                                          IN THE
                                  TENTH COURT OF APPEALS

                                          No. 10-11-00297-CV

CHRISTINA OWENS,
                                                                           Appellant
    v.

JOHN HAWKINS, JANEL SUE SKRABANEK,
JACK PAUL MOORE, WILLIAM RICHARD
MOORE, AND BRUCE A. SKRABANEK,
                                                                           Appellees


                                    From the 21st District Court
                                      Burleson County, Texas
                                       Trial Court No. 25,890


                                  MEMORANDUM OPINION


           Christina Owens appeals from the trial court’s order granting a no-evidence

motion for summary judgment filed by John Hawkins, 1 Janel Sue Skrabanek, Jack Paul

Moore, William Richard Moore, and Bruce A. Skrabanek.2 Because the trial court did

not err in granting the motion for summary judgment, we affirm the trial court’s order.




1   John died the day the suit was filed in the underlying case.

2   Future references to these parties as a group will be to the Hawkins parties.
                                         BACKGROUND

       The parties to this proceeding are all related. Christina Owens is John Hawkins’

daughter. The other appellees are Owens’ niece, Janel, Owens’ nephew, Jack Paul,

Owens’ brother-in-law, William, and Owens’ nephew-in-law, Bruce. John owned 42

acres of land, a tractor and other farm equipment, and some cattle. John gave his

tractor, farm equipment, and cattle to Bruce in 1997.        In 1999, Owens obtained a

judgment against John and Owens’ sister, Sue Moore. That judgment was reversed in

part and affirmed in part by the First Court of Appeals in Houston. Hawkins v. Owens,

No. 01-09-00918-CV, 2000 Tex. App. LEXIS 5667 (Tex. App.—Houston [1st Dist.] Aug.

24, 2000, pet. denied) (not designated for publication). In October of 2001, John divided

his 42 acres into 4 tracts and gave one to Janel, one to Jack Paul, one to William, and one

to Bruce. After filing a writ of execution in 2009, Owens filed a lawsuit against the

Hawkins parties for fraudulent transfer of the acreage and the tractor, farm equipment,

and cattle pursuant to the Texas Uniform Fraudulent Transfer Act.           The Hawkins

parties filed a no-evidence motion for summary judgment which was granted by the

trial court.

       In one issue, Owens contends the trial court erred in granting the Hawkins

parties’ no-evidence motion for summary judgment because there was a genuine issue

of material fact regarding whether John’s real and personal property were assets subject

to the Texas Uniform Fraudulent Transfer Act.


Owens v. Hawkins                                                                     Page 2
              NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT STANDARD

       After an adequate time for discovery has passed, a party without the burden of

proof at trial may move for summary judgment on the ground that the nonmoving

party lacks supporting evidence for one or more essential elements of its claim. See TEX.

R. CIV. P. 166a(i); Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 682-83 (Tex.

App.—Dallas 2000, no pet.). The granting of a no-evidence motion will be sustained

when the evidence offered by the non-movant to prove a vital fact is no more than a

mere scintilla. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A

scintilla of evidence exists when the evidence is "so weak as to do no more than create a

mere surmise or suspicion" of a fact, and the legal effect is that there is no evidence.

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

                               FRAUDULENT TRANSFER ACT

       The Texas Uniform Fraudulent Transfer Act provides remedies to creditors of

debtors who fraudulently transfer assets under certain circumstances, as set out in the

statute. See TEX. BUS. & COM. CODE ANN. §§ 24.005-.006, 24.008 (West 2009); see also

Goebel v. Brandley, 174 S.W.3d 359, 362 (Tex. App.—Houston [14th Dist.] 2005, pet.

denied). As it pertains to this case, a transfer made by a debtor is fraudulent as to a

present or future creditor if the transfer was made with actual intent to hinder, delay, or

defraud any creditor of the debtor. TEX. BUS. & COM. CODE ANN. § 24.005(a) (West

2009). A "transfer" is defined as any means of "disposing of or parting with an asset or


Owens v. Hawkins                                                                     Page 3
an interest in an asset, and includes payment of money . . . and creation of a lien or

other encumbrance." Id. § 24.002(12) (West 2009). As further defined by the statute, an

"asset" is "property of a debtor," but excludes "property to the extent it is generally

exempt under nonbankruptcy law[.]” Id. § 24.002(2)(B). The judgment creditor has the

burden to prove the fraudulent transfer by a preponderance of the evidence. G.M.

Houser, Inc. v. Rodgers, 204 S.W.3d 836, 842 (Tex. App.—Dallas 2006, no pet.). This

includes the burden to prove the “transfer” of an “asset.” See Van Slyke v. Teel Holdings,

LLC, No. 01-08-00600-CV, 2010 Tex. App. LEXIS 5551, *11 (Tex. App.—Houston [1st

Dist.] July 15, 2010, no pet.) (mem. op.).

       The Hawkins parties filed a no-evidence motion for summary judgment

asserting that the real property and personal property alleged to be fraudulently

transferred were not “assets” as defined by the statute.       Although they were not

required to, the Hawkins parties submitted evidence that the real property, the 42 acres,

was John’s rural homestead, and thus, not an asset. See TEX. CONST. ART. VXI, § 51; TEX.

PROP. CODE ANN. § 41.002 (West 2000). Generally, a homestead is exempt from forced

sale by general creditors. TEX. CONST. ART. XVI, § 50. The Hawkins parties further

argued that the tractor, farm equipment, and cattle were not assets because a single

person’s personal property is exempt from garnishment, attachment, execution, or other

seizure if it is of an aggregate fair market value of not more than $30,000. TEX. PROP.

CODE ANN. §§ 42.001(a)(2); 42.002 (West Supp. 2011; West 2000).


Owens v. Hawkins                                                                    Page 4
       In Owens’ response to the no-evidence motion for summary judgment, she

alleged that a cabin on John’s property was rented out at times to her and to others. She

also claimed that the cabin was “owned” by either Sue Moore or William Moore,

Owens’ sister and brother-in-law. Owens also claimed that John allowed William to

start building a house on a portion of the property. Owens attached voluminous

evidence to her response, which included a complete deposition of Sue, the complete

trial testimony of an eviction proceeding brought by Sue against Owens, and the

testimony of John and of Owens’ two children from a trial which resulted in a judgment

against John and Sue, allegedly in support of these allegations. She then asserted that

this evidence created a fact issue that John abandoned his property as a homestead.

Thus, as her argument continued, the property lost its exempt status and became an

asset subject to the Act.

       Abandonment

       Once property has been dedicated as homestead, it can only lose such

designation by abandonment, alienation, or death. Ramsey v. Davis, 261 S.W.3d 811, 817

(Tex. App.—Dallas 2008, pet. denied); Wilcox v. Marriott, 103 S.W.3d 469, 472 (Tex.

App.—San Antonio 2003, pet. denied); Garrard v. Henderson, 209 S.W.2d 225, 230 (Tex.

Civ. App.—Dallas 1948, no writ). Abandonment of a homestead requires both the

cessation or discontinuance of use of the property as a homestead coupled with the

intent to permanently abandon the homestead. Franklin v. Woods, 598 S.W.2d 946, 949


Owens v. Hawkins                                                                   Page 5
(Tex. Civ. App.—Corpus Christi 1980, no pet.). On appeal, citing an opinion from the

Fifth Circuit, Owens contends that by “permanently” renting a portion of his

homestead property to others, John abandoned that portion of his property for

homestead purposes. See Perry v. Dearing, 345 F.3d 303 (5th Cir. 2003).

      In Perry, however, the issue was whether the bankruptcy court erred in ruling

that the bankruptcy petitioner forfeited the homestead character of a 26 acre tract and a

59 acre tract by operating a business on the property. Perry, 345 F.3d at 319. That is not

the question in this appeal. Then, in determining that the bankruptcy court erred, the

Fifth Circuit proposed a question to the bankruptcy court on remand; that is, what the

impact that the operation of a mobile home and RV park, specifically, had upon the

status of a claimed rural homestead. Id. at 318. It then observed that significant case

law existed in Texas indicating that one who rents a section of his property

continuously to others, abandons that portion of his property for purposes of the

homestead laws. Id. It is this observation upon which Owens appears to be relying to

support her argument. But, the Fifth Circuit also noted that renting property does not

always abandon it for purposes of the homestead laws and acknowledged that the

Texas Constitution and the Texas Property Code protect the homestead status of

property that is only temporarily rented. Id. at 319; TEX. CONST.    ART.   XVI, § 51; TEX.

PROP. CODE ANN. § 41.003 (West 2000).




Owens v. Hawkins                                                                     Page 6
        The cases cited by the Perry opinion regarding the abandonment of a homestead

by the continuous rental of a portion of it predate the adoption of article XVI, section 51

of the Texas Constitution and the enactment of section 41.003 of the Texas Property

Code. Even if those cases remain the law in Texas, Owens presented the trial court with

no evidence that John rented the cabin continuously. Further, she presented the trial

court with no evidence that John ceased or discontinued his of use of the property as a

homestead which was coupled with an intent to permanently abandon it. See Franklin v.

Woods, 598 S.W.2d 946, 949 (Tex. Civ. App.—Corpus Christi 1980, no pet.). At most,

Owens presented the trial court with evidence that John temporarily rented a portion of

his homestead property which does not change the homestead exemption. TEX. CONST.

ART.   XVI, § 51; TEX. PROP. CODE ANN. § 41.003 (West 2000). This is no evidence that John

abandoned his homestead.

        Owens also claims on appeal that John abandoned his homestead exemption by

allowing William to build a house on another portion of the property and by allowing

William and Bruce to operate an agricultural operation on the entire 42 acres. Owens

cites to no case authority in support of her argument. Accordingly, this portion of her

issue is inadequately briefed and presents nothing for review. TEX. R. APP. P. 38.1(i).

        Lastly, Owens argues that Exhibit A-3 attached to the Hawkins parties’ Third

Amended Motion for Summary Judgment creates a fact issue as to the exempt status of

the property because, her argument continues, in that Exhibit, at least half of the


Owens v. Hawkins                                                                     Page 7
property is designated as non-homestead. Again, Owens cites to no case authority in

support of her argument. This portion of her issue is inadequately briefed and presents

nothing for review.3 TEX. R. APP. P. 38.1(i).

       Thus, the evidence attached by Owens to her response creates, at most, only a

mere surmise or suspicion that John abandoned his homestead exemption and is no

evidence that the real property transferred by John was an asset not generally exempt

by non-bankruptcy law and subject to the Fraudulent Transfer Act. See TEX. BUS. &

COM. CODE ANN. §24.002(2)(B) (West 2009).

       Personal Property

       As for the tractor, related farm equipment, and cattle, Owens only asserted in her

response and on appeal that the Hawkins parties did not prove the property was

valued at less than $30,000. It was not the Hawkins parties’ burden to prove the

property was exempt. Rather, it was Owens burden to prove that it was an asset

because it was not exempt. See G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 842 (Tex.

App.—Dallas 2006, no pet.); Van Slyke v. Teel Holdings, LLC, No. 01-08-00600-CV, 2010

Tex. App. LEXIS 5551, *11 (Tex. App.—Houston [1st Dist.] July 15, 2010, no pet.) (mem.

op.). Thus, Owens presented no evidence that the personal property was an asset

subject to the Fraudulent Transfer Act.




3We have also reviewed the document in question and cannot determine the basis of the claim made by
Owens.

Owens v. Hawkins                                                                            Page 8
                                          CONCLUSION

      Because Owens presented no evidence that the real and personal property

transferred were “assets,” the trial court did not err in granting the Hawkins parties’ no-

evidence motion for summary judgment. Owen’s issue is overruled.

      Accordingly, the trial court’s order is affirmed.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 18, 2012
[CV06]




Owens v. Hawkins                                                                     Page 9
