John W. Hankins v. Sarah T. Harris

ACCEPTED

01-15-00396-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

10/8/2015 7:07:05 AM

CHRISTOPHER PRINE

CLERK

CASE NO. 01-15-00396-CV

FILED IN

1st COURT OF APPEALS

HOUSTON, TEXAS

IN THE FIRST COURT OF APPEALS

10/8/2015 7:07:05 AM

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 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

Identify of Parties and Counsel

Appellant Counsel

John W. Hankins LEYH, PAYNE & MALLIA, PLLC

Sean M. Reagan

sreagan@lpmfirm.com

Texas Bar No. 24046689

9545 Katy Freeway, Suite 200

Houston, Texas 77024

(713) 785–0881

(713) 784–0338 (Fax)

Lead appellate counsel

HUGHES ELLZEY, LLP

Jarrett L. Ellzey

jarrett@hughesellzey.com

Texas Bar No. 24040864

W. Craft Hughes

craft@hughesellzey.com

Texas Bar No. 24046123

Galleria Tower I

2700 Post Oak Blvd., Suite 1120

Houston, Texas 77056

(713) 554–2377

(888) 995–3335 (Fax)

Trial and appellate counsel

ii

WILSON, CRIBBS & GOREN, P.C.

Brian B. Kilpatrick

Texas Bar No. 24074533

bkilpatrick@wcglaw.net

H. Fred Cook

Texas Bar No. 02742500

hfcook@wcglaw.net

2500 Fannin Street

Houston, Texas 77002

(713) 222–9000

(713) 229–8824 (Fax)

Trial and appellate counsel

FIBICH, LEEBRON, COPELAND,

BRIGGS & JOSEPHSON

Kenneth T. Fibich

Texas Bar No. 06952600

tfibich@fibichlaw.com

1150 Bissonnet

Houston, Texas 77005

(713) 751–0025

(713) 751-0030 (Fax)

Trial counsel

iii

Appellee Counsel

Sarah T. Harris HAYNES AND BOONE, LLP

Texas Bar No. 09092750 William A. Feldman

United States Patent Texas Bar No. 24081715

and Trademark Office Michael J. Mazzone

Texas Bar No.13313000

Michael T. Powell

Texas Bar No. 16204300

Robert A. Carlton

Texas Bar No.24078313

1221 McKinney Street, Suite 2100

Houston, Texas 77010

(713) 547–2115

(713) 547–2600

Trial and appellate counsel

HAMPTON & KING

Hartley Hampton

Texas Bar No. 08874400

3 Riverway, Suite 910

Houston, Texas 77056

(713) 574–8660

(713) 650–6458 (Fax)

Trial counsel

Other Interested Parties

Roy Harris, M.D. (Deceased) Appellee’s father and prior owner of

the property in dispute

Norma Harris a/k/a Norma Appellee’s mother, judgment debtor,

Fallis, M.D. (Deceased) and prior owner of the property in

dispute

iv

Matthew Hoffman Former counsel for Roy and Norma

Texas Bar No. 09779500 Harris and a fact witness (formerly

2777 Allen Parkway, Suite 1000 with the firm of Hirsch Westheimer)

Houston, Texas 77019

HIRSCH WESTHEIMER, P.C. Former counsel for Roy and Norma

700 Louisiana, Suite 2550 Harris

Houston, Texas 77002

AKIN GUMP STRAUSS HAUER Prior counsel for appellee and a fact

& FELD, LLP witness

Thomas McCaffrey

Texas Bar No. 13336775

1111 Louisiana, 44th Floor

Houston, Texas 77002

DUKE & CONNER, P.C. Prior counsel for appellant

Charles L. Duke (formerly with the firm of Duke &

Texas Bar No. 06184900 Conner)

9225 Katy Freeway, Suite 200

Houston, Texas 77024

(713) 975–6699

Robert J. Conner Prior counsel for appellant

No contact information (formerly with the firm of Duke &

is available Conner)

LAW OFFICE OF JEREL J. HILL Prior counsel for appellant

Jerel Hill

Texas Bar No. 09638750

1420–B Stonehollow Drive

Kingwood, Texas 77339

v

MICHAEL P. FLEMING Prior counsel for appellant

& ASSOCIATES, P.C.

Jack R. Morman

Texas Bar No. 24039073

440 Louisiana, Suite 1920

Houston, Texas 77002

(713) 221–6800

Thomas Hayes Prior counsel for appellant

No contact information

is available

STARK & FRAM, P.C. Prior counsel for Roy and Norma

1853 Lexington Harris

Houston, Texas 77098

Barbara DeGeorgio

Texas Bar No. 05719400

3355 W. Alabama St., Suite 950

Houston, Texas 77098

KRONZER, ABRAHAM & WATKINS, Counsel for appellant in original

NICHOLS, BALLARD & FRIEND lawsuit

800 Commerce Street

Houston, Texas 77002

Robert E. Ballard

Texas Bar No. 0165100

5773 Woodway Dr.

Houston, Texas 77057

(713) 781–8400

NATHAN, NATHAN & NEWMAN Counsel for Norma Harris in

Lawrence T. Newman original lawsuit

No contact information

is available

vi

Table of Contents

Identify of Parties and Counsel ..................................................................... ii

Table of Contents ........................................................................................ vii

Appendix ..................................................................................................... xii

Index of Authorities ................................................................................... xiv

Statement of the Case .................................................................................. xx

Issues Presented ......................................................................................... xxi

Issue Presented Number One:

The trial court erred in granting Sarah’s motion for

summary judgment and declaring that John

Hankins owns no interest in the Property.

Issue Presented Number Two:

The trial court erred in granting Sarah’s motion for

summary judgment and declaring that Sarah owns

the entire fee simple interest in the Property.

Issue Presented Number Three:

The trial court erred in granting Sarah’s motion for

summary judgment and finding that she adversely

possessed Hankins’ interest in the Property.

Issue Presented Number Four:

The trial court erred in granting Sarah’s motion for

summary judgment on Hankins’ counterclaims for

conversion, partition, and trespass to try title.

vii

Issue Presented Number Five:

If the underlying execution sale is void, which

Hankins disputes, the trial court erred by declining

to put the parties back to the status quo.

Statement Regarding Oral Argument........................................................ xxii

Introduction ...................................................................................................1

Statement of Facts ......................................................................................... 2

A. The Property .............................................................................. 2

B. Hankins sues Norma for slander and obtains a

judgment against her in 1978. .................................................... 3

C. Norma moves out of the Property with the intention of

not returning, and Roy files for divorce...................................... 4

D. After Norma abandons her undivided one–half interest

in the Property, Hankins obtains a writ of execution,

which eventually leads to Norma’s interest in the

Property being levied. ................................................................. 6

E. Norma and Roy devise a scheme to put Norma’s

undivided one–half interest out of the reach of her

judgment creditor, Hankins. ...................................................... 7

F. Throughout the years, the parties exchange multiple

letters and engage in discussions regarding the

Property and Hankins’ desire to liquidate the same. ................. 9

G. Harris files this lawsuit to declare Hankins’ undivided

one–half interest in the Property void.......................................12

H. Sarah moves for summary judgment on her affirmative

claims and Hankins’ counterclaims...........................................12

viii

Summary of the Argument ...........................................................................14

Argument & Authorities ...............................................................................16

A. This Court reviews the grant of a summary judgment

de novo. .....................................................................................16

B. Sarah failed to establish as a matter of law that

Hankins owns no interest in the Property. At a

minimum, Hankins’ judgment and execution liens

attached to the Property and are still valid. ............................... 17

1. Even if the Divorce Decree and Marriage

Settlement Agreement constitute a valid

conveyance (they do not), any interest Roy

acquired during the divorce proceeding was

subject to Hankins’ judgment lien. ................................. 18

2. The Divorce Decree and Marriage Settlement

Agreement didn’t convey Norma’s interest in the

Property to Roy because the parties indicated a

future or prospective intent to convey, rather

than a present intent, which was confirmed by

their later actions. ...............................................................

3. Sarah’s claim that the Marriage Settlement

Agreement is an executory contract that vested

Roy with equitable title on the date the Divorce

Decree is flat wrong. ........................................................ 24

C. Sarah failed to establish as a matter of law that the

automatic bankruptcy stay applied to the execution

sale. Even if it did, Court should return the parties to

the status quo. .......................................................................... 26

1. Even if Norma conveyed her interest in the

Property to Roy, that conveyance was void and

thus, not part of the bankruptcy estate. .......................... 27

ix

2. Norma’s interest didn’t pass to Roy, and thus, her

interest in the Property was not a part of his

bankruptcy estate or subject to the automatic

stay. ................................................................................. 29

3. Even if Norma’s interest in the Property were

subject to the automatic stay, the Court should

restore the parties to the status quo, revive

Hankins’ judgment, and revive his judgment and

execution liens................................................................. 33

D. Sarah failed to establish as a matter of law that

Hankins executed on homestead property. Rather, the

evidence shows that Hankins executed on Norma’s

undivided, one–half interest in the Property, which she

had abandoned. ........................................................................ 36

1. Limits on homestead protections do exist: The

homestead protection doesn’t protect property

interests that are not the debtor’s actual

homestead. ...................................................................... 36

2. Norma possessed a vested homestead interest in

the Property that was separate and independent

from Roy’s interest. But she abandoned that

interest when she moved out of the home with no

intention of returning, with her abandonment

becoming effective on the date of her divorce. ............... 37

3. Roy’s homestead interest in the Property could

not prevent the forced sale of Norma’s interest in

the Property......................................................................41

4. Any claim by Sarah that Roy owned 100% of the

Property on the execution date and thus, this

interest protected the Property from the

execution sale would lack merit. ..................................... 46

x

E. Sarah failed to establish any of adverse possession

claims as a matter of law. ......................................................... 47

1. Overview of adverse possession in Texas. ....................... 47

2. A claimant seeking to adversely possess a co–

tenant’s interest in land has a more onerous

burden—the claimant must also prove clear,

unequivocal, and unmistakable repudiation of

the common title. ............................................................ 49

3. At best, the earliest Sarah could have repudiated

Hankins’ interest in the Property would have

been March 8, 2005. ....................................................... 50

4. Sarah’s alternative bases for establishing

repudiation are also insufficient to establish

repudiation as a matter of law......................................... 52

5. Sarah cannot establish adverse possession under

either the 10–year or 25–year limitation period

because the applicable time periods have not yet

elapsed............................................................................. 54

6. Sarah did not establish her claim for adverse

possession under the 3–year limitation period as

a matter of law. ................................................................ 55

7. Sarah did not establish her claim for adverse

possession under the 5–year and 10–year

limitation periods as a matter of law............................... 56

F. Sarah failed to establish as a matter of law that

Hankins’ counterclaims for conversion, partition, and

trespass to try title are barred as a matter of law. .................... 62

Conclusion and Prayer ................................................................................ 64

Certificate of Service.................................................................................... 65

Certificate of Compliance ............................................................................ 66

xi

Appendix

December 5, 2014 Summary Judgment Order........................................Tab 1

March 26, 2015 Summary Judgment Order .......................................... Tab 2

Final Judgment ...................................................................................... Tab 3

Hankins v. Harris Judgment .................................................................. Tab 4

Harris Divorce Decree ............................................................................ Tab 5

Marriage Settlement Agreement ............................................................ Tab 6

Deed Under Execution ........................................................................... Tab 7

Notice of Constable’s Sale ...................................................................... Tab 8

Temporary Restraining Order ................................................................ Tab 9

Special Warranty Deed ......................................................................... Tab 10

Deed of Trust ......................................................................................... Tab 11

Roy Harris Bankruptcy Schedule ..........................................................Tab 12

Bankruptcy Order Recognizing Automatic Stay....................................Tab 13

Roy Harris Discharge Order ................................................................. Tab 14

Warranty Deed ...................................................................................... Tab 15

Hoffman July 1984 Letter .................................................................... Tab 16

Hoffman September 1990 Letter........................................................... Tab 17

McCaffrey March 2005 Letter .............................................................. Tab 18

Order Overruling Hankins Evidentiary Objections.............................. Tab 19

xii

Texas Business & Commerce Code § 24.02 & § 24.03 (1968) .............. Tab 20

Bankruptcy Code (1978) ........................................................................Tab 21

Article 5449 .......................................................................................... Tab 22

xiii

Index of Authorities

Cases

Allodial Ltd. P’ship v. North Tex. Tollway Auth.,

176 S.W.3d 680 (Tex. App.—Dallas 2005, pet. denied) ..................... 23

Baird v. Trice,

51 Tex. 555 (Tex. 1879)....................................................................... 47

Borden v. McRae,

46 Tex. 396 (Tex. 1877) ...................................................................... 34

Buck v. Palmer,

381 S.W.3d 525 (Tex. 2012) ................................................................16

Bywaters v. Gannon,

686 S.W.2d 593 (Tex. 1985)................................................................61

Chambers County v. TSP Development, Ltd.,

63 S.W.3d 835

(Tex. App.—Houston [14th Dist.] 2001, pet. denied) ........................ 23

City of Dallas v. Etheridge,

253 S.W.2d 640 (Tex. 1952) ................................................................61

Comm. Structures and Interiors, Inc. v. Liberty Educ. Ministries, Inc.,

192 S.W.3d 827 (Tex. App.—Fort Worth 2006, no pet.).................... 23

Dominguez v. Castaneda,

163 S.W.3d 318 (Tex. App.—El Paso 2005, pet. denied).................... 37

Dunn v. Taylor,

102 Tex. 80 (1908) ............................................................................. 58

Dyer v. Cotton,

333 S.W.3d 703

(Tex. App.—Houston [1st Dist.] 2010, no pet.) ................ 48, 50, 54, 60

xiv

Eckert v. Wendel,

40 S.W.2d 796 (Tex. 1931) ........................................................... 28, 29

Elam v. Donald,

58 Tex. 316 (Tex. 1883) ...................................................................... 35

Fairfield Fin. Group, Inc. v. Synnott,

300 S.W.3d 316 (Tex. App.—Austin 2009, no pet.) ..................... 43–46

Flag–Redfern Oil Co. v. Humble Exploration Co.,

744 S.W.2d 6 (Tex. 1987) ................................................................... 26

Florey v. Estate of McConnell,

212 S.W.3d 439 (Tex. App.—Austin 2006, pet. denied) .................... 38

Fort Worth Osteopathic Hosp., Inc. v. Reese,

148 S.W.3d 94 (Tex. 2004) ................................................................. 17

Goodyear Tire & Rubber Co. v. Mayes,

236 S.W.3d 754 (Tex. 2007) ............................................................... 17

Gordon v. West Houston Trees, Ltd.,

352 S.W.3d 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.) .... 18–20

Grayson v. Dunn,

581 S.W.2d 785 (Tex. Civ. App.—Waco 1979, writ ref’d) ................... 57

Heggen v. Pemelton,

836 S.W.2d 145 (Tex. 1992) ................................................................41

House v. Robertson,

36 S.W. 251 (1896) ............................................................................. 35

In Marriage of Merrikh,

No. 14–14–00024–CV,

2015 WL 2438770

(Tex. App.—Houston [14th Dist.] May 19, 2015, pet. filed) ........ 20, 21

In re Berry,

295 B.R. 385 (D. N.M. 2003) ..............................................................31

xv

In re Johnson,

112 B.R. 15 (E.D. Tex. 1990) ............................................................... 40

In re Rogers,

461 U.S. 677 (1983) ...................................................................... 38, 41

In re Summers,

332 F.3d 1240 (9th Cir. 2003) ............................................................31

Ingle v. Lea,

8 S.W. 325 (Tex. 1888) ...................................................................... 46

Johnson v. Wood,

157 S.W.2d 146 (Tex. 1941) ................................................................ 26

Jones v. Ford,

583 S.W.2d 821

(Tex. Civ. App.—El Paso 1979, writ ref’d n.r.e.) .......................... 57, 60

Keda Dev. Corp. v. Stanglin,

721 S.W.2d 897 (Tex. App.—Dallas 1986, no writ) ........................... 34

King Ranch, Inc. v. Chapman,

118 S.W.3d 742 (Tex. 2003) .............................................................. 49

King v. Harter,

8 S.W. 308 (Tex. 1888) ...................................................................... 39

Kirby Lumber Corp. v. Lindsey,

455 S.W.2d 733 (Tex. 1970) ................................................................61

Laster v. First Huntsville Props. Co.,

826 S.W.2d 125 (Tex. 1991)................................................................ 37

McDonald v. Weinacht,

465 S.W.2d 136 (Tex. 1971) .................................................................61

McLaren v. Beard,

811 S.W.2d 564 (Tex. 1991) ................................................................ 50

xvi

Merriman v. XTO Energy, Inc.,

407 S.W.3d 244 (Tex. 2013) ...............................................................16

Moore v. Knight,

94 S.W.2d 1137 (Tex. 1936) ................................................................ 53

Morton v. Nguyen,

412 S.W.3d 506 (Tex. 2013) ............................................................... 25

Natural Gas Pipeline Co. of Am. v. Pool,

124 S.W.3d 188 (Tex. 2003)............................................................... 53

Noell v. Crow–Billingsley Air Park Ltd. P'ship,

233 S.W.3d 408 (Tex. App.–Dallas 2007, pet. denied) ......................21

Norris v. Thomas,

215 S.W.3d 851 (Tex. 2007) ............................................................... 37

Patterson v. First Nat’l Bank of Lake Jackson,

921 S.W.2d 240

(Tex. App.—Houston [14th Dist.] 1996, no writ) ................................41

Pierce v. Washington Mut. Bank,

226 S.W.3d 711 (Tex. App.—Tyler 2007, pet. denied) ................ 39–40

Sayers v. Pyland,

161 S.W.2d 769 (Tex. 1942) .......................................................... 38, 42

Sebesta v. Daniels,

812 S.W.2d 641

(Tex. App.—Houston [14th Dist.] 1991, writ denied) ......................... 49

Session v. Woods,

206 S.W.3d 772 (Tex. App.—Texarkana 2006, pet. denied) .............. 48

Smith v. Davis,

462 S.W.3d 604 (Tex. App.—Tyler 2015, pet. denied)....................... 25

Stephens County Museum, Inc. v. Swenson,

517 S.W.2d 257 (Tex. 1974) .................................................................21

xvii

Taylor v. Mosty Bros. Nursery, Inc.,

777 S.W.2d 568 (Tex. App.—San Antonio 1989, no writ) ............ 39, 40

Texas Employer’s Ins. Ass’n v. Engelke,

790 S.W.2d 93 (Tex. App.—Houston [1st Dist.] 1990, no writ) ......... 34

Texas Sand Co. v. Shield,

381 S.W.2d 48 (Tex. 1964) ........................................................... 28, 29

Tex–Wis Co. v. Johnson,

534 S.W.2d 895 (Tex. 1976) ................................................... 49, 50, 58

Thomas v. Southwestern Settlement & Dev. Co.,

131 S.W.3d 31

(Tex. Civ. App.—Beaumont 1939, writ dism’d, judgment correct) .... 49

Todd v. Bruner,

365 S.W.2d 155 (Tex. 1963) ........................................49, 50, 51, 59, 60

Townsend v. Smith,

20 Tex. 465 (Tex. 1857)...................................................................... 35

Vaughan v. Anderson,

495 S.W.2d 327

(Tex. Civ. App.—Texarkana 1973, writ ref’d n.r.e.) ............................ 57

Wells v. Johnson,

443 S.W.3d 479 (Tex. App.—Amarillo, pet. denied) ......................... 48

Wilcox v. Marriott,

103 S.W.3d 469

(Tex. App.—San Antonio 2003, pet. denied) ............................... 38, 41

Womack Humphreys Architects, Inc. v. Barrasso,

83 S.W.3d 211 (Tex. App.—Eastland 2002, no pet.) .............. 37, 42–43

Won v. Fernandez,

324 S.W.3d 833

(Tex. App.—Houston [14th Dist.] 2010, no pet.) .......................... 18, 19

xviii

Statutes and Rules

11 U.S.C. § 362 ....................................................................................... 26, 27

11 U.S.C. § 363 ..............................................................................................31

11 U.S.C. § 541.............................................................................................. 30

TEX. BUS. COM. CODE § 24.02 (Vernon 1968)......................................... 27, 28

TEX. BUS. COM. CODE § 24.03 (Vernon 1968)............................................... 27

TEX. CIV. PRAC. & REM. CODE § 16.021............................................... 47, 55, 56

TEX. CIV. PRAC. & REM. CODE § 16.023 .......................................................... 51

TEX. CIV. PRAC. & REM. CODE § 16.024 ......................................................... 55

TEX. CIV. PRAC. & REM. CODE § 16.030 ......................................................... 48

TEX. CIV. PRAC. & REM. CODE § 16.037 ................................................... 47–48

TEX. CIV. PRAC. & REM. CODE § 16.025 ......................................................... 56

TEX. CIV. PRAC. & REM. CODE §16.026 .......................................................... 56

TEX. PROP CODE § 5.021 ............................................................................... 20

TEX. PROP. CODE § 52.001 ............................................................................ 18

TEX. PROP. CODE § 41.004 ............................................................................ 39

TEX. REV. CIV. STAT. art. 5449(a) §§ (1, 4)

Act of June 19, 1975, 64th Leg., R.S., ch. 396,

1975 Tex. Gen. Laws 1030 ........................................................................... 33

Secondary Sources

Robin Russell and James W. Paulsen,

1 TEX. PRAC. GUIDE CREDITORS RIGHTS § 10:174 (2015)................................ 35

xix

Statement of the Case

Nature of the Case:

This is a dispute over ownership of real property. Defendant/Appellant,

John Hankins claims an undivided one–half interest in real property

located in Harris County, Texas that he asserts he acquired at a 1980

execution sale. Plaintiff/Appellee, Sarah Harris is the daughter of the

judgment debtor. She claims that the execution sale is void on multiple

grounds. Harris also claims title to the entire fee simple through adverse

possession.

Harris’s live pleading is located in the record at 1 Supp. CR at 5–39.

Hankins’ live counterclaim for affirmative relief is located in the record at 1

Supp. CR at 43–93.

Trial Court:

Honorable Joseph J. “Tad” Halbach, Jr.

333rd Judicial District Court of Harris County, Texas

Proceedings Below:

Harris moved for summary judgment on her affirmative claims for relief

and on Hankins’ counterclaims. The trial court granted both motions. (2

Supp. CR at 1237–39, Appx. 1) (first MJS order); (CR at 215–16, Appx. 2)

(second MSJ order). The trial court later rendered a final judgment. (CR at

224–26, Appx. 3). In the final judgment, the trial court granted the

following declaratory relief: (1) Harris owns the entire fee simple interest in

the Property, (2) Hankins has no interest in the Property, (3) the purported

Constable’s Sale of the Property is void, and (4) the Deed under Execution

of September 29, 1980 is void.

xx

Issues Presented

Issue Presented Number One:

The trial court erred in granting Sarah’s motion for summary judgment and

declaring that John Hankins owns no interest in the Property.

Issue Presented Number Two:

The trial court erred in granting Sarah’s motion for summary judgment and

declaring that Sarah owns the entire fee simple interest in the Property.

Issue Presented Number Three:

The trial court erred in granting Sarah’s motion for summary judgment and

finding that she adversely possessed Hankins’ interest in the Property.

Issue Presented Number Four:

The trial court erred in granting Sarah’s motion for summary judgment on

Hankins’ counterclaims for conversion, partition, and trespass to try title.

Issue Presented Number Five:

If the underlying execution sale is void, which Hankins disputes, the trial

court erred by declining to put the parties back to the status quo.

xxi

Statement Regarding Oral Argument

Hankins requests oral argument. This appeal involves important

questions regarding creditors’ rights, the breadth of the Texas homestead

protection, the applicability of the automatic bankruptcy stay, and the use

of adverse possession to strip a judgment creditor of his interest in the only

property remaining that could be used to satisfy a 1978 judgment. Thus,

Hankins believes that oral argument would assist the Court in resolving this

case.

xxii

TO THE HONORABLE FIRST COURT OF APPEALS:

Introduction

It is axiomatic that justice delayed is justice denied. John Hankins

obtained a $600,000 judgment against Norma Harris after she attempted

to ruin his career with slanderous accusations nearly 40 years ago. Today,

Hankins is still looking to collect on his judgment.

Hankins did execute on Norma’s non–exempt undivided one–half

interest in real property located in 1980. But Norma and her ex–husband,

Roy, played the legal system in a desperate attempt to put Norma’s most

significant asset out of the reach of her judgment creditor, Hankins. Norma

and Roy tried and failed to secure a valid restraining order preventing

Hankins from executing on the Norma’s interest in the Property. Norma

then executed a fraudulent conveyance—Norma transferred her undivided

one–half interest in the Property to Roy the day before he filed for

bankruptcy protection in an effort to cloak a non–exempt asset with the

protection of the bankruptcy court. Now, Sarah—Norma and Roy’s

daughter—is attempting to continue the family tradition and use the courts

to deprive Hankins of the justice he has waited nearly 40 years to receive. If

this long–running dispute is to be finally decided once and for all, justice

demands that it should be decided by a trial on the merits, and not by the

1

summary disposition entered by the trial court. Summary judgment was

improper because Sarah failed to carry her burden to establish her right to

the same as a matter of law. Thus, a reversal is necessary and warranted.

Statement of Facts

A. The Property

While there may be claims asserted by both parties for ancillary relief,

the heart of this matter is whether John Hankins owns an undivided one–

half interest in certain real property with Sarah Harris, or whether Sarah1

owns the property free and clear of Hankins’ claim. The Property is

currently a vacant lot located at 2922 Bellaire Boulevard in Houston, Texas,

legally described as:

Lot Three (3) in Block Two (2) of West University

Place, an addition to the city of West University

Place in Harris County, Texas, according to the map

thereof recorded in Volume 444, Page 560 of the

Deed Records of Harris County, Texas.

(See 1 Supp. CR at 7) (the “Property”).

1 Hankins will address Sarah, Norma, and Roy Harris by the first names for clarity.

2

B. Hankins sues Norma for slander and obtains a

judgment against her in 1978.

The genesis of this lawsuit is Hankins’ efforts to stop the

inappropriate conduct of Dr. Roy Harris more than 45 years ago. (1 Supp.

CR at 484). In 1969, Hankins was an administrator at a hospital in

Houston. (Id., ¶ 12). Roy was an anesthesiologist who held privileges at the

same hospital. (Id.). Hankins received numerous complaints from hospital

staff and patients involving Roy improperly touching patients under

anesthesia. (Id.). For example, Roy was caught fondling a female patient’s

breasts during surgery and was also found lying in bed with female patients

under anesthesia. (Id.). Hankins asked Roy to voluntary relinquish his

privileges, which Roy agreed to do. (Id.).

Roy was married to Norma Harris, who was also a doctor. (1 Supp. CR

at 484, ¶ 13). After word spread throughout the medical community that

Roy had engaged in inappropriate behavior, Norma became enraged and

waged a personal vendetta against Hankins. (Id.). Specifically, in 1971,

Hankins accepted employment with a different hospital in Houston. (Id.).

What Hankins didn’t know was that Norma was an investor and doctor at

this hospital. (Id.). Seizing upon an opportunity for revenge, Norma, along

with Roy and other co–conspirators, devised a scheme to slander Hankins.

(Id.). Norma and her co–conspirators accused Hankins of stealing $10,000

3

from the hospital and had him arrested for theft. (Id.). There was no

evidence to support the charges, and they were later dropped and

expunged. (Id.).

Hankins later filed a lawsuit for slander against Norma, among

others. (1 Supp. CR at 484–85, ¶ 15). The case was tried to a jury, which

unanimously found that Norma had falsely and maliciously accused

Hankins of stealing from the hospital. (Id. at 485, ¶ 15). In February 1978, a

judgment for $600,000 was rendered against Norma and in favor of

Hankins.2 (Id.; see also, (1 Supp. CR at 291–93 (Appx. 4)). Roy was not a

party to the judgment. (Id.). It is undisputed that Hankins abstracted his

judgment against Norma in 1978. (1 Supp. CR at 485, ¶ 16; 2 Supp. CR at

1213). Norma’s efforts to overturn the judgment on appeal were

unsuccessful. (1 Supp. CR at 485, ¶¶ 17–18).

C. Norma moves out of the Property with the intention of

not returning, and Roy files for divorce.

While Norma’s appeals of the judgment against her were pending, her

marriage to Roy was ending. Roy and Norma stopped living together as

husband and wife on or about March 7, 1980, with Roy filing for divorce 10

days later. (2 Supp. CR at 1148, 1213).

2 Adjusted for inflation, a $600,000 judgment in February 1978 would today be

equivalent to $2.193 million. See Bureau of Labor Statistics, CPI Inflation Calculator,

available at http://www.bls.gov/data/inflation_calculator.htm, last visited October 6,

2015.

4

At the time the divorce was filed, Norma had vacated the Property

and moved to Brownsville. (Id. at 1127–29). And Norma, at least between

the time she separated from Roy in March 1980 and her September 2, 1980

post–judgment deposition, did not intend to return to the Property. (2

Supp. CR at 1113–15). Specifically, Norma testified in her deposition with

regard to her living situation as follows:

Q. Let me ask it this way: Is it not now your

intention and hasn’t it been your intention

since the time you separated from Dr. Roy to

move back into the 2922 Bellaire Boulevard

house as soon as possible?

A. You mean after I was divorced?

Q. Yes.

A. No.

Q. And even before?

A. No.

***

Q. Now, in spite of all that, do you still maintain

and contend that it’s not your intention to

move back into that house as your home?

A. No, I have no intention of that.

Q. You have no intention of moving back?

A. I can’t.

5

(2 Supp. CR at 1113–15).

Roy and Norma were divorced on June 20, 1980. (1 Supp. CR at 378–

82 (Appx. 5)). As part of the divorce, Roy and Norma entered into a

Marriage Settlement Agreement, which allegedly addressed the disposition

of the Property. (1 Supp. CR at 383–402 (Appx. 6)). The Marriage

Settlement Agreement stated that Roy “shall have and own [the Property]

as his separate property.” (Id. at 385). The Marriage Settlement Agreement

also provided the following that “[t]itle to the house shall be transferred to

and vested solely in Husband as his separate property[,]” and in return,

“Husband agrees to pay Wife the sum of Fifty Thousand Dollars,” which

would be evidenced by a promissory note. (Id. at 387–88). There is no

evidence that Roy ever paid Norma for the Property. (See 2 Supp. CR at

1131).

D. After Norma abandons her undivided one–half

interest in the Property, Hankins obtains a writ of

execution, which eventually leads to Norma’s interest

in the Property being levied.

Shortly after Norma divorced Roy and abandoned her undivided

one–half interest in the Property, Hankins requested a writ of execution

and requested that the constable levy upon this interest, which the

constable did on August 6, 1980. (2 Supp. CR at 1145 (Appx. 7); id. at 426

(Appx. 8)). Later, on September 2, 1980, the constable sold all of Norma’s

6

“estate, right, title, and interest” in the property. (Id.). Hankins was the

winning bidder at the execution sale, which was completed at 10:30 a.m. (2

Supp. CR at 1154; id. at 489, ¶ 32). Hankins later received an execution

deed, which conveyed to him “all of the estate, right, title, and interest” that

Norma had in the Property. (Id.).

E. Norma and Roy devise a scheme to put Norma’s

undivided one–half interest out of the reach of her

judgment creditor, Hankins.

After receiving notice of the constable’s sale, and without Hankins’

knowledge, Norma and Roy sprang into action to prevent the execution

sale.

Norma and Roy first applied for an ex parte restraining order to

prevent Hankins and the constable from executing on Norma’s undivided

one–half interest in the Property. (1 Supp. CR at 185, ¶ 14). The application

was filed on Roy and Norma’s behalf by Matthew Hoffman’s firm, which

represented Norma in the divorce proceeding earlier that year. (Id. at 375–

77, 474 (Appx. 9)). The court granted the temporary restraining order on

August 29, 1980. (Id. at 474–76). But 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. (Compare

id. with Tex. R. Civ. P. 680.) The court did set a bond in the amount of

7

$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).

After failing in their attempt to get a valid and enforceable injunction,

Roy and Norma then attempted to put Norma’s undivided interest in the

Property out of the reach of Hankins’ levy by having Norma convey her

interest to Roy. (1 Supp. CR at 478–80 (Appx. 10)). Specifically, Norma

executed a Special Warranty Deed on September 1, 1980, in which she

conveyed to Roy “the entirety of [her] right, title, and interest in and to” the

Property, which would have been her undivided one–half interest. (Id. at

478). The Deed was executed on September 1, 1980 and filed the next day

at 9 a.m. (Id. at 476–78). Roy also gave Norma a Deed of Trust to secure a

promissory note in the amount of $50,000, which represented the

purchase price. (1 Supp. CR at 146–50 (Appx. 11); see id. at 387–88)

(divorce decree stated that Roy was to pay Norma $50,000 for her

undivided interest in the property, to be evidenced by a promissory note).

Roy filed for bankruptcy on September 2, 1980 at 8:06 a.m. (1 Supp.

CR at 186, ¶ 16). Roy listed Norma as a creditor on his bankruptcy schedule,

and he listed the $50,000 he allegedly owed Norma for the Property, as

evidenced by a vendor’s lien and deed of trust that had been executed the

day before. (1 Supp. CR at 425 (Appx. 12); id. at 146–50). Roy received a

8

final discharge from the bankruptcy court on May 19, 1981. (1 Supp. CR at

436 (Appx. 14)). Later that spring, Norma moved back into the Property

and reconciled with Roy. (See 2 Supp. CR at 957–58).

F. Throughout the years, the parties exchange multiple

letters and engage in discussions regarding the

Property and Hankins’ desire to liquidate the same.

Following the execution sale and bankruptcy proceeding, things

between Hankins and the Harris family apparently cooled off. The next

specific activity that anyone took with regard to the Property, at least what

is in the record, was Roy conveying whatever interest he owned in the

Property to Sarah in March 1984. (1 Supp. CR at 187, ¶ 20); id. at 287–88

(Appx. 15)). But Roy and Norma remained in possession of the Property, as

Sarah stated in her interrogatory answers that she “had an informal

arrangement to rent the Property to [her] mom and dad, off and on, from

1984 to 2005.” (2 Supp. CR at 1143, Interrogatory No. 10).

After Roy conveyed his interest in the Property to Sarah, he

apparently received a letter from an attorney representing Hankins. Roy

again retained Hoffman to send a response. (See 1 Supp. CR at 407–14

(Appx. 16)). Hoffman allegedly wrote a letter to Hankins’ attorney in July

1984. (Id.). In his letter, Hoffman referred to Roy as “our client.” (Id.at

9

407). The letter was also sent to Roy and Norma. (Id. at 416). Sarah was not

copied on the letter, nor was she mentioned in the letter. (Id.).

As to the substance of Hoffman’s letter, he stated that it was his

clients’ position that Hankins’ execution deed was void because of the

temporary restraining order and the automatic bankruptcy stay. (1 Supp.

CR at 407–14). Specifically, Hoffman represented that “Mr. Hankins has no

legitimate interest” in the Property. (Id. at 408). But neither Norma nor

Roy owned any interest in the Property when this letter was allegedly sent

in July 1984. (1 Supp. CR at 187, ¶ 20; see also, id. at 150–51). Hankins

asserts that he never received Hoffman’s July 1984 letter. (2 Supp. CR at

1159, ¶ 4). Nor does Hankins know if his attorneys received Hoffman’s July

1984 letter. (Id. at 941).

In 1990, Hankins found another attorney to help him in his effort to

liquidate his interest in the Property. On September 7, 1990, Hoffman

wrote Hankins’ counsel again. (1 Supp. CR at 416–38 (Appx. 17). Hoffman

wrote this letter in response to a conference call he had with Hankins’ new

attorney, during which Hoffman ascertained that “Hankins has come to you

[Hankins’ new counsel] with the thought that he may now have some action

against our client, Dr. Norma Harris … .” (Id. at 416). Hoffman then

represented that certain documents attached to the letter would show that

10

Hankins didn’t have any “viable further cause of action.” (Id.). Hoffman

represented that Roy’s bankruptcy discharge prevented Hankins from

“taking any action to recover a debt, if any, incurred by the debtor prior to

the initiation of the bankruptcy case.” (Id. at 417). Specifically, Hoffman

claimed that the discharge order “forbids any judicial action on any claims

Mr. Hankins may have had against Dr. Roy Harris, the Chapter 7 Debtor.”

(Id.). Hoffman’s letter concludes with him stating “[w]e have discussed this

matter with Dr. Norma Harris, who is outraged by your client’s attempt …

to reopen [this matter.]” (Id. at 418). Neither Norma nor Roy owned the

property when the 1990 letter was allegedly sent to Hankins. (2 Supp. CR at

983; see also, 1 Supp. CR at 150–51).

On October 6, 1992, Sarah purportedly conveyed the interest in the

Property she received from her father in March 1984 back to him. (1 Supp.

CR at 160–62). In 1996, Roy again conveyed whatever interest he had in the

property back to Sarah. (Id. at 163–64).

In 2005, as at least a partial owner of the Property, Sarah retained

Thomas McCaffrey to respond to another letter issued by Hankins’

attorney. (1 Supp. CR at 439; 441–72). On March 8, 2005, McCaffrey

merely resent Hoffman’s letters, the attachments to the 1990 letter, and a

letter from Hankins’ attorney in 1984. (Id. at 441–72 (Appx. 18)).

11

McCaffrey didn’t claim that Sarah was repudiating Hankins’ interest in the

property, nor does he state why he sent the letter. (Id. at 439–72).

G. Harris files this lawsuit to declare Hankins’ undivided

one–half interest in the Property void.

Sarah sued Hankins and sought a declaratory judgment that: (1) she

owns a fee simple interest in the Property, (2) Hankins owns no interest in

the Property, and (3) Hankins’ execution sale is void. (1 Supp. CR at 13,

¶27). Sarah also asserted a claim to quiet title and a claim for adverse

possession. (Id. at 13–14, ¶¶ 28–36).

Hankins filed a counterclaim, asserting, inter alia, a trespass to try

title claim and a request that the property be partitioned. (1 Supp. CR at

43–93).

H. Sarah moves for summary judgment on her

affirmative claims and Hankins’ counterclaims.

Sarah filed two motions for summary judgment. (1 Supp. CR at 180–

508; 2 Supp. CR at 1240–55). Sarah’ first motion for summary judgment

addressed her affirmative claims, while her second motion addressed

Hankins’ counterclaims. (Id.).

In her first motion for summary judgment, Sarah asserted the

following four grounds: (1) Hankins’ execution deed is void because the

constable executed on homestead property, (2) Hankins’ execution deed is

12

also void because the execution sale violated the automatic stay created by

Roy’s bankruptcy filing, (3) Hankins owns no interest in the Property

because Norma didn’t own an interest at the time of the time of the levy and

execution sale, and (4) even if Hankins had an interest in the Property,

Sarah adversely possessed that interest under the 3, 5, 10, and 25–year

limitations periods. (Id. at 190–99).

The trial court granted Sarah’s motion for summary judgment on her

claims for declaratory judgment, action to quiet title, and adverse

possession. (2 Supp. CR at 1237–39 (Appx. 1)). The trial court didn’t specify

why it granted Sarah’s motion for summary judgment nor did it specify the

grounds on which the motion was granted. (Id.).

In her second motion for summary judgment, Sarah claimed, inter

alia,3 that Hankins’ claim for conversion failed as a matter of law. (2 Supp.

CR at 1240–55). Specifically, Sarah claimed that Hankins’ conversion claim

failed because he allegedly never obtained any interest in the Property and

thus, he was never a co–tenant. (Id. at 1244). Sarah didn’t move for

summary judgment on Hankins’ claims for trespass to try title or partition

in this second motion for summary judgment. (Id. at 1240–55).

3 Hankins is not appealing the trial court’s grant of Sarah’s motion for summary

judgment on his claims for unjust enrichment and promissory estoppel, or his request

for declaratory relief.

13

The trial court signed a second summary judgment order on March

26, 2015, in which the court granted both of Sarah’s motions for summary

judgment and granted the same relief. (CR at 215–16 (Appx. 2)). Again, the

trial court didn’t specify its reasons for granting Sarah’s motions for

summary judgment. (Id.). The trial overruled Hankins’ objections and

special exceptions to both of Sarah’s motions for summary judgment. (CR

at 227 (Appx. 19)).

A final judgment was rendered on April 27, 2015. (CR at 226–27

(Appx. 13)). The final judgment declared the following: (1) Sarah owns the

entire fee simple interest in the Property, (2) Hankins owns no interest in

the Property, (3) the execution sale is void, and (4) Hankins’ execution deed

is void. (Id.).

Summary of the Argument

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

judgment and declaring that John Hankins owns no interest in the

Property, and the trial court erred in declaring that Sarah owns the entire

fee simple interest in the Property. Hankins asserts that he properly

executed on Norma’s undivided one–half interest in the Property, which

she had abandoned as her homestead. Norma’s interest in the Property

wasn’t subject to the automatic stay triggered by Roy’s bankruptcy filing, as

14

any purported conveyance to Roy would be void. Regardless, at a

minimum, Hankins still has perfected judgment and execution liens on the

Property that could not been affected by the bankruptcy proceeding. Thus,

Sarah failed to establish as a matter of law that Hankins owns no interest in

the Property, and she failed to establish as a matter of law that she owns the

fee simple interest in the Property free and clear of his interest or liens.

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

judgment and finding that she adversely possessed Hankins’ interest in the

Property. Sarah failed to establish any of her adverse possession claims as a

matter of law. Sarah’s 3–year claim fails because she failed to establish a

chain of title from the sovereign. Sarah’s 10–year and 25–year claims have

not yet ripen because the earliest possible date she could have repudiated

Hankins’ co–tenancy interest would have been March 8, 2005. And with

regard to her 5–year and 10–year claims, Sarah failed to establish as a

matter of law the required elements of actual, visible, continuous, and

uninterrupted use, and failed to establish as a matter of law the requisite

cultivation, use, and enjoyment of the Property that is necessary to

adversely possess against a co–tenant.

15

For many of the same reasons, the trial court erred in granting

Sarah’s motion for summary judgment on Hankins’ counterclaims for

conversion, partition, and trespass to try title.

And finally, if the Court is to determine that the execution sale is void,

the Court should reinstate the status quo and allow Hankins to either revive

his judgment and execution liens or recognize their continued validity.

Argument & Authorities

A. This Court reviews the grant of a summary judgment

de novo.

Appellate courts review a trial court's grant of summary judgment de

novo. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).

Traditional motions for summary judgments under Texas Rule of Civil

Procedure 166a are reviewed in accordance with the following standards:

 the movant for summary judgment has the burden of showing

that there is no genuine issue of material fact and that he or she

is entitled to judgment as a matter of law;

 in deciding whether or not there is a disputed material fact

issue precluding summary judgment, evidence favorable to the

non–movant will be taken as true; and

 every reasonable inference must be indulged in favor of the

non–movant and any doubts resolved in his or her favor.

See Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012).

16

The question on appeal is not whether the summary judgment proof

raises a fact issue, but whether the summary judgment proof establishes as

a matter of law that there is no genuine issue of a material fact as to one or

more of the essential elements of the plaintiff's cause of action. Fort Worth

Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). An

appellate court reviewing a summary judgment must consider whether

reasonable and fair-minded jurors could differ in their conclusions in light

of all of the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 765 (Tex. 2007).

B. Sarah failed to establish as a matter of law that

Hankins owns no interest in the Property. At a

minimum, Hankins’ judgment and execution liens

attached to the Property and are still valid.

Sarah claims that she is entitled to summary judgment as a matter of

law because Norma owned no interest in the Property as of June 17, 1980.

(1 Supp. CR at 194–95). Thus, Sarah claims that when Hankins attempted

to execute on Norma’s interest on September 2, 1980, there was no interest

for him to execute upon. (1 Supp. CR at 194–95). Sarah bases this claim on

the Divorce Decree and Marriage Settlement Agreement entered into by

Roy and Norma. Sarah claims that these documents conveyed whatever

interest Norma had in the Property to Roy as of June 17, 1980. (1 Supp. CR

at 194). Sarah is wrong for several reasons.

17

1. Even if the Divorce Decree and Marriage

Settlement Agreement constitute a valid

conveyance (they do not), any interest Roy

acquired during the divorce proceeding was

subject to Hankins’ judgment lien.

Any interest Roy obtained from Norma—either at the time the

Divorce Decree was rendered in June 1980 or when Norma gave him the

Special Warranty Deed in September 1980—was subject to Hankins’

judgment lien, which Hankins perfected in 1978.

Filing and recording an abstract of judgment creates a judgment lien

as to a judgment debtor’s real property. TEX. PROP. CODE § 52.001; Gordon

v. West Houston Trees, Ltd., 352 S.W.3d 32 (Tex. App.—Houston [1st Dist.]

2011, no pet.) (citing Won v. Fernandez, 324 S.W.3d 833, 834–35 (Tex.

App.—Houston [14th Dist.] 2010, no pet.). The purpose of an abstract of

judgment is to: (1) create a judgment lien in the first place, and (2) provide

notice to subsequent purchasers of that lien’s existence. Gordon, 352

S.W.3d at 38. Thus, when an abstract of judgment is properly recorded and

indexed, it creates a judgment lien that is superior to the rights of

subsequent purchasers and lien holders. Id. at 39. Thus, it is axiomatic that

if a judgment lien properly attaches to real property, a subsequent

purchaser of that property purchases it subject to the judgment lien. Id.

18

Also, a valid levy creates an execution lien on the debtor’s property in

favor of the judgment creditor. Gordon, 352 S.W.3d at 39; Won, 324

S.W.3d at 835. A judgment lien and an execution lien work together so that

“[i]f a judgment creditor obtains a judgment lien and then executes on the

judgment, the date of the execution lien relates back to the date of the

judgment lien, thereby giving the judgment creditor priority over other

creditors with claims arising after the date of the judgment lien.” Gordon,

352 S.W.3d at 39 (quoting Won, 324 S.W.3d at 835, n. 3).

Here, it is undisputed that Hankins filed and recorded his abstract of

judgment in 1978. (1 Supp. CR at 485, ¶ 16; 2 Supp. CR at 1213). Shortly

after Norma divorced Roy and abandoned her undivided one–half interest

in the Property,4 Hankins requested a writ of execution and requested that

the constable levy on Norma’s interest in the Property, which the constable

did on August 6, 1980. (1 Supp. CR at 403; id. at 426). Thus, Hankins’

judgment lien was perfected in 1978 by the filing and recording of his

abstract of judgment, and his execution lien was perfected on August 6,

1980 when the levied was issued. Hankins’ liens on Norma’s property were

superior to the rights of any subsequent purchasers, including Roy.

4 Norma moved out of the home before the divorce was filed, and after the divorce was

final, she had no intention of returning to the Property. Thus, Norma abandoned her

homestead interest in the Property. As a result of her abandonment, Hankins’ judgment

lien attached to her undivided one–half interest in the Property. This will be discussed

in more detail in § D–2.

19

Gordon, 352 S.W.3d at 39. Thus, any interest Roy may have acquired from

Norma in 1980 was subject to Hankins’ judgment lien. Id. So, even if

Norma conveyed her interest to Roy in 1980, Hankins’ lien was still valid

and superior—Norma could not escape the effect of Hankins’ judgment lien

by merely conveying her interest in the Property. Id.

2. The Divorce Decree and Marriage Settlement

Agreement didn’t convey Norma’s interest in the

Property to Roy because the parties indicated a

future or prospective intent to convey, rather

than a present intent, which was confirmed by

their later actions.

Sarah claims that Roy acquired all of Norma’s interest in the Property

through the Divorce Decree and Marriage Settlement Agreement. Sarah is

wrong because the Marriage Settlement Agreement, incorporated into the

Divorce Decree, reflected Norma’s and Roy’s intent to effect a future

transfer of Norma’s interest in the Property, as opposed to an immediate

transfer. This intent is evidenced by the language of the Marriage

Settlement Agreement and Norma and Roy’s actions in the months that

followed, which culminated with Norma’s execution of a Special Warranty

Deed. Therefore, Roy didn’t acquire Norma’s interest in the Property

through the divorce proceeding.

Conveyance by deed requires delivery of the deed. TEX. PROP CODE

§5.021; In Marriage of Merrikh, No. 14–14–00024–CV, 2015 WL 2438770

20

at *6 (Tex. App.—Houston [14th Dist.] May 19, 2015, pet. filed) (citing Noell

v. Crow–Billingsley Air Park Ltd. P'ship, 233 S.W.3d 408, 415 (Tex. App.–

Dallas 2007, pet. denied). Delivery of a deed has two elements: (1) the

grantor must place the deed within the control of the grantee (2) with the

intention that the instrument becomes operative as a conveyance. In

Marriage of Merrikh, 2015 WL 2438770 at *6; Noell, 233 S.W.3d at 415.

The question of delivery of the deed is controlled by the intent of the

grantor, and it is determined by examining all the facts and circumstances

before, during, and after the execution of the instrument. Stephens County

Museum, Inc. v. Swenson, 517 S.W.2d 257, 262 (Tex. 1974). Generally, title

to transferred property vests upon execution and delivery of the deed. Id. at

261. Proof that a deed has been recorded gives rise to a presumption that

the grantor delivered the deed with the intent to convey the property

according to the terms of the deed. Id. at 261–62.

As an initial matter, there is no evidence that either the Divorce

Decree or Marriage Settlement Agreement was recorded with the Harris

County real property records, much less before Norma’s interest was levied

on August 6, 1980. (1 Supp. CR at 378–82; id. at 383–402). In fact, neither

the Divorce Decree nor the Marriage Settlement Agreement could have

been filed as a deed because neither document was attested to under the

21

hand and seal of the clerk for the court that rendered the judgment. (Id.);

see TEX. PROP. CODE § 12.013 (2) (“A judgment of a court may be recorded if

the judgment is attested under the signature and seal of the clerk of the

court that rendered the judgment.”) (effective January 1, 1984).5

Regardless of whether the Divorce Decree and Marriage Settlement

Agreement were recorded or recordable, neither constituted a conveyance,

as evidenced by the parties’ intent and actions before and after their

execution of the Marriage Settlement Agreement. Specifically, Norma’s and

Roy’s actions indicate that they did not intend for either the Divorce Decree

or the Marriage Settlement Agreement to operate as a conveyance of

Norma’s interest.

First, the Marriage Settlement Agreement specifically stated that

“[t]itle to the house shall be transferred to and vested solely in [Roy] as his

separate property.” (1 Supp. CR at 387–88). Likewise, in return for Norma

conveying her title to the house, Roy “agree[d] to pay [Norma] the sum of

$50,000” that was to be evidenced by a promissory note in the same

amount. Id. These phrases—“shall be,” and “agrees to pay”—indicate a

future, or prospective, intent to convey and assign rather than a present

5 The predecessor statute in effect in 1980, Article 6635 Vernon's Texas Civil Statutes,

was substantially similar: “County clerks shall record all judgments and abstracts of

judgments rendered by any court of this State presented to him for record when attested

under the hand and seal of the clerk of the court where such judgment was obtained.”

22

intention. See, e.g., Commercial Structures and Interiors, Inc. v. Liberty

Educ. Ministries, Inc., 192 S.W.3d 827, 833 (Tex. App.—Fort Worth 2006,

no pet.) (The use in the assignment of phrases such as “agree to convey”

and “agrees to assign” by themselves indicate a future, or prospective,

intent to convey and assign rather than a present intention.); Chambers

County v. TSP Development, Ltd., 63 S.W.3d 835, 839 (Tex. App.—

Houston [14th Dist.] 2001, pet. denied) (real estate contract language that

stated “Seller agrees to sell and Buyer agrees to buy” was prospective,

suggesting that the actual sale may take place in the future but is not being

effectuated by the present contract itself.); Allodial Ltd. P’ship v. North Tex.

Tollway Auth., 176 S.W.3d 680, 683 (Tex. App.—Dallas 2005, pet. denied)

(that provision indicating that party “shall assign over to Allodial all rights”

due from causes of action did not effect a present assignment of those

rights). Thus, the Marriage Settlement Agreement failed to evidence a

present intent to become immediately operative as a conveyance. (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”).

Second, Norma and Roy later executed a deed of trust, promissory

note, and special warranty deed. (1 Supp. CR at 478–80; (1 Supp. CR at

23

146–50). If Norma and Roy believed that the Divorce Decree and Marriage

Settlement Agreement constituted a conveyance of Norma’s interest, there

would not have been any need for them to later execute a deed of trust or a

special warranty deed.

Third, Norma and Roy’s attorney, Matthew Hoffman, later

represented 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.”

(Id. at 410). So, some four years after the rendition of the Divorce Decree,

Norma’s and Roy’s attorney admitted that the Special Warranty Deed was

executed pursuant to the divorce decree. (Id.). So, Roy didn’t acquire

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

Decree and Marriage Settlement Agreement.

3. Sarah’s claim that the Marriage Settlement

Agreement is an executory contract that vested

Roy with equitable title on the date the Divorce

Decree is flat wrong.

Sarah also sheepishly claimed in a footnote that, under the divorce

decree, Roy obtained equitable title to Norma’s share of the Property

because the decree purportedly operated as executory contract. (1 Supp. CR

at 195, n. 8). Sarah is wrong again.

24

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 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).

This is not the case here. Under the Marriage Settlement Agreement,

the transfer of Norma’s title 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 … .” (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 upon

25

the payment 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.

Also, 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 rather she actually conveyed legal title to Roy,

subject, of course, to Hankins’ judgment lien.

C. Sarah failed to establish as a matter of law that the

automatic bankruptcy stay applied to the execution

sale. Even if it did, Court should return the parties to

the status quo.

Sarah next claims that the execution sale, and any interest Hankins

acquired at the sale, is void because of the automatic bankruptcy stay

triggered by Roy’s bankruptcy filing. (1 Supp. CR at 193 (citing 11 U.S.C. §

26

362(a)). Specifically, Sarah claims that Roy’s bankruptcy petition triggered

an automatic stay that prevented the execution sale from going forward—

even though the execution sale only involved Norma’s “estate, right, title,

and interest” in the Property. In other words, because Roy owned at least

an undivided one–half interest in the Property, this ownership interest and

the bankruptcy stay prevented any execution sale from going forward

against Norma’s “estate, right, title, and interest” in the Property, despite

the fact that Norma wasn’t a bankruptcy debtor or a debtor’s spouse. Sarah

is wrong because the purported transfer from Norma to Roy is void and of

no effect under then existing Texas law. But even if Sarah were correct,

Hankins’ judgment and execution liens are still valid, which presents the

Court with an opportunity to restore the status quo.

1. Even if Norma conveyed her interest in the

Property to Roy, that conveyance was void and

thus, not part of the bankruptcy estate.

At the time of Norma’s attempted conveyance to Roy, the conveyance

was void under Texas law and passed no title. Sections 24.02 and 24.03 of

the Business and Commerce Code in effect in 1980 dictated that all

fraudulent conveyances were void. TEX. BUS. COM. CODE §§ 24.02, 24.03

(Vernon 1968) (Acts 1967, 60th Leg., vol. 2, p. 2619, ch. 785, § 4, eff. Sept. 1,

1967) (attached as Appx. 20). Specifically, § 24.02(a) provided that a

27

transfer of real property “is void with respect to a creditor” if the transfer

“was intended to (1) delay or hinder any creditor, purchaser, or other

interested person from obtaining that to which he is, or may become,

entitled, or (2) defraud any creditor, purchaser, or other interested person

of that to which he is, or may become, entitled.” Id. at § 24.02 (a) (1–2); see

also, Texas Sand Co. v. Shield, 381 S.W.2d 48, 54 (Tex. 1964).

The Supreme Court of Texas construed substantially similar language

and held that fraudulent conveyances are void as to the fraudulent grantor’s

creditors. Eckert v. Wendel, 40 S.W.2d 796, 797 (Tex. 1931). Thus, any

fraudulent conveyance as to creditors is void as to such creditors. Texas

Sand Co. v. Shield, 381 S.W.2d 48, 54 (Tex. 1964). As a result, the Supreme

Court stated:

It necessarily follows that the legal as well as the

equitable title remains in the debtor for the purpose

of satisfying debts. Thus, when the creditor obtains

a judgment against the debtor, and properly records

and indexes an abstract of judgment, the creditor

acquires a lien upon the land just as though no

transfer had been made.

Id.

Here, Sarah was required to show that Norma’s interest passed to Roy

through a valid conveyance as a matter of law. She failed to do so and

cannot do so. Norma’s conveyance to Roy, her ex–husband at the time, was

28

in fraud of her creditor, Hankins. The facts in the record show that Norma

and Roy attempted to obtain a restraining order to stop the sale, but failed

to obtain a valid restraining order, much less pay the bond established by

the court. When the restraining order route didn’t work, Norma next tried

to convey her interest in the Property to Roy the day before he filed for

bankruptcy (and listed the promissory note he owed to Norma as a debt on

his schedules). There is no evidence he ever paid the purchase price or the

note). Thus, there was a clear intent to shelter Norma’s interest in the

Property from her judgment creditor. These acts reek of fraud. This

fraudulent conveyance, under Sections 24.02 and 24.03 of the Business &

Commerce Code then in effect in 1980, rendered Norma’s conveyance to

Roy void. Eckert, 40 S.W.2d at 797; Texas Sand Co., 381 S.W.2d at 54.

Therefore, Sarah failed to establish as a matter of law that Norma’s

conveyance to Roy was legally valid. And if Norma’s conveyance was void,

then her purported conveyance to Roy passed no title that could become

part of his bankruptcy estate.

2. Norma’s interest didn’t pass to Roy, and thus, her

interest in the Property was not a part of his

bankruptcy estate or subject to the automatic

stay.

As discussed above, Sarah failed to establish as a matter of law that

Norma’s conveyance to Roy was valid. Therefore, Sarah cannot establish as

29

a matter of law that Norma’s interest in the Property was subject to the

automatic stay because if Norma’s interest didn’t pass to Roy, her separate

interest in the Property did not become part of his bankruptcy estate.

Generally, the filing of a bankruptcy petition creates a bankruptcy

estate under § 541 of the Bankruptcy Code. 11 U.S.C. § 541.6 And all

property of the bankruptcy estate is subject to the automatic stay provision

of § 362 of the Bankruptcy Code.

But the automatic stay doesn’t apply to a non–debtor’s interest in

property jointly owned with a debtor, unless the property is community

property. For example, § 541(a)(1) states that “all legal or equitable

interests of the debtor in property as of the commencement of the case” is

property of the bankruptcy estate. 11 U.S.C. § 541(a)(1). This section doesn’t

apply to any legal or equitable interests of non–debtors. Id. In other words,

Norma’s separate, undivided one–half interest in the Property was not a

part of Roy’s bankruptcy estate. Id. This is confirmed by other sections of

the Bankruptcy Code.

Under § 363 of the Code,7 if certain conditions exist, “the trustee may

sell both the estate’s interest … and the interest of any co–owner in

6 Section 541 of the Bankruptcy Code in effect on September 1, 1980 is substantially

similar to Section 541 in effect today. A copy of the 1978 Code is attached as Appx. 21.

7 Id.

30

property in which the debtor had, immediately before the commencement

of the case, an undivided interest as a tenant in common, joint tenant, or

tenant by the entirety.” 11 U.S.C. § 363(h). So, § 363(h) of the Code

recognizes the separate interests of the bankruptcy estate and non–debtor

co–owners in jointly owned property. Id. This claim is further solidified by

§ 363(j) of the Code, which states that, “[a]fter a sale of property to which [§

363(h)] applies, the trustee shall distribute to the debtor’s spouse or the

co–owners of such property, as the case may be, and to the estate, the

proceeds of such sale, … according to the interests of such spouse or co–

owners, and of the estate.” Id. § 363 (j). Thus, a non–debtor’s interest in

property that he jointly owns with a bankruptcy debtor is not a part of the

debtor’s bankruptcy estate. Id.

Hankins’ position is supported by the caselaw, as courts have held

that real property held as joint tenants by spouses is not community

property that would be included in one spouse’s separate bankruptcy estate.

See In re Berry, 295 B.R. 385, 393–94 (D. N.M. 2003); see also, In re

Summers, 332 F.3d 1240, 1242–44 (9th Cir. 2003).

And Hankins’ position is supported by the bankruptcy judge’s ruling

on Roy’s motion for recognition of the automatic stay. On the day he filed

for bankruptcy, Roy filed a motion for recognition of the automatic stay

31

with the bankruptcy court. That afternoon, the bankruptcy court granted

Roy’s motion for recognition of the automatic stay. (1 Supp. CR at 433). But

the bankruptcy judge modified Roy’s proposed order, and ordered the

following:

It is therefore, ORDEDERED, ADJUDGED, AND

DECREED that the scheduled Constable Sale of the

real property located at 2922 Bellaire Boulevard,

Houston, Texas, or any interest therein owner the

Debtor is prohibited by the automatic stay …, and

that any further attempt to execute on the Debtor’s

property outside of the Bankruptcy Court … is

stayed pursuant to the provisions of Section 362

during the pendency of this case.

(1 Supp. CR at 433) (additions by bankruptcy court emphasized).

As the Court can see, the bankruptcy court’s decision—that Norma’s

interest in the Property was not subject to the automatic stay—is in line

with Hankins’ assertion: Norma’s interest in the Property was not part of

the bankruptcy estate nor was it subject to the automatic stay because she

owned a separate interest in joint property and was not the debtor or the

debtor’s spouse. Therefore, Hankins’ execution on Norma’s interest in the

Property was proper.

32

3. Even if Norma’s interest in the Property were

subject to the automatic stay, the Court should

restore the parties to the status quo, revive

Hankins’ judgment, and revive his judgment and

execution liens.

Even if the bankruptcy stay were in effect and reached to Norma’s

undivided one–half interest in the Property, there is no evidence that the

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 his levy on

Norma’s interest in the Property. Therefore, even if the automatic stay

applied and voided the execution sale, which Hankins disputes, Hankins’

judgment and execution liens are still valid and enforceable.

In 1975, the Texas Legislature amended Title 90 of the Revised Civil

Statutes of Texas by adding Article 5449(a), titled “Discharge of judgments

and judgment liens against bankrupts.” Under Article 5449(a), §§ 1 and 4,

Roy’s bankruptcy discharge would have invalidated Hankins’ judgment and

execution liens only if underlying judgment at issue was against Roy. TEX.

REV. CIV. STAT. art. 5449(a) §§ (1, 4) Act of June 19, 1975, 64th Leg., R.S.,

ch. 396, §§ 1, 4, 1975 Tex. Gen. Laws 1030, (Attached as Appx. 22)

(emphases added) repealed by Act of 1983, 68th Leg., R.S., ch. 576, § 6,

1983 Tex. Gen. Laws 3729, 3730. But Roy wasn’t the judgment debtor;

33

Norma was the judgment debtor. (1 Supp. CR at 291–93). And it is

undisputed that Norma never filed for bankruptcy protection. Because Roy

wasn’t the judgment debtor, his discharge could not wipe out Hankins’ liens

under then–existing Texas law. TEX. REV. CIV. STAT. art. 4459(a)(1, 4). So,

Hankins’ judgment and executions liens, and the levy, are still in effect and

enforceable.

Additionally, under settled Texas law, an execution lien 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 (Tex.

1877)). In Borden, the Texas Supreme Court said: “By the levy, the land is

subject to the process of the court, and liable to sale for the satisfaction of

the plaintiff’s demand, and it thereby becomes subject to a lien or specific

charge for this purpose from the date of the levy, until it is lost or

abandoned, or in some way ceases to have vitality or effect.” Id. Thus, even

if the execution sale is set aside, Hankins’ execution lien, as evidenced by

the levy, would still be effective. Id.

Furthermore, it is widely held that upon setting aside an execution

sale, all parties should be returned to status quo as far as possible. Keda

34

Dev. Corp. v. Stanglin, 721 S.W.2d 897, 902 (Tex. App.—Dallas 1986, no

writ) (citing House v. Robertson, 36 S.W. 251, 253 (1896)); see also,

Townsend v. Smith, 20 Tex. 465, 470 (Tex. 1857) (if execution sale is void,

the judgment is revived and remains unsatisfied). For example, when an

execution sale is set aside, the purchaser is entitled to a return of the

purchase money paid. Id. at 903 (citing Elam v. Donald, 58 Tex. 316 (Tex.

1883)). If a purchaser at an execution sale were subject to losing not only

the property that he won at the sale, but also the money he paid for the

property, this would have a chilling effect on bidding at execution sales and

would result in lower prices that would be against the interests of judgment

debtors and the public. Id. at 903. Thus, Hankins’ judgment should be

revived to the extent it was satisfied from the proceeds of the sale; and the

judgment creditor should be entitled to interest on the revived judgment as

if the sale had not been held. Robin Russell and James W. Paulsen, 1 TEX.

PRAC. GUIDE CREDITORS RIGHTS § 10:174 (2015). Also, any set–aside should

revive any liens on the property that were extinguished by the sale and the

liens reattach to the property, with the same priority and effect as if there

had not been a sale. Id.

Therefore, even if the automatic stay applied, Roy’s discharge had no

effect on Hankins’ judgment and execution liens. Thus, the trial court erred

35

in granting Sarah’s motion for summary judgment and determining that

Hankins has “no interest” in the Property. And if even the automatic stay

applied to void the execution sale, the parties should be returned to the

status quo, with Hankins’ liens revived.8

D. Sarah failed to establish as a matter of law that

Hankins executed on homestead property. Rather, the

evidence shows that Hankins executed on Norma’s

undivided, one–half interest in the Property, which

she had abandoned.

Sarah also claims that the execution sale and thus, Hankins’ title

under that sale, is void because Roy’s homestead protection as to his

undivided one–half interest in the Property protected the entirety of the

Property from the execution sale. Sarah is wrong.

1. Limits on homestead protections do exist: The

homestead protection doesn’t protect property

interests that are not the debtor’s actual

homestead.

While Texas homestead rights are expansive, they are not unlimited.

While the courts have always given a liberal construction to the constitution

8 It is anticipated that Sarah will argue that Hankins’ liens cannot be revived because he

released any claims he may have had against Norma and Roy. (1 Supp. CR at 234–35).

But Sarah expressly didn’t move for summary judgment on the release. (Id. at 189, fn.6).

But it is undisputed that the general release was executed on March 3, 1981, more than

two months before Roy’s received his discharge from the bankruptcy court. (Id. at

234–35; 412). There is no evidence in the record that indicates whether the money paid

to Hankins was not property of Roy’s bankruptcy estate. Nor is there any evidence the

bankruptcy trustee approved the settlement. Under Sarah’s logic, such a transaction is

void because it allegedly violated the automatic bankruptcy stay. Thus, if the Court were

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

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

36

and statutes to protect the homestead rights, it is clear the courts cannot

protect that which is not homestead. Dominguez v. Castaneda, 163 S.W.3d

318, 330 (Tex. App.—El Paso 2005, pet. denied). Thus, while the courts

construe homestead laws generously, they cannot unduly stretch the

homestead laws beyond their constitutional and statutory limits and

protect an interest that is not a homestead. Norris v. Thomas, 215 S.W.3d

851, 854 (Tex. 2007). So, if Norma’s undivided one–half interest in the

Property was not her homestead at the time of the levy, her interest was

thus subject to being levied and executed upon. See Womack Humphreys

Architects, Inc. v. Barrasso, 83 S.W.3d 211, 213 (Tex. App.—Eastland 2002,

no pet.) (permitting a forced sale on spouse’s non–homestead interest in

the property, subject to the wife’s existing homestead right).

2. Norma possessed a vested homestead interest in

the Property that was separate and independent

from Roy’s interest. But she abandoned that

interest when she moved out of the home with no

intention of returning, with her abandonment

becoming effective on the date of her divorce.

Norma’s abandonment of the Property and later divorce allowed

Hankins’ liens to attach, and thus, her interest in the Property was subject

to execution.

When more than one person owns an interest in homestead property,

there is a co–tenancy. See Laster v. First Huntsville Props. Co., 826 S.W.2d

37

125, 131 (Tex. 1991) (holding that former wife’s interest in her homestead

was held in co–tenancy with a mortgagee who succeeded her former

husband’s 26.17% fee simple interest); Sayers v. Pyland, 161 S.W.2d 769,

773 (Tex. 1942) (holding that it is “well–settled that, while one tenant in

common may acquire homestead rights in the common property, the rights

so acquired are not superior to the rights and remedies of the other joint

owners.). Also, homestead rights “vest independently in each spouse

regardless of whether one spouse, or both, actually owns the fee simple

interest in the homestead.” In re Rogers, 461 U.S. 677, 685 (1983). Here, it

is undisputed that Norma had a homestead interest in her undivided one–

half interest in the Property before March 1980. But once she abandoned

the homestead and got divorced, she lost that homestead interest.

Generally, a judgment lien that has been properly abstracted cannot

attach to a homestead as long as the property remains homestead. Wilcox v.

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

Property that has been designated as a homestead will only lose that

character through abandonment, death, or alienation. 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 attaches to the property. Wilcox, 103 S.W.3d at 473.

38

“To be an abandonment that would subject such property to seizure

and sale, there must be a voluntary leaving or quitting of the residence with

a then present intent to occupy it no more as a home … .” Pierce v.

Washington Mut. Bank, 226 S.W.3d 711, 715 (Tex. App.—Tyler 2007, pet.

denied) (quoting King v. Harter, 8 S.W. 308, 309 (Tex. 1888)). 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. See Taylor v. Mosty Bros. Nursery, Inc., 777

S.W.2d 568, 569 (Tex. App.—San Antonio 1989, no writ). But one spouse’s

abandonment of the homestead does not expose the property to a forced

sale because a homestead cannot be abandoned without the consent of the

claimant’s spouse—if the homestead claimant is married. TEX. PROP. CODE

§41.004.

Here, Norma abandoned the Property. Roy and Norma stopped living

together as husband and wife in March 1980. (2 Supp. CR at 1148).

Likewise, Roy filed for divorce in March 1980. (Id. at 1148, 1213). At the

time the divorce was filed, Norma had vacated the Property and moved to

Brownsville. (Id. at 1127–29). And Norma, at least between the time she

separated from Roy and her September 2, 1980 post–judgment deposition,

had moved to Brownsville with no intention of returning to the Property to

39

live. (2 Supp. CR at 1113–15); Taylor, 777 S.W.2d at 569. Thus, as of the

date of the execution sale, Norma voluntarily left or quit the homestead,

moved to Brownsville, and did not intend to return to the Property to live.

See Pierce, 226 S.W.3d at 715. This constitutes an abandonment of Norma’s

homestead interest in the Property.

And Norma’s abandonment was effective on the date of divorce, June

20, 1980. A similar abandonment issue involving a divorce was present in

In re Johnson. In Johnson, the court was “faced squarely with the issue of

whether two ex–spouses, both with fifty (50%) percent property interest in

a home, can each assert homestead rights even though both do not live in

the home. In re Johnson, 112 B.R. 15, 17 (E.D. Tex. 1990). Specifically, a

debtor was awarded a one–half interest in her marital home in her divorce

proceeding, and the other one–half interest was awarded to her ex–

husband. Id. at 16. The debtor claimed that her one–half interest in the

property was subject to the homestead protection even though she no

longer occupied the home. Id. The court disagreed. Id. The court held that

the ex–wife’s homestead interest in the marital home was lost as of the date

she (1) became divorced, and (2) ceased to occupy the home. Id. at 17.

The same result should apply here: Norma’s homestead interest in

the Property was lost as of date she (1) became divorced, and (2) abandoned

40

the Property. Therefore, as of June 20, 1980, the date of Norma’s divorce,

she no longer had a homestead interest in the Property, which dictates that

Hankins’ judgment lien attached to her undivided one–half interest and

subjected it to execution. Id.; see Wilcox, 103 S.W.3d at 473

3. Roy’s homestead interest in the Property could

not prevent the forced sale of Norma’s interest in

the Property.

Sarah essentially claims that Roy’s undivided one–half interest in the

Property protected the entire Property from the execution sale. Sarah is

wrong.

Again, homestead rights “vest independently in each spouse

regardless of whether one spouse, or both, actually owns the fee simple

interest in the homestead.” In re Rogers, 461 U.S. 677, 685 (1983). And a

claimant’s homestead interest can extend only to the interest in the

property that she 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); Heggen v. Pemelton, 836 S.W.2d

145, 150 (Tex. 1992) (stating “the homestead right extends only to the

proportional interest of a former spouse with a present right of possession).

Thus, one’s homestead right in property can never rise any higher than the

41

right, title, or interest that the claimant owns in the property. See Sayers v.

Pyland, 161 S.W.2d 769, 773 (Tex. 1942). This means that Roy’s homestead

rights in his undivided one–half interest of the Property cannot operate to

protect the entire Property from an execution sale when the sale is limited

to his ex–wife’s separate, abandoned, undivided one–half interest in the

Property.

The Eastland Court of Appeals agreed with Hankins’ position in

Barrasso. There, the court of appeals held that a judgment creditor like

Hankins could foreclose on one spouse’s non–homestead interest in

property, such as Norma’s, that was subject to the homestead protection of

another spouse, like Roy. Womack–Humphreys Architects, Inc. v.

Barrasso, 83 S.W.3d 211, 213 (Tex. App.—Eastland 2002, no pet.).

Specifically, the husband purchased a house in Plano before he married his

wife. Id. at 211–12. After the marriage, the wife moved into the house, but

the husband continued to reside overseas. Id. at 212. At some point, a

judgment was taken against the husband. Id. The judgment creditor then

sought to execute on its judgment, just as Hankins did in this case. Id. The

wife obtained an injunction against the execution on the Plano property,

claiming that the property was her homestead, as Roy did in this case. Id.

The judgment creditor, as Hankins did in this case, responded by asserting

42

that it was merely executing against the husband’s interest in the property.

Id.; (see also, 1 Supp. CR at 403) (levy and execution lien was against all of

Norma’s “estate, right, title, and interest” in the Property). The trial court

issued an injunction stopping the sale. Id.

The court of appeals reversed. Barrasso, 83 S.W.3d at 213. While it

was unclear whether the husband had a homestead interest in the Plano

house, the record established that the wife, as did Roy in this case, did have

a homestead interest. Id. at 212. But the court of appeals was not persuaded

by this fact because the judgment creditor was not attempting to execute on

the wife’s homestead interest, but rather, the judgment creditor, like

Hankins here, was trying to execute on the husband’s non–homestead

interest. Id.; (see also, 1 Supp. CR at 403) (levy and execution lien was

against all of Norma’s “estate, right, title, and interest” in the Property).

Thus, the court of appeals held that the judgment creditor was entitled to

execute on its judgment against the husband’s interest in the Plano house,

subject to the wife’s homestead interest in the property. Id. at 213. Like

Barrasso, Hankins was authorized to execute on Norma’s separate,

undivided one–half interest in the Property.

Sarah disagrees with this conclusion, relying on the Austin Court of

Appeals’ decision in Fairfield Financial Group v. Synnott. In Synnott, the

43

couple purchased their homestead in 1984. Fairfield Fin. Group, Inc. v.

Synnott, 300 S.W.3d 316, 319 (Tex. App.—Austin 2009, no pet.). A

judgment was taken against the husband and abstracted 1992. Id. The

husband moved out of the homestead in 1997 and filed for divorce. Id. In

January 1998, the husband executed an agreement incident to the divorce,

the court signed the parties’ divorce decree, and the husband conveyed his

undivided one–half interest in the homestead to his ex–wife. Id.

The husband’s creditor asserted that he had abandoned the

homestead and thus, the judgment lien attached to the property. Id. at 321.

The Austin Court of Appeals disagreed. Id. The court determined that the

timing and effect of the husband’s actions “were irrelevant because the

property remained at all relevant times protected by [ex–wife’s] undivided

homestead interest in the property.” Id. Thus, despite recognizing the fact

that a lien attaches to property when it loses its homestead character, the

court held that homestead property is wholly exempt from the attachment

of judgment lien (other than those specifically listed in the Property Code)

so long as the remaining spouse retains her homestead interest. Id. This

cannot be the law for two reasons.

First, if one spouse wants to make the conscious choice to voluntarily

leave and abandon their separately vested homestead rights, as opposed to

44

death, incarceration, or other involuntary disposition, that abandonment

should have consequences, including the attachment of liens that wouldn’t

otherwise attach. One spouse’s abandonment doesn’t reduce the other

spouse’s separately vested homestead rights. See Sayers, 161 S.W.2d at 773

(one’s homestead right in property can never rise any higher than the right,

title, or interest that the claimant owns in the property). Conversely, by

allowing the spouse in possession to enjoy not only her homestead rights,

but also the separately vested homestead rights of her spouse who

abandoned the homestead, means that one spouse can acquire a homestead

interest greater than the proportional right, title, or interest she owns. This

is not the law.

Second, the Synnott holding (and Sarah’s position in this case), taken

to its logical extreme, means that as long as one person maintains an

interest in homestead property, no matter how fractional (e.g., 1%), that

fractional interest is sufficient to protect the entire property. This is

problematic because it is ripe for abuse. No family or single adult is allowed

to have two homesteads at the same time under Texas law. Silvers v. Welch,

91 S.W.2d 686, 687 (Tex. 1936). But under Synnott, a debtor could easily

put assets out of the reach of creditors by granting family members

fractional shares in rental homes and then have those family members (or

45

friends, or trusted tenants, or confidants) claim the homestead protection

for each property. In other words, even though the debtor’s rental

properties are not his homestead, they would be still be protected from

execution if anyone could claim any homestead interest in a piece of

property. This is an extreme example, but it is exemplar of the absurdity

that could arise. Again, if an individual makes a conscious decision to

abandon his homestead, then that interest should be available to creditors.

4. Any claim by Sarah that Roy owned 100% of the

Property on the execution date and thus, this

interest protected the Property from the

execution sale would lack merit.

It is anticipated that Sarah will claim that Norma’s purported

conveyance to Roy on September merged their separate homestead

interests into Roy, and thus, the Property was protected from being

executed upon.

If there is a dispute between the purchaser of property at an execution

sale and one who contends the property was not subject to sale by virtue of

homestead rights, the issue is to be determined with reference to the status

of the property at the time the execution was levied. Ingle v. Lea, 8 S.W.

325, 326 (Tex. 1888). Property is not subject to a forced sale if it was

actually impressed with the homestead character at the time of the levy. Id.

If the claimant attempts to impress the homestead character on the

46

property after the levy, the rights of the purchaser at the execution sale are

superior. Baird v. Trice, 51 Tex. 555, 560 (Tex. 1879).

Here, on the date of the levy, August 6, 1980, Norma’s undivided

one–half interest in the Property was not her homestead. As discussed

above, Norma abandoned the homestead by moving to Brownsville with the

intent of not returning, and this abandonment was effective on June 20,

1980, the date her divorce was finalized. And as of the date of the levy,

Norma had not yet conveyed or tried to convey her interest in the Property.

So, as of the date of the levy, Norma’s separate undivided one–half interest

in the Property was not homestead and thus, it was subject to execution.

Any attempt after the date of the levy to attach the homestead protection to

Norma’s separate, undivided one–half interest in the Property is

ineffective. Ingle, 8 S.W. at 326.

E. Sarah failed to establish any of adverse possession

claims as a matter of law.

Harris also claims that even if Hankins had an interest in the

Property, she adversely possessed that interest. Again, Sarah is wrong—she

failed to establish her claim of adverse possession as a matter of law.

1. Overview of adverse possession in Texas.

The doctrine of adverse possession is based on statutes of limitation

for the recovery of real property. TEX. CIV. PRAC. & REM. CODE §§ 16.021–

47

037. Thus, if there is a dispute concerning the possession of real property,

the rightful owner of the property must file suit within a specified period of

time (3, 5, 10, or 25 years, depending on various statutory factors and

conditions) or be barred from recovering the property. Id. Not only are

suits for recovery of possession by the rightful owner barred, adverse

possession provisions operate to vest the adverse claimant with title to the

property. Id. at § 16.030(a). Thus, “[t]he concept of adverse possession

allows a person to claim title to real property presently titled in another.”

Session v. Woods, 206 S.W.3d 772, 777 (Tex. App.—Texarkana 2006, pet.

denied) (emphasis in original).

To prove a claim for adverse possession, a claimant must establish six

elements: (1) actual possession of the disputed property, (2) that is open

and notorious, (3) that is peaceable, (4) under a claim of right, (5) that is

adverse or hostile to the claim of the owner, and (6) consistent and

continuous for the duration of the statutory period. Dyer v. Cotton, 333

S.W.3d 703, 710 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

Due to the harsh nature of disenfranchising someone of title

otherwise rightfully held, establishing title by adverse possession is not

well–regarded in the law, and the statutory prerequisites must be strictly

complied with. Wells v. Johnson, 443 S.W.3d 479, 488 (Tex. App.—

48

Amarillo, pet. denied) (citing Thomas v. Southwestern Settlement & Dev.

Co., 131 S.W.3d 31, 34 (Tex. Civ. App.—Beaumont 1939, writ dism’d,

judgment correct)).

2. A claimant seeking to adversely possess a co–

tenant’s interest in land has a more onerous

burden—the claimant must also prove clear,

unequivocal, and unmistakable repudiation of the

common title.

Generally, a co–tenant may not adversely possess against another co–

tenant unless it clearly appears that he has repudiated the title of his co–

tenant and is holding adversely to him. King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 750 (Tex. 2003) (citing Todd v. Bruner, 365 S.W.2d 155, 156

(Tex. 1963)). Thus, where a co–tenancy is involved, an adverse possession

claimant has a more onerous burden of proof. Sebesta v. Daniels, 812

S.W.2d 641, 645 (Tex. App.—Houston [14th Dist.] 1991, writ denied). This

is because possession by a co–tenant is presumed to be in right of common

title. Id. (citing Todd, 365 S.W.2d at 160. A co–tenant may claim adversely

to another co–tenant only if he has repudiated the co–tenancy and notice of

such repudiation has been brought home to the other co–tenant. Id. (citing

Todd, 365 S.W.2d at 160). Notice of repudiation must be clear, unequivocal,

and unmistakable. Todd, 365 S.W.2d at 160. Notice of repudiation is

required before the statutory period begins to run. Tex–Wis Co. v. Johnson,

49

534 S.W.2d 895, 900 (Tex. 1976); McLaren v. Beard, 811 S.W.2d 564, 568

(Tex. 1991).

3. At best, the earliest Sarah could have repudiated

Hankins’ interest in the Property would have

been March 8, 2005.

As discussed above, if Hankins acquired an interest in the Property,

he acquired Norma’s one–half undivided interest in the Property. Thus,

Hankins was a co–tenant or joint owner of the Property. So, in order for

Sarah to adversely possess Hankins’ interest, Sarah was required to prove—

as a matter of law—that she or her predecessor clearly, unequivocally, and

unmistakably repudiated Hankins’ interest in the common title to the

Property. Todd, 365 S.W.3d at 160; Dyer, 333 S.W.3d at 713. The statutory

period does not begin to run on Sarah’s adverse possession claims until she

shows she clearly, unequivocally, and unmistakably repudiated Hankins’

interest. Tex–Wis, 534 S.W.2d at 900.

At best, the earliest Sarah could have repudiated Hankins’ interest

would have been March 8, 2005, as discussed below. Yet, Sarah points to

two letters written by her parents’ attorneys as evidence of repudiation of

Hankins’ title. Neither of these letters establishes that Sarah repudiated

Hankins’ interest as a matter of law on the dates they were sent. Neither the

July 1984 letter nor the September 1990 letter can constitute—as a matter

50

of law—a clear, unequivocal, and unmistakable repudiation by Sarah of

Hankins’ interest in the Property. See Todd, 365 S.W.2d at 160. Sarah is not

mentioned in either the July 1984 letter or the September 1990 letter. (1

Supp. CR at 407–14; id. at 416–38). Nor is there any evidence that Matthew

Hoffman ever represented Sarah. Thus, Sarah cannot claim she repudiated

Hankins’ title as a matter of law through either letter.

Nor can Sarah claim that she can tack on her parents’ period of

alleged adverse possession to her alleged period of possession. 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. Sarah

could only tack on Norma and Roy’s alleged adverse possession to her

claimed period of possession if Roy or Norma owned the Property at the

time the letters were sent and then conveyed their interest to Sarah. But it

is undisputed that neither Roy nor Norma owned any interest in the

Property when these two letters were sent, and thus, they cannot constitute

a repudiation of Hankins’ title by Sarah as a matter of law.

51

At best, Sarah can claim she repudiated Hankins’ title in March 2005,

when she retained Thomas McCaffrey to send a letter to Hankins. (1 Supp.

CR at 439; 441–72). McCaffrey merely resent Hoffman’s letters, the

attachments to the 1990 letter, and a letter from Hankins’ attorney in 1984.

(Id. at 441–72). McCaffrey didn’t claim that Sarah Harris was repudiating

Hankins’ interest in the property, nor does he state why he sent the letter.

(Id. at 439–72). Thus, the March 2005 letter doesn’t establish a clear,

unequivocal, and unmistakable repudiation as a matter of law.

4. Sarah’s alternative bases for establishing

repudiation are also insufficient to establish

repudiation as a matter of law.

Sarah also claims two alternative bases for establishing repudiation of

Hankins’ interest in the Property. Neither basis establishes the requisite

clear, unequivocal, and unmistakable repudiation of common title as a

matter of law.

Sarah claims repudiation because her family’s possession had been

“so long continued, open, notorious, exclusive, and inconsistent with the

existence of title” in Hankins that there is an inference of notice. (1 Supp.

CR at 198). Harris cited no evidence in support of this claim. (Id.).

Regardless, this alternative basis doesn’t apply in this case.

52

In Tex–Wis, the Texas Supreme Court held that a “jury [may] infer

notice of a repudiation without any change in the use of the land,” if there

has been “long–continued use.” Tex–Wis Co. v. Johnson, 534 S.W.2d 895,

899 (Tex. 1976); see also, Natural Gas Pipeline Co. of Am. v. Pool, 124

S.W.3d 188, 194 (Tex. 2003). Thus, it is not necessary that actual notice of

the adverse claim be given; it is sufficient if constructive notice is given, and

constructive notice will be presumed where the facts show that the adverse

occupancy and claim of title to the land involved has been long continued,

open, notorious, exclusive, and inconsistent with the existence of title in the

defendant. Pool, 124 S.W.3d at 194. Thus, “[l]ong–continued possession

and assertion of claim by one tenant with nonclaim on the part of one out of

possession has always been regarded as a strong circumstance tending to

authorize an inference of notice of the adverse possession.” Id. at 195

(quoting Moore v. Knight, 94 S.W.2d 1137, 1139–40 (Tex. 1936)).

In this case, Harris cites no evidence in support of her claim that her

family’s possession had been “so long continued, open, notorious, exclusive,

and inconsistent with the existence of title” in Hankins that there is an

inference of notice. (1 Supp. CR at 198). Regardless, it is undisputed that

Hankins consistently asserted claims to the Property—that is why the

Harris family continually hired attorneys to refute his claims. (See 1 Supp.

53

CR at 407–14; id. at 416–38; id. at 439; 441–72). Thus, Sarah failed to

establish this alternative basis for repudiation as a matter of law.

Sarah also claimed that repudiation was established by her accepting

a deed purporting to convey to her the fee simple interest in the Property. (1

Supp. CR at 198). This Court recently rejected a similar claim. 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). Thus, any purported fee simple conveyance to Sarah after

Hankins acquired his title cannot establish repudiation as a matter of law.

5. Sarah cannot establish adverse possession under

either the 10–year or 25–year limitation period

because the applicable time periods have not yet

elapsed.

If the March 8, 2005 letter was a repudiation of Hankins’ title and

thus, constitutes the accrual date for Sarah’s adverse possession claims, her

claims under the 10–year and 25–year limitation periods must fail because

those periods of possession haven’t lapsed.

Again, at best, the earliest Sarah could claim she repudiated Hankins’

title would be March 8, 2005, when McCaffrey sent his letter to Hankins’

attorney. (1 Supp. CR at 238). Thus, her claim for adverse possession under

54

the 10–year and 25–year limitation periods would not ripen until March 8,

2015, and March 8, 2030, respectively. But once possession of real property

is interrupted by an adverse suit to recover the property, the requisite

peaceable possession no longer exists. TEX. CIV. PRAC. & REM. CODE

§16.021(3). In this case, Sarah filed suit on January 13, 2014—before the

10–year and 25–year limitation periods had expired. (CR at 4–15). And

Hankins filed his counterclaim on February 4, 2014—also before the 10–

year and 25–year limitation periods had expired. (Id. at 16–40). Thus,

peaceable possession was interrupted, and as such, Sarah did not (and

could not) establish her claim for adverse possession as a matter of law

under either the 10–year or 25–year limitation periods.

6. Sarah did not establish her claim for adverse

possession under the 3–year limitation period as

a matter of law.

The 3–year statute of limitation states the suit “to recover real

property held by another in peaceable and adverse possession under title or

color of title” must be brought “not later than three years after the day the

cause of action accrues.” TEX. CIV. PRAC. & REM. CODE § 16.024. “Title” is

defined as a regular chain of transfers of real property from or under the

sovereignty of the soil. Id. at § 16.024. The chain is said to be under “color

of title” when the chain is complete, but necessarily perfect, but not

55

“wanting of intrinsic fairness or honesty.” Id. at § 16.021. Therefore, to

prevail under the 3–year limitation period, Sarah was required to prove—as

a matter of law—title from the sovereignty. Id. Sarah wholly failed to do so.

(1 Supp. CR at 179–508). Therefore, Sarah failed to establish her claim for

adverse possession under the 3–year limitation period regardless of when

she allegedly repudiated Hankins’ interest in the Property.

7. Sarah did not establish her claim for adverse

possession under the 5–year and 10–year

limitation periods as a matter of law.

The 5–year limitation period requires the owner to bring suit within

five years to recover property held by another in peaceable and adverse

possession who cultivates, uses, or enjoys the property, pays taxes, and

claims under a duly registered deed. TEX. CIV. PRAC. & REM. CODE

§16.025(a). The 10–year statute of limitation requires suit “to recover real

property held in peaceable and adverse possession by another who

cultivates, uses, or enjoys the property.” Id. at §16.026(a). Thus, both

limitation periods require that the adverse possession claimant cultivate,

use, or enjoy the land. Sarah failed to establish this element as a matter of

law.

Here, Sarah failed to establish as a matter of law that she cultivated,

used, or enjoyed the land in a manner that was (1) actual and visible, (2)

56

commended and continued under a claim of right that is inconsistent and

hostile to the claim of another person, and (3) continuous and not

interrupted. Sarah failed to establish these elements as a matter of law.

As an initial matter, the evidence is disputed with regard to whether

Sarah’s possession was actual, visible, continuous, and uninterrupted.

Possession of the claimed property must also be consistent and continuous,

uninterrupted by temporary vacancy, unless duration of vacancy is

reasonable under existing circumstances that reasonably show the adverse

claimant did not thereby intend to abandon the premises. Wells, 443

S.W.3d at 490 (citing Grayson v. Dunn, 581 S.W.2d 785, 788 (Tex. Civ.

App.—Waco 1979, writ ref’d)). Sporadic, irregular, and occasional use of

land does not satisfy the requirements of adverse possession. See Jones v.

Ford, 583 S.W.2d 821 (Tex. Civ. App.—El Paso 1979, writ ref’d n.r.e.)

(quoting Vaughan v. Anderson, 495 S.W.2d 327, 332 (Tex. Civ. App.—

Texarkana 1973, writ ref’d n.r.e.)). Even regular and consistent use every

year for the statutory period is insufficient if there are substantial periods of

time when the land is not in actual use. Id. (quoting Vaughan, 495 S.W.2d

at 332). If the evidence shows breaks in possession, the court cannot

assume those breaks to have been of such short duration as not to defeat

the requisite continuity of possession. Vaughan, 495 S.W.2d at 333. If there

57

is a break in the continuity of possession, it is the adverse possession

claimant’s burden to show that the breaks only existed for a reasonable

period. Dunn v. Taylor, 102 Tex. 80, 85 (1908).

Sarah has lived in Washington D.C. since 2005, and thus, it is

reasonable to assume that she has spent most of the last 10 years in

Washington, D.C., and not in Texas. (2 Supp. CR at 1144, Interrogatory No.

15). Also, Roy passed away in 1999, and Norma passed away in 2005. (1

Supp. CR at 260–61). Thus, neither Roy nor Norma has been in actual,

visible, continuous, and uninterrupted possession of the Property since

March 8, 2005. And Hankins testified that, despite visiting the Property

“hundreds of times,” he has never seen Roy, Norma, or Sarah at the

Property nor did ever see any signs that someone was occupying the

Property. (2 Supp. CR at 1158, ¶ 3; (2 Supp. CR at 937–38). Therefore,

Sarah failed to establish as a matter of law that her possession was actual,

visible, open, continuous, and uninterrupted.

Nor does Sarah’s evidence of cultivation, use, and enjoyment of the

Property establish her adverse possession claim as a matter of law. Again,

the earliest Sarah could claim she repudiated Hankins’ title would have

been March 8, 2005. Thus, her period of alleged adverse possession could

not begin until March 8, 2005. Tex–Wis, 534 S.W.2d at 900; McLaren, 811

58

S.W.2d at 568. So, her alleged evidence regarding Roy’s alleged occupancy

of the Property through his death in 1999 and Norma’s alleged occupancy

of the Property through her death in 2005 is insufficient to establish

adverse possession under either the five–year or ten–year limitation

period. Simply, neither Roy nor Norma were alive and thus, able to use the

Property for the statutorily required period after Sarah’s alleged

repudiation. And anything they did or may have done before Sarah

allegedly repudiated Hankins’ interest in March 2005 is legally irrelevant

and insufficient.

Nor does Sarah’s alleged evidence of maintaining utilities,

maintaining insurance, having discussions to sell the Property, making

improvements on the Property, or landscaping and maintaining the

Property constitute cultivation, use, and enjoyment of the Property that

would give a co–tenant such Hankins’ notice of her adverse possession

claim for several reasons.

First, the maintaining of utilities, keeping the property insured,

making improvements on the property, and performing general

maintenance is, without more, legally insufficient to establish an adverse

possession claim against a co–tenant. In Todd, the Texas Supreme Court

held that “if the acts of the respondents and their predecessors in title are

59

susceptible of explanation consistent with the existence of the common title

then such acts cannot … give constructive notice to the co–tenants out of

possession.” Todd, 365 S.W.2d at 160. Instead, adverse claimant must

prove actual or constructive notice of the ouster, and the clear, unequivocal,

and unmistakable repudiation of the common title. Todd, 365 S.W.2d at

160; Dyer, 333 S.W.3d at 713. Sarah’s usage of the Property is nothing more

than merely undertaking and performing tasks consistent with a co–

tenancy, which is insufficient to establish adverse possession as a matter of

law.

Second, merely paying the taxes on property and attempting to find

buyers for the property have been deemed insufficient to establish an

adverse possession claim. See Jones v. Ford, 583 S.W.2d 821, 824 (Tex. Civ.

App.—El Paso 1979, writ ref’d n.r.e.). Even if one co–tenant pays taxes on

the entire property, possession coupled with payment of taxes is not notice

to a co–tenant of repudiation of common title. Sebesta, 812 S.W.2d at 645

(citing Todd, 365 S.W.2d at 160).

Third, Sarah’s alleged landscaping and maintenance of the Property is

likewise insufficient to establish an adverse possession claim as a matter of

law. The Supreme Court of Texas has held that the mere cutting of weeds is

insufficient to constitute use of property to meet the requirements for

60

adverse possession. City of Dallas v. Etheridge, 253 S.W.2d 640, 643 (Tex.

1952). Nor does the occasional cutting of timber. Kirby Lumber Corp. v.

Lindsey, 455 S.W.2d 733, 741 (Tex. 1970). Nor does the cutting of burs and

poisonous weeds because the cutting and gathering of a natural crop

doesn’t constitute adverse possession. McDonald v. Weinacht, 465 S.W.2d

136, 143–44 (Tex. 1971); see also, Bywaters v. Gannon, 686 S.W.2d 593,

595 (Tex. 1985) (if mowing the grass and planting flowers does not

constitute evidence of a hostile character of possession sufficient to give

notice to an exclusive adverse possession, neither does maintaining a

hedge).

Fourth, Sarah’s evidence of cultivation, use, and enjoyment is weak

and fails to establish her adverse possession claim as a matter of law. As an

initial matter, Hankins objected to the invoices and bills attached as Exhibit

Numbers 2, 8, and 9 to Sarah’s affidavit because these documents were not

authenticated and because they were hearsay. (2 Supp. CR at 867, 870).

The court overruled the objections. (CR at 227). This was error, as Sarah

failed to authenticate these documents or lay any foundation for their

admissibility. Thus, they are inadmissible hearsay that must be excluded.

Even if the Court were to consider these documents, they fall short of

61

establishing actual, visible, open, and continuous possession of the

Property for the statutory limitation periods.

Here, the insurance statements attached by Sarah to her motion for

summary judgment were for the policy period of March 31, 2006 through

March 31, 2007. (1 Supp. CR at 241–45). Sarah attached no other insurance

statements, certificates, or policies for any other year of her claimed

adverse possession. (Id.). Likewise, the “utility bills” Sarah attached to her

motion for summary judgment were for a single year, 2006. (Id. at 262–

76). Furthermore, the landscaping invoices Sarah attached to her motion

for summary judgment included one invoice in 2009, two invoices in 2010,

and one invoice in 2012. (1 Supp. CR at 277–86). This evidence, even if

admissible, is insufficient to establish adverse possession as a matter of law.

F. Sarah failed to establish as a matter of law that

Hankins’ counterclaims for conversion, partition, and

trespass to try title are barred as a matter of law.

Sarah filed a second motion for summary judgment, in which she

challenged Hankins’ counterclaims. (2 Supp. CR at 1240–55). In this

second motion for summary judgment, Sarah claimed, inter alia,9 that

Hankins’ claim for conversion failed as a matter of law. (Id.). Specifically,

Sarah claimed that Hankins’ conversion claim failed because he allegedly

9 Hankins is not challenging the trial court’s grant of summary judgment on his claims

for declaratory relief, promissory estoppel, and unjust enrichment.

62

never obtained any interest in the property and thus, he was never a co–

tenant. (Id. at 1244). Sarah’s challenge to Hankins’ counterclaim for

conversion was a rehash of her first summary judgment argument: Hankins

purportedly has no claim because he never acquired any interest in the

Property. Sarah is wrong. Hankins reurges, but will not rehash the

arguments he asserts in Sections B, C, and D of this brief, which detail how

he acquired an interest in the Property and how the trial court erred in

determining that he had no interest in the Property. The trial court’s

summary judgment disposing of Hankins’ conversion claim must be

reversed.

It also must be noted that Sarah’s second motion for summary

judgment didn’t specifically challenge Hankins’ claims for trespass to try

title and partition. To the extent these claims were disposed of because the

trial court’s earlier summary judgment ruling, this disposition must be

reversed. For the reasons set forth in Section E above, Sarah failed to

establish her adverse possession claim as a matter of law. Hankins reurges,

but will not rehash the arguments he asserts in Section E of this brief,

which detail how Sarah failed to carry her burden of proof to establish her

right to summary judgment as a matter of law. If the trial court’s summary

judgment on Sarah’s adverse possession claim is reversed, then her second

63

motion for summary judgment. Likewise, if the trial court’s finding that

Hankins owns no interest in the Property is reversed, Hankins requests that

his claims for trespass to try title and partition be reinstated and remanded.

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

64

Certificate of Service

I certify that a true and correct copy of this document has been served

to all interested parties of record on October 8, 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

65

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

14,882 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

66

APPENDIX TAB 1

11111201( 4,32:49

8/11/2014 ( ,l Ug PM

PM

Chr;'

Chris Daniel

Harris County

Hattl. -

0'1'11.1 . District

COUl'lt)'

Oistric:t Clerk

CII'"

el'lv llop.Ho:

Envelope No: 2119336

2111315

By:: LYN

By CH, BERNADETTE

LYNCH, BERNAOeTTe T

CAUSE NO.

NO. 2014-01360

2014. 01)60

SARAH T.

T. HARRIS § ,, IN THE DISTRICT COURT OF

,,,5 p3

Plaintiffs

Plaimrj[. §

§

vs

,I,

§ HARRIS

HARJU S COUNTY,

COUNTY, TEXAS

T EXA S

JOHN W HANKINS

HANKIN S

Defendant.

o.frflda~I,

§

333*

33) " JUDICIAL DISTRICT

D1STRlCT

In

ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF.SARAH T. HARRIS

fflRJU

On this day

d.y this Court considered the

Ibis CoL1l1 \be Motion For Summary Judgment of Plaintiff,

MOIion for PI. intiff, Sarah

Sinb

T. Hams

T. Homl (the

(lhe "Motion"). considering the

" MOIion'"). After CORs,dmng Ibe motions, rnponsu thereto,

LIly responses

motions, any thereto, the

Ihe arguments

argwnenl3 of

counsel, and all other factors and evidn!ce,

counsel, Ibis Court is of the opinion that

evidence, this the Motion

Ib.lthe MOIiQn for

Plaintiff, Sarah T.

SIII!II1l.y Judgment of Plaintiff,

Summary T. Harris, $holli d be GRANTED

Hillis, should

ItII is l~lcforc. ORDERED,

i5 therefore, ADJUDGED and DECREED that

ORDERED, ADJUOOED MOIion for Summary

Ih.t Motion

PllIl'lt'« . Sarah T.

Jud8mcnl of Plaintiff,

Judgment Harris, is hereby GRANTED

T, H"";s, GRANTED..

ItIL is further ORDERED that PI,'ntift', Sarah T.

Ibat Plaintiff, T. Harris, cl. ;nt!I for

... ils on her claims

prevails

Hanis, pre For

Declaratory Judgment, Action to Quiet Title, and Adverse Possession as a matter of law.

furtlIcr ORDERED that-

ItIL is further tMt '

(1)

(1) Sarth owns

Sarah rhe entire fee

owns the intere~l in the Properly

fcc simple interest PToperty located at 2922 Beltaire

loe.ted.t BeU.ire

Hams County,

BouJevard, Harris

Boulevard, TUIS, and m~

County, Texas, li.rU~ described as Lot Three (3)

more fully (3) in

In

Un.i .. enily Place,

(2) of West University

Block Two (2) ci ty of West

addirion to the city

PIlCe, an addition

Univers ity Place

University Plxe in Harris COWlty, Te~u, according

County, Texas, 10 the m.

Kcording to mapp thereof

Ihcr"cof recorded

recordccl

In Plie 560 of

444, Page

in Volume 444, Occd Records of Hams County,

the Deed

oflhe County. Texas,

Tun, and

(2)

(2) HankllUl has

Mr. Hankins

Mr, ;nleres! in ihe

110 interest

hu no 1~led .1

Ihe Property located B. n.ire Boulevard.

2922 Bellaire

at 2922 !lolllc..ard,

Tuas, and more fully described

County,Texas,

Harris Counly, IS Lot Three

descnbed as (l) in Block Two(2)

Thro:c(3) m

of West

Wc:sl University

UnIversity Place,

Pllec, an addition

IIddjuon 10 CIty of West

to the city Univc,,,ly Place

WeSI University PllCe in

CC

3-1

1237

Harris County, Texas, according to the

County, Texas, th~rwf recorded

tM map thereof record~d in

in Volume 444,

444,

S60 of the Deed Records of Harris County, Texas

Page 560

(3)

(3) The purported

Boulevard, Harris County,

Boulevard,

-

Constable's Sale of the Property

purponed Constable’s Propoeny located

located at

al 2922

Tl:Xas, and more fully described

County, Texas,

Bell&l~

2922 Beltaire

as Lot

described as Lot Three

l1ve. (3) In

(3) in

Block Two (2) Univnsit~ Place,

(2) of West University Place, an addition

addition to

10 the city of West

the city Wesl

Univel"llity Place in Harris County, Texas,

University Texas, according to

tCl the

the map thereof

thereof recorded

recorded

in Volume 444, Page 560 of the Deed Records of

of Harris COUllIy, Texas

Harris County, Tt~iL5 to

10 Mr.

Mr,

10hn W,

John W. Hanlons

Hankms dated

daled September

Seplember 2,

2, 1980 is null and

and void and of

void and of no

no force

force or

or

effect,

effect.

(4)

(4) o{September

That the Deed under Execution of 29, 1980,

September 29, 1980, wherem John

John W, Hankins

Hwms

Illempted to

attempted tCl purchase the

Ihe estate,

estate, right, mle~st of

right, title and interest Norma Hams,

of Nonna Harris, M.D in

M,D ,, in

Propelt)' located

the Property located" Bellli~ Boulevard, Hams

at 2922 Bellaire County, Texas,

Harris County, Texas, and mo~

and more

6escribed as Lot

fully described LoIl1vcc (J) in Block Two (2)

Three (3) of West

( 2) of UniVCfliily Place,

Wesl University Place, an

an

10 the city of West University

addition to UnivcnilY Place in Harris County, Texas,

l;Jarris County, Texas, according

according

444 , Page

IrnIp thereof recorded m Volume 444,

10 the map

to 560 of

Plge 560 of the

the Deed

Deed Records of

of

County. Texas,

Harris County, Harris County

Texas, which was filed in the Harris Coumy Real Pmnerly

»mnerty

Records on January

Janullr)' 12,

12, 1981, recarded in 175*92*1999

1981, recorded or tit. Hams

175·92·1999 ofthe County Real

Hams Couniy Rca!

Records, is null and void and of

Property Records, ClfnCl or effect.

no force or effecl,

Defendanl John W.

It is further ORDERED that Defendant claims of

HankinS' claims

W. Hankins’ of Trespass 10 Try Title,

Trespass to TItle,

Judgment, and

DecllLllllory Judgment,

Declaratory PllI'Ii!;on fail

Ind Partition matter oflaw.

fai l as a lTUIuer of law.

>s further ORDERED that

ItII,. WIll assess

this Court will

thallhi! ISSeI'S against John W.

again'l John HanJOn! attorneys’

W. Hankins altomeys'

fees reliefas

fcn or other relief appropnate

as appro pn ale II laIc' date,

at aI later date.

1238

SIGNEDOnthiS'lllejt~of

SIGNED QH this, the ~be/

'pitot hzmbzy 2014,

2014.

Judge/Presidin

7

1239

APPENDIX TAB 2

312-11'2'015 9.26:32

3/23/2015 ' .26:32 AM

Din •• 1-• District

Chris Daniel Clelk

D'S),lct Clerk

Hams County

Harris

.' . Envelope No: 4593605

2014.01)60

CAUSE NO. 2014-01360

By: GENTRY,

GENTRY. EUNIECY M

Filed:

Flied: 3/23/2015 ~M

9:26:32 AM

3fl3f1Ol$ 9:26:32 f) ')

SARAH T. HARRIS §§ rNTHEDISnUCTCQURTQF

IN THE DISTRICT COURT OF IO<V

1A

Plamriff,

Plaintiff, .§§

VS.

IIANK INS

§

§

§

HARRIS COUNTY. TEXAS

HARRlS COUNTY, %

JOHN W. HANKINS §

Dt/~ndant.

Defendant. § 333rd

))).4 JUDICIAL DISTRICT

OISTRJCT

OROEK ON PLAINTIFF'S

ORDER PLAINTIFF'S MOTIONS FOR

FOR SUMMARY JUDGMENT

Plain!iff, Slirah

Plaintiff, Sarah T. Hams, ha.s filed two separate

Hilmi, has seplm'lfe motions

mOlion$ for summary

summlll')' Judgment

judgment The

hllvlnS considered both

Court having holh Motions, Responses filed by Defendant

MOIIQn:;, the Responses Oefendllnl John W. Hankins,

Hankins, the

¢)(hlbilS tiled by both

exhibits filed panics, and

bolh parties, itnd the

lhe arguments of

or counsel, finds that Ihere are no

thai there nO' genuine issues

issucs

of material

malerial fact and Plaintiff

Plaintiff is entitled to

10 judgment as a matter

mallcr of law on both

bolh Motions.

MOllons. ThIS

This

Plainlifrs first

Court's prior order, regarding Plaintiffs

C01J!1" firSt motion, signed on Deccmbe~ 5, 2014, is

cn December i~ withdrawn

,,

Ihis order is substituted

and this 5ubSlltuted to addrtss both

10 address bolh motions.

molions.

Bolh of

Both of Plaintiffs

PlIllnuffs Motions

Mollons For

For Summary Judgment

Judgmcnl are

lire GRANTED.

IT IS THEREFORE ORDERED Ihat:

ORDEREO that:

Plainuff, Sarah T Hams, owns

1 Plaintiff, Qwnslhc entirc fee simple interest

the entire in the Property

intereslln Propcny located

Icx,1lec! at

2922 Bellaire Boulevard, Hams County, County. Texas, and more fully described as Lot Lot

Three (3) 10 Block Two (2) of West University

(l ) in UnIVersity Place, an addition

Place.:m addnion to the

(he city

eilY of

ofWe.st

West

Univc:rslty Place

University In Harris

Pillee in Hnrris County, a(eonhng to the map thereof recorded

County. Texas, according reeorded in

volume 444.

Volume Pagt' 560 of

444, Page oflhe Dcc:d Records

the Deed Rt'coros of

ofHams

Hams County,

CQunty. Texas;

Texas: and

2. Defendant, John W.W. Hankins, has no interest

interell in Propeny located

In the Property Ioc:ated at

lit 2922 Bellaire

Bel laire

Boulevard, Hanis County,

Boulev/ud, Harris County. Texas, and more fully L~)I Three (3) in

fuJI)' described as Lot Block

In Block

Two (2) ofor West University

UnIversity Place, an addition to the city ofof West University

University Place

Plaee in

Huns County, Texas, according to

Harris 10 the map

I'nap thereof recorded in in Volume

Vofume 444,

444 , Page

PlIge

560 of the

tile Deed Rccmd.!! of

Deed Records HAITi, County,

or Harris County. Texas

TexllS

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