                                                                                   ACCEPTED
                                                                               03-15-00463-CV
                                                                                       8005291
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                        11/30/2015 10:03:10 AM
                       No. 03-15-00463-CV                                    JEFFREY D. KYLE
                                                                                        CLERK


                         IN THE
                 THIRD COURT OF APPEALS                        FILED IN
                    AT AUSTIN, TEXAS                    3rd COURT OF APPEALS
                                                            AUSTIN, TEXAS
                                                       11/30/2015 10:03:10 AM
                 PENSIVE PROPERTIES, LP                   JEFFREY D. KYLE
                                Appellant                       Clerk


                                   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



REPLY BRIEF OF APPELLANT, PENSIVE PROPERTIES, LP


                                    Respectfully submitted,

                                    JOHN M. DAYES
                                    JOHN DAVES & ASSOCIATES, PLLC
                                    State Bar No. 00794991
                                    3624 North Hills Drive, Suite B-1 00
                                    Austin, Texas 78731
                                    (512) 346-6000
                                    (512) 346-6005 (fax)
                                    john@johndaveslaw.com

                                    ATTORNEY FOR APPELLANT




                               1
                     I. SUMMARY OF ARGUMENT


       Appellee would have this Court completely ignore current long-standing

Texas law and instead look to New York law in deciding whether this lease is

terminable at will, and the reason is simple:                  Texas law does not support

Appellee's position in this case. The undisputed evidence overwhelmingly

supports the only logical conclusion which is that the oral lease between Terry

Barnhart and Pensive Properties allowing Barnhart to live at the property for free

as long has he "agreed" to perform yard maintenance is a lease terminable at will

by either party and Pensive Properties exercised its right to terminate the lease. 1

To conclude otherwise would go against Texas law and would in effect, invade

Pensive Properties' property rights.


       Appellee failed to distinguish or even acknowledge the two recent cases

relied on by Appellant, both of which stand for the proposition that a lease for an

indefinite or uncertain length of time is a tenancy at will.                   Providence Land

Services, LLC v. Jones, 353 S.W.3d 538 (Tex.App.-Eastland 2011, no pet.)("We

feel sure of the soundness of the proposition that a lease providing that the tenant

may hold the premises so long as he pays the rent is, on account of the uncertainty


1
 Appellee is not claiming he was granted a life estate, therefore the statute of frauds is not
applicable.
                                                  2
of the period of its duration, a mere tenancy at will). Effel v. Rosberg, 360 S.W.3d

626 (Tex.App.-Dallas 2012, no pet.)(leases that state they are for the term of the

lessee's life are terminable at will by either party because of the uncertainty of the

date of the lessee's death). Accordingly, the undisputed facts and Texas law compel

the conclusion that the trial court committed reversible error in denying possession

to Pensive Properties.


                II. THE SALIENT FACTS ARE UNDISPUTED


      The following facts establishing a tenancy at will are undisputed by

Appellee:


        1) TeiTy 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)
        2) No written lease existed between Barnhart and Pensive Properties. (R
           "'"' ,4)
           .)C)-.)

        3) The term of the agreement was indefinite and Barnhart performed yard
           maintenance work in exchange for free rent. (R 27, 32-34)
        4) Terry Barnhart refused to do the work when Ms. Kaiser hired the lawn
           service. (R 30).
        5) TeiTy Barnhart "went in refusal to do anything." when Ms. Kaiser hired
           a lawn service. (R 30).
        6) Pensive Properties provided a 30-day Notice ofintent to Tenninate
           Occupancy as the lease agreement was on a month to month basis. (R
           11, Plaintiff's Exhibit 2).
        7) TeiTY Barnhart refused to vacate the premises.
        8) Pensive Properties 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).
        9) TeiTY Barnhart failed to vacate the premises (R 25).


                                          3
        10) Pensive Properties filed a Forcible Detainer Action to obtain
           possess10n.


            III. LIFE TENANCIES ARE TENANCIES AT WILL


      To create an estate for years, or for any definite term, the lease must be

certain, or capable of being made certain, as to the beginning, duration, and

termination of the term. Haley v. GPM Gas Cmp., 80 S.W.3d 114, 118 (Tex.

App.-Amarillo 2002, no pet.) (quoting Willis v. Thomas, 9 S.W.2d 423, 424 (Tex.

Civ. App.-San Antonio 1928, writ dism'd w.o.j.)). A lease for an uncertain

duration or date of termination is a tenancy at will. Providence Land Services, LLC

v. Jones, 353 S.W.3d 538 (Tex.App.-Eastland 2011), citing Holcombe v. Lorino,

124 Tex. 446, 79 S.W.2d 307, 310 (1935); Hill v. Hunter, 157 S.W. 247 (Tex.Civ.

App.-Austin 1913, writ refd)("We feel sure of the soundness of the proposition

that a lease providing that the tenant may hold the premises so long as he pays the

rent is, on account of the uncertainty of the period of its duration, a mere tenancy at

will). Eifel v. Rosberg, 360 S.W.3d 626 (Tex.App.-Dallas 2012, no pet.)(leases that

state they are for the term of the lessee's life are terminable at will by either party

because of the uncertainty of the date of the lessee's death.


      In Eifel, the term of the lease was stated to be for the uncertain length of

appellant's life or until such time that she voluntarily chose to vacate the premises.


                                           4
!d. The Court, in concluding the lease was a tenancy at will, concluded "if a lease

can be terminated at the will of the lessee, it may also be terminated at the will of

the lessor." !d. at 630, citing Holcombe, 79 S. W.2d at 310.


      Here, according to Appellee's version of the agreement, the lease was for an

indefinite term as long as Terry Barnhart "agreed to perform yard maintenance."

(R 27, 32-34).    Clearly, by its terms Terry Barnhart's lease is indefinite and

terminable at the will of Terry Barnhart. Therefore, according to Texas law, the

lease is also terminable at the will of Pensive Properties. As Pensive Properties

properly gave notice of its intent to terminate the lease in accordance with the

Texas Property Code, the trial court's denial of possession to Pensive Properties

was error.


                   IV. APPELLEE'S CASES ARE IRRELEVANT


      Plaintiff cited two cases: Rymes v. Caribbean Cowboys, LLC, 2013 Tex. App.

LEXIS 790 (Tex. App.-San Antonio 2013, pet. denied) and Texan Pearl, LLC v.

Koegel, 2015 Tex. App. LEXIS 10510 (Tex. App.-Austin 2015, no pet.). Neither

case addresses whether life tenancies are terminable at will, but rather address an

issue that is not disputed, i.e. whether life tenancies are subject to the statute of

frauds. Rymes v. Caribbean Cowboys, LLC, 2013 Tex. App. LEXIS 790 (Tex. App.-

San Antonio 2013, pet. denied) ("[W]e hold that the Leases were not for terms


                                          5
longer than one year since the contingency of the death of the appeliants or the

death of the appellants and/or their heirs could occur within a year of the signing of

the Leases"). 2


                                                PRAYER


       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, the trial court committed reversible error in denying

possession to Pensive Properties.


       THEREFORE, for these reasons, Appellant requests the Court to reverse the

trial court's ruling denying possession to Pensive Properties and award Appellant

its costs on Appeal and for all other relief to which it may show itself justly

entitled.




2
  Plaintiff also cites Haley v. GPM, 80 S.W.3d 114 (Tex, App. Amarillo 2002, no pet.) which
actually supports a finding that this lease is terminable at will. In Haley, the parties had a written
lease for one year term that was renewable every year for one year thereafter. The Court held
Holcombe and other similar cases were not controlling because the written lease agreement
Haley was clear, definite, and specific, unlike the lease in Holcombe and the one currently before
the Court. Id at 118.


                                                  6
                                            JOHN M. DAVES
                                            JOHN DAVES & ASSOCIATES, PLLC
                                            State Bar No. 00794991
                                            3624 North Hills Drive, Suite B-1 00
                                            Austin, Texas 78731
                                            (512) 346-6000
                                            (512) 346-6005 (fax)
                                            john@johndaveslaw.com

                                            ATTORNEY FOR APPELLANT




                        CERTIFICATE OF COMPLIANCE


      This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i) and contains 1408 words.




                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing

instrument was served upon Michael M. Probus Jr., 1701 Directors Blvd. Suite

290, Austin, Texas 78744, attorney of record for Appellee, electronically through


                                        7
the electronic filing manager, in compliance with Tex. R. App. P. 9.5, on this 23rd

day ofNovember, 2015.


                                      By:    ------------------


                                              JOHN M. DAVES
                                              JOHN DAVES & ASSOCIATES, PLLC
                                              State Bar No. 00794991
                                              3624 North Hills Drive, Suite B-1 00
                                              Austin, Texas 78731
                                              (512) 346-6000
                                              (5 12) 346-6005 (fax)
                                              john@johndaveslaw.com

                                              ATTORNEY FOR APPELLANT




                                         8
