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Received and E-Filed for Record
2/13/2020 10:11 AM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Ryan Rendon
No. 19-09-12426
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§
ELISHA E. PETTUS §
AND § 418TH JUDICIAL DISTRICT
MARCUS ANTHONY PETTUS §
§
AND IN THE INTEREST OF §
KEEGAN ANTHONY PETTUS, §
A MINOR CHILD § MONTGOMERY COUNTY, TEXAS
PETITIONER’S MOTION FOR TRADITIONAL SUMMARY JUDGMENT AND NO-
EVIDENCE SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Elisha E. Pettus, Petitioner in the above titled and numbered cause, and,
pursuant to Rule 166a of the Texas Rules of Civil Procedure, files this Motion for Traditional
Summary Judgment and No-Evidence Summary Judgment and in support thereof would
respectfully show this Court the following:
Facts
This suit concerns a divorce between Petitioner Elisha Pettus and Respondent Marcus
Pettus. Mary Pettus and Thomas Pettus have intervened in the suit, claiming an equitable interest
in real property that is part of the community estate. In their petition, Intervenors asked for an
equitable lien to be placed on the property or for the property to be partitioned by sale.
Arguments and Authorities
Under the traditional summary judgment standard, a party is entitled to judgment as a
matter of law if the evidence shows that “there is no genuine issue of material fact.” TEX. R. CIV.
PRO. 166a(c) (2019). Similarly, a party may move for no-evidence summary judgment if, after an
adequate time for discovery, there is “no evidence of one or more essential elements of a claim or
defense on which an adverse party would have the burden of proof at trial.” Id. at 166a(i). A no-
evidence motion for summary judgment “must state the elements as to which there is no evidence.”
Id. The burden is then shifted to the non-movant to produce evidence that raises a genuine issue
of material fact. Id. Evidence which may raise a genuine issue of material fact is “more than a
scintilla of probative evidence.” Viasana v. Ward County, 296 S.W.3d 652, 654 (Tex. App.—El
Paso 2009, no pet.).
i. Petitioner is entitled to judgment as a matter of law because Intervenors’ claims are barred by
the statute of frauds
“A conveyance of an estate of inheritance, a freehold, or an estate for more than one year,
in land and tenements, must be in writing and must be subscribed and delivered by the conveyor
or by the conveyor’s agent authorized in writing.” TEX. PROP. CODE § 5.021 (2019). There is an
exception to the statute of frauds concerning oral interests in real property when a party claiming
an oral interest shows an oral contract and that:
(1) the transferee had paid consideration, whether in money or
services;
(2) the transferee has taken possession of the land; and
(3) the transferee has made permanent and valuable improvements
upon the land with the consent of the transferor.
Carley v. Carley, 705 S.W.2d 371, 373 (Tex. App.—San Antonio 1986, writ dism’d) (citing Hooks
v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921)).
In the present case, there was no written contract conveying an interest in the property from
Petitioner or Respondent to Intervenors, thus the statute of frauds applies and Petitioner is entitled
to judgment as a matter of law. Moreover, Intervenors have produced no evidence of an oral
contract between the parties concerning the land and no evidence that they have made permanent
and valuable improvements to the land as required to by the exception to the statute of frauds.
Because Intervenors’s claim is barred by the statute of frauds and they have produced no evidence
to show the exception for oral contracts applies, Petitioner is entitled to summary judgment.
ii. Intervenors have no evidence to support their claim for an equitable lien
An equitable lien is “an encumbrance against the property to satisfy a debt.” Chorman v.
McCormick, 172 S.W.3d 22, 24 (Tex. App.—Amarillo 2005, no pet.). “The fundamental element
necessary to create an equitable lien is the existence of an express or implied contract.” Id.
Intervenors have produced no evidence of a contract between themselves and Petitioner or
Respondent that would satisfy this element. Petitioner served Intervenors with Requests for
Production and Inspection, asking Intervenors to produce any evidence to support their claim,
including a contract between themselves and Petitioner or Respondent, any record relating to a
transfer of property, any document showing a transfer of money from Intervenors to Petitioner or
Respondent, or any document showing that Respondent had convinced Intervenors to build the
mother-in-law suite Intervenors allege they have an interest in. Intervenors produced no documents
responsive to Petitioner’s requests. Because Intervenors have no evidence of an express or implied
contract, they have no evidence of an essential element of their claim and summary judgment is
appropriate.
iii. Petitioner have no evidence to support their claim for a petition in kind
In the alternative, Intervenors requested the property be partitioned by sale. Under the
Texas Property Code, “[a] joint owner or claimant of real property or an interest in real property
or a joint owner of personal property may compel a partition of the interest or the property among
the joint owners or claimants under this chapter and the Texas Rules of Civil Procedure.” TEX.
PROP. CODE § 23.001 (2019). Because Texas law favors partition in kind over partition by sale, an
owner seeking partition by sale “bears the burden of proving a partition in-kind would not be fair
and equitable.” Carter v. Harvey, 525 S.W.3d 420, 429-30 (Tex. App.—Fort Worth 2017, no pet.).
Intervenors have no evidence to address their burdens. Intervenors have no evidence to
show that they are a joint owner of the property or that they have any legal claim to the property.
They have produced no documents that tend to show Petitioner or Respondent transferred any
interest in the property to them. Additionally, Intervenors have no evidence to show that a partition
in kind would not be fair and equitable. Because there is no evidence to support the essential
elements of the claims, Petitioner is entitled to summary judgment.
Prayer
Wherefore, premises considered, Petitioner Elisha E. Pettus respectfully asks this Court to
grant her Motion for Traditional Summary Judgment and No-Evidence Summary Judgment,
dismiss Intervenors Petitioner in Intervention, and for whatever further relief, in law or in equity,
to which she has proven herself justly entitled.
Respectfully submitted,
Goldsberry & Associates, PLLC
The Simpson Building
619 8th Avenue North
Texas City, Texas 77590
Tel: (281) 533-3030
Fax: (281) 533-3033
By:__/s/ Shari Goldsberry_____
Shari Goldsberry
State Bar No. 24038398
Virginia Portz
State Bar No. 24088242
Jessica Sparkman
State Bar No. 24093190
service@goldsberrylaw.com
Attorney for Petitioner
Certificate of Service
I certify that a true copy of this Petitioner’s Motion for Traditional Summary Judgment and
No-Evidence Summary Judgment was served on each party or attorney of record in accordance
with the Texas Rules of Civil Procedure on this 13th day of February, 2020.
_/s/ Shari Goldsberry_____
Shari Goldsberry
Attorney for Petitioner
Preview
Received and E-Filed for Record 2/13/2020 10:11 AM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Ryan Rendon No. 19-09-12426 IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF § § ELISHA E. PETTUS § AND § 418TH JUDICIAL DISTRICT MARCUS ANTHONY PETTUS § § AND IN THE INTEREST OF § KEEGAN ANTHONY PETTUS, § A MINOR CHILD § MONTGOMERY COUNTY, TEXAS PETITIONER’S MOTION FOR TRADITIONAL SUMMARY JUDGMENT AND NO- EVIDENCE SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Elisha E. Pettus, Petitioner in the above titled and numbered cause, and, pursuant to Rule 166a of the Texas Rules of Civil Procedure, files this Motion for Traditional Summary Judgment and No-Evidence Summary Judgment and in support thereof would respectfully show this Court the following: Facts This suit concerns a divorce between Petitioner Elisha Pettus and Respondent Marcus Pettus. Mary Pettus and Thomas Pettus have intervened in the suit, claiming an equitable interest in real property that is part of the community estate. In their petition, Intervenors asked for an equitable lien to be placed on the property or for the property to be partitioned by sale. Arguments and Authorities Under the traditional summary judgment standard, a party is entitled to judgment as a matter of law if the evidence shows that “there is no genuine issue of material fact.” TEX. R. CIV. PRO. 166a(c) (2019). Similarly, a party may move for no-evidence summary judgment if, after an adequate time for discovery, there is “no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” Id. at 166a(i). A no- evidence motion for summary judgment “must state the elements as to which there is no evidence.” Id. The burden is then shifted to the non-movant to produce evidence that raises a genuine issue of material fact. Id. Evidence which may raise a genuine issue of material fact is “more than a scintilla of probative evidence.” Viasana v. Ward County, 296 S.W.3d 652, 654 (Tex. App.—El Paso 2009, no pet.). i. Petitioner is entitled to judgment as a matter of law because Intervenors’ claims are barred by the statute of frauds “A conveyance of an estate of inheritance, a freehold, or an estate for more than one year, in land and tenements, must be in writing and must be subscribed and delivered by the conveyor or by the conveyor’s agent authorized in writing.” TEX. PROP. CODE § 5.021 (2019). There is an exception to the statute of frauds concerning oral interests in real property when a party claiming an oral interest shows an oral contract and that: (1) the transferee had paid consideration, whether in money or services; (2) the transferee has taken possession of the land; and (3) the transferee has made permanent and valuable improvements upon the land with the consent of the transferor. Carley v. Carley, 705 S.W.2d 371, 373 (Tex. App.—San Antonio 1986, writ dism’d) (citing Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921)). In the present case, there was no written contract conveying an interest in the property from Petitioner or Respondent to Intervenors, thus the statute of frauds applies and Petitioner is entitled to judgment as a matter of law. Moreover, Intervenors have produced no evidence of an oral contract between the parties concerning the land and no evidence that they have made permanent and valuable improvements to the land as required to by the exception to the statute of frauds. Because Intervenors’s claim is barred by the statute of frauds and they have produced no evidence to show the exception for oral contracts applies, Petitioner is entitled to summary judgment. ii. Intervenors have no evidence to support their claim for an equitable lien An equitable lien is “an encumbrance against the property to satisfy a debt.” Chorman v. McCormick, 172 S.W.3d 22, 24 (Tex. App.—Amarillo 2005, no pet.). “The fundamental element necessary to create an equitable lien is the existence of an express or implied contract.” Id. Intervenors have produced no evidence of a contract between themselves and Petitioner or Respondent that would satisfy this element. Petitioner served Intervenors with Requests for Production and Inspection, asking Intervenors to produce any evidence to support their claim, including a contract between themselves and Petitioner or Respondent, any record relating to a transfer of property, any document showing a transfer of money from Intervenors to Petitioner or Respondent, or any document showing that Respondent had convinced Intervenors to build the mother-in-law suite Intervenors allege they have an interest in. Intervenors produced no documents responsive to Petitioner’s requests. Because Intervenors have no evidence of an express or implied contract, they have no evidence of an essential element of their claim and summary judgment is appropriate. iii. Petitioner have no evidence to support their claim for a petition in kind In the alternative, Intervenors requested the property be partitioned by sale. Under the Texas Property Code, “[a] joint owner or claimant of real property or an interest in real property or a joint owner of personal property may compel a partition of the interest or the property among the joint owners or claimants under this chapter and the Texas Rules of Civil Procedure.” TEX. PROP. CODE § 23.001 (2019). Because Texas law favors partition in kind over partition by sale, an owner seeking partition by sale “bears the burden of proving a partition in-kind would not be fair and equitable.” Carter v. Harvey, 525 S.W.3d 420, 429-30 (Tex. App.—Fort Worth 2017, no pet.). Intervenors have no evidence to address their burdens. Intervenors have no evidence to show that they are a joint owner of the property or that they have any legal claim to the property. They have produced no documents that tend to show Petitioner or Respondent transferred any interest in the property to them. Additionally, Intervenors have no evidence to show that a partition in kind would not be fair and equitable. Because there is no evidence to support the essential elements of the claims, Petitioner is entitled to summary judgment. Prayer Wherefore, premises considered, Petitioner Elisha E. Pettus respectfully asks this Court to grant her Motion for Traditional Summary Judgment and No-Evidence Summary Judgment, dismiss Intervenors Petitioner in Intervention, and for whatever further relief, in law or in equity, to which she has proven herself justly entitled. Respectfully submitted, Goldsberry & Associates, PLLC The Simpson Building 619 8th Avenue North Texas City, Texas 77590 Tel: (281) 533-3030 Fax: (281) 533-3033 By:__/s/ Shari Goldsberry_____ Shari Goldsberry State Bar No. 24038398 Virginia Portz State Bar No. 24088242 Jessica Sparkman State Bar No. 24093190 service@goldsberrylaw.com Attorney for Petitioner Certificate of Service I certify that a true copy of this Petitioner’s Motion for Traditional Summary Judgment and No-Evidence Summary Judgment was served on each party or attorney of record in accordance with the Texas Rules of Civil Procedure on this 13th day of February, 2020. _/s/ Shari Goldsberry_____ Shari Goldsberry Attorney for Petitioner