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Click here for the full text of this decision A party that holds over after an adverse judgment has been rendered against it is merely a permissive tenant, or a tenant at sufferance. Consequently, before the tenant can begin to adversely possess the land, he or she must repudiate the tenancy. FACTS:In 1985, Honley Witcher constructed a 64-acre pond on the land next land he owned. In 1987, a judgment in trespass to try title was taken against Witcher, but he remained in possession of the land. Then, in 1989, a default judgment was granted in a new trespass to try title action by the new landowner. The judgment included an injunction Witcher from entering the land, but he continued to do so. For more than a decade after that,Witcher and his brother grazed livestock on the land, as well as built fences, fertilized, harvested hay and paid taxes on the property. Witcher was even successful in January 2001 when he ordered the record owner of the property at the time off the property. On Jan. 11, 2002, R. Daryll Bennett acquired title to the land. He filed suit against the Witchers a week later, seeking an injunction to keep them off the land. Witcher brought a counterclaim in trespass to try title, alleging that he had acquired the tract through adverse possession. The trial court granted Bennett’s motion for summary judgment, which was based on the argument that Witcher could not adversely possess the property because since 1989 he had been a tenant in sufferance and he was required to give actual notice or unequivocal and notorious actions to repudiate the tenancy before the 10-year clock on the adverse possession statute started. The trial court also awarded $6,500 in attorneys’ fees, plus interest, to Bennett HOLDING:Affirmed in part; reversed and rendered in part. The court agrees that Witcher was required to repudiate the tenancy in sufferance before he could begin his claim for adverse possession. The court also notes that constructive notice of repudiation can be established by long-continued possession or by a change in the use or character of possession of the land. The last judgment prohibiting the Witchers from entering the property was granted on April 13, 1989. Bennett filed his suit on Jan. 18, 2002. In order to acquire title by adverse possession under the 10-year adverse possession statute, the court explains, the Witchers must have given constructive notice after April 13, 1989, and before Jan. 18, 1992. Citing Sweeten v. Park, 276 S.W.2d 794 (Tex. 1955), Bennett argues that a period of two years and nine months is insufficient as a matter of law to entitle the Witchers to establish constructive notice of the permissive tenancy by “long-continued” possession. “While in general whether constructive notice has been given is a fact issue, . . . Sweeten indicates that a period of less than three years and seven months is insufficient as a matter of law. . . . Honley Witcher only possessed the land two years and nine months after the second adverse judgment. Based on Sweeten, the court holds that the Witchers did not repudiate the tenancy at sufferance due to long-continued possession as a matter of law.” Because Bennett waived any and all claims to attorneys’ fees associated with the summary judgment motion, the court reverses the trial court’s award of attorneys’ fees and render a take-nothing judgment on attorneys’ fees. OPINION:Carter, J.; Morriss, C.J., Carter and Hadden, JJ.

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