                                                                                 ACCEPTED
                                                                             04-15-00110-CV
                                                                 FOURTH COURT OF APPEALS
                                                                      SAN ANTONIO, TEXAS
                                                                        8/19/2015 3:07:00 PM
                                                                              KEITH HOTTLE
                                                                                      CLERK

                          NO. 4-15-00110-CV

                                                         FILED IN
                                                   4th COURT OF APPEALS
                    IN THE COURT OF APPEALS         SAN ANTONIO, TEXAS
               FOR THE FOURTH DISTRICT OF TEXAS8/19/2015 3:07:00 PM
                       SAN ANTONIO, TEXAS            KEITH E. HOTTLE
                                                          Clerk
__________________________________________________________________

                       IN RE THE ESTATE OF
                  WILLIAM H. BUTT, DECEASED
__________________________________________________________________

         On Appeal from the County Court of Kimble County, Texas
                Sitting in Matters Probate; Cause No. 2284
                       Hon. Joe H. Loving, Presiding
__________________________________________________________________

                       BRIEF OF APPELLEE,
                         SHERRY MCNUTT
__________________________________________________________________


                                GENE GARCIA
                                State Bar No. 07634500
                                809 S. Port Ave.
                                Corpus Christi, Texas 78405
                                (361) 883-8651
                                (361) 288-8392 – facsimile
                                email: gene@garciatexaslaw.com

                                ATTORNEYS FOR APPELLEE,
                                SHERRY MCNUTT
                IDENTITY OF PARTIES AND COUNSEL

1.   Appellants –      McNutt Ranch, Ltd.
                       DMK Ranching, L.L.C.
                       McNutt Management, L.L.C.

2.   Counsel for Appellant
     Craig White                              Allen J. Ahlschwede
     Law Office of Craig L. White             522 Main Street
     111 W. Olmos Dr.                         Junction, Texas
     San Antonio, Texas 78212                 325-446-9425
     210-829-7183                             ajalaw@ahlschwedelaw.com
     craigwhite@111westolmos.com
                                              Former Trial     and   Appellate
     Jeff Small                               Counsel:
     Law Office of Jeff Small
     12451 Starcrest, Suite 100               J. Ken Nunley
     San Antonio, Texas 78216
     210-496-0611                             Dennis Bujnoch
     jdslaw@satx.rr.com

3.   Appellee – Sherry McNutt

4.   Counsel for Appellee

     Gene Garcia
     809 S. Port Ave.
     Corpus Christi, Texas 78405
     (361) 883-8651
     (361) 288-8392 – facsimile
     email: gene@garciatexaslaw.com

     Trial Counsel:

     John F. Nichols, Sr.
     5020 Montrose Blvd., Suite 400
     Houston, Texas 77006
     713-654-0708/F: 713-654-0706
     john@nicholslaw.com

                                      ii
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ......................................................... ii
INDEX OF AUTHORITIES ................................................................................. iv
STATEMENT OF THE CASE .............................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ............................................. 2
STATEMENT OF FACTS .................................................................................... 2
ARGUMENT......................................................................................................... 4
   I.         Oral Gifts of Real Property. ....................................................................... 4
   II.        The evidence introduced at trial was legally and factually sufficient
              to support the jury’s finding that William H. McNutt gave Appellee
              the foreman’s house and ½ of the North Side in 1983. .............................. 5
         a.     Appellate Review of Clear and Convincing Evidence. ............................ 6
         b.     Testimony of Witnesses at Trial. ............................................................. 7
   III. The Trial Court Did Not Err In Refusing To Grant A Directed
        Verdict Or A Judgment N.O.V. ................................................................15
         a.     Standard of Review ................................................................................15
         b.     The Evidence Was Legally Sufficient To Withstand The Motion
                For Directed Verdict and Motion for Judgment Notwithstanding
                the Verdict. ............................................................................................17
   IV. The Jury Charge Submitted To The Jury Was Correct. .............................18
   V.         Appellants failed to properly present evidence of juror misconduct
              that would be sufficient to set aside the jury’s verdict. .............................23
CONCLUSION ....................................................................................................23
PRAYER ..............................................................................................................24
CERTIFICATE OF COMPLIANCE.....................................................................25
CERTIFICATE OF SERVICE ..............................................................................26




                                                             iii
                                       INDEX OF AUTHORITIES


Cases
Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d
  225 (Tex.App.—San Antonio 2001, rev. denied) ........................................ 17, 18
Berry Prop. Mgmt., Inc. v. Bliskey, 850 S.W.2d 644 (Tex.App.—Corpus
  Christi 1993, writ dism'd by agr.) ......................................................................19
Best v. Ryan Auto Group, Inc., 786 S.W.2d 670 (Tex.1990) .................................16
Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex.1980) .........................18
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ......................................6, 17
Collora v. Navarro, 574 S.W.2d 65 (Tex.1978) ....................................................15
Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S. W. 2d 392 (Tex. 1991) ..........15
Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex.2000) ..............23
Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921). ................................ 4
In re C.E., 100 S.W.3d 368 (Tex.App.—San Antonio 2002, no pet.) ..................... 6
In re C.H., 89 S.W.3d 17, 25 (Tex.2002) ............................................................... 6
In re J.F.C., 96 S.W.3d 256 (Tex. 2002) ................................................................ 6
In re M.M., 184 S.W.3d 416 (Tex.App.—Dallas 2006, no pet.) ............................. 7
Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d
   551, 555 (Tex.1986) ..........................................................................................19
M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620
  (Tex.App.—Houston [1st Dist.] 1987, no writ) .................................................16
Mancorp, Inc. v. Culpepper, 802 S.W.2d 226 (Tex.1990) ............................... 16, 17
Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57 (Tex.App.—San
 Antonio 2011, no pet.) ....................................................................................... 7
Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308 (Tex.1986) ......................16
Oadra v. Stegall, 871 S.W.2d 882 (Tex.App. —Houston [14th Dist.] 1994,
  no pet.) ............................................................................................................... 5
Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S. W. 3d 74 (Tex.
  2000) ................................................................................................................15
Qantel Bus. Sys., Inc. v. Custom Controls, 761 S.W.2d 302 (Tex.1988).......... 16, 17

                                                            iv
Richardson v. Laney, 911 S.W.2d 489 (Tex.App. —Texarkana 1995, no
  writ) ................................................................................................................... 5
Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647 (Tex.1990) .......................18
Thompson v. Dart, 746 S.W.2d 821 (Tex.App. —San Antonio 1988, no writ) ....... 4
Woodworth v. Cortez, 660 S.W.2d 561 (Tex.App. —San Antonio 1983, writ
 ref’d n.r.e.) ......................................................................................................... 5


Rules
TEX. R. APP. P. 44.1(a); .........................................................................................19
TEX. R. CIV. P. 301 ................................................................................................15
Tex. R. Civ. P. 327(b) ...........................................................................................23




                                                             v
                                 NO. 4-15-00110-CV

                    IN THE COURT OF APPEALS
               FOR THE FOURTH DISTRICT OF TEXAS
                       SAN ANTONIO, TEXAS
__________________________________________________________________

                       IN RE THE ESTATE OF
                  WILLIAM H. BUTT, DECEASED
__________________________________________________________________


         On Appeal from the County Court of Kimble County, Texas
                Sitting in Matters Probate; Cause No. 2284
                       Hon. Joe H. Loving, Presiding
__________________________________________________________________

                       BRIEF OF APPELLEE
__________________________________________________________________

    TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
APPEALS:

      Appellee, Sherry McNutt (“Appellee”), submits this Brief and requests the

Court to affirm the decision of the trial court.


                          STATEMENT OF THE CASE

      This case first went to trial in 2011 to determine whether William H. McNutt

made a gift of the north 2000 acres of his ranch to his daughter, Sherry McNutt,

Appellee, in 1983.     The trial court found that William H. McNutt gifted the

“foreman’s house” and five acres of land that was located on the north 2000 acres

of his ranch, but also found that he did not gift the entire north side of the ranch to


                                           1
her. The case was appealed to this court which upheld the decision that there was

not a gift of the entire north side of the ranch, but remanded the case for a new trial

on the issues of whether there was a gift of the foreman’s house and an appropriate

amount of acreage for the full use and enjoyment of the house.

      After the second trial, the jury once again found that William H. McNutt

gifted the foreman’s house to Appellee and that “1/2 of the North Side” was the

necessary amount of land to allow Appellee an appropriate amount of acreage for

the full use and enjoyment of the house. Appellants have appealed the judgment of

the trial court awarding Appellee the foreman’s house and ½ of the North Side of

the ranch.

              STATEMENT REGARDING ORAL ARGUMENT

      Appellee does not believe that oral argument will aid this Court in

determining the issues presented by this appeal. The facts in this case are straight-

forward and the issues in this case have previously been addressed by this Court.


                            STATEMENT OF FACTS

      In 1983, William H. McNutt called his daughter, Appellee, Sherry McNutt,

and asked her to return to the ranch and run it for him. William H. McNutt told

Sherry McNutt that if she agreed to return half the ranch was hers. Sherry McNutt

returned to the ranch, made substantial improvements to the foreman’s house and

to the surrounding area, garden, and barns. She ran two operations, livestock and

                                          2
goats and sheep, until the family and herself ventured into exotics. Sherry McNutt

managed the South side exotic operation for her dad, William H. McNutt until

2001 when William H. McNutt gave the all the wildlife to Mrs. McNutt and to

Sherry McNutt including the income thereof.

      At no time prior to his death did William H. McNutt ever try to dispossess

Sherry McNutt of the foreman’s house. William never sought to undo the finality

of the 1983 gift of the foreman’s house and the appropriate amount of acreage for

the full use and enjoyment of the house.

      After a bench trial in 2011, Judge Loving found that William H. McNutt

gave the foreman’s house to Sherry McNutt. On appeal, this Court found that

there was sufficient evidence of a gift of the foreman’s house and remanded the

case to determine the appropriate amount of acreage for the full use and enjoyment

of the house. After a second trial, the jury again found that William H. McNutt

gave the foreman’s house to Sherry McNutt, and after hearing the testimony the

jury found that ½ of the North Side was the appropriate amount of acreage for the

full use and enjoyment of the house.

                         SUMMARY OF ARGUMENT

      The gift of the foreman’s house legally meets the requirements of an oral gift

of real property. The evidence at trial establishes that William H. McNutt gave the

foreman’s house to Sherry McNutt in 1983. Since the evidence at trial was legally


                                           3
and factually sufficient to support the jury’s finding of a gift to Sherry McNutt, the

Court did not err in refusing to grant the Appellant’s Motion for Directed Verdict

and Motion for Judgment N.O.V.

       This case was remanded for the determination of two issues: (1) was there an

oral gift of the foreman’s house to Appellee, and; (2) what amount of land an

appropriate amount of acreage for the full use and enjoyment of the house. These

issues were correctly submitted to the jury in the form of the jury charge given by

the trial court.

       Although Appellants argue that misconduct occurred during the jury

deliberations, they have failed to present any admissible evidence of the alleged

misconduct.


                                   ARGUMENT

   I. Oral Gifts of Real Property.

       There are three elements required to establish an oral gift of real property:

(1) a gift in praesenti, (2) possession under the gift by the donee with the donor's

consent, and (3) permanent and valuable improvements made on the property by

the donee with the donor's knowledge or consent or, without improvements, the

existence of such facts as would make it a fraud upon the donee not to enforce the

gift. Thompson v. Dart, 746 S.W.2d 821, 825 (Tex.App. —San Antonio 1988, no

writ); see also Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921).

                                          4
“In praesenti” means at the present time; thus, to be a gift in praesenti, the donor

must, at the time he makes it, intend an immediate divestiture of the rights of

ownership out of himself and a consequent immediate vesting of such rights in the

donee. Id.

      However, a presumption of gift arises if a parent delivers possession,

conveys title, or purchases property in the name of a child. Oadra v. Stegall, 871

S.W.2d 882, 891 (Tex.App. —Houston [14th Dist.] 1994, no pet.); Richardson v.

Laney, 911 S.W.2d 489, 492 (Tex.App. —Texarkana 1995, no writ); Woodworth v.

Cortez, 660 S.W.2d 561, 564 (Tex.App. —San Antonio 1983, writ ref’d n.r.e.).

This is a rebuttable presumption that the opponent must show by clear and

convincing evidence at trial. Richardson, 911 S.W.2d at 492.

II.   The evidence introduced at trial was legally and factually sufficient to
      support the jury’s finding that William H. McNutt gave Appellee the
      foreman’s house and ½ of the North Side in 1983.

      Appellants’ fourth issue challenges the legal and factual sufficiency of the

evidence to support the jury’s finding that William H. McNutt gave the foreman’s

house and ½ of the North Side of the ranch in 1983. A review of the testimony at

trial shows that the overwhelming weight of the evidence supports the jury’s

findings.




                                         5
      a.     Appellate Review of Clear and Convincing Evidence.


      When the burden of proof at trial requires clear and convincing evidence, the

Court of Appeals must review the sufficiency of the evidence by giving “due

consideration to evidence that the fact finder could reasonably have found to be

clear and convincing.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); (relying on In

re C.H., 89 S.W.3d 17, 25 (Tex.2002)); In re C.E., 100 S.W.3d 368, 370

(Tex.App.—San Antonio 2002, no pet.). In a legal sufficiency review, we look at

all the evidence in the light most favorable to the fact finding to determine whether

a reasonable trier of fact could have formed a firm belief or conviction that the

finding was true. In re J.F.C., 96 S.W.3d at 266. Unless the Court determines that

no reasonable fact finder could form a firm belief or conviction that the fact is true,

the Court must conclude that the evidence is legally sufficient. Id.

      In a factual sufficiency review, the Court must give due consideration to

evidence that the fact finder could reasonably have found to be clear and

convincing. Id., citing In re C.H., 89 S.W.3d at 25. The Court should consider

whether disputed evidence is such that a reasonable fact finder could not have

resolved the dispute in favor of its finding. Id. On Appeal, the Court may not

substitute its judgment for that of the fact-finder because the fact-finder “[is] the

sole judge of the credibility of the witnesses and the weight to give their

testimony.” City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); see also
                                           6
Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 83 (Tex.App.—San

Antonio 2011, no pet.). The evidence is factually sufficient if a factfinder could

reasonably form a firm belief or conviction about the truth of the matter to be

proven. In re J.F.C., 96 S.W.3d at 266; see also In re M.M., 184 S.W.3d 416, 418

(Tex.App.—Dallas 2006, no pet.).

      b.     Testimony of Witnesses at Trial.

      The following testimony supports the jury’s verdict that William H. McNutt

gave his daughter the foreman’s hours in 1983:

Testimony of David Ross

      Q. (By Mr. Nichols) Now, Mr. Ross, regarding the house that's on the
      north side of I-10 on the McNutt Ranch --

      A. Yes.

      Q. -- did you ever have any conversations with Bill McNutt regarding
      that house?

      A. Yes.

      Q. What did he tell you?

      A. Well, that it was the previous ranch foreman's house and that it was
      given to Sherry. In fact, I helped Sherry remodel that house, helped
      her furnish it, spent time there as a guest with other projects that she
      worked on around there, building barns, building her gardens,
      landscaping, et cetera.

      Q. All right. My question to you, sir, was Bill McNutt clear or unclear
      about that statement that you just made?

      A. I felt it was clear.



                                         7
      Q. All right, and my second part of my question was, was his
      statement to you convincing or unconvincing?

      A. It would be convincing.

      Q. All right, and through the years that you went out to the McNutt
      Ranch, did you ever hear Bill McNutt make any statements in
      contravention of what you just testified to?

      A. No. I did not.

      Q. All right. So the home that's on the north side, to paraphrase your
      testimony, he said that's Sherry's home.

      A. Correct.

RR 1; p. 153, l. 15 – p. 154, l. 20.

      Q. All right. Now -- so from the time that you met him, your
      testimony is never at any time did he ever modify, retract, or make
      any statements regarding Sherry McNutt's use of the acreage on the
      north side of that for the full use and enjoyment of the house?

      A. No.

RR 1; p. 157, ll. 19-24.

Testimony of Tom Mayo

      Q. All right, and what -- did he ever refer to any restrictions on
      Sherry's use, occupation, possession of that acreage on the north side
      of I-10?

      A. No. It was her place.

RR 1; p. 194; ll. 3-7.

Testimony of Sherry McNutt
      Q. All right. So the residence that's on that north side which is I guess
      referred to sometimes as the foreman's house?

      A. Yes, sir.


                                          8
      Q. Did you -- when you moved back, did you occupy that residence?

      A. There was construction going on when I first moved back.

      Q. All right.

      A. When my parents were aware that I was coming, they had asked
      me to come, they started to fix it up. I actually stayed with my parents
      in their home until an unfortunate accident -- I mean, incident that the
      carpenters were terminated, and so I moved in with the house
      unfinished really, and I finished it myself.

      Q. Okay. Now, Mr. Ross who testified as our first witness here --

      A. Uh-huh.

      Q. -- he testified that he worked and did work on that ranch shortly
      after you came back and that you did too. Correct or not correct?

      A. Yes, sir.

      Q. All right, and so you worked yourself to make improvements to
      that house?

      A. Yes, sir.

      Q. And for what period of time do you suspect that it was -- that you
      worked and did clean-up, paint-up, fix-up?

      A. It was ongoing.

      Q. Okay, and from 1983 till what period of time did you more or less
      have the full occupancy of that residence on the north side?

      A. Until the lawyers and accountants and my dad became ill and my
      sister showed up.

RR 1; p. 243, l. 20 – p. 245, l. 3

      Q. And Exhibit No. 3[sic], how do -- how do they refer to that house
      on there, the foreman's house that you --

      A. Your house.


                                         9
      Q. Your home or your house?

      A. I'm sorry. "Your home." Yes.

      Q. Okay.

      A. Yes.

      Q. All right, and was that consistent or inconsistent with his conduct
      all the way up to that point?

      A. Consistent.

RR 1; p. 259. ll. 2-13

      Q. And describe the conversation that you had with your father when
      he gave you that foreman's house.

      A. He called me in Colorado and asked me to come home. The
      foreman had died in 1981. He and mother tried to -- to run the ranch
      themselves and were, I guess, incapable of -- they didn't want to do it
      anymore. So they asked me to come home to run the ranch, and he
      would give me half the ranch.

      Q. It's your testimony that in 1981, your daddy wasn't capable of
      running that ranch. Is that what you just testified to?

      A. That's what he told me in '83. I went home in '83. He ran it from
      '81 into '83.

      Q. Okay. So he called you --

      A. Or he and mother did.

      Q. He called you and what did he say?

      A. If I would come home and run the ranch, he would give me half the
      ranch.

      Q. Okay, and -- and he said he would give you half the ranch.

      A. Yeah.

      Q. Something in the future.

                                        10
      A. Yes, sir.

      Q. Okay.

      A. Not necessarily in the future.

      Q. But didn't you just say --

      A. He gave it to me when I went home.

RR 2; p. 42, l. 10 – p. 43, l.11

      Q. (By Mr. Nichols) Tell -- then tell the lady and the gentlemen of the
      jury as closely as possible what he told you in that telephone
      conversation in 1983.

      A. That he needed me and he wanted me to come back, and of course
      that had been my lifelong dream. He told me he would give me half
      the ranch when I came back.

      Q. Did he say which half?

      A. Specifically at that time, no, but when I moved into the foreman's
      house, it became the -- the north side --

      Q. All right.

      A. -- and my sister lives on the south side. Q. All right, and at that
      point in time from

      1983 -- are you sure as to the date, 1983? A. Yes.

      Q. All right. So his statement, if you would come back, he would do
      this, and you came back and therefore he did that.

      A. Yes, sir.

RR 2; p.116, l. 17 – p. 117, l. 12.

      With respect to the amount of land that Appellee needed in order to enjoy

her gift of the foreman’s house, Appellant testified as follows:



                                          11
       Q. Okay. Now -- now, what kind of operations were you running on
       the McNutt Ranch on the south side that you received a salary for?

       A. Cattle, sheep, goats, deer, wild game or exotic game.

       Q. All right. What about over on the other side of I-10?

       A. Same.

       Q. Same thing?

       A. Yes.

       Q. What do you feel would be necessary for you to have for the full
       use and enjoyment of that house over there on the north side of I-10?

       A. Acreage enough to run those operations.

RR 2; p. 10, l. 14 – p. 11, l. 2.

       The only evidence introduced at trial to rebut the presumption of a gift was

that Appellant did not pay taxes on the property and that Bill McNutt did not file a

gift tax return in 1983 with respect to his gift of the foreman’s house to his

daughter. However, there was plenty of evidence at trial to rebut this argument:

Testimony of Tom Mayo

       Q. In fact, all your properties that you've ever owned you've had a
       warranty deed, correct, a deed of trust?

       A. No.

       Q. Okay. What were the circumstances that you didn't have a deed of
       trust?

       A. Land was granted to me by my father or it was going to be granted
       by mother and father, but they didn't grant it because they wanted to
       take certain deductions on whatever they were spending on the house
       -- on the property, in this case land.

                                         12
RR 1; p.208, ll. 6-12.

      Q. (By Mr. Nichols) All right. If you want the tax write-off on a piece
      of property or an operation, isn't it -- isn't it in your best interest to
      keep it in your name?

      A. Sure.

RR 1; p. 210, ll.18-22.

Testimony of Sherry McNutt

      Q. (By Mr. Nichols) All right. Looking at the demonstrative aid, do
      you see pastures 7, 8, 9, 10, 11, 12, 13, and 14?

      A. Yes, sir.

      Q. All right. Did you have a conversation with your dad about you
      paying the taxes on that property?

      A. Yes.

      Q. All right, and tell the lady and the gentlemen of the jury what his
      response was.

      A. He wanted the tax write-off.

      Q. All right. So he paid the taxes. He got the tax write-off.

      A. Yes, sir.

RR1; p. 238, ll.10-22.

      Q. (By Mr. Nichols) Okay. What did you tell your father about paying
      the taxes on the house?

      A. I would pay them.

      Q. All right. What did he say?

      A. He wanted them for a write-off.

RR 2; p. 21, ll. 21-25.

                                         13
         The evidence is undisputed that Bill McNutt delivered possession of the

foreman’s house to his daughter in 1983. Since that time, Bill McNutt continually

referred to the foreman’s house as his daughter’s house. He even admitted as such

in his attempts, through his attorney, to place restrictions on Appellee’s use of the

house.     Moreover, there is evidence that Appellee made improvements to the

foreman’s house. Appellants describe all of this evidence as meager; yet it was

sufficient to convince a judge and a jury that William H. McNutt gave his daughter

the foreman’s house in 1983. Further, two members of this panel believed there

was enough evidence of a gift to remand this case for a new trial. Interestingly,

most of the evidence cited by Appellants’ to support their position that there was

no gift comes from the first trial and has no bearing on this analysis.

         Appellants argue that the evidence detailed above was not specific enough to

support a finding that Appellee received a gift of ½ of the North Side of the ranch.

Interestingly, the record is replete with objections from Appellants’ counsel

whenever anyone attempted to testify about a specific piece of property.

         After reviewing all of this evidence, there is legally sufficient evidence that a

reasonable fact finder could conclude that William H. McNutt gifted his daughter

the foreman’s house and an appropriate amount of land that encompassed half of

the north side of his ranch. The evidence is also factually sufficient to support the

jury’s findings. The only evidence that there was not a gift of the foreman’s house


                                             14
was that William H. McNutt did not file a gift tax return and continued to pay taxes

on the property at issue. Given the testimony that William H. McNutt wanted to

continue to receive tax benefits from the property, a reasonable fact finder could

have easily decided that this evidence did not negate a finding that William H.

McNutt gave the foreman’s house and an appropriate amount of land to his

daughter.

III.   The Trial Court Did Not Err In Refusing To Grant A Directed Verdict
       Or A Judgment N.O.V.

       a.     Standard of Review

       A trial court may order a directed verdict in favor of a defendant when: (1) a

plaintiff fails to present evidence raising a fact issue essential to the plaintiff's right

of recovery; or (2) the plaintiff admits or the evidence conclusively establishes a

defense to the plaintiff's cause of action. See Prudential Ins. Co. of Am. v. Fin. Rev.

Servs., Inc., 29 S. W. 3d 74, 77 (Tex. 2000). A motion for judgment n.o.v. should

be granted only if the evidence is legally insufficient to support the jury's findings

or if a directed verdict would have been proper because a legal principle precludes

recovery. TEX. R. CIV. P. 301; see Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818

S. W. 2d 392, 394 (Tex. 1991).

       A directed verdict is appropriate when reasonable minds can draw only one

conclusion from the evidence. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978);

M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623
                                            15
(Tex.App.—Houston [1st Dist.] 1987, no writ). In evaluating a directed verdict, we

determine if there was legally sufficient evidence that would support each of the

elements of the cause of action. M.J. Sheridan, 731 S.W.2d at 623. If the Smiths

introduced some evidence on each of the elements for design defect, the trial court

erred in granting Aqua–Flo's motion for directed verdict. Id. at 624. In evaluating

the evidence, we examine it in the light most favorable to the party against whom

the verdict was rendered, and disregard all contrary evidence and inferences.

Qantel Bus. Sys., Inc. v. Custom Controls, 761 S.W.2d 302, 303 (Tex.1988); M.J.

Sheridan, 731 S.W.2d at 623.

      A trial court may disregard a jury's findings and grant a motion for JNOV

only when there is no evidence upon which the jury could have made its findings.

Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990). When determining

whether the trial court erred in granting a motion for JNOV, the appellate court

must consider only the evidence and the reasonable inferences that support the

jury's answers. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990).

The record is reviewed in the light most favorable to the jury's finding, considering

only the evidence and inferences that support the finding and rejecting the

evidence and inferences contrary to the finding. Navarette v. Temple Indep. Sch.

Dist., 706 S.W.2d 308, 309 (Tex.1986). To uphold a JNOV, the appellate court

must decide that no evidence supports the jury's findings. Mancorp, 802 S.W.2d at


                                         16
227–28; Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d

225, 245 (Tex.App.—San Antonio 2001, rev. denied). Richardson v. Wal–Mart

Stores, Inc., 963 S.W.2d 162, 164 (Tex.App.—Texarkana 1998, no pet.). The

JNOV should be reversed when there is more than a scintilla of competent

evidence to support the jury's finding. Aquila Southwest Pipeline, Inc., 48 S.W.3d

at 245.

      In City of Keller v. Wilson, the Court discussed, both from the historical and

legal perspective, the standard for review for each of the subject motions and

decided that “the standards for taking any case from the jury should be the

same…” 168 S.W.3d at 811. Whether the inclusive or exclusive standard, if

properly applied, is used to decide whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review, the resulting

decision should be the same. Id.

      b.    The Evidence Was Legally Sufficient To Withstand The Motion
            For Directed Verdict and Motion for Judgment Notwithstanding
            the Verdict.

      In the first appeal, this Court of Appeals upheld the trial court’s decision that

Mr. William H. McNutt had orally gifted the house, previously known as the

foreman’s house, situated in the specifically identified and completely segregated

part of the McNutt ranch, referred to as the “North side” and remanded to have the




                                          17
trier of fact determine “an appropriate amount of acreage necessary for the full use

and enjoyment of the house…”

      The 13th Amended Petition, which was the live pleading at trial and

admitted into evidence, asserted that the gift of the house included 5 acres

surrounding the house and parcel 9, consisting of approximately 700 acres. The

trial court prevented direct testimony as to any particular parcel of real estate in the

North side, and limited the testimony to an oral gift of the house and an appropriate

amount of acreage for the full use and enjoyment of the house. As detailed above,

there was legally and factually sufficient evidence to support the jury’s verdict.

The trial court correctly denied the motion for directed verdict and motion for

judgment notwithstanding the verdict.

IV.   The Jury Charge Submitted To The Jury Was Correct.

      The standard of review for error in the court's charge is abuse of discretion.

Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). In order for

the appellate court to reverse on a jury charge error, the appellant must show

harmful error. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749–50

(Tex.1980); Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48

S.W.3d 225, 232 (Tex.App.—San Antonio 2001, rev. denied). Error in the jury

charge is reversible only if it probably caused the rendition of an improper

judgment or probably prevented the appellant from properly presenting the case on


                                          18
appeal. See TEX. R. APP. P. 44.1(a); Timberwalk Apts., Partners, Inc. v. Cain, 972

S.W.2d 749 (Tex.1998). To determine whether an alleged error in the charge is

reversible, the reviewing court must consider the pleadings of the parties, the

evidence presented at trial, and the charge in its entirety. See Id at 756; Island

Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d 551, 555

(Tex.1986).   An improper jury charge requires reversal only when, under the

circumstances of the case, including the charge as a whole and the statements and

arguments of counsel, the error was calculated to cause and probably did cause the

rendition of an improper judgment. Berry Prop. Mgmt., Inc. v. Bliskey, 850 S.W.2d

644, 661 (Tex.App.—Corpus Christi 1993, writ dism'd by agr.).

      Appellants’ argument is essentially that its trial strategy backfired on them.

Appellants’ repeatedly objected to any testimony as to a specific parcel of land that

accompanied the gift of the foreman’s house to Appellant in 1983, and the trial

court sustained these objections. RR 1; p. 194, l.8 – p. 201, l.2; p.262, l.13 – p.275,

l. 18. Appellants now complain that there is no evidence to support the jury’s

finding that “½ of the North Side” of the ranch was an appropriate amount of

acreage for the full use and enjoyment of the house. Appellee testified at trial

regarding what was necessary to fully enjoy the foreman’s house. Appellants’

proposed question is tantamount to including a specific amount of damages in a

damages question.


                                          19
         The controlling issue on retrial, consistent with the “law of the case”

principle was submitted to the jury in two questions with the proper legal standard.

The first question, the gift to Sherry McNutt of the “foreman’s” house was again

determined by the fact finder in the affirmative. It was not submitted as an oral gift

of the entire 2000 acre/North side issue, in accord with the “law of the case”

principle. The second question was submitted to the jury in the specific language

that this Court remanded for determination and it was done within the limitation of

“no oral gift of the entire 2000 acre/North side” context. Question 2 was decided

by the fact finder from the testimony relevant to the amount of acres, if any, is an

appropriate amount of acreage for the full use and enjoyment of the house. The

charge submitted is verbatim from this Court’s opinion.

         Question 2 permitted the jury to only determine, by clear and convincing

evidence, an appropriate amount of acreage for the full use and enjoyment of the

house.      This Court specifically remanded the case for that same identical

determination. Appellee understands that Judge Loving’s statements at the pre-

trial hearing as to a “presumption” were not submitted nor binding on the jury, but

this particular “foreman’s” house already determined to have been gifted to Sherry

McNutt has always been situated on the specifically identifiable North side. In the

context of the house gift, excluding the entire 2,000 acre/North side and following

the “law of the case”, Appellee presented without objection, and with the wavier


                                         20
and acquiescence of Appellant’s trial counsel, during various cross-examination,

testimony relevant to the twenty year plus history of the possession of the house

and property without limitation or restriction by William H. McNutt for Sherry

McNutt’s full use and enjoyment of the house.

      Moreover, it was the Appellants that objected to any parcel within the entire

2000 acre/North side, being identified, and they should not be allowed to benefit

from the limitations they urged.

      The trial court submitted its charge based on the pleadings, the oral gift

exception to the statute of frauds as to the “foreman’s” house and the equitable

exception concerning the developed testimony on the appropriate acreage for the

full use and enjoyment of the “foreman’s” house.

      The proposed submission by the Ranch entities is not substantially correct.

First, the proposed charge does not contain a date reference. Second, the proposed

charge is a comment on the evidence. Third, the proposed charge confuses the

initial gift of property as to the entire 2000 acres/North side, and the specific

remand instruction concerning the appropriate amount of acreage for the full use

and enjoyment of the “foreman’s” house. Fourth, the proposed charge sponsored a

metes and bounds description on the North side, that would have been contrary to

the completed oral gift of the “foreman’s” house and the acres to have full use and




                                        21
enjoyment thereof. Lastly, the proposed charge called for multi-issue resolution

that would leave any answer therein from being directly traced.

      The trial court submitted the charge that reflected all the admitted evidence,

whether from direct examination or cross-examination, tried by consent, or waived,

but before the jury and the “law of the case”.

      Sherry McNutt did not relitigate the 1983 oral gift of the entire 2,000

acre/North side issue.    Sherry McNutt tried only the very specific fact to be

determined on remand, and not determined in the first trial. If appellant’s position

is correct, the Ranch entities might have prevailed by for a pre-trial disposition as a

matter of law. The Ranch entities allowed the fact issues, raised by the testimony,

to be submitted to the jury.

      Appellee’s live pleading, provided notice of the 1983 oral gift of the

“foreman’s” house with the surrounding five (5) acres and parcel A that Appellee

estimates as being 700 acres and in the prayer for a relief that included general

relief and specific as Appellee may show herself justly entitled.

      The pleadings at trial allowed for the testimony admitted to be submitted to

the jury in the form of Question 1 and Question 2 that are within the bounds of the

“law of the case” and the specific fact remanded.




                                          22
V.    Appellants failed to properly present evidence of juror misconduct that
      would be sufficient to set aside the jury’s verdict.

      In their fifth issue, the Appellants argue that juror misconduct resulted in an

improper verdict. In support of their Amended Motion for New Trial, Appellants

submitted the affidavit of two of the jurors, Daniel Meyer and Dale Gipson,

alleging that two of the other jurors injected facts into the deliberations that were

outside the evidence.

      To warrant a new trial for jury misconduct, the movant must establish (1)

that the misconduct occurred, (2) it was material, and (3) probably caused injury.”

Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex.2000). Jurors are

prohibited from testifying about matters and statements occurring during

deliberations. Tex. R. Civ. P. 327(b); Id. at 370. Proof of a juror’s failure to

disclose bias must come from some source other than a fellow juror’s testimony

about deliberations.” Id.

      The evidence presented by Appellants relates to statements allegedly made

by jurors during deliberations and is not provided from a source outside the jury.

As such, the affidavits presented by Appellants are inadmissible to show jury

misconduct. Accordingly, this Court should overrule Appellants’ Issue Number 5.

                                 CONCLUSION

      Three fact finders have determined that William H. McNutt in 1983 gave his

daughter, Sherry McNutt, the foreman’s house.         On remand, Sherry McNutt
                                         23
presented evidence of her own ranching operations, cattle and sheep and goats,

later Sherry McNutt and William McNutt, together and separately, ventured into

the exotic market. Sherry McNutt managed William H. McNutt’s exotics on the

“South” side of the ranch until 2001, when William H. McNutt gave all the wild

game to Mrs. Johnie Beth McNutt and Sherry McNutt including the income from

hunting and the sale of exotics. Never during William H. McNutt’s lifetime did he

undertake an act inconsistent with the completed gift in 1983, no limitation in the

use of the “North” side as exercised by Sherry McNutt. Sherry McNutt committed

her life to the 1983 gift by William H. McNutt, she believed and relied upon the

word of her dad, as a true Texan, a man’s word is his bond, plus William H.

McNutt was her trusted and confidential companion, to undo William H. McNutt’s

word is a detriment to Sherry McNutt.

                                      PRAYER

      Appellee, Sherry McNutt, prays that the Court will affirm the judgment of

the trial court, and for such further relief to which she may be entitled.




                                          24
                                             Respectfully submitted,



                                              /s/ Gene Garcia
                                             GENE GARCIA
                                             State Bar No. 07634500
                                             809 S. Port Ave.
                                             Corpus Christi, Texas 78405
                                             (361) 883-8651
                                             (361) 288-8392 – facsimile
                                             email: gene@garciatexaslaw.com

                                     ATTORNEYS FOR APPELLEE

                     CERTIFICATE OF COMPLIANCE

      In accordance with Texas Rule of Appellate Procedure 9.4, I certify that the
foregoing computer-generated brief contains 5,490 words.


                                              /s/ Gene Garcia




                                        25
                         CERTIFICATE OF SERVICE

       I hereby certify that a true copy of the foregoing instrument was delivered to
all counsel of record by electronic service on August 19, 2015:

      Craig White
      Law Office of Craig L. White
      111 W. Olmos Dr.
      San Antonio, Texas 78212
      210-829-7183
      craigwhite@111westolmos.com

      Jeff Small
      Law Office of Jeff Small
      12451 Starcrest, Suite 100
      San Antonio, Texas 78216
      210-496-0611
      jdslaw@satx.rr.com


                                        /s/ Gene Garcia




                                         26
