161 S.W.2d 769, 773 (1942)).

C. Discussion

        At trial, Robert testified that he owned several other properties in Texas, including

a ranch in Tivoli, Texas, but that he was only living at the disputed property in order to

make repairs. On appeal, Robert argues that Gary’s letter dated March 15, 2008, and

Gary’s testimony at trial evidenced an agreement between the brothers that Robert could

live at the property rent-free. However, contrary to Robert’s contentions, Gary’s letter and



        7
          A cotenant is under no obligation to rent jointly-owned property. See Eddings v. Black, 602 S.W .2d
353, 358 (Tex. Civ. App.–El Paso 1980), writ ref’d n.r.e., 615 S.W .2d 168 (Tex. 1981) (per curiam ); see also
Casso v. Fullerton, No. 04-05-00905-CV, 2006 Tex. App. LEXIS 11246, at *6 (Tex. App.–San Antonio Sept.
13, 2006, pet. denied) (m em . op.).

                                                      5
testimony at trial does not indicate such an agreement. Rather, Gary’s letter merely states

Robert’s financial obligation for a portion of the repairs made to the property after

Buddemeier moved out and provides the following:

        I am suggesting that:

        1. You make an offer to buy out my share of this house. Or,

        2. You make arrangements to have the house repaired at your expense so
        it can be placed on the market for sale. Or,

        3. The house is put on the market for sale AS IS with no repairs being made
        to the floors, broken water line, windows[,] or damaged cabinets.

(Emphasis in original.) At no point in the letter does Gary acquiesce to Robert’s moving
onto the property for an extended period of time rent-free. Furthermore, Gary’s testimony

at trial does not reflect an agreement between the brothers for Robert and his family to live

on the property rent-free. Gary did testify that the parties entered into a rule 11 agreement

that allegedly provided that Gary would not seek to evict Robert from the property until the

dispute was tried in court.8 See TEX . R. CIV. P. 11. However, Gary later testified that

Robert’s occupation of the property prevented Gary from procuring personal property he

had on the property—an electric stove—and from renting out the property to other tenants.

See Scott, 836 S.W.2d at 282; see also Fuqua, 750 S.W.2d at 246. Moreover, on cross-

examination, Robert admitted that he: (1) allowed his son to continuously live at the

property rent-free so that he could be closer to his job9; (2) made several modifications to

the property without consulting Gary as to each modification; (3) did not pay rent to Gary

at any time for sole usage of the property; and (4) had satellite television installed at the

property, which seems to suggest that Robert intended to reside at the property for a

longer period of time. Both Gary and Robert testified that they do not get along with each

other and that a partitioning or sharing of the property was not possible; therefore, Robert’s


         8
           The rule 11 agreem ent that was purportedly entered into by both Robert and Gary was not entered
into evidence and, therefore, is not a part of the appellate record.
        9
          Robert did not establish at trial that his son is a cotenant that had a legal right to reside at the
property without liability for its rental value.

                                                      6
moving onto the property effectively deprived Gary of equal usage and enjoyment of the

property. See Scott, 836 S.W.2d at 282; Fuqua, 750 S.W.2d at 246; see also Todd, 365

S.W.2d at 160.

       In reviewing the evidence adduced at trial, we cannot say that the trial court’s

conclusion as to ouster was supported by legally insufficient evidence. See City of Keller,

168 S.W.3d at 827; Dow Chem. Co., 46 S.W.3d at 241; see also Associated Indem. Corp.

v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998) (holding that in a legal

sufficiency challenge, we must view all of the evidence in the light most favorable to the

prevailing party and indulge every reasonable inference in favor of the trial court’s
judgment). Moreover, we cannot say that the trial court’s finding that Robert ousted Gary

from the property is against the great weight and preponderance of the evidence as to be

manifestly unjust or clearly wrong. See Golden Eagle Archery, Inc., 116 S.W.3d at 761-62.

Ordinarily, a cotenant may use jointly-owned property rent-free; however, because we have

concluded that the trial court’s finding of ouster was supported by legally and factually

sufficient evidence, we hold that the trial court did not err in awarding Gary fair rental value

of $187.50 per month, or one-half of the $375 in monthly rent that had previously been

paid by Buddemeier. See Potka, 205 S.W.2d at 55. Accordingly, we overrule Robert’s

sole issue.

                                       III. CONCLUSION

       We affirm the judgment of the trial court.



                                                    DORI CONTRERAS GARZA,
                                                    Justice

Memorandum Opinion delivered and
filed this the 19th day of November, 2009.




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