                                                                                   ACCEPTED
                                                                               04-15-00110-CV
                                                                   FOURTH COURT OF APPEALS
                                                                        SAN ANTONIO, TEXAS
                                                                          9/14/2015 5:58:17 PM
                                                                                KEITH HOTTLE
                                                                                        CLERK




           No. 04-15-0110-CV                                  FILED IN
                                                       4th COURT OF APPEALS
                                                        SAN ANTONIO, TEXAS
                                                       09/14/2015 5:58:17 PM
                         In the Court of Appeals
                                                           KEITH E. HOTTLE
                    for the Fourth District of Texas            Clerk
                          Sitting at San Antonio


                    IN RE THE ESTATE OF
               WILLIAM H. MCNUTT, DECEASED



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


               Reply Brief of Appellants
     McNutt Ranch, Ltd., DMK Ranching, L.L.C., and
 McNutt Management, L. L. C., Gen. Ptnr. McNutt Ranch, Ltd.


Craig L. White                         Jeff Small
State Bar No. 21292400                 State Bar No. 00793027
Law Office of Craig L. White           Law Office of Jeff Small
111 W. Olmos Dr.                       12451 Starcrest, Suite 100
San Antonio, TX 78212                  San Antonio, TX 78216.2988
210.829.7183/F: 210.829.0734           210.496.0611/F: 210.579.1399
craigwhite@111westolmos.com            jdslaw@satx.rr.com

                        Counsel for Appellants
                                      TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

RESPONSE TO STATEMENT OF “FACTS”. . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

         I.       Sherry never addresses how or why she is entitled to an award of
                  “½ of North Side” without proving an exception to the statute of
                  frauds.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

         II.      Sherry’s attempt to shift the burden of proof to the Ranch Entities
                  to disprove her supposed “gift” is misguided.. . . . . . . . . . . . . . 9

         III.     Sherry failed to provide clear and convincing, legally and factually
                  sufficient evidence of any exception to the statute of frauds that
                  would permit the trial court to render judgment in her favor as to
                  the foreman’s house, much less any acreage.. . . . . . . . . . . . . . 10

         IV.      Sherry may not retry – by consent, waiver, or otherwise – issues
                  that were decided previously as a matter of law and which the trial
                  had clearly stated were not being retried.. . . . . . . . . . . . . . . . . . 12

         V.       Sherry’s theory of the case is legally defective and she even failed
                  to prove that theory.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19


                                                          ii
                                INDEX OF AUTHORITIES
Cases

Bellamy v. State,
     742 S.W.2d 677 (Tex. Crim. App. 1987).. . . . . . . . . . . . . . . . . . . . . . . . 9

Dawson v. Tumlinson,
    150 Tex. 451, 242 S.W.2d 191 (Tex. 1951). . . . . . . . . . . . . . . . . . . . . . . 11

In re Estate of McNutt (McNutt I) ,
      405 S.W.3d 194 (Tex. App. – San Antonio 2013, no pet.). . . 2, 3, 5, 12-
                                                                            14

In re Estate of McNutt,
      405 S.W.3d 194 (Tex. App. – San Antonio 2013, no pet.)
      (Marion, J., dissenting). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Osterberg v. Peca,
     12 S.W.3d 31 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. J. M. Huber Corp.,
      145 Tex. 517, 199 S.W.2d 501 (Tex. 1947). . . . . . . . . . . . . . . . . . . . . . . 14

Technical Chem. Co. v. Jacobs,
     480 S.W.2d 602 (Tex. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tomhave v. Oaks Psychiatric Hosp.,
    82 S.W.3d 381 (Tex. App.—Austin 2002, pet. denied). . . . . . . . . . . 10

Statutes

TEX. HEALTH & SAFETY CODE § 161.134(f). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Other Authorities

RESTATEMENT (SECOND) OF TORTS § 402A, cmt. j (1965). . . . . . . . . . . . . . . 10



                                                    iii
              RESPONSE TO STATEMENT OF “FACTS”

      Sherry’s “Statement of Facts” is not credible. She makes all manner of

bold pronouncements without the benefit of citation to the record to

demonstrate the veracity of her assertions. See BRIEF    OF   APPELLEE at 2-3.

Sherry follows a similar pattern throughout her briefing making a variety of

assertions about the sufficiency of the evidence – both legal and factual –

without citation to the record. Where she does quote trial testimony at length

(BRIEF OF APPELLEE at 7-13) she does not explain how that recitation clearly

and convincingly satisfies her burden of proving an oral gift of real estate.

Even following her own mistaken theory of the case, she failed to show how

the evidence was legally and factually sufficient to prove clearly and

convincingly that any specific amount of acreage was necessary for the full use

and enjoyment of the foreman’s house.

      The Ranch Entities take further issue with Sherry’s assertion of “facts”

throughout her brief in that she characterizes them as conclusively proven

when, in fact, they are hotly contested. Certain of Sherry’s erroneous

statements require correction:

      1.    “[T]his Court found that there was sufficient evidence of a gift of

the foreman’s house and remanded the case to determine the appropriate



                                       1
amount of acreage for the full use and enjoyment of the house.” BRIEF        OF

APPELLEE at 3. To the contrary, this Court noted that “the parties neither

argued nor developed evidence regarding [this theory].” In re Estate of

McNutt, 405 S.W.3d 194, 197 (Tex. App. – San Antonio 2013, no pet.). The

Court remanded for a new trial to give Sherry the opportunity to develop “the

theory of an oral gift of the house and an appropriate amount of acreage for

the full use and enjoyment of the house,” which had not previously been pled.

Id.

      2.    “[T]wo members of this panel (sic) believed there was enough

evidence of a gift to remand this cause for a new trial.” BRIEF OF APPELLEE at

14. “[T]his 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

trier of fact determine ‘an appropriate amount of acreage necessary for the full

use and enjoyment of the house . . .’ ” BRIEF OF APPELLEE at 17-18. “[T]his

particular ‘foreman’s’ house [was] already determined to have been gifted to

Sherry McNutt.” BRIEF OF APPELLEE at 20.

      As with the previous allegation, this Court did no such thing. Neither the



                                       2
majority nor the dissent found any evidence of a gift of the foreman’s house

to Sherry or, for that matter, any pleadings asserting such a gift. See id. at 197

(agreeing with the trial court that the theory of a gift of the foreman’s house

and the surrounding 5 acres to provide for water and access to IH 10 was

neither argued nor developed at trial); McNutt, 405 S.W.3d at 198 (Marion,

J., dissenting) (“I believe the evidence does not support a finding that any oral

gift was made”).

      3.    “[T]here is legally sufficient evidence that a reasonable factfinder

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.” BRIEF OF APPELLEE at 14. Sherry’s pleadings do not allege

that her father, Bill McNutt, gave her half of the North Side. See Supp. CR

2/1295 (THIRTEENTH AMENDED PETITION at 2). Instead, her Thirteenth

Amended Petition alleges that Bill gave her the foreman’s house, 5 acres, and

Pasture 9, nothing more. See id. at 2, ¶ 5. There is no evidence that Bill

McNutt ever gave Sherry “an appropriate amount of land for the full use and

enjoyment” of the foreman’s house. Further, Sherry’s assertion begs the

question, “Which half? What are the metes and bounds?” See, e.g.,

RR2/271:10-14 (Court:”[Y]ou can’t prove one bit of that and you know it.”).



                                        3
      4.    “Appellee testified at trial regarding what was necessary to fully

enjoy the foreman’s house.” BRIEF      OF   APPELLEE at 19. Again, there is no

citation to the record to substantiate Sherry’s assertion. But if the Court looks

at the Ranch Entities’ opening brief at page 50, it is plain that Sherry never

addressed what would be necessary for the “full use and enjoyment of the

foreman’s house.” Instead Sherry answered about how much land would be

necessary for raising cattle, sheep, goats, and hunting deer, wild game or

exotic game – “acreage enough to run those operations.” RR 3/10:14-11:2.

      Two points: (a) Sherry never testified as to any amount of acreage, and

(b) she never testified about “use and enjoyment” of the house. She testified

only about raising livestock and hunting game, neither of which is any

evidence as to the question asked in Question No. 2. And that’s assuming

Question No. 2 was legally proper in the first instance, which it was not.

      5.    “Appellee presented without objection, and with the wavier (sic)

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

examination, testimony relevant to the 20 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.” BRIEF OF

APPELLEE at 20-21. This statement ignores the law of the case and this Court’s



                                       4
opinion in McNutt I. McNutt, 405 S.W.3d at 196-97, wherein this Court

agreed with the trial court’s finding that Sherry had failed to show possession

during the previous trial.

      “[W]e believe the trial court found no oral gift on the basis that the
      evidence was insufficient to establish Sherry’s possession as to the 2000
      acres.. . . Accordingly, we agree with the trial court’s finding that Sherry
      failed to meet her burden of proving an oral gift as to 2000 acres.”

Id.

      Because this Court found that Sherry failed to show possession of the

2000 acre/North Side of the McNutt Ranch in the previous trial, she cannot

now prove that she possessed some part of those 2000 acres in an attempt to

prove a gift of the foreman’s house and some unidentified portion of the 2000

acres as an adjunct to the supposed gift of that house.




                                        5
                    SUMMARY OF THE ARGUMENT

      Sherry never addresses the key issue in this case – why she is entitled to

a judgment awarding her “½ of North Side” of the McNutt Ranch without

proving the elements of an oral gift of real estate as to the award of that

acreage as an exception to the statute of frauds.

      Even though it is the issue upon which this case turns, Sherry makes

only one passing reference to the statute of frauds in her entire brief noting

only that Question No.1 required proof of the elements of the oral-gift-of-real-

estate exception to the statute of frauds as to the “gift” of the foreman’s house.

See BRIEF OF APPELLEE at 21.

      Sherry then alludes to some amorphous “equitable exception” related to

Question No. 2 but never cites any authority that creates or supports such an

exception and never explains why the oral-gift-of-real-estate exception to the

statute of frauds does not also apply to the jury’s answer to Question No. 2 as

it does to Question No. 1.

      In addition, Sherry erroneously attempts to shift the burden of proof to

the Ranch Entities by inferring that there is a presumption of a gift here

benefitting Sherry. She suggests it is the Ranch Entities’ burden to disprove

her assertion she was given the foreman’s house and some attendant amount



                                        6
of acreage. See BRIEF   OF   APPELLEE at 5, 12. However, even if the law on

presumptions of the gift is as Sherry cites it, she never proved the predicate

facts required to invoke such a presumption.

      This Court remanded this case for a new trial to give Sherry the

opportunity to develop the unpled and unproven theory created out of whole

cloth by the trial court of an oral gift of the foreman’s house and a small plot

of land to go with the house to provide access to water and the highway. But,

rather than take advantage of that opportunity and abide by the repeated

directions of the trial court on retrial, Sherry insisted upon submitting the case

to the jury on a theory unknown to the law in an attempt to subvert the earlier

findings of the trial court and of this Court that she had failed to prove an oral

gift of the 2000 acre/North Side of the McNutt Ranch, which included the

foreman’s house.

      Even if Sherry’s theory on remand was cognizable in the law, which it is

not, she failed to prove the elements of her theory of the case by clear and

convincing, legally and factually sufficient evidence that Bill McNutt gifted the

foreman’s house to her in 1983 or that a certain amount of acreage was

necessary for the full use and enjoyment of that house.

      This Court should reverse the judgment of the trial court and render

judgment that Sherry take nothing.

                                        7
                   ARGUMENT AND AUTHORITIES

I.    Sherry never addresses how or why she is entitled to an
      award of “½ of North Side” without proving an exception to
      the statute of frauds.

      Sherry makes mention of the statute of frauds only once in her entire

brief when she notes obliquely that “[t]he trial court submitted its charge

based on the pleadings, the oral gift exception to the statute of frauds as to the

foreman’s house.” See BRIEF OF APPELLEE at 21. She then goes on to make

reference to the “equitable exception concerning the developed testimony on

the appropriate amount of acreage for the full use and enjoyment of the

‘foreman’s’ house. ” See id. However, she fails to cite any legal authority that

creates or supports a supposed “equitable exception” to the statute of frauds

other than the oral-gift exception. Additionally, she fails to address, much less

explain and justify, why proof of the elements of the oral-gift exception to the

statute of frauds should not apply equally to Question No. 2 as it does to

Question No. 1.

      The only reason the jury answered Question No. 2 with relation to some

portion of the North Side of the McNutt Ranch was because of Sherry’s

egregious failure and refusal to follow the strict instructions of the trial court

not to allude to some gift of the 2000 acres because that issue had already



                                        8
been decided against her. RR 2/ 194: 20-21 (Court: “no reference to a gift of

the 2,000 acres is to be mentioned, period”);RR2/155:11- 156:17, 194:13-

195:12, 196:17-200:14, 263:5-274:24; see also PRETRIAL MTNS RR dtd 2.7.14,

at 42:21-43:2, 43:8-11, 44:6-18, 45:4-6.

II.   Sherry’s attempt to shift the burden of proof to the Ranch
      Entities to disprove her supposed “gift” is misguided.

      Sherry cites case law that a presumption of gift arises in three

circumstances: if a parent (1) delivers possession, (2) conveys title, or (3)

purchases property in the name of the child, and seeks to infer that that law

has some applicability here. See BRIEF OF APPELLANT at 5, 12. However, she

fails to state how or why that is the case. Moreover, because she never argued

that to the trial court or requested that such an instruction be given to the jury,

her belated argument has no relevance to the matters at hand. See Osterberg

v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding, when no objection is made to

jury charge, sufficiency of evidence is measured against charge given by court

rather than some other unidentified law).

      Indeed, even if the presumption-of-gift theory had any applicability

here, which it does not, Sherry has failed to establish any of the predicate

circumstances that would give rise to any such rebuttable presumption. See

Bellamy v. State, 742 S.W.2d 677, 682 (Tex. Crim. App. 1987) (explaining that


                                        9
no “rebuttable presumption” arises and opposing party has no burden to

disprove anything until “predicate fact has been shown”); see, e.g.,Technical

Chem. Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972) (“ ‘Where warning is

given, the seller may reasonably assume that it will be read and heeded.’

RESTATEMENT (SECOND) OF TORTS § 402A, cmt. j (1965)”); Tomhave v. Oaks

Psychiatric Hosp., 82 S.W.3d 381, 385 (Tex. App.—Austin 2002, pet. denied)

(quoting TEX. HEALTH & SAFETY CODE § 161.134(f) “it is a rebuttable

presumption that the plaintiff’s employment was suspended or terminated, or

that the employee was disciplined or discriminated against, for making a

report related to a violation if the suspension, termination, discipline, or

discrimination occurs before the 60th day after the date on which the plaintiff

made a report in good faith”) (emphasis added). Hence, Sherry’s insinuation

at page 12 of her brief that somehow the Ranch Entities had to disprove her

alleged gift is legally incorrect.

III. Sherry failed to provide clear and convincing, legally and
     factually sufficient evidence of any exception to the statute of
     frauds that would permit the trial court to render judgment
     in her favor as to the foreman’s house, much less any acreage.

      As set out in the Ranch Entities’ opening brief, to overcome the statute

of frauds Sherry has to prove the elements of an oral gift, not only as to the

house but also as to any acreage claimed. See BRIEF OF APPELLANTS at 14-15.


                                      10
To prove an oral gift of real estate as an exception to the writing requirement

of the statute of frauds, the claimant must show (1) a present gift, (2) taking

immediate possession, and (3) making permanent and valuable improvements

to the gift (4) all with the acquiescence of the donor. Dawson v. Tumlinson,

150 Tex. 451, 242 S.W.2d 191, 192-93 (Tex. 1951). But Sherry failed to prove

those elements as to any gift to her from her father in 1983 but, most

particularly, she failed to prove the elements of an oral gift of real estate as to

the jury’s award of “½ the North Side.” See, e.g., BRIEF OF APPELLANT at 47-

49.

      One example among many demonstrates Sherry’s failure to prove the

elements of an oral gift of real estate. In 2005, twenty-two years after the

supposed gift to Sherry from her father, Bill McNutt, through his attorney, set

forth rules with which Sherry would have to comply if she intended to

continue living in the foreman’s house. RR 6/PX4 (Harry Adams’ Letter to

Sherry) (App’x Tab 3 to Appellants’ Opening Brief). As proof that Bill was still

in control, Sherry testified that she abided by the directives set forth in the

Adams’ letter so as not to jeopardize her continued residence on the property.

RR 3/108:22.

      Additionally, Sherry’s own testimony belies her claim to the foreman’s



                                        11
house as her own since 1983. She testified that the use of the foreman’s house

as her residence and the improvements to it, all paid by her parents, were a

“perk” of her employment as ranch foreman on the McNutt Ranch.

RR3/44:10-47:5. Moreover, after eight years of litigation, she has yet to

provide one receipt showing that she paid for anything associated with the

foreman’s house of any part of the ranch. It was all paid for by her father.

RR3/44:13-46:20.

      Plainly, Bill had not given up the rights of control that go along with

ownership as late as 2005, more than two decades after the supposed gift.

Sherry’s failure to demonstrate that in 1983, and thereafter, she had taken

control of the foreman’s house to the exclusion of Bill McNutt is fatal to her

case. The judgment of the trial court should be reversed and judgment should

be rendered that Sherry take nothing.

IV.   Sherry may not retry – by consent, waiver, or otherwise –
      issues that were decided previously as a matter of law and
      which the trial had clearly stated were not being retried.

      As stated earlier, the trial court held that “the evidence was insufficient

to establish Sherry’s possession as to the 2000 acres.” McNutt I, 405 S.W.3d

at 196. The one and only issue that was remanded for possible development

at a new trial was “the theory of an oral gift of the house AND an appropriate



                                       12
amount of acreage for the full use and enjoyment of the house.” See id. at 197

(emphasis added).

      Nonetheless, Sherry intimates without explanation or argument that

some part of the case she was required to prove on retrial was tried by consent

or waiver. See BRIEF OF APPELLEE at 21 (“Appellee presented without objection,

and with the wavier (sic) and acquiescence of Appellant’s trial counsel, during

various cross-examination, testimony relevant to the 20 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.”);22 (“The trial court submitted the charge that reflected all the

admitted evidence, whether from directed examination or cross-examination,

tried by consent or waived, but before the jury and the “law of the case”. (sic)).

      The trial court made abundantly clear that counsel for the Ranch

Entities had not “opened the door” to a retrial of any of the issues from the

first trial and that the only issue being tried was as stated above, in the first

paragraph of this section. Despite that clarity Sherry persistently attempted

to infect the jury deliberations with claims of a gift of the “North Side” in

violation of the trial court’s numerous and repeated admonitions that the issue

of the oral gift of the “North Side” or the “2000 acres” could not even be



                                        13
mentioned much less be retried. RR2/155:11- 156:17, 194:13-195:12, 196:17-

200:14, 263:5-274:24; see also PRETRIAL MTNS RR dtd 2.7.14, at 42:21-43:2,

43:8-11, 44:6-18, 45:4-6. Clearly, the trial court did not permit anything to be

tried by consent or waiver.

      More than that, however, if Sherry is arguing that some issue was tried

by consent, she was required to squarely present that issue to the trial court

at the time. State v. J. M. Huber Corp., 145 Tex. 517, 199 S.W.2d 501, 502

(Tex. 1947) (reviewing courts “are not authorized to consider a question . . .

which was not before the lower courts and which they were never called upon

to decide”). She presented nothing of the sort and made no argument to that

effect to the trial court.

V.    Sherry’s theory of the case is legally defective and she even
      failed to prove that theory.

      This Court gave Sherry the opportunity on remand to develop the legal

theory of an oral gift of real estate, which included the foreman’s house AND

some appropriate amount of acreage for its full use and enjoyment. McNutt

I, 405 S.W.3d at 197. But she failed to take advantage of that opportunity

insisting, instead, that this Court remanded two issues: (1) an oral gift of the

foreman’s house, and (2) the automatic entitlement to some amount of land

if a fact-finder found a gift of the house. BRIEF OF APPELLEE at 22. Sherry’s


                                       14
theory of the case fell right in line with the trial court’s faulty presumption that

the gift of a house automatically carried with it some amount of land, “which

includes access to water, sufficient evidence relative to the well, but only the

fact that there is access to the water and that it includes access to highway ten,

I-10 service road.” See id. at 196 n.1.

      Moreover, Sherry persistently ignored the trial court’s directions and

admonishments about the only evidence relevant to the issue that was going

to be before the jury.

      The Court:         [Speaking to Sherry’s counsel] You know as well as
                         anybody else in this courtroom that I have made it
                         plain that the only issue they can go into is what
                         amount of land, not what particular plot of land. Does
                         she think she needs five acres. Does she think she
                         needs ten acres, and how to explain what she needs
                         and why she needs it and how she’s going to use it.

RR 2/263:14-20.

      The Court:         [To Sherry’s counsel] -- well, instruct her how to
                         testify. She’s your witness. You’ve got to tell her that
                         all she can say in this case is, I think I ought to have
                         50 acres. I think I ought to have a hundred acres, and
                         be ready to explain how she reaches that, not because
                         she was able to occupy those pieces of property.

      Mr. White:         Or taking possession is what she said.

      The Court:         Or taking possession of it, yes, but because she just
                         thinks she has to use it for certain purposes, and I'm
                         not going to say any more than that, but that's – I've


                                          15
                        already gone overboard in this case, and I don't want
                        to keep dragging it through this now.

RR 2/264:11-25.

      Despite the trial court’s explicit instruction that the only relevant

evidence was an amount of land, neither Sherry nor any of her witnesses ever

provided any testimony about a specific amount of acreage or an expressly

identifiable gift. The trial court, again, instructed Sherry’s counsel that he

needed to provide a specific, reasonable amount of land.

      The Court:        You had every opportunity in that case to say and –
                        and you still can do it, but we are asking is a
                        reasonable amount of land, whatever it is, but you’re
                        going to have to prove to this jury and – and – that
                        that is a reasonable amount of land, and I’ll guarantee
                        you they have the right to say it’s not. Now that’s just
                        all there is to it.

RR 2/272:7-13.

      Sherry never did any of those things. How can Sherry prove the

elements of an oral gift of real estate without every identifying what that gift

was? What was it she took possession of and made permanent and substantial

improvements to and of which Bill gave up all incidents of ownership in her

favor?




                                      16
CONCLUSION

   Sherry’s failed to prove her case for multiple reasons:

   1)     She acquiesced to the trial court’s erroneous formulation and
   submission of the jury questions on a legal theory unknown to Texas
   law.


   2)     Nothing in Texas law supports the assertion that the gift of a house
   creates a presumption of an automatic conveyance of some amount of
   real estate to go with it.


   3)     She cannot be entitled to the award of some unidentified amount
   of acreage as awarded by the jury in answer to Question No. 2 because
   she failed to prove any exception to the writing requirement of the
   statute of frauds; i.e. the elements of an oral gift of real estate.


   4)     The evidence showing that a shorthand reference to the
   “foreman’s house,” as it is still known today, as Sherry’s house, is subject
   to the equal inference rule and is no legal evidence probative of Sherry’s
   ownership. The inference from those comments is no more indicative of
   Sherry’s ownership of the house than it is simply that Sherry resided
   there from time to time.


          5)    Even if the trial court’s two-issue submission of the remand
   of the lone legal theory of the oral gift of the foreman’s house AND the
   necessary acreage for the full use and enjoyment of that house was


                                     17
      proper, Sherry failed to provide legally and factually sufficient, clear and
      convincing evidence in support of the jury’s answer to either Question
      No. 1 or Question No. 2.

PRAYER

      Relying on its opening brief and the argument and authority herein, the

Ranch Entities ask this Court to reverse the judgment of the trial court and

render judgment that Sherry take nothing.

      Alternatively, this Court should reverse the judgment of the trial court

and remand this cause for a new trial, with instructions that Sherry be

required to prove the elements of an oral gift of real estate both as to the

foreman’s house and the explicitly defined plot of land she claims to have been

gifted.

                                            Respectfully submitted,

                                             /S/   Jeff Small
Craig L. White                              Jeff Small
State Bar No. 21292400                      State Bar No. 00793027
LAW OFFICE OF CRAIG L. WHITE                LAW OFFICE OF JEFF SMALL
111 West Olmos Drive                        12451 Starcrest Dr, Suite 100
San Antonio, Texas 78212                    San Antonio, TX 78216.2988
210. 829.7183/f: 210. 829.0734              210.496.0611/f: 210.579.1399
craigwhite@111westolmos.com                 jdslaw@satx.rr.com


                            Counsel for Appellants



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                  CERTIFICATE OF COMPLIANCE

     In accordance with Texas Rule of Appellate Procedure 9.4, by signature
below I certify that the foregoing computer-generated brief contains 3970
words.

                     CERTIFICATE OF SERVICE

      I hereby certify that on this 14th day of September, 2015, a true and
correct copy of the Brief of Appellants was served on counsel of
record/interested parties in accordance with the Texas Rules of Civil
Procedure.

John F. Nichols, Sr.             Gene Garcia
State Bar No. 14996000           State Bar No. 07634500
NICHOLS LAW, PLLC                809 S. Port Ave.
5020 Montrose, Suite 400         Corpus Christi, TX 78405
Houston, Texas 77006             361.88.8651/f: 361.288.8392
713.654.0708/F: 713.654.0706     gene@garciatexaslaw.com
john@nicholslaw.com


                                 /S/   Jeff Small
                                 Jeff Small
                                 Craig L. White




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