                                MEMORANDUM OPINION
                                        No. 04-11-00332-CV

       IN RE THE ESTATE OF FRANCISCO JULIO LERMA SANCHEZ, Deceased

                    From the County Court At Law No. 1, Webb County, Texas
                               Trial Court No. 2009PB4000055L1
                        Honorable Alvino (Ben) Morales, Judge Presiding

Opinion by:      Steven C. Hilbig, Justice

Sitting:         Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: April 18, 2012

REVERSED AND REMANDED

           Carmen Viera-Peňa de Lerma (“Carmen”) filed a petition to establish an informal

marriage with the late Francisco Julio Lerma-Sanchez (“Francisco”), whose estate is pending in

probate court. Claudio Lerma Torres, Adrian Lerma Martinez, Julio Francisco Lerma Torres,

Victor Manuel Lerma Torres, Maria De Los Angeles Lerma, and Clementina Lerma De

Arzagoitia, Francisco’s children (hereinafter “the children”), filed no-evidence and traditional

motions for summary judgment, asserting there was no informal marriage between Carmen and

Francisco. The trial court granted the motions for summary judgment and Carmen appeals.

Carmen also complains on appeal that the trial court erred in canceling and expunging the

notices of lis pendens.
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                                           BACKGROUND

        Francisco died in April 2009, and the administration of his estate was filed in County

Court at Law No. 1 in Laredo, Texas. Carmen filed a petition to establish an informal marriage

to Francisco. Carmen’s response to the motions for summary judgment included her affidavits, 1

in which Carmen stated she and Francisco lived together for approximately thirteen years and

had two children together. She stated they began living together in Laredo, Texas in December

1995, at which time she claims they agreed to be married. In her second affidavit, she also stated

she and Francisco reiterated their agreement to be married several times while they lived in

Texas. She attested they continued to live in Laredo until mid-1996, at which time they left

Laredo and moved to Mexico. Carmen stated she and Francisco returned to Laredo in December

2007 and lived there until 2009. Carmen also stated in her second affidavit she and Francisco

represented to people in Texas, on numerous occasions, that they were married. She stated these

representations were made to hotel employees where they lived and to restaurant personnel

where they dined.

                                     STANDARD OF REVIEW

        When filing a no-evidence motion for summary judgment, the movant must specifically

challenge the evidentiary support for an element of a claim or defense. TEX. R. CIV. P. 166a(i)

cmt. (1997). The movant is entitled to summary judgment if it can prove, as a matter of law, that

the opponent failed to produce legally sufficient evidence to support its theory of liability or

defense after adequate time for discovery. Id. Once the movant files a no-evidence motion for

summary judgment, the respondent has the burden to produce summary judgment evidence

raising a genuine issue of material fact on the challenged element. Id.; Ford Motor Co. v.


1
 We do not address Carmen’s other summary judgment evidence or the objections to that evidence because
Carmen’s affidavits are sufficient to raise a fact issue on her claim that she and Francisco were married.

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Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). However, the non-movant is not required to

marshal its proof; he need only present some evidence of probative value raising a fact issue

about which reasonable minds could differ. TEX. R. CIV. P. 166a(i) cmt. (1997); Johnson v.

Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). We view the evidence in the light

most favorable to the non-movant and disregard all contrary evidence and inferences. King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

       A traditional motion for summary judgment requires the movant to establish there is no

genuine issue of material fact and he is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c); Little v. Texas Dept. of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004); KPMG Peat

Marwick v. Harrison Cnty. Houston Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The movant

has the burden to conclusively disprove one element of the challenged cause of action or to

conclusively prove all of the elements of an affirmative defense. Little, 148 S.W.3d at 381;

Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 645-46 (Tex. 2000). “‘When reviewing a

motion for summary judgment, the court takes the nonmovant’s evidence as true, indulges every

reasonable inference in favor of the nonmovant and resolves all doubts in favor of the

nonmovant.’” Little, 148 S.W.3d at 381(quoting M.D. Anderson Hosp. v. Willrich, 28 S.W.3d

22, 23 (Tex. 2000).

                             SHAM AFFIDAVIT OBJECTION

       The children assert the trial court erred in overruling their objection that Carmen’s

affidavits were “sham” affidavits. An allegation that an affidavit is a sham generally occurs

when a party files an affidavit to avoid a summary judgment and the affidavit testimony is in

direct and total contradiction with the affiant’s deposition testimony. Farroux v. Denny’s Rest.,

Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st Dist.] 1997, no pet.). A sham affidavit



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must be disregarded by the court. Cantu v. Peacher, 53 S.W.3d 5, 10-11 (Tex. App.—San

Antonio 2001, pet. denied). In Cantu, this court concluded that when determining whether an

affidavit is a sham, the court must examine the nature and extent of the differences in the facts

asserted in the deposition and the affidavit. Id. at 10. “If the differences fall into the category of

variations on a theme, consistent in the major allegations but with some variances of detail, this

is grounds for impeachment, and not a vitiation of the later filed document. If, on the other hand,

the subsequent affidavit clearly contradicts the witness’s earlier testimony involving the suit’s

material points, without explanation, the affidavit must be disregarded and will not defeat the

motion for summary judgment.” Id. at 10-11.

       The children claim Carmen’s July 2010 affidavit, filed in relation to the administration of

Francisco’s estate and in which she stated Francisco’s “residence and domicile was in the

Republic of Mexico,” was in direct contradiction of her later testimony regarding the time she

and Francisco cohabitated in Laredo. We disagree. First, the statements in the July 2010

affidavit do not reference a specific time period that Francisco’s residence and domicile was in

Mexico. Furthermore, when asked during her deposition about the July 2010 affidavit, Carmen

explained that Francisco’s domicile and residence was in both Laredo and in Mexico.

Additionally, having a domicile and residence in Mexico does not necessarily preclude Francisco

living in Laredo during the time periods Carmen claims she and Francisco cohabitated in Texas.

       The children also contend Carmen’s affidavits filed in response to the summary judgment

motions conflict with her testimony at a hearing in probate court. They claim Carmen testified

she was not living in the United States until 2011 due to her immigration status. However,

Carmen testified she used a border crossing card to enter Texas up until she received a student

visa in 2011. Carmen stated that she was not allowed by law to live in the United States until



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January 2011. Carmen was asked “you wouldn’t have broken the law by coming here before

then, correct” and she responded “no, I wouldn’t have broken the law because there is…so many

enemies.” These statements are not a direct contradiction of her testimony that she lived in

Laredo with Francisco. We conclude the affidavits filed in response to the summary judgment

motions are not sham affidavits, and the trial court did not err in overruling the children’s

objections.

                          ELEMENTS OF COMMON LAW MARRIAGE

        “Common law marriages have been recognized in Texas since 1847.” 2 Russell v. Russell,

865 S.W.2d 929, 931 (Tex. 1993) (citing Tarpley v. Poage’s Adm’r, 2 Tex. 139, 149 (1847)). A

common law marriage has three requirements: (1) the parties agreed to be married; (2) the parties

lived together as husband and wife in Texas after they agreed to be married; and (3) the parties

represented to others that they were married. TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006);

Russell, 865 S.W.2d at 932; Palacios v. Robbins, No. 04-02-00338-CV, 2003 WL 21502371, *3

(Tex. App.—San Antonio July 2, 2003, pet. denied) (mem. op.). All three elements must exist at

the same time. Palacios, 2003 WL 21502371, at *3.

        To establish an agreement to be married, “the evidence must show the parties intended to

have a present, immediate, and permanent marital relationship and that they did in fact agree to

be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App.—Houston [1st Dist.]

2001, pet. denied). The agreement to be married may be established by direct or circumstantial

evidence. Russell, 865 S.W.2d at 933. The testimony of one of the parties to the marriage

constitutes direct evidence the parties agreed to be married. See Eris, 39 S.W.3d at 714; In re

2
 “Informal marriage” is the statutory term used to describe what is colloquially known as a common law marriage.
See TEX. FAM. CODE ANN. § 2.401 (West 2006).




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Estate of Giessel, 734 S.W.2d 27, 32 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.).

The conduct of the parties and evidence of cohabitation and representations to others may

constitute circumstantial evidence of an agreement depending upon the facts of the case. See

Russell, 865 S.W.2d at 933; Eris, 39 S.W.3d at 714. Cohabitation need not be continuous. See

Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.—San Antonio 1987, no writ) (holding evidence

sufficient to establish cohabitation where husband worked in Nigeria but lived with wife each

time he returned to Texas). As with all of the elements of common law marriage, cohabitation is

determined on a case-by-case basis. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 166

(Tex. 1981).

       The statutory requirement of “represent[ing] to others” is synonymous with the judicial

requirement of “holding out to the public.” Compare TEX. FAM. CODE ANN. § 2.401(a)(2) (West

2006) with Claveria, 615 S.W.2d at 166. “‘Holding out’ may be established by the conduct and

actions of the parties.” Eris, 39 S.W.3d at 715. “Spoken words are not necessary to establish

representation as husband and wife.” Id. Written references to the marriage or to a party as

“spouse” are evidence of “holding out.” See Claveria, 615 S.W.2d at 167 (holding recorded deed

in which parties represented they were married was evidence of common law marriage); Persons

v. Persons, 666 S.W.2d 560, 563 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.)

(holding reference to one party as “spouse” in credit application was evidence of holding out).

                                          ANALYSIS

       The children contend Carmen’s testimony regarding whether she and Francisco had an

agreement to be married is conclusory and as such is insufficient to raise a fact issue. “A

conclusory statement is one that does not provide the underlying facts to support the conclusion.”




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Trejo v. Laredo Nat. Bank, 185 S.W.3d 43, 50 (Tex. App.—San Antonio 2005, no pet.)(quoting

Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.—Texarkana 2000, no pet.).

       In Carmen’s second affidavit, she stated “[w]e expressly agreed to be married in

December of 1995, when we began living together, and thereafter expressly reiterated our

agreement several times to each other when we were living in Texas.” This testimony is a

statement of fact and not a mere conclusion that requires further explanation or detail. Id.

Additionally, Carmen testified during her deposition that she and Francisco agreed to be married

while staying at the Family Garden Hotel in Laredo because “[i]t was a new life that we were

beginning.” This testimony provides additional evidence regarding the agreement to be married.

Carmen’s affidavit and deposition testimony is sufficient to raise a fact issue on whether she and

Francisco agreed to be married. See Collora, 574 S.W.2d at 70 (“Ollie’s testimony that she and

Joe had “agreed to a marriage” was direct testimony of an agreement to be married and was

enough to raise the issue of agreement”); see also Giessel, 734 S.W.2d at 32 (testimony of one

party that they had agreed to be married “in God’s eyes” was direct evidence of agreement to be

married).

       The children also contend Carmen’s testimony regarding cohabitation is conclusory and

does not raise a fact issue. Carmen stated she lived with Francisco in Laredo, Texas for

“approximately six months from the end of 1995 to mid-1996” and again from December 2007

to February 2009. This testimony is not conclusory; rather, it is a statement of fact. See Trejo,

185 S.W.3d at 50.

       The children also argue the six-month period in 1995 and the fifteen-month period from

December 2007 to February 2009 was not a continuous period of cohabitation as required by the

statute. However, cohabitation need not be continuous. See Bolash, 733 S.W.2d at 699. In



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Bolash, the defendant was employed in Nigeria and would on occasions spend time in this

country. Id. According to plaintiff’s testimony, she and the defendant agreed to be husband and

wife one night when the defendant was visiting. Id. The defendant left San Antonio the

following day, but according to the plaintiff’s testimony, he returned to San Antonio several

times during the next four years and stayed with plaintiff on each occasion. Id. She testified

they traveled together on occasion to New York, Atlanta, Las Vegas and Europe. Id. The court

determined that, although defendant testified he had returned to this country several times when

he did not see plaintiff, and although the plaintiff admitted she did not know where defendant

worked in Nigeria and did not know how to get in touch with him there, her testimony that they

were together each time he came to this country was sufficient to support the finding they lived

together as husband and wife to the extent possible under the circumstances. Id. Thus, even if

there were gaps of time when Carmen and Francisco did not live together in Laredo does not

negate the cohabitation element. Carmen’s testimony is sufficient to raise a fact issue on

cohabitation.

       The children also contend Carmen’s 2010 affidavit placed Francisco’s “residence and

domicile” in Mexico, which would make cohabitation in Texas a “factual impossibility.”

However, as discussed above, Carmen clarified in her deposition that Francisco’s residence and

domicile was in both Mexico and Laredo. The children argue there is ample evidence to

disprove that Carmen and Francisco cohabited in Texas. However, we must disregard this

evidence because in an appeal of a summary judgment the evidence must be viewed in the light

most favorable to Carmen and all contrary evidence and inferences must be disregarded. King

Ranch, Inc., 118 S.W.3d at 751.




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          Finally, the children argue Carmen’s testimony related to the holding out element is

conclusory and does not raise a fact issue. In her second affidavit, Carmen stated she and

Francisco represented to Francisco’s employees as well as to hotel and restaurant personnel in

Texas they were married. These are statements of fact and are not conclusions. See Trejo, 185

S.W.3d at 50.

          The children rely on Nichols v. Lightle, 153 S.W.3d 563, 570-71 (Tex. App.—Amarillo

2004, pet. denied) to support their argument that Carmen’s testimony is insufficient to raise a

fact issue. However, their reliance is misplaced. In Nichols, the only evidence regarding the

holding out element was the statement “we held out to others that we were husband and wife.”

Id. The court held this statement was conclusory because it merely paraphrased the statute’s

language and contained no specific factual basis for the statement.         Id.   Accordingly, the

statement was not sufficient to raise a genuine issue of fact. Id. However, Carmen’s testimony

provides more information than simply paraphrasing the statute and is sufficient to raise a fact

issue.     Although the children point to evidence that contradicts Carmen’s testimony, for

summary judgment purposes this evidence must be disregarded. King Ranch, Inc., 118 S.W.3d

at 751.

                                          LIS PENDENS

          The administrator of the estate filed an application to sell a commercial warehouse owned

by Francisco. Carmen filed an objection, asserting, among other things, that the property was

presumptively community property because Francisco was her common law husband and she

had a fee simple interest in the property. The trial court entered an order authorizing the sale,

and Carmen filed a notice of lis pendens and an amended notice of lis pendens.




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       The estate administrator filed a motion to cancel the notices and to waive bond pursuant

to section 12.008 of the Texas Property Code. The administrator asserted Carmen failed to

comply with the statutory requirement that the notice of lis pendens be served on each party to

the action. The administrator also pleaded that if the children’s pending motions for summary

judgment were granted, Carmen would not have an interest in the property and the administrator

could proceed with the sale. After granting the motions for summary judgment, the trial court

entered an order canceling the lis pendens and waived the bond requirement.

       Before the trial court granted the motion to cancel the lis pendens, Carmen appealed the

trial court’s order granting the children’s motions for summary judgment. After the motion to

cancel the lis pendens was granted, Carmen amended her notice of appeal to include the trial

court’s order canceling the lis pendens. Carmen also filed a second notice of lis pendens. Four

days after the second notice of lis pendens was filed, the trial court sua sponte entered an order

expunging the second notice of lis pendens. Carmen then amended her notice of appeal to

include the trial’s court’s order expunging the second notice.

       Carmen asserts the trial court erred in canceling the notice and amended notice of lis

pendens and in expunging the second lis pendens. We only address Carmen’s complaint that the

trial court erred in expunging the second notice of lis pendens because, if the trial court erred in

expunging the second lis pendens, it remains in effect. Thus, any error related to trial court’s

order canceling the first and amended notices is moot.

       A lis pendens may be filed during the pendency of an action involving title to real

property, the establishment of an interest in real property, or an enforcement of an encumbrance

against real property. TEX. PROP. CODE ANN. § 12.007 (West 2009). The purpose of a lis

pendens is to put parties interested in a particular tract of land on notice as to the facts and issues



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involved in a suit or action concerning that particular tract. In re Jamail, 156 S.W.3d 104, 108

(Tex. App.—Austin 2004, orig. proceeding.); In re Collins, 172 S.W.3d 287, 292–93 (Tex.

App.—Fort Worth 2005, orig. proceeding); Garza v. Pope, 949 S.W.2d 7, 8 (Tex. App.—San

Antonio 1997, no writ). A lis pendens is not an independent claim, Collins v. Tex Mall, L.P., 297

S.W.3d 409, 419 (Tex. App.—Fort Worth 2009, no pet.), and has no existence separate and apart

from the litigation of which it gives notice. Taliaferro v. Smith, 804 S.W.2d 548, 550 (Tex.

App.—Houston [14th Dist.] 1991, no writ). Under Texas law, a lis pendens does not prevent a

sale of the property; it merely places a purchaser on notice that a person other than the title

holder claims an interest in the property. Group Purchases, Inc. v. Lance Inv., Inc., 685 S.W.2d

729, 731 (Tex. App.—Dallas 1985, writ ref’d n.r.e.). A lis pendens notice operates during the

pendency of the lawsuit and terminates with the judgment, in the absence of appeal. Berg v.

Wilson, 353 S.W.3d 166, 180 (Tex. App.—Texarkana 2011, pet. denied); see also Hartel v.

Dishman, 135 Tex. 600, 145 S.W.2d 865, 869 (1940); Collins, 297 S.W.3d at 418.

       Section 12.0071 of the Texas Property Code provides the statutory authority for

expunging a lis pendens. TEX. PROP. CODE ANN. § 12.0071 (West Supp. 2011). Section 12.071

provides in part

       (a) A party to an action in connection with which a notice of lis pendens has been
       filed may:

               (1) apply to the court to expunge the notice; and

               (2) file evidence, including declarations, with the motion to expunge the
               notice.

       (b) The court may:

               (1) permit evidence on the motion to be received in the form of oral
               testimony; and




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               (2) make any orders the court considers just to provide for discovery by a
               party affected by the motion.

       (c) The court shall order the notice of lis pendens expunged if the court
       determines that:

               (1) the pleading on which the notice is based does not contain a real
               property claim;

               (2) the claimant fails to establish by a preponderance of the evidence the
               probable validity of the real property claim; or

               (3) the person who filed the notice for record did not serve a copy of the
               notice on each party entitled to a copy under Section 12.007(d).

       (d) Notice of a motion to expunge under Subsection (a) must be served on each
       affected party on or before the 20th day before the date of the hearing on the
       motion.

TEX. PROP. CODE ANN. § 12.0071 (West Supp. 2011). The record does not reflect that any party

to the underlying action filed a motion to expunge the second lis pendens, nor do the children

argue one was filed. It appears from the record the trial court sua sponte, only four days after the

second lis pendens was filed, ordered the second lis pendens expunged.

       Section 12.0071 allows a party to file a motion requesting the trial court expunge a notice

lis pendens, but the statute requires that the motion be served on each affected person on or

before the 20th day before a hearing on the matter. No party filed a motion and Carmen was not

provided twenty days’ notice that the trial court was considering expunging the lis pendens. We

hold the trial court erred in expunging the lis pendens sua sponte and without proper notice to

each affected party.

                                         CONCLUSION

       Carmen’s affidavits were not sham affidavits and were sufficient to raise a fact issues on

each element of her claim that she and Francisco had an informal marriage. Accordingly, the




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summary judgment is reversed and the cause is remanded to the trial court. Additionally, we

hold the trial court erred in expunging Carmen’s second notice of lis pendens.


                                                       Steven C. Hilbig, Justice




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