# John W. Hankins v. Sarah T. Harris > Texas Court of Appeals, 1st District (Houston) · October 8, 2015 URL: https://www.frixlaw.com/law-library/cases/4070446 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** October 8, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4070446 ## How later opinions describe it (automated extraction) - 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 ## Opinion text 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 Posse [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4070446. Public record. Not legal advice.