                                      Jeff Small
                                    Attorney at Law
                               12451 Starcrest, Suite 100
                              San Antonio, TX 78216.2988                       FILED IN
                             210.496.0611/F: 210.579.1399               4th COURT OF APPEALS
                                  jdslaw@satx.rr.com                     SAN ANTONIO, TEXAS
                                                                        12/01/15 4:35:22 PM
                                    November 23, 2015                     KEITH E. HOTTLE
                                                                                Clerk
Mr. Keith C. Hottle, Clerk
Fourth Court of Appeals
300 Dolorosa, Suite 3200
San Antonio, TX 78205

Re:    In re the Estate of William H. McNutt, Deceased;
       Cause No. 04-15-00110-CV

Dear Mr. Hottle:

        Petitioners, the McNutt Ranch Entities, respectfully submit this post-submission
letter brief and ask that it be distributed to the members of the panel in the foregoing case,
Justices Angelini, Chapa, and Pulliam, which heard oral argument on November 17, 2015.

        The McNutt Ranch Entities remain firm that Sherry failed to prove any oral gift of
real estate, including as to the foreman’s house, and continue to urge that the entire trial
court judgment be reversed and that Sherry take nothing. Among other reasons, no matter
what else Sherry shows regarding the house, she failed to show any evidence that Bill
made a gift to her of the house in 1983–she never testified that he did, only that he
allegedly gifted her the entire northside of the Ranch. This Court decided otherwise in the
first appeal as to the gift of the northside.

      That said however, for clarity’s sake, no matter how the Court resolves the issue as
to Question No. 1, the only proper resolution as to Question No. 2 is for the Court to
reverse and render judgment as to that part of the judgment that Sherry take nothing.

        Sherry waived her claim as to Question No. 2 because she submitted her cause on
an incorrect, invalid legal theory. Thus, the proper resolution of that issue is rendition. See
Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, (Tex. 1997) (“Because the
[plaintiffs] did not secure proper jury findings on their only viable cause of action, they
waived that claim and are not entitled to any relief . . .”). “Upon appeal all independent
grounds of recovery or of defense not conclusively established under the evidence and no
element of which is submitted or requested are waived.” TEX. R. CIV. P. 279.

        This Court gave Sherry the opportunity on remand to develop the theory of an oral
gift both as to the house AND the necessary plot of land surrounding the house for full use
and enjoyment of the house. McNutt I, 405 S.W.3d at 197. But she failed and refused to
submit the question regarding “the necessary plot of land” under the theory of an oral gift
Mr. Keith Hottle, Clerk
November 23, 2015
Page 2

of real estate as directed by this Court. See id. Instead, Sherry opted to retry the alleged
gift of the 2000 acre, northside of the ranch, which had previously been decided adversely
to her.

        It was Sherry’s burden, as a proponent of an exception to the statute of frauds as
to the “necessary plot of land,” to seek and obtain a finding as to the elements of the oral-
gift-of-real-estate exception as to the plot of land as well as to the house. See Dynegy, Inc.
v. Yates, 422 S.W.3d 638, 641 (Tex. 2013). She failed to ask for or obtain findings
supporting an exception to the statute of frauds as to Question No. 2. Indeed, because
Sherry resisted submitting the issue posed in Question No. 2 subject to the elements of an
oral gift of real estate, and failed to obtain the necessary jury findings, she waived her claim
as to any award pursuant to Question No. 2. Thus, the only proper resolution as to
Question No. 2 is rendition of judgment that Sherry take nothing.

       Were the Court to affirm only as to Question No. 1, it would follow that Sherry would
need access over the Ranch to the foreman’s house. Accordingly, in that instance, the
Court should find that Sherry is entitled to an implied easement appurtenant for access
from the house to water and to the IH-10 access road as would be the case in any instance
where there has been a unity of ownership and there is a physical necessity for access to
water and an outlet road. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 208 (Tex.
1962) (use of the “servient” tract was necessary “for drainage, support, way, or water”);
Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397, 399 (1944).

       Accordingly, the McNutt Ranch Entities respectfully ask this Court to reverse the trial
court’s judgment in its entirety. In the alternative, the McNutt Ranch Entities ask that if the
Court affirms the judgment as to Question No. 1 that it reverse and render judgment that
Sherry take nothing as to Question No. 2 and grant an easement to her that is no more
than necessary for access to water and the IH-10 access road from the house.

      By signature below, I certify that counsel of record/interested parties are being
served a copy of the foregoing concurrent with its filing.

                                                   Respectfully submitted,

                                                    /S/   Jeff Small
                                                   Jeff Small
                                                   Counsel for Appellants
