ACCEPTED
03-15-00463-CV
7691105
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/4/2015 11:16:14 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00463-CV
IN THE COURT OF APPEALS FOR THE FILED IN
3rd COURT OF APPEALS
THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS
AT AUSTIN 11/4/2015 11:16:14 PM
JEFFREY D. KYLE
Clerk
___________________________________________________________________
PENSIVE PROPERTIES, LP,
Appellant
vs.
TERRY BARNHART AND ALL OCCUPANTS
Appellees
___________________________________________________________________
BRIEF OF APPELLEES, TERRY BARNHART AND ALL OCCUPANTS
___________________________________________________________________
Respectfully Submitted,
Michael M. Probus, Jr.
PROBUS LAW FIRM, PLLC
State Bar No. 16341500
1701 Directors Blvd., Suite 290
Austin, Texas 78744
(512) 480-9504 (Telephone)
(512) 320-0100 (Fax)
mike@probuslawfirm.com
ATTORNEY FOR APPELLEES
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS Page
TABLE OF CONTENTS.......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE..................................................................................1
STATEMENT REGARDING ORAL ARGUMENT................................................2
STATEMENT OF FACTS ........................................................................................2
SUMMARY OF THE ARGUMENT.........................................................................3
ARGUMENT .............................................................................................................3
A. Barnhart’s tenancy for a term equal to the remainder of
his life as long as he performs maintenance is an
enforceable determinable life tenancy, not a tenancy
terminable at the will of the Landlord. ..................................................3
B. Pensive Properties failed to preserve any claim that
Barnhart’s life tenancy violates the statute of frauds.............................8
PRAYER ....................................................................................................................9
CERTIFICATE OF COMPLIANCE .......................................................................10
CERTIFICATE OF SERVICE ................................................................................10
ii
INDEX OF AUTHORITIES
Page
Cases
Betts v. Betts, 220 S.W. 575 (Tex. Civ. App.—Texarkana 1920, no writ) ..............4
Garner v. Gerrish, 63 N.Y.2d 575, 473 N.E.2d 223 (N.Y. 1984) .......................6, 7
Haley v. GPM Gas Corp., 80 S.W.3d 114
(Tex. App.--Amarillo 2002, no pet.)..........................................................5, 6
Holcomb v. Lorino, 124 Tex. 446, 79 S.W.2d 307 (Tex. 1935) ..............................5
McLoud v. Knapp, 507 S.W.2d 644 (Tex. Civ. App.—Dallas 1974, no writ).........4
Nitschke v. Doggett, 489 S.W.2d 335 (Tex. Civ. App.—Austin 1972),
vacated by 498 S.W.2d 335 (Tex. 1973)) ..................................................5, 6
Rymes v. Caribean Cowboys, LLC, 2013 Tex. App. LEXIS 7690
(Tex. App.—San Antonio 2013, pet denied) .................................................4
Texan Pearl, LLC v. Koegel, 2015 Tex. App. LEXIS 10510
(Tex. App.—Austin 2015, no pet.). ...........................................................5, 8
Rules
Tex. R. App. P. 33.1...................................................................................................8
Tex. R. App. P. 9......................................................................................................10
Other Authorities
1 American Law of Real Property [Casner ed., 1952], §3.30 ....................................7
Restatement of the Law of Property (1936) ...............................................................6
Restatement of the Law, Property, 2d, §1.6 ...........................................................6, 7
iii
1 Tiffany, Real Property [3d ed], §159 ......................................................................7
Schoshinski, American Law of Landlord and Tenant, §2:7.......................................7
iv
NO. 03-15-00463-CV
IN THE COURT OF APPEALS FOR THE
THIRD JUDICIAL DISTRICT OF TEXAS
AT AUSTIN
___________________________________________________________________
PENSIVE PROPERTIES, LP,
Appellant
vs.
TERRY BARNHART AND ALL OCCUPANTS
Appellees
___________________________________________________________________
BRIEF OF APPELLEES, TERRY BARNHART AND ALL OCCUPANTS
___________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellees, Terry Barnhart and all Occupants (Barnhart), accept
Appellant’s Statement of the Case with the exception of Appellant’s reference to the
owner that granted the life tenancy subject to this appeal as being “now deceased” and
the reference to the “current owner” as the “wife of the deceased.” The owner that
granted the life tenancy subject to this appeal, and the current owner, is Appellant,
Pensive Properties, LP, a business entity whose existence has not been terminated or
1
suspended at any time material to this appeal. (Reporter’s Record, Volume 2,
hereinafter, “R.R., Vol. 2” p. 8, line 14 – p. 9, line 19; R.R., Vol. 3, Ex. 1.)
STATEMENT REGARDING ORAL ARGUMENT
Barnhart believe that oral argument would assist the Court in applying the
important legal issues in this appeal relating to the enforceability and interpretation of
the terms of a tenancy for life.
STATEMENT OF FACTS
Barnhart accepts Appellant’s Statement of Facts with the following
exceptions:
Melinda Kaiser, the widow of Jeff Blake, is not the current owner of the
property subject to this appeal. (Brief of Appellant, p. 8.) The owner that granted the
life tenancy subject to this appeal, and the current owner, is Appellant, Pensive
Properties, LP, a business entity whose existence has not been terminated or suspended
at any time material to this appeal. (Reporter’s Record, Volume 2, hereinafter, “R.R.,
Vol. 2” p. 8, line 14 – p. 9, line 19; R.R., Vol. 3, Ex. 1.)
The testimony is conflicting whether “Melinda Kaiser discussed with
Terry Barnhart the problems with his work….” (Brief of Appellant, p. 9.) Barnhart
testified that Ms. Blake did not talk to him before replacing him and did not tell him he
was not keeping up with what he was supposed to do. (R.R., Vol. 2, p. 34, lines 14 –
2
19.)
The testimony is conflicting whether “Melinda Kaiser … had to hire a
lawn service to keep up the lawn.” (Brief of Appellant, p. 9.) Barnhart testified that he
always agreed to continue to perform the yard maintenance as he promised. (R.R., Vol.
2, p. 29, lines 13 – 15.)
SUMMARY OF THE ARGUMENT
The trial court’s judgment should be affirmed because Barnhart
demonstrated that he had legal possession of the premises subject to an enforceable
tenancy for life, which had not expired. Previous legal authorities interpreting a life
tenancy as terminable at the will of the lessor have been rejected.
Pensive Properties waived any claim that Barnhart’s life tenancy violated
that status of frauds by failing to object to the relevant testimony in the trial court
below.
ARGUMENT
A. Barnhart’s tenancy for a term equal to the remainder of his life as
long as he performs maintenance is an enforceable determinable life
tenancy, not a tenancy terminable at the will of the Landlord.
Appellant, Pensive Properties, LP (Pensive Properties), acknowledges in
its Brief, as it must in light of the state of the record on appeal, that it may be assumed
that Barnhart “established he was granted a tenancy for the remainder of his life, or so
3
long as he continued to perform yard maintenance…” (Brief of Appellant, p. 10.) The
evidence at trial conclusively revealed that Barnhart remains very much alive, and
Barnhart testified, in a manner suitable for belief by the trial court, that he “always
agree[d] to continue to perform the yard maintenance service as [he] promised.” (R.R.,
Vol. 2, p. 29, lines 13 – 15.)
Texas Courts have repeatedly held that life tenancies, granted by oral
agreements such as the one subject to the present appeal, are legally enforceable
despite the statute of frauds that would ordinarily require a lease for a term longer than
one year to be in writing. See Rymes v. Caribbean Cowboys, LLC, 2013 Tex. App.
LEXIS 790 (Tex. App.—San Antonio 2013, pet. denied)(citing McLoud v. Knapp, 507
S.W.2d 644 (Tex. Civ. App.—Dallas 1974, no writ) and Betts v. Betts, 220 S.W. 575
(Tex. Civ. App.—Texarkana 1920, no writ)). As recently as October 14, 2015, this
Court approved the conclusion of Rymes that “real estate leases with terms for [the]
“life of tenants” [are] not subject to [the] statute of frauds.” Texan Pearl, LLC v.
Koegel, 2015 Tex. App. LEXIS 10510 (Tex. App.—Austin 2015, no pet.).
In the present appeal, Pensive Properties contends that even though a
tenant such a Barnhart may have been granted a life tenancy, such an agreement is not
really interpreted literally, for the life of the tenant, but only amounts to a tenancy
terminable at the will of the landlord and subject to a mere thirty-day notice of
4
termination. (Brief of Appellant, pp. 10-11.) In order to reach its desired conclusion,
Pensive Properties must rely on an eighty year old case from the Texas Supreme Court,
which itself does not address a case involving a life tenancy, Holcomb v. Lorino, 124
Tex. 446, 79 S.W.2d 307 (Tex. 1935), a forty-three year old case from this Court that
was vacated by the Texas Supreme Court, Nitschke v. Doggett, 489 S.W.2d 335 (Tex.
Civ. App.—Austin 1972), vacated by 498 S.W.2d 335 (Tex. 1973), and other
authorities that rely on principles that have been criticized by leading authorities.
In the Holcomb case, the Texas Supreme Court addressed a lease from the
City of Houston to a tenant “for so long as [the tenant] paid rent thereon and complied
with the rules and regulations promulgated by the City of Houston….” Holcomb, 79
S.W.2d at 308. At the time of the execution of the lease in Holcomb, the City of
Houston had an ordinance that provided the Mayor and/or the City Council the right
“at their or either of their pleasure” to cancel leases of tenants in the tenant’s market.
Holcomb, 79 S.W.2d at 308. The Texas Supreme Court held that the duration of the
lease in Holcomb was uncertain, resulting in a mere tenancy at will. Holcomb, 79
S.W.2d at 310. Each of the cases relied upon by Pensive Properties traces its Texas
legal foundation to the Holcomb case, and the Amarillo Court of Appeals examined
Holcomb in considerable detail in 2002 to conclude that the Holcomb opinion was
limited to the facts of the particular case before it. Haley v. GPM Gas Corp., 80
5
S.W.3d 114 (Tex. App.--Amarillo 2002, no pet.).
This Court, in the Nitschke case (later vacated on appeal), reluctantly
relied upon the Holcomb case, the Restatement of the Law of Property (1936), and the
Fifteenth Century holding of Sir Edward Coke to conclude that a lease term measured
by the life of the tenant is terminable at the will of the landlord. Nitschke, 489 S.W.2d
at 337. This Court in Nitschke noted its agreement with Justice Holmes that “It is
revolting to have no better reason for a rule of law than that it was laid down in the
time of Henry IV.” Nitschke, 489 S.W.2d at 337.
Since this Court decided Nitschke, the Restatement of the Law of Property
has been revised, Holcomb has been limited to its facts, and an influential jurisdiction,
the New York Court of Appeals, has flatly rejected the entire line of ancient English
common law that interprets life tenancies as terminable at the will of the landlord. See
Haley v. GPM Gas Corp., 80 S.W.3d 114 (Tex. App.--Amarillo 2002, no pet.);
Restatement of the Law, Property 2d, §1.6, Comment g, Illustration 6; Garner v.
Gerrish, 63 N.Y.2d 575, 473 N.E.2d 223 (N.Y. 1984).
In Garner, the New York Court of Appeals (the highest court in the State
of New York) considered the proper interpretation of a tenancy for the life of a tenant.
The New York Court of Appeals began its evaluation of such a lease with Lord Coke’s
ancient holding that such a lease would be terminable at the will of the lessor, but the
6
Court noted that this view was not universally accepted and “has been widely
criticized, particularly in this century, as an antiquated notion which violates the terms
of the agreement and frustrates the intent of the parties.” Garner, 473 N.E.2d at 224
(citing 1 Tiffany, Real Property [3d ed], §159; 1 American Law of Real Property
[Casner ed., 1952], §3.30; Schoshinski, American Law of Landlord and Tenant, §2:7;
and Restatement, Property 2d, Landlord and Tenant, §1.6.) The Garner Court
concluded that a lease for the life of the tenant is not perpetual or indefinite. Garner,
473 N.E.2d at 225.
Similarly, The current edition of the Restatement of Property, Landlord
and Tenant, §1.6, Comment g, Illustration 6, states, “L leases a farm to T ‘for as long
as T desires to stay on the land.’ The lease creates a determinable life estate in T,
terminable at T’s will or on his death.”
Pensive Properties’ interpretation of a life tenancy would clearly frustrate
the intention of the parties to the agreement. Instead of the tenant having the
confidence of a tenancy for the tenant’s life, under Pensive Properties’ interpretation,
the tenant could never have a greater expectation than a tenancy at the will of the
landlord, terminable upon thirty days’ notice. The evidence in the present case
demonstrates that the intent of the parties to the present lease was that Barnhart would
have a tenancy for his life so long as he agreed to provide yard maintenance, which he
7
always agreed to provide. Accordingly, Pensive Properties was not free to terminate
the life tenancy of Barnhart in the present case upon a mere thirty days’ notice.
B. Pensive Properties failed to preserve any claim that Barnhart’s life
tenancy violates the statute of frauds.
In order to preserve any claim that Barnhart’s life tenancy was barred by
the statute of frauds, Pensive Properties was required to raise that objection with the
trial court. Texan Pearl, LLC, 2015 Tex. App. LEXIS at *5; Tex. R. App. P. 33.1.
Pensive Properties asserted no objection to any of the testimony by which Barnhart
described his tenancy as one for life; accordingly, this ground for relief on appeal is
waived. Even if not waived, a lease for the life of a tenant is not subject to the statue
of frauds. Texan Pearl, LLC, 2015 Tex. App. LEXIS at *8.
8
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellees, Terry Barnhart
and all Occupants, pray that the trial court’s judgment be affirmed, that Appellees
recover their costs on appeal, and for such other relief to which they may show
themselves entitled.
Respectfully submitted,
PROBUS LAW FIRM, PLLC
1701 Directors Blvd., Suite 290
Austin, Texas 78744
(512) 480-9504 (Telephone)
(512) 320-0100 (Facsimile)
By:__/s/ Michael M. Probus, Jr. _______
MICHAEL M. PROBUS, JR.
State Bar No. 16341500
mike@probuslawfirm.com
ATTORNEY FOR APPELLEES,
TERRY BARNHART AND ALL
OCCUPANTS
9
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 2,320 words.
By:__/s/ Michael M. Probus, Jr. _______
MICHAEL M. PROBUS, JR.
State Bar No. 16341500
mike@probuslawfirm.com
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was served upon Mr. John M. Daves, John Daves & Associates, PLLC,
3624 North Hills Drive, Suite B-100, Austin, Texas 78731, attorney of record for
Appellants, electronically through the electronic filing manager, in compliance with
Tex. R. App. P. 9.5, on this 4th day of November, 2015.
By:__/s/ Michael M. Probus, Jr. _______
MICHAEL M. PROBUS, JR.
10