John W. Hankins v. Sarah T. Harris

ACCEPTED
01-15-00396-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/7/2015 10:21:52 PM
CHRISTOPHER PRINE
CLERK

CASE NO. 01-15-00396-CV
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE FIRST COURT OF APPEALS
12/7/2015 10:21:52 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
___________________________________________
Clerk

John W. Hankins

v.

Sarah T. Harris
_______________________________________

On Appeal from the 333rd Judicial District Court
of Harris County, Texas
Trial Court Case No. 2014–01360
________________________________________

APPELLANT’S REPLY BRIEF
**ORAL ARGUMENT REQUESTED**

LEYH, PAYNE & MALLIA, HUGHES ELLZEY, LLP WILSON, CRIBBS &
PLLC Jarrett L. Ellzey GOREN, P.C.
Sean M. Reagan jarrett@hughesellzey.com Brian B. Kilpatrick
(Lead Counsel) Texas Bar No. 24040864 Texas Bar No. 24074533
sreagan@lpmfirm.com W. Craft Hughes bkilpatrick@wcglaw.net
Texas Bar No. 24046689 craft@hughesellzey.com H. Fred Cook
9545 Katy Freeway, Texas Bar No. 24046123 Texas Bar No. 02742500
Suite 200 Galleria Tower I hfcook@wcglaw.net
Houston, Texas 77024 2700 Post Oak Blvd., 2500 Fannin Street
(713) 785–0881 Suite 1120 Houston, Texas 77002
(713) 784–0338 (Fax) Houston, Texas 77056 (713) 222–9000
(713) 554–2377 (713) 229–8824 (Fax)
(888) 995–3335 (Fax)

Counsel for Appellant, John W. Hankins
 Table of Contents

Table of Contents .......................................................................................... 2

Index of Authorities ...................................................................................... 5

Reply Brief ..................................................................................................... 8

A. Reply Point No. 1: Sarah’s brief contains numerous
representations that are either designed to construe
matters out of context or outright misrepresentations. ............. 8

B. Reply Point No. 2: Sarah’s claim that the entirety of the
Property was protected from a forced sale because it
was a “family” homestead has a fatal flaw: Norma and
Roy were no longer a “family” after their divorce...................... 11

C. Reply Point No. 3: Hankins’ judgment lien and
execution lien validly attached to Norma’s interest in
the Property after she divorced Roy and abandoned the
Property. Sarah’s claim that Hankins cited no evidence
to demonstrate that Norma abandoned the Property is
flat out wrong. ...........................................................................13

D. Reply Point No. 4: Sarah’s claim that Roy’s undivided
one–half interest in the Property protected the entire
Property from a forced sale would grant him a greater
right, title, or interest in the Property than what he
actually owned, which is contrary to Texas law. ........................16

E. Reply Point No. 5: Sarah’s bold claim the Austin court
of appeals’ decision in Synnott “is the law” is wrong. ...............16

F. Reply Point No. 6: Sarah’s claim that a party’s
homestead protection “would be all but ephemeral” if a
creditor could force a partition ignores well–
established Texas law that permits the partition of
homestead property. ................................................................ 18

2
G. Reply Point No. 7: If the automatic stay created by
Roy’s bankruptcy filing results in the execution sale
being voided, the Court should restore the parties to
the status quo, including reviving Hankins’ liens, if
necessary. Sarah’s arguments in opposition are
unavailing. .................................................................................19

H. Reply Point No. 8: Sarah’s claim that Hankins acquired
nothing at the execution sale because Norma allegedly
owned no interest in the Property at the time lacks
merit and would turn well–established Texas law in its
head. ......................................................................................... 23

I. Reply Point No. 9: Sarah’s continued insistence that
her parents’ Marriage Settlement Agreement
constituted an executory contract vesting Roy with
equitable title on the day of the divorce is puzzling. ................ 25

J. Reply Point No. 10: Sarah’s claim that Hankins was
required to execute on his lien within four years
misconstrues and misrepresents the plain text of
Section 16.035 of the Civil Practice & Remedies Code. ............ 28

K. Reply Point No. 11: Sarah’s claim that she wasn’t
required to prove repudiation and ouster of her co–
tenant is incredible. This is the very basis on which
Sarah based on her motion for summary judgment. ................ 30

L. Reply Point No. 12: Sarah claims she repudiated
Hankins’ title by accepting a deed from Roy that
purported to convey the fee simple estate to her.
Despite Hankins directing her to binding authority
from this Court holding otherwise, Sarah ignores this
adverse authority. ......................................................................31

M. Reply Point No. 13: Sarah’s claim that she can rely on
her parents’ alleged repudiation of Hankins’ title when
they were not Hankins’ co–tenants lacks merit. ...................... 33

3
 N. Reply Point No. 14: Sarah wants to eat her cake and
have it too. On one hand, Sarah claims she is a stranger
to this dispute. On the other hand, Sarah claims that
the dispute was between Hankins and the Harris
family, including her. Sarah cannot have it both ways. ............ 34

O. Reply Point N0. 15: Despite Sarah’s claim to the
contrary, Sarah must establish title from the sovereign
to prevail on her three–year adverse possession claim. ...............

P. Reply Point No. 16: Sarah’s claim that there is
“voluminous evidence” to support her adverse
possession claim misses the mark. The evidence cited
by Sarah to support her claim for adverse possession is
nothing more than actions taken by the Harris family
that is consistent with a co–tenancy......................................... 37

Conclusion and Prayer ................................................................................ 39

Certificate of Service.................................................................................... 40

Certificate of Compliance .............................................................................41

4
 Index of Authorities

Cases

Almanza v. Salas,
No. 14–12–01114–CV, 2014 WL 554807
(Tex. App.—Houston [14th Dist.] Feb. 11, 2014, no pet.)................... 18

Borden v. McRae,
46 Tex. 396 (1877)...............................................................................21

BP Am. Prod. Co. v. Marshall,
342 S.W.3d 59 (Tex. 2011) ................................................................. 33

Cleveland v. Milner,
170 S.W.2d 472 (Tex. 1943) ................................................................19

Drake Interiors, LLC v. Thomas,
433 S.W.3d 841
(Tex. App.—Houston [14th Dist.] 2014, pet. denied).......................... 17

Dyer v. Cotton,
333 S.W.3d 703 (Tex. App.—Houston [1st Dist.] 2010, no pet.) ....... 32

Fairfield Fin. Group, Inc. v. Synnott,
300 S.W.3d 316 (Tex. App.—Austin 2009, no pet.) ................ 13, 16–18

Flag–Redfern Oil Co. v. Humble Exploration Co.,
744 S.W.2d 6 (Tex. 1987) ................................................................... 27

Gordon v. West Houston Trees, Ltd.,
352 S.W.3d 32
(Tex. App.—Houston [1st Dist.] 2011, no pet.) ............................ 21–23

Grant v. Clouser,
287 S.W.3d 914
(Tex. App.—Houston [14th Dist.] 2009, no pet.) ......................... 18–19

Humphrey v. C.G. Jung Educ. Ctr. of Houston,
624 F.2d 637 (5th Cir. 1980) .............................................................. 36

5
Laster v. First Huntsville Props. Co.,
826 S.W.2d 125 (Tex. 1991)........................................................... 12, 14

Morton v. Nguyen,
412 S.W.3d 506 (Tex. 2013) ......................................................... 25, 27

Patterson v. First Nat’l Bank of Lake Jackson,
921 S.W.2d 240
(Tex. App.—Houston [14th Dist.] 1996, no writ) ................................16

Sadler v. Duvall,
815 S.W.2d 285 (Tex. App. Texarkana 1991, writ denied) ..................31

Salomon v. Lesay,
369 S.W.3d 540
(Tex. App.—Houston [1st Dist.] 2012, no pet. ......................... 11–13, 17

Sayers v. Pyland,
161 S.W.2d 769 (Tex. 1942) .................................................................16

Smith v. Davis,
462 S.W.3d 604 (Tex. App.—Tyler 2015, pet. denied)....................... 26

Taylor v. Mosty Bros. Nursery, Inc.,
777 S.W.2d 568 (Tex. App.—San Antonio 1989, no writ) ................... 15

Texas Employer’s Ins. Ass’n v. Engelke,
790 S.W.2d 93
(Tex. App.—Houston [1st Dist.] 1990, no writ)...................................21

Thedford v. Union Oil Co.,
3 S.W.3d 609 (Tex. App.—Dallas 1999, pet. denied) ..........................31

Todd v. Bruner,
365 S.W.2d 155 (Tex. 1963) ................................................... 33, 34, 37

Wierzchula v. Wierzchula,
623 S.W.2d 730
(Tex. Civ. App.—Houston [1st Dist.] 1981, no writ) ...........................12

6
Wilcox v. Marriott,
103 S.W.3d 469
(Tex. App.—San Antonio 2003, pet. denied) ................................14, 22

Statutes

TEX. CIV. PRAC. & REM. CODE § 16.021 .......................................................... 36

TEX. CIV. PRAC. & REM. CODE § 16.023 ......................................................... 33

TEX. CIV. PRAC. & REM. CODE § 16.024 ......................................................... 36

TEX. CIV. PRAC. & REM. CODE § 16.035 .................................................. 28–29

TEX. CONST. art. XVI, § 50 ...................................................................... 11–14

TEX. PROP. CODE § 41.002 .................................................................. 11, 12, 14

TEX. PROP. CODE § 52.006............................................................................ 29

TEX. R. APP. P. 38.1 ........................................................................................ 9

TEX. R. CIV. P. 680 ......................................................................................... 9

Secondary Sources

TEX. PATTERN JURY CHARGES–NEGLIGENCE at §1.3(6) (2012) ...................... 38

West, The Texas Three Year Statute of Limitation,
19 TEXAS L. REV. 375 (1941) .............................................................. 36

7
TO THE HONORABLE FIRST COURT OF APPEALS:

Reply Brief

A. Reply Point No. 1: Sarah’s brief contains numerous
representations that are either designed to construe
matters out of context or outright misrepresentations.

Sarah’s brief is rife with misrepresentations of the record and the law,

including misleading representations designed to construe matters out of

context.

For example, in her introduction, Sarah claims that Hankins’ interest

in the Property arose from an execution sale that violated both federal and

state court orders. Resp. Br. at 1. Similarly, Sarah claims that Hankins is

not challenging the validity of the temporary restraining order on appeal.

Id. at 5, n. 4. These claims are irrelevant, taken out of context, and

misrepresentations of the record.

These claims are irrelevant because Sarah did not move for summary

judgment on either the temporary restraining order issued by the state

court or the injunction issued by the bankruptcy court. (1 Supp. CR at 179–

201; see also, id. at 186, n. 5) (“At this time, Sarah is not moving for

summary judgment on the grounds that the [execution] sale violated the

TRO.”)). Thus, neither injunction can serve as a basis for affirming the trial

court’s summary judgment.

8
 Regardless, there is no evidence that the temporary restraining order

issued by the state court was valid because the order did not, inter alia,

state the hour of issuance, define the injury, state why any harm or injury

would be irreparable, or state why the order was granted without notice, as

required by Texas Rule of Civil Procedure 680. (Compare 1 Supp. CR at

474–76 with TEX. R. CIV. P. 680.) The court did set a bond in the amount of

$50,000. (Id. at 476). But Norma and Roy never paid the bond, and thus,

the clerk never issued a writ. (2 Supp. CR at 876). These facts were not

disputed by Sarah. See TEX. R. APP. P. 38.1 (“In a civil case, the court will

accept as true the facts stated unless another party contradicts them.”).

Thus, there is no evidence that the temporary restraining order was valid.

Instead, the evidence establishes that the temporary restraining order was

void because it failed to comply with Texas Rule of Civil Procedure 680.

Furthermore, there is no evidence that the injunction issued by the

bankruptcy court was issued before the execution sale. Rather, the record

shows the execution sale occurred at 10:30 a.m. on September 2, 1980, well

before the bankruptcy court issued its injunction later that day at 2:26 p.m.

(1 Supp. CR at 286, ¶ 32) (attached by Sarah as summary judgment

evidence). So, Hankins logically could not have violated the injunction

9
issued by the bankruptcy court when he executed on Norma’s interest in

the Property when the injunction did not issue until about four hours later.

Sarah also claims that “Hankins cited no evidence … to demonstrate

that Norma abandoned the Property as a matter of law, or, for that matter,

that she acquired another homestead elsewhere.” Resp. Br. at 19. This

representation is misleading for two reasons. First, Hankins—as the non–

movant—did not have to establish that Norma abandoned the Property as a

matter of law. Second, Hankins did cite evidence of abandonment in his

opening brief—Norma’s deposition testimony. Hankins Br. at 5–6.

Specifically, Hankins quoted Norma’s deposition testimony, in which she

testified that she had “no intention of moving back” to the Property. Id. at 5

(citing 2 Supp. CR at 1113–15).

In an effort to bolster her adverse possession claim and show

repudiation of Hankins’ interest in the Property, Sarah also claims that

Matthew Hoffman, an attorney, represented her, along with her parents in

dealing with Hankins’ demands in 1984 and 1990. Resp. Br. at 9. But

Hoffman merely averred that he represented Roy with respect to the

Property. (1 Supp. CR at 405, ¶ 3). As discussed in more detail below, there

is no evidence that Hoffman ever represented Sarah. Her claim to the

contrary belies the record.

10
 These are a few examples of Sarah’s misrepresentations. Hankins will

address others in more detail below, as well as Sarah’s failure to address

binding authority that is adverse to her claims.

B. Reply Point No. 2: Sarah’s claim that the entirety of the
Property was protected from a forced sale because it
was a “family” homestead has a fatal flaw: Norma and
Roy were no longer a “family” after their divorce.

In her brief, Sarah repeatedly reasserts that Roy’s undivided

homestead interest protected the entire property because “the

constitutional homestead exemption is given to the family, not to either

spouse individually.” Resp. Br. at 20–27 (quoting Salomon v. Lesay, 369

S.W.3d 540, 555 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Sarah also

claims that “so long as real property is a family homestead by virtue of one

spouse’s intention and use, that property is protected by the homestead

exemption, unless abandonment is pleaded and proved.” Id. (quoting

Salomon, 369 S.W.3d at 355). Sarah’s claims have a fundamental flaw: Roy

and Norma were no longer a “family” at the time the levy was issued or at

the time of the execution sale—they were divorced. (1 Supp. CR at 378–82).

The constitutional homestead protection is given to either a “family”

or a “single adult person.” TEX. CONST. art. XVI, § 50; TEX. PROP. CODE §

41.002(a). This Court has held that it is impossible for a homestead to be

both a “family” homestead and a “single adult person” homestead. Salomon

11
v. Lesay, 369 S.W.3d 540, 555–56 (Tex. App.—Houston [1st Dist.] 2012, no

pet.) (“[I]f Malena has a homestead interest in the property, as the jury

found, then that property must be a family homestead, because as a

married person with a living spouse, she cannot have the only other kind of

homestead, that of a single adult person.”) (citing TEX. CONST. art. XVI, §

50).

In this case, Roy and Norma divorced. As a result of the divorce, they

became co–tenants, each with an undivided one–half interest in the

Property. See Laster v. First Huntsville Props. Co., 826 S.W.2d 125, 131

(Tex. 1991). Again, it is impossible for the same property to be a “family”

homestead and a “single adult person” homestead—it must be one or the

other. Salomon, 369 S.W.3d at 555–56.1 Therefore, Roy’s and Norma’s

respective interest in the Property could only be protected as their separate

“single adult person” homestead because Roy and Norma were no longer a

“family.” TEX. CONST. art. XVI, § 50; TEX. PROP. CODE § 41.002(a). Thus,

Sarah’s repeated claim that the Property was protected from Hankins’

forced sale because it was a family homestead lacks merit. TEX. CONST. art.

XVI, § 50; see Salomon, 369 S.W.3d at 555–56.

1A divorce does not automatically destroy the homestead protection of a property. See,
e.g., Wierzchula v. Wierzchula, 623 S.W.2d 730, 732 (Tex. Civ. App.—Houston [1st
Dist.] 1981, no writ). Thus, it appears that whatever family homestead Roy and Norma
possessed would have converted into separate single adult person homesteads upon
their divorce if not for Norma’s abandonment.
12
 This conclusion also dictates that the Synnott case relied upon by

Sarah was wrongly decided. In Synnott, upon the ex–husband’s

abandonment of his homestead interest and his divorce, the property could

no longer be a “family homestead.” TEX. CONST. art. XVI, § 50; see Salomon,

369 S.W.3d at 555–56. Instead, the property in Synnott was a co–tenancy

upon the parties’ divorce, which converted whatever homestead interest the

parties may have had in the property from a family homestead to a single

adult person homestead. Id. Thus, the Austin Court of Appeals got it wrong

when it held that “the property remained at all relevant times protected by

[ex–wife’s] undivided homestead interest in the property.” Fairfield Fin.

Group, Inc. v. Synnott, 300 S.W.3d 316, 321 (Tex. App.—Austin 2009, no

pet.). The non–abandoning ex–spouse’s homestead rights only protected

her undivided interest in the property; not the entirety of the property.

C. Reply Point No. 3: Hankins’ judgment lien and
execution lien validly attached to Norma’s interest in
the Property after she divorced Roy and abandoned
the Property. Sarah’s claim that Hankins cited no
evidence to demonstrate that Norma abandoned the
Property is flat out wrong.

Sarah claims that Hankins’ judgment and execution liens could not

attach to Norma’s interest in the Property after her divorce from Roy

because the Property was Norma’s homestead. See Resp. Br. at 25, n. 12

(“Hankins could not foreclose on the $50,000 in proceeds from Norma’s

13
sale of her homestead interest to Roy. *** “[B]ecause the Property was

originally her homestead, Norma’s conveyance of the Property to Roy was

free of any alleged lien by Hankins.”). But this alleged homestead

protection can be lost through abandonment. See Florey v. Estate of

McConnell, 212 S.W.3d 439, 443–44 (Tex. App.—Austin 2006, pet. denied).

Thus, if the judgment debtor abandons the homestead property, the

judgment lien will attach to her interest in the property. See Wilcox v.

Marriott, 103 S.W.3d 469, 473 (Tex. App.—San Antonio 2003, pet. denied).

Just because a property was once homestead doesn’t mean that it will

remain homestead ad infinitum.

Here, Norma and Roy were co–tenants following their divorce in

June 1980. See Laster, 826 S.W.2d at 131 (When more than one person

owns an interest in homestead property, there is a co–tenancy.). Under

Texas homestead law, they each could only claim the homestead protection

for their respective interest in the Property as a “single adult person.” TEX.

CONST. art. XVI, § 50; TEX. PROP. CODE § 41.002(a). But Norma lost the

homestead protection for her undivided one–half interest in the Property

when she abandoned the Property during her divorce proceeding. At the

time the divorce was filed, Norma was living in Brownsville and testified

that she had “no intention of moving back” to the Property. (2 Supp. CR at

14
1113–15). Norma thus abandoned any homestead rights she may have had

in the Property, and this abandonment was effective on the date her divorce

was granted.

Sarah disagrees. Resp. Br. at 17–19. Sarah claims that “Hankins cited

no evidence … to demonstrate that Norma abandoned the Property as a

matter of law, or, for that matter, that she acquired another homestead

elsewhere.” Id. at 19. Sarah is wrong. As set forth above, Hankins—as the

non–movant—had no obligation to establish that Norma abandoned the

Property as a matter of law. But more important, Hankins did cite

evidence of Norma’s abandonment—Norma’s deposition testimony.

Hankins Br. at 5–6. Specifically, Hankins quoted Norma’s deposition

testimony in his opening brief, in which she testified that she had “no

intention of moving back” to the Property. Id. at 5 (citing 2 Supp. CR at

1113–15). This is sufficient to establish abandonment, or, at the very least,

raise a genuine issue of material fact on the issue of Norma’s abandonment.

See Taylor v. Mosty Bros. Nursery, Inc., 777 S.W.2d 568, 569 (Tex. App.—

San Antonio 1989, no writ) (To show abandonment of one’s homestead

interest, the party claiming abandonment must show that the homestead

claimant moved with the intention of not returning to the property.).

15
 D. Reply Point No. 4: Sarah’s claim that Roy’s undivided
one–half interest in the Property protected the entire
Property from a forced sale would grant him a greater
right, title, or interest in the Property than what he
actually owned, which is contrary to Texas law.

Sarah also continues to maintain that Roy’s undivided one–half

interest in the Property protected the entire Property from a forced sale.

Resp. Br. at 22. But Sarah ignores Texas law that dictates that a claimant’s

homestead interest can extend only to the interest in the property that he

owns. See Patterson v. First Nat’l Bank of Lake Jackson, 921 S.W.2d 240,

246 (Tex. App.—Houston [14th Dist.] 1996, no writ) (stating that an ex–

wife’s family homestead extends only to her proportional interest in the

residence). Thus, it is well–established that one’s homestead right in

property can never rise any higher than the right, title, or interest the

claimant owns in the property. Sayers v. Pyland, 161 S.W.2d 769, 773 (Tex.

1942). This means Roy’s “single adult person” homestead rights in his

undivided one–half interest of the Property cannot operate to protect the

entire Property from a forced sale when the sale is limited to his ex–wife’s

separate and abandoned undivided one–half interest in the Property.

E. Reply Point No. 5: Sarah’s bold claim the Austin court
of appeals’ decision in Synnott “is the law” is wrong.

Sarah next boldly claims that Synnott “is the law.” Resp. Br. at 26.

Sarah is wrong. The Synnott case was decided by the Austin Court of

16
Appeals—not the Supreme Court of Texas. The Synnott case wasn’t even

appealed to the Supreme Court of Texas. This Court cited Synnott in its

Salomon decision, but that was dicta, as Salomon dealt with a married

couple asserting the constitutional homestead protection, as opposed to a

single adult person such as Roy. Salomon, 369 S.W.3d at 555–56. The

Salomon case did not address the issue presented here: whether an ex–

spouse’s abandonment of her homestead interest can subject her property

to a forced sale.

Sarah also claims that the Fourteenth Court of Appeals recognized

that Synnott “is the law” in its Drake Interiors, LLC v. Thomas opinion.

Resp. Br. at 27. But the Drake Interiors opinion only cited Synnott in

passing and for the general proposition that “[i]f the property is exempt

because it is the debtor's homestead, the lien will attach only when the

property has lost its homestead character.” Drake Interiors, LLC v.

Thomas, 433 S.W.3d 841, 847 (Tex. App.—Houston [14th Dist.] 2014, pet.

denied). This is a far cry from the Fourteenth Court of Appeals following

Synnott and holding that an ex–spouse’s abandonment of her homestead

interest does not subject her property to a forced sale.

Sarah further cites a memorandum opinion issued by the Fourteenth

Court of Appeals as support her bold claim that Synnott “is the law.” Resp.

17
Br. at 27. But this opinion again only cites Synnott in passing and for

general propositions, such as “[p]roperty may lose its homestead character

only by the claimant’s death, abandonment, or alienation,” and “judgment

liens, even if properly abstracted, cannot attach to a homestead while that

property remains a homestead.” See Almanza v. Salas, No. 14–12–01114–

CV, 2014 WL 554807 at * 3–4 (Tex. App.—Houston [14th Dist.] Feb. 11,

2014, no pet.). In any event, Almanza was decided on a critical fact not

present here: the undisputed evidence showed that the ex–wife

relinquished any claim she had to the homestead pursuant to her divorce

decree by immediately conveying the property to her ex–husband. Id. at *5.

Here, the evidence is very much disputed regarding whether Norma

conveyed her interest in the Property to Roy pursuant to their divorce.

F. Reply Point No. 6: Sarah’s claim that a party’s
homestead protection “would be all but ephemeral” if
a creditor could force a partition ignores well–
established Texas law that permits the partition of
homestead property.

Sarah next claims the homestead protection “would be all but

ephemeral” if a creditor, such as Hankins could force a partition of the

Property. This claim can be easily dismissed. Texas courts have long held

that homestead rights attaching to property interests held by a co–tenant

are subordinate to another co–tenant’s right to partition. Grant v. Clouser,

18
287 S.W.3d 914, 920 (Tex. App.—Houston [14th Dist.] 2009, no pet.)

(citing Cleveland v. Milner, 170 S.W.2d 472, 476 (Tex. 1943)). Specifically,

one co–tenant cannot rely upon a homestead right to trump the partition

right of a co–tenant who acquired the interest from a prior co–tenant.

Grant, 287 S.W.3d at 921 (citing Cleveland, 170 S.W.2d at 473). Thus, Roy’s

homestead right in his undivided one–half interest of the Property is

subordinate to Hankins’ right to compel partition. Id.

G. Reply Point No. 7: If the automatic stay created by
Roy’s bankruptcy filing results in the execution sale
being voided, the Court should restore the parties to
the status quo, including reviving Hankins’ liens, if
necessary. Sarah’s arguments in opposition are
unavailing.

If the execution sale is void because of the automatic stay created by

Roy’s bankruptcy filing (which Hankins denies), the sale can be set aside

and the parties should be restored to the status quo, which would include

reviving Hankins’ liens. There is no evidence that Roy’s bankruptcy

discharge invalidated Hankins’ judgment lien or his execution lien on

Norma’s undivided one–half interest in the Property. Nor is there any

evidence that Roy’s bankruptcy discharge invalidated Hankins levy on the

Property. Thus, Hankins asserts that even if the automatic stay applied to

void the execution sale (which Hankins denies), the parties should be

19
returned to the status quo, with Hankins’ liens revived. Sarah disagrees for

four reasons, none of which have any merit.

First, Sarah claims that Hankins ignores the release he signed in

March 1981, with the point being that the release would bar any attempt by

Hankins to restore the status quo. Resp. Br. at 34. Sarah is wrong—Hankins

didn’t ignore the release; he expressly addressed the release in his opening

brief. See Hankins Br. at 36, n. 8. As set forth in Hankins’ opening brief,

Sarah expressly didn’t move for summary judgment on the release. (1 Supp.

CR at 189, n.6). If Sarah wanted to enforce the release she should have

moved for summary judgment on the release. But she did not. So, the

release cannot serve as a ground for affirming the summary judgment.

Ironically, it is Sarah who ignores Hankins’ assertion that the release

may be invalid. Specifically, Hankins asserts that it is undisputed that the

release was executed on March 3, 1981, more than two months before

Roy’s received his discharge from the bankruptcy court. See Hankins Br. at

36, n. 8 (citing 1 Supp. CR at 234–35; 412). There is no evidence in the

record that indicates one way or the other whether the money paid to

Hankins in exchange for the purported release was property of Roy’s

bankruptcy estate. Nor is there any evidence the bankruptcy trustee

approved the settlement. Under Sarah’s logic, the release is void because it

20
violated the automatic bankruptcy stay. So, if the Court were inclined to

void the execution sale and restore the status quo, it should set aside the

release as well, revive Hankins’ liens, and place the parties back at square

one.

Second, Sarah claims it is too late to restore the status quo because

Hankins’ judgment lien only existed for 10 years, his writ of execution

extended the life of the judgment for ten years from the issuance of the writ,

and the deadline for reviving a dormant judgment has expired. Resp. Br. at

34–35. But Sarah ignores the most critical point of Hankins’ argument:

under settled Texas law, an execution lien—created by a valid levy, not an

abstract of judgment2—is effective from the time of the levy and continues

in effect until it is lost or abandoned, or in some way ceases to have vitality

and effect. Texas Employer’s Ins. Ass’n v. Engelke, 790 S.W.2d 93, 95 (Tex.

App.—Houston [1st Dist.] 1990, no writ) (citing Borden v. McRae, 46 Tex.

396, 400 (1877)). Hankins’ execution lien has not been lost or abandoned,

nor has it in any way ceased to have vitality and effect. Instead, the levy and

the resulting execution lien remain in effect. Sarah ignores this argument in

her brief and fails to address this binding authority.

2See Gordon v. West Houston Trees, Ltd., 352 S.W.3d 32, 39 (Tex. App.—Houston [1st
Dist.] 2011, no pet.) (an execution lien is created by a valid levy).
21
 Third, Sarah claims restoring the parties to the status quo is

impossible. Resp. Br. at 35. The basis of Sarah’s claim is that she is a

“stranger” to the transaction, i.e., the litigation and judgment. Id. But again

Sarah ignores a fundamental premise: it is axiomatic that if a judgment lien

properly attaches to real property, a subsequent purchaser, such as Sarah,

purchases the property subject to the lien. See Gordon, 352 S.W.3d at 38.

So, Sarah acquired whatever interest Roy had in the Property, subject to

Hankins’ lien. Encumbrances on real property do not disappear merely

because the obligor conveys the property.

Finally, Sarah claims that Hankins’ request to restore the status quo if

the execution sale were found to be void ignores her claim that Hankins’

judgment lien allegedly cannot be revived because it could never attach to

homestead property. This is merely a rehashing of Sarah’s earlier claims.

Again, Norma’s undivided one–half interest in the Property lost its

homestead protection once Norma divorced Roy and abandoned the

Property. See Wilcox v. Marriott, 103 S.W.3d 469, 473 (Tex. App.—San

Antonio 2003, pet. denied) (if the judgment debtor abandons the

homestead property, the judgment lien attaches to the property.). Hankins’

lien attached to Norma’s interest once she abandoned the Property and

divorced Roy.

22
 H. Reply Point No. 8: Sarah’s claim that Hankins acquired
nothing at the execution sale because Norma allegedly
owned no interest in the Property at the time lacks
merit and would turn well–established Texas law in its
head.

Sarah next claims that her summary judgment should be affirmed

because Norma owned no interest in the Property at the time of the August

6, 1980 levy and September 2, 1980 execution sale. Resp. Br. at 36. Instead,

Sarah claims that Roy owned full equitable and legal title. Sarah is wrong.

As an initial matter, it doesn’t matter what Roy owned on either

August 6, 1980 or September 2, 1980. Even if he owned “full equitable and

legal title,” as Sarah claims, he acquired such title subject to Hankins’ liens

because those liens were first in time. See Gordon, 352 S.W.3d at 38.

Norma could not wipe out Hankins judgment and execution liens by merely

conveying the Property after she had abandoned it as her homestead.

Regardless, Sarah continues to insist that her parents’ divorce decree

and marriage settlement agreement conveyed any interest Norma may have

had in the Property to Roy less than three months before the execution sale.

Resp. Br. at 37. In support of this insistence, Sarah claims Roy had full

equitable title to the Property as a result of the divorce because her parents

intended to effect an immediate transfer of Norma’s interest in the Property

to Roy. Id. Sarah discounts Hankins’ assertion that the Marriage Settlement

23
Agreement indicated a future, or prospective, intent to convey and assign

Norma’s interest in the Property rather than a present intention, as

evidenced by the Agreement’s use of phrases indicating future acts such as

“shall be,” and “agrees to pay.” In support her claim, Sarah urges the Court

to apply general principles of contract interpretation, and then urges the

Court to disregard the cases cited by Hankins that applied general

principles of contract interpretation because those cases didn’t involve a

marriage settlement agreement or a divorce decree. Resp. Br. at 40–42; id.

at 42, n. 42. Sarah’s argument is puzzling: if general contract interpretation

principles apply, then the cases cited by Hankins that applied general

contract interpretation principles to similar language are thus good

authority.

Sarah also incorrectly fixates on the claim that the Marriage

Settlement Agreement was only contingent on court approval to support

her argument the Agreement evidenced a present intent to convey Norma’s

interest in the Property to Roy. Resp. Br. at 41. Sarah’s claim flies in the

face of the evidence in the record. For starters, Roy admitted in his

deposition—after the divorce was finalized—that (1) Norma’s execution of a

deed conveying her interest in the Property to Roy was “in process,” and (2)

Norma probably would not convey her interest to him until she had the

24
$50,000 purchase price “in hand.” (2 Supp. CR at 1185). Roy’s deposition

testimony does not read like a man who believed he had already acquired

“full equitable and legal title” the month before.3 Roy didn’t acquire

Norma’s undivided one–half interest in the Property through the Divorce

Decree and Marriage Settlement Agreement: he acquired whatever interest

Norma may have had through the Special Warranty Deed and Deed of

Trust he and Norma executed in September 1980.

I. Reply Point No. 9: Sarah’s continued insistence that
her parents’ Marriage Settlement Agreement
constituted an executory contract vesting Roy with
equitable title on the day of the divorce is puzzling.

Next, Sarah continues to make the puzzling argument that the

Marriage Settlement Agreement was an executory contract that vested Roy

with equitable title on the date the divorce decree was signed. Resp. Br. at

43–44.

As set forth in Hankins’ opening brief, an executory contract for the

sale of real estate contemplates that the purchaser will complete

performance in the future, that is, finishing making payments before title to

the property passes. See Morton v. Nguyen, 412 S.W.3d 506, 509–10 (Tex.

2013) (emphasis added) (“A contract for deed, unlike a typical secured

3 Norma’s and Roy’s attorney, Matthew Hoffman, wrote Hankins in 1984—four years
after the divorce—and stated that Norma “transferred her undivided fifty percent (50%)
interest in the Homestead Property to Roy Harris by Special Warranty Deed, pursuant
to the above–mentioned June 20, 1980 Divorce Decree.” (1 Supp. CR at 410).
25
transaction involving a deed of trust, is a financing arrangement that allows

the seller to maintain title to the property until the buyer has paid for the

property in full.)”; see also, Smith v. Davis, 462 S.W.3d 604, 609 (Tex.

App.—Tyler 2015, pet. denied) (unlike a traditional mortgage, an executory

contract allows the seller to retain title to the property until the purchaser

had paid for the property in full). Sarah failed to address this argument and

authority in her brief.

Regardless, the Marriage Settlement Agreement in this case is not an

executory contract. Under the Agreement, the transfer of Norma’s title to

Roy was not contingent on Roy paying the entire purchase price. (1 Supp.

CR at 387–88). Instead, Norma and Roy agreed that “title to the house

shall be transferred” to Roy, and more important, they agreed that “[i]n

return for the disposition of this asset to [Roy], [Roy] agrees to pay

[Norma] the sum of … $50,000 *** As evidence of this obligation, [Roy]

agrees to execute to [Norma] a promissory note in the principal sum of

Fifty Thousand Dollars ($50,000) ***.” (Id.; see 2 Supp. CR at 1132) (Roy

gave his deposition a month after the divorce was final and testified that the

deed of Norma’s interest to him was “in the process”). Thus, the Marriage

Settlement Agreement was not an executory contract because Norma and

Roy didn’t contemplate a future transfer of title contingent on the payment

26
of the full purchase price. (Id.). Thus, unlike a typical executory contract,

where title is transferred in the future upon the full payment of the

purchase price, Roy could obtain Norma’s legal title under the Marriage

Settlement Agreement before paying the purchase price. Sarah ignores this

argument in her brief.

Hankins also asserted in his opening brief that Sarah’s claim that the

Divorce Decree and Marriage Settlement Agreement constitute an

executory contract is puzzling in light of the deed of trust executed by Roy.

In an executory contract, a purchaser who goes into possession has

equitable title, with the seller holding legal title. See Johnson v. Wood, 157

S.W.2d 146, 148 (Tex. 1941); see also, Morton, 412 S.W.3d at 509–10.

Conversely, in a deed of trust, the seller, i.e., Norma, retains equitable title,

while the buyer, Roy, acquires legal title. Flag–Redfern Oil Co. v. Humble

Exploration Co., 744 S.W.2d 6, 8 (Tex. 1987). So, Norma didn’t convey

equitable title to Roy, as would be the case with an executory contract, but

instead, she conveyed legal title to Roy, subject, of course, to Hankins’ lien.

Sarah also ignored this argument in her brief.

Finally, Sarah makes one last puzzling and confusing claim as to how

Roy acquired equitable title through the Marriage Settlement Agreement.

Specifically, Sarah claims that the Marriage Settlement Agreement created

27
a vendor’s lien in favor of Norma to secure Roy’s payment for her interest in

the Property. Resp. Br. at 44. As a result of the vendor’s lien, Sarah claims

that Norma “no longer held title to the Property after June 20, 1980.” Id.

This incredible claim begs the question: if Norma didn’t hold title to the

Property after June 20, 1980, what exactly did she convey on September 1,

1980? In other words, how could Norma have conveyed her interest in the

Property to Roy on September 1, 1980 if she hadn’t held title to the

Property since June 20, 1980? Also, if Norma had a vendor’s lien to secure

payment, why did Roy give her a deed of trust in September 1980 to secure

the very same payment that was evidenced by a promissory note, a

promissory note referenced in the Marriage Settlement Agreement? (1

Supp. CR at 146–49) (deed of trust to secure payment of $50,000

promissory note payable to Norma Harris); (Id. at 387–88) (Marriage

Settlement Agreement provides that Roy agreed to execute to Norma a

promissory note in the principal sum of Fifty Thousand Dollars ($50,000)).

Sarah fails to address these discrepancies in her brief.

J. Reply Point No. 10: Sarah’s claim that Hankins was
required to execute on his lien within four years
misconstrues and misrepresents the plain text of
Section 16.035 of the Civil Practice & Remedies Code.

Sarah next claims that Hankins was required to execute on his lien

within four years. Sarah relies on § 16.035 of the Civil Practice & Remedies

28
Code for her claim that “Texas law requires that judgment lien must be

foreclosed on within four years.” Resp. Br. at 40. Sarah is flat out wrong.

Specifically, § 16.035(a) of the Civil Practice & Remedies Code states that

“[a] person must bring suit for the recovery of real property under a real

property lien or the foreclosure of a real property lien not later than four

years after the day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE

§ 16.035(a). Under § 16.035(g), “real property lien” means: (1) “a superior

title retained by a vendor in a deed of conveyance or a purchase money

note”; or (2) “a vendor's lien, a mortgage, a deed of trust, a voluntary

mechanic's lien, or a voluntary materialman's lien on real estate, securing a

note or other written obligation.” Id. at §16.035(g)(1, 2). Neither definition

of “real property lien” applies here. This case involves a judgment lien and

an execution lien. A judgment lien—as Sarah points out in her brief—exists

for ten years, which can be extended. Resp. Br. at 34 (citing TEX. PROP.

CODE § 52.006(a)). Thus, Sarah’s claim that § 16.035 of the Civil Practice &

Remedies Code only gave Hankins four years to execute on his judgment

lien not only misrepresents the plain text of the statute, but it also

contradicts other assertions in her briefing on the very same subject.

Needless to say, the Court can easily reject Sarah’s claim that Hankins

cannot executed on his lien because more than four years have passed.

29
 K. Reply Point No. 11: Sarah’s claim that she wasn’t
required to prove repudiation and ouster of her co–
tenant is incredible. This is the very basis on which
Sarah based on her motion for summary judgment.

Sarah kicks off adverse possession argument with another puzzling

and confusing claim: the Court can “summarily reject” Hankins’ claim that

Sarah was required to establish ouster because he was never a co–tenant;

rather, Sarah and Hankins were “strangers in title.” Resp. Br. at 46. This

claim makes no sense. It makes no sense because Sarah specifically moved

for summary judgment on the basis that if Hankins validly foreclosed on

the Property, i.e., he was a co–tenant, she nevertheless adversely possessed

the Property. (1 Supp. CR at 195, ¶ 44). More specifically, Sarah stated in

her motion for summary judgment that Hankins’ acquisition of the

Property at the execution sale “would have created a cotenancy in the

Property between Mr. Hankins and Roy. Under Texas law, the doctrine of

ouster allows one cotenant to adversely possess property from another

cotenant.” (Id. at 197, ¶ 48). Thus, Sarah and Hankins were not strangers in

title; they were co–tenants, which required Sarah to establish as a matter of

law that she ousted Hankins before she could obtain a summary judgment

on her adverse possession claim.

30
 Sarah continues her puzzling briefing with the claim that because she

and Hankins were strangers in title, all she had to do to establish adverse

possession was show that the possession was “of such character as to

indicate unmistakably an assertion of a claim of exclusive ownership in the

occupant,” which “Hankins does not argue that Sarah failed to establish

…..” Resp. Br. at 46. Hankins doesn’t argue that Sarah failed to establish

her adverse possession claim in this manner because Sarah didn’t raise this

claim in the trial court (1 Supp. CR at 195–99, ¶¶ 44–50). Therefore, this

new claim cannot support the summary judgment on appeal.

L. Reply Point No. 12: Sarah claims she repudiated
Hankins’ title by accepting a deed from Roy that
purported to convey the fee simple estate to her.
Despite Hankins directing her to binding authority
from this Court holding otherwise, Sarah ignores this
adverse authority.

Sarah claims she and her predecessors “clearly and unambiguously

repudiated Hankins’ interest” because Roy allegedly conveyed the entire

Property to Sarah in March 1984. Resp. Br. at 47–48. Thus, Sarah argues

that “[t]he March 1984 conveyance clearly and unequivocally repudiated

Hankins’ purported co–tenancy interest,” relying on cases from the Dallas

and Texarkana courts of appeals. Id. at 48 (citing Thedford v. Union Oil

Co., 3 S.W.3d 609, 614 (Tex. App.—Dallas 1999, pet. denied); Sadler v.

31
Duvall, 815 S.W.2d 285, 289 (Tex. App. Texarkana 1991, writ denied).

Sarah is wrong yet again.

Hankins specifically took this argument head on in his opening brief:

that repudiation cannot be established by Sarah accepting a deed

purporting to convey to her the fee simple interest in the Property. See

Hankins Br. at 54. Specifically, Hankins asserted that this Court recently

rejected this very same claim. Id. (citing Dyer v. Cotton, 333 S.W.3d 703,

711 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (the party claiming

adverse possession, who owned a 1/7 undivided interest in the property,

could not rely on an erroneous deed conveying the entire fee simple estate

to him as evidence of repudiation as to the other co–tenants). Despite

Hankins asserting this argument and directing Sarah to binding authority

from this Court, Sarah ignores it and fails to address this binding authority

that guts her repudiation claim. Without any explanation from Sarah as to

why Dyer is not controlling, the Court should not hesitate to follow its own

precedent and reject Sarah’s claim that “[t]he March 1984 conveyance

clearly and unequivocally repudiated Hankins’ [interest in the Property.]”

32
 M. Reply Point No. 13: Sarah’s claim that she can rely on
her parents’ alleged repudiation of Hankins’ title when
they were not Hankins’ co–tenants lacks merit.

Sarah also disputes that Hankins’ claim that she cannot rely on her

parents’ period of alleged adverse possession to her alleged period of

possession. Specifically, Hankins asserted in his opening brief that for

tacking to be effective, Roy and Norma must have met all the requirements

of adverse possession at the time they allegedly repudiated Hankins’

interest in the Property. BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 69

(Tex. 2011); TEX. CIV. PRAC. & REM. CODE § 16.023. They failed to do so

because they were not co–tenants with Hankins at the time the July 1984

and September 1990 letters were sent. Sarah was Hankins’ co–tenant at the

time these letters were sent, not Roy and Norma. But it is Sarah, as

Hankins’ co–tenant, who must show unmistakable and hostile acts that

would put her co–tenant, Hankins, on notice of her intent to oust him from

the Property. See Marshall, 342 S.W.3d at 70 (citing Todd v. Bruner, 365

S.W.2d 155, 159–60 (Tex. 1963)). This is because “[t]he real property

statutes of limitations as to cotenants are not designed to run in secrecy and

silence.” Todd, 365 S.W.2d at 160. Thus, Sarah cannot rely on her parents

to do her bidding for her. Instead, she was required to repudiate Hankins’

interest through unmistakable and hostile acts that would have put

33
Hankins on notice. She cannot anonymously repudiate her co–tenant’s

interest under Texas law. See Todd, 365 S.W.2d at 160.

N. Reply Point No. 14: Sarah wants to eat her cake and
have it too. On one hand, Sarah claims she is a
stranger to this dispute. On the other hand, Sarah
claims that the dispute was between Hankins and the
Harris family, including her. Sarah cannot have it both
ways.

It is interesting to note that after repeatedly claiming throughout her

brief that she was a stranger to underlying events giving rise to this lawsuit,

Sarah now claims the dispute at issue was between Hankins and the Harris

family, including her. (Compare Resp. Br. at 48 (“The dispute was between

Hankins and the Harris family.”) with Resp. Br. at 35 (“[Sarah] is a

stranger to the Hankins litigation and the Judgment.”); id. at 36 (“Sarah is

a stranger to the Hankins litigation, Judgment, and the attempted

foreclosure.”); id. at 39 (“Sarah had nothing to do with the underlying

claims that led to the judgment, nor with the conveyances themselves.”); id.

at 1–2 (“Hankins has simply continued his campaign of harassment … long

after Sarah’s parents have passed away, even though Sarah had nothing to

do with his original lawsuit.”). Sarah should not be allowed to pick and

choose when she wants to cast herself as a stranger to this dispute and

when she wants a leading role depending on how convenient it is for her

argument.

34
 Regardless, Sarah’s new claim that she has been in the middle of the

adverse possession dispute with Hankins before 2005 belies the record.

As set forth in Hankins’ opening brief, Sarah was not mentioned or

copied on Hoffman’s July 1984 letter; Hoffman copied Roy and Norma. (1

Supp. CR at 414). Hoffman did not state that he represented Sarah;

Hoffman referred to Roy as “our client. (Id. at 407). There is no evidence

that Hoffman ever represented Sarah. (See id. at 405–06 at ¶ 3) (Hoffman

stated in his affidavit that he represented Roy with regard to the Property).

The July 1984 letter does not establish as a matter of law that Sarah

repudiated Hankins’ interest or that Hoffman did so on Sarah’s behalf.

Likewise, Hoffman’s September 1990 letter fails to establish as a

matter of law that Sarah repudiated Hankins’ interest or that Hoffman did

so on Sarah’s behalf. Again, Sarah is not mentioned or copied on the

September 1990 letter. (1 Supp. CR at 416–18). Rather, Hoffman refers to

Norma as “our client.” (Id. at 416). There is no evidence that Sarah was

directly involved in any way with her parents’ disputes with Hankins in

1984 and 1990. The earliest Sarah could have been directly involved would

have been 2005. (1 Supp. CR at 439; 441–72) (Sarah’s attorney resent

Hoffman’s documents to Hankins’ attorney). Thus, there is no evidence that

Sarah repudiated Hankins’ interest in the Property before 2005.

35
 O. Reply Point N0. 15: Despite Sarah’s claim to the
contrary, Sarah must establish title from the sovereign
to prevail on her three–year adverse possession claim.

Sarah next claims that she established the three year limitations

period for an adverse possession claim as a matter of law. Specifically, she

claims that she was not required to prove title from the sovereignty. Resp.

Br. at 50. Sarah is wrong yet again. To prove adverse possession under the

three year limitations period, Sarah must show adverse possession under

“title or color of title.” TEX. CIV. PRAC. & REM. CODE § 16.024. So, the party

seeking to establish adverse possession must show title or color of title

evidenced by a chain of transfers from the sovereign to the person in

possession. See Humphrey v. C.G. Jung Educ. Ctr. of Houston, 624 F.2d

637, 641 (5th Cir. 1980). Title is defined as “a regular chain of transfers of

real property from or under the sovereignty of the soil.” Tex. Civ. Prac. &

Rem. Code § 16.021(4). “Color of title” differs only to the extent that one or

more of the transfers may be irregular. Humphrey, 624 F.2d at 641. The

phrase “color of title” does not “dispense with the fundamental, basic

requirement of a ‘transfer’ which actually passes the interest conferred by

the original grant or patent.” Id. (citing West, The Texas Three Year Statute

of Limitation, 19 TEXAS L. REV. 375, 394 (1941)). Therefore, Sarah was

required to prove title from the sovereign in order to establish adverse

36
possession under the three year limitations period. Sarah failed to do so.

Thus, that portion of the summary judgment must be reversed.

P. Reply Point No. 16: Sarah’s claim that there is
“voluminous evidence” to support her adverse
possession claim misses the mark. The evidence cited
by Sarah to support her claim for adverse possession is
nothing more than actions taken by the Harris family
that is consistent with a co–tenancy.

Sarah next claims there is voluminous evidence in the record to

support her claim for adverse possession. Sarah is wrong yet again. The

“voluminous” evidence Sarah cites are activities that are consistent with a

co–tenancy. Resp. Br. at 51–53. These activities include living on the

Property, receiving mail at the Property, making improvements to the

Property, listing the Property as a home address with the Texas Department

of Public Safety, paying property taxes, maintaining insurance, receiving

utility bills, and maintaining the Property by having lawn maintenance

performed. Id. These activities are insufficient to establish adverse

possession against a co–tenant as a matter of law.

Also, as set forth in Hankins’ opening brief, the maintaining of

utilities, keeping the property insured, paying taxes, making improvements

on the property, and performing general maintenance is, without more,

insufficient to establish an adverse possession claim against a co–tenant as

a matter of law. See Todd, 365 S.W.2d at 160. The Harris family’s alleged

37
usage of the Property is nothing more than undertaking and performing

tasks consistent with a co–tenancy, which is insufficient to establish

adverse possession as a matter of law. Id.

Regardless, Sarah claims she established her adverse possession

claims as a matter of law through her family’s use of the Property because

the cases cited in Hankins’ opening brief allegedly had “far more limited”

evidence than what she presented. But if the question is a matter of degree,

then a summary judgment is improper. Specifically, whether the Harris

family “did enough” to adversely possess Hankins’ interest in the Property

by maintaining the Property, living there, paying taxes, and cutting the

grass is a fact question for a jury and not an issue that can be resolved by

summary judgment.

Finally, Sarah’s claims about the number of pages of alleged summary

judgment evidence she submitted to the trial court (including a fair amount

duplicate information) invokes images of the cagey trial lawyer arguing that

his client should win merely because he brought more witnesses and

admitted more exhibits. Such a claim doesn’t work for jury trials—juries are

instructed otherwise. See TEX. PATTERN JURY CHARGES–NEGLIGENCE at

§1.3(6) (2012) (jury is instructed that preponderance of the evidence “is not

measured by the number of witnesses or by the number of documents

38
admitted in evidence.”). If such a claim is insufficient for trial, it is certainly

insufficient for summary judgment as a matter of law.

Conclusion and Prayer

The trial court erred in granting Sarah’s motions for summary

judgment. At a minimum, Hankins’ judgment and execution liens are still

effective and thus, he has an interest in the Property. And even if the Court

were inclined to affirm the voiding of the execution sale, equity warrants

reviving Hankins’ judgment and his liens. Hankins therefore requests that

the Court reverse the trial court’s grant of summary judgments in favor of

Sarah Harris, reverse the final judgment, and remand this matter back to

the trial court.

Respectfully submitted,

LEYH, PAYNE & MALLIA, PLLC

By: /s/ Sean M. Reagan
Sean Michael Reagan
sreagan@lpmfirm.com
Texas Bar No. 24046689
9545 Katy Freeway, Suite 200
Houston, Texas 77024
Telephone: 713-785-0881
Facsimile: 713-784-0884

ATTORNEY FOR APPELLANT

39
 Certificate of Service

I certify that a true and correct copy of this document has been served
to all interested parties of record on December 7, 2015, as follows:

William Feldman Via Email
Michael J. Mazzone Via Email
Michael T. Powell Via Email
Robert Carlton Via Email
Haynes & Boone, LLP
1221 McKinney Street, Suite 2100
Houston, Texas 77010-2007

Brian B. Kilpatrick Via Email
H. Fred Cook Via Email
Wilson, Cribbs & Goren, P.C.
2500 Fannin Street
Houston, Texas 77002

Jarrett L. Ellzey Via Email
W. Craft Hughes Via Email
Hughes Ellzey, L.L.P.
2700 Post Oak Blvd., Suite 1120
Galleria Tower I
Houston, Texas 77056

Hartley Hampton Via Email
Hampton & King
3 Riverway, Suite 910
Houston, Texas 77056

Kenneth T. Fibich Via Email
Texas Bar No. 06952600
1150 Bissonnet
Houston, Texas 77005

/s/ Sean M. Reagan
Sean M. Reagan

40
 Certificate of Compliance

Under Rule 9.4 of the TEXAS RULES OF APPELLATE PROCEDURE, I certify
that the foregoing document is a computer-generated document containing
7,490 words. The undersigned relied upon the word count feature on his
word processor in determining the word count.

/s/ Sean M. Reagan
Sean M. Reagan

41