Pensive Properties LP v. Terry Barnhart and All Occupants ( 2015 )

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
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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
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Appellee is not claiming he was granted a life estate, therefore the statute of frauds is not
applicable.
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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).
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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.
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!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
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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.
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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
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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
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