                                                                               ACCEPTED
                                                                           04-15-00077-CV
                                                               FOURTH COURT OF APPEALS
                                                                    SAN ANTONIO, TEXAS
                                                                     6/29/2015 12:00:00 AM
                                                                            KEITH HOTTLE
                                                                                    CLERK


                 NO. 04-15-00077-CV
                                                           FILED IN
                                                    4th COURT OF APPEALS
            IN THE COURT OF APPEALS                  SAN ANTONIO, TEXAS
                                                   06/28/2015 12:57:34 PM
    FOURTH COURT OF APPEALS DISTRICT OF            TEXAS
                                                      KEITH E. HOTTLE
               SAN ANTONIO, TEXAS                           Clerk



              HARRY OLIVER WINKENHOWER

                                           APPELLANT

                              V.

GEORGE ALLAN SMITH, INDEPENDENT EXECUTOR OF THE
   ESTATE OF LYDA CATHERINE SMITH, DECEASED

                                             APPELLEE
                  th
      From the 198 District Court of Bandera County, Texas
                 Trial Court No. CV-14-0000018
          Honorable M. Rex Emerson, Judge Presiding

        BRIEF OF APPELLANT,
     HARRY OLIVER WINKENHOWER

        Dan Pozza                         Cynthia Cox Payne
 State Bar No. 16224800                 State Bar No. 24001935
     Attorney at Law                         P.O. Box 1178
239 East Commerce Street                   1118 Main Street
San Antonio, Texas 78205                 Bandera, Texas 78003
 (210) 226-8888 – Phone                 (830) 796.7030 – Phone
  (210) 224-6373 – Fax                   (830) 796.7945 – Fax
  danpozza@yahoo.com                   cpayne@paynelawfirm.net

               ATTORNEYS FOR APPELLANT,
              HARRY OLIVER WINKENHOWER
              ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL


Appellant                                      Appellate Counsel

Harry Oliver Winkenhower                       Dan Pozza
                                               State Bar No. 16224800
                                               Attorney at Law
                                               239 East Commerce Street
                                               San Antonio, Texas 78205
                                               (210) 226-8888 – Phone
                                               (210) 224-6373 – Fax
                                               danpozza@yahoo.com

                                               Appellate and Trial Counsel

                                               Cynthia Cox Payne
                                               State Bar No. 24001935
                                               P.O. Box 1178
                                               1118 Main Street
                                               Bandera, Texas 78003
                                               (830) 796.7030 – Phone
                                               (830) 796.7945 – Fax
                                               cpayne@paynelawfirm.net

Appellee                                       Appellate and Trial Counsel

George Allan Smith                             Brent Barton Hamilton
Independent Executor of the Estate of          State Bar No. 00796696
Lyda Catherine Smith, Deceased                 Attorney at Law
                                               1602 13th Street
                                               Lubbock, Texas 79402-3831
                                               (806) 771-1850 – Phone
                                               (806) 771-3750 – Fax
                                               brent@shlawgroup.com




                                        -ii-
                                         TABLE OF CONTENTS

                                                                                                                     Page

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES......................................................................................v

STATEMENT OF THE CASE ................................................................................ ix

STATEMENT REGARDING ORAL ARGUMENT ...............................................x
ISSUES PRESENTED............................................................................................. xi
1.       The trial court erred in granting Smith’s motion for summary
         judgment as to Winkenhower’s counterclaim based on partial
         performance. .................................................................................................. xi

2.       The trial court erred in granting Smith’s motion for summary
         judgment as to Winkenhower’s counterclaim based on quasi-estoppel........ xi

3.       The trial court erred in sustaining Smith’s objections to
         Winkenhower’s summary judgment evidence. ............................................. xi

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................4
ARGUMENT .............................................................................................................4

I.       Standard of review for traditional and no-evidence summary
         judgments. ....................................................................................................... 4

II.      Winkenhower raised genuine issues of material fact on the existence
         of an oral agreement. ...................................................................................... 6

III.     Winkenhower raised genuine issues of material fact on his
         performance of the oral agreement to avoid the application of the
         statute of frauds............................................................................................. 10



                                                           -iii-
IV.     Winkenhower raised genuine issues of material fact on quasi-estoppel
        to avoid the application of the statute of frauds. .......................................... 11

V.      Winkenhower presented competent summary judgment evidence. ............. 13

        A.      Parol-Evidence Rule. ...........................................................................14

        B.      Dead Man’s Rule. ................................................................................15
        C.      Conclusory, speculative and hearsay. .................................................16
CONCLUSION AND PRAYER .............................................................................19

CERTIFICATE OF SERVICE ................................................................................20
CERTIFICATE OF COMPLIANCE .......................................................................21

APPENDIX

Tab A           Order on Plaintiff’s Traditional and No Evidence Motion for
                Summary Judgment on Defendant’s Counterclaims
Tab B           Order on Defendant’s Objections to Evidence
Tab C           Order on Plaintiff’s Objections to Defendant’s Summary Judgment
                Evidence
Tab D           April 22, 2001 notarized letter from Mary Emma Winkenhower to her
                children, Harry O. Winkenhower Jr. and Lyda Cay Smith concerning
                disposition of the Medina Ranch




                                                     -iv-
                                  INDEX OF AUTHORITIES

Cases                                                                                              Page

626 Joint Venture v. Spinks,
      873 S.W.2d 73 (Tex. App.—Austin 1993, no writ) ................................ 12

Academy of Skills & Knowledge, Inc. v. Charter Sch., USA, Inc.,
     260 S.W.3d 529 (Tex. App.—Tyler 2008, pet. denied) .............................9

Anguiano v. State,
     774 S.W.2d 344 (Tex. App.—Houston [14th Dist.] 1989, no pet.) ......... 17

Atkinson Gas Co. v. Albrecht,
      878 S.W.2d 236 (Tex. App.—Corpus Christi 1994, writ denied)........... 12

B & W Sup. v. Beckman,
     305 S.W.3d 10 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ..........9

Binur v. Jacobo,
      135 S.W.3d 646 (Tex. 2004). .....................................................................4
Boyert v. Tauber,
      834 S.W.2d 60 (Tex. 1992) ..................................................................... 10

Browning–Ferris, Inc. v. Reyna,
     865 S.W.2d 925 (Tex. 1993) ......................................................................6

Byrum v. State,
     762 S.W.2d 685 (Tex. App.—Houston [14th Dist.] 1988, no pet.) ......... 17

Cambridge Prod., Inc. v. Geodyne Nominee Corp.,
    292 S.W.3d 725 (Tex. App.—Amarillo 2009, pet. denied) .................... 11

Campbell v. Groves,
    774 S.W.2d 717 (Tex. App.—El Paso 1989, writ denied) ...................... 17

Casso v. Brand,
     776 S.W.2d 551 (Tex. 1989) ................................................................... 13

Chase Commercial Corp. v. Datapoint, Corp.,
     774 S.W.2d 359 (Tex. App.—Dallas 1989, no writ)............................... 17



                                                    -v-
Choi v. McKenzie,
      975 S.W.2d 740 (Tex. App.—Corpus Christi 1998, pet. denied) ........... 10

Davis v. Argonaut Sw. Ins. Co.,
      464 S.W.2d 102 (Tex. 1971) ................................................................... 18

Estate of Kaiser v. Gifford,
      692 S.W.2d 525
      (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.) ......................... 12

Ethicon, Inc. v. Martinez,
      835 S.W.2d 826 (Tex. App.—Austin 1992, writ denied) ....................... 17
Fasken Land & Minerals, Ltd. v. Occidental Permian, Ltd.,
     225 S.W.3d 577 (Tex. App.—El Paso 2005, pet. denied)....................... 11

Ford Motor Co. v. Ridgway,
     135 S.W.3d 598 (Tex. 2004) ......................................................................5

Forney 921 Lot Dev. Partners, I, L.P. v. Paul Taylor Homes, Ltd.,
     349 S.W.3d 258 (Tex. App.—Dallas 2011, pet. denied) ........................ 12
Frost Nat’l Bank v. Burge,
      29 S.W.3d 580 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ........... 12

Fulmer v. Rider,
     635 S.W.2d 875 (Tex. App.—Tyler 1982, writ ref’d n.r.e.) ................... 15

Hamilton v. Morris Res., Ltd.,
     225 S.W.3d 336 (Tex. App.—San Antonio 2007, pet. denied) .............. 12

Jackson v. Hernandez,
      285 S.W.2d 184 (Tex. 1955) ................................................................... 14

Johnson v. Brewer & Pritchard, P.C.,
     73 S.W.3d 193 (Tex. 2002) ........................................................................6

King Ranch, Inc. v. Chapman,
      118 S.W.3d 742 (Tex. 2003) ............................................................... 5, 11

Lewis v. Foster,
      621 S.W.2d 400 (Tex. 1981) ................................................................... 15



                                                   -vi-
Liberty Mut. Ins. Co. v. Nelson,
      142 Tex. 370, 178 S.W.2d 514 (1944) .................................................... 18

Lopez v. Munoz, Hockema & Reed, L.L.P.,
      22 S.W.3d 857 (Tex. 2000) ............................................................... 11, 12

Lowe v. State,
     163 Tex. Crim. 578, 294 S.W.2d 394 ...................................................... 18

Lozano v. Lozano,
     52 S.W.3d 141 (Tex. 2001) ........................................................................6

McLaughlin, Inc. v. Northstar Drilling Techs.,
    138 S.W.3d 24 (Tex. App.—San Antonio 2004, no pet.) ..........................9

Mutual Life Insurance Co. v. Hillmon,
     145 U.S. 285 (1892)................................................................................. 18
Nixon v. Mr. Prop. Mgmt. Co.,
      690 S.W.2d 546 (Tex. 1985) ......................................................................5
Provident Life & Acc. Ins. Co. v. Knott,
      128 S.W.3d 211 (Tex. 2003) ......................................................................4
Sharp v. Stacy,
      535 S.W.2d 345 (Tex. 1976) ................................................................... 10
Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd.,
      409 S.W.3d 790 (Tex. App.—Dallas 2013, no pet.) ............................... 10
Strandberg v. Spectrum Office Bldg.,
      293 S.W.3d 736 (Tex. App.—San Antonio 2009, no pet.) ........................4

Texaco, Inc. v. Pennzoil, Co.,
     729 S.W.2d 768
     (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) ......................... 18

Turro v. State,
      950 S.W.2d 390 (Tex. App.—Fort Worth 1997, pet. ref’d).................... 17
Yancy v. United Surgical Partners Int’l, Inc.,
     236 S.W.3d 778 (Tex. 2007) ................................................................... 17



                                                     -vii-
Rules                                                                                                  Page

Texas Rule of Civil Procedure 166 .................................................................. 4, 5
Texas Rule of Evidence 601 ........................................................................ 15, 16
Texas Rule of Evidence 701 ........................................................................ 17, 19
Texas Rule of Evidence 801 .............................................................................. 19
Texas Rule of Evidence 803 .............................................................................. 18




                                                    -viii-
                           STATEMENT OF THE CASE


Nature of the case.         Plaintiff, George Allen Smith, Independent Executor of
                            the Estate of Lyda Catherine Smith, Deceased
                            (“Smith”) sued Henry (sic) Oliver Winkenhower
                            seeking a partition of certain real property located in
                            Bandera County. CR 5-7. Winkenhower filed a
                            counterclaim seeking to enforce an oral agreement to
                            convey this real property into a family trust.
                            Winkenhower asserts that his performance of that oral
                            agreement is an exception to the statute of frauds.
                            Winkenhower also asserts that Smith, having enjoyed
                            the benefits of Winkenhower’s performance, is
                            estopped to deny the agreement. CR 145-148.
Course of proceedings.      Smith filed a traditional and no evidence summary
                            judgment motion to Winkenhower’s counterclaim. CR
                            20-142. Winkenhower filed a response. CR 152-95.
                            Both the motion and response attached summary
                            judgment evidence. The parties filed replies as well as
                            objections to much of the summary judgment evidence.
                            CR 196-220, 221-33.

Trial court disposition.    The trial court entered written orders on the parties’
                            objections to the summary judgment evidence. Tab B.
                            CR 239. Tab C. CR 234-37. The trial court granted the
                            motion for summary judgment. Tab A. CR 241.




                                        -ix-
              STATEMENT REGARDING ORAL ARGUMENT

      Given the subtlety of the interplay between the statute of frauds and the

recognized exceptions such as partial performance and quasi-estoppel and given

the numerous evidentiary objections and rulings, Winkenhower believes that this

Court’s decisional process will be aided by oral argument.




                                        -x-
                           ISSUES PRESENTED

1.   The trial court erred in granting Smith’s motion for summary judgment as to
     Winkenhower’s counterclaim based on partial performance.

2.   The trial court erred in granting Smith’s motion for summary judgment as to
     Winkenhower’s counterclaim based on quasi-estoppel.

3.   The trial court erred in sustaining Smith’s objections to Winkenhower’s
     summary judgment evidence.




                                     -xi-
TO THE HONORABLE FOURTH COURT OF APPEALS:

      Appellant, HARRY OLIVER WINKENHOWER, files this his Brief of

Appellant, and respectfully shows the Court as follows:

                           STATEMENT OF FACTS

      The real property that is the subject of this partition suit is approximately

198 acres located in Bandera County and is called the “Medina Ranch” by the

family. It was purchased in 1959 by Harry Oliver Winkenhower, Sr. and Mary

Emma Winkenhower, to be used for recreational purposes. CR 24, 115, 153. Harry

Oliver Winkenhower, Sr. and Mary Emma Winkenhower had two children: Harry

Oliver Winkenhower, Jr. (the appellant here) and Lyda Catherine (Winkenhower)

Smith (her estate is the appellee here). CR 24, 114-15. Their father, Harry Sr. died

March 1, 1970. CR 121.

      On April 22, 2001, Mary Emma wrote a notarized letter to her two children,

Harry Jr. and Lyda Cay, informing them of her “wishes for the ranch in Medina,

Texas. In the near future I will have my wishes legally written into my will…It is

to remain one property and I will it to bloodline family…Only bloodline family

members will be able to have any claim to the ranch. These are my wishes

children and I know you will both respect what I am asking you.” Tab D. CR 166.

      Mary Emma died January 5, 2005. CR 121. Thereafter, to honor and

memorialize their mother’s wish concerning the Medina Ranch, Lyda Cay and
Harry Jr., along with their families, began discussing placing the Medina Ranch in

what Mary Emma had referred to as a bloodline trust. The terms of the trust were

discussed in 2007. The appellee, Executor George Smith, was involved in those

discussions and, at that time, was acting consistent with Mary Emma’s wish. CR

167-68, 181-83.

      For various reasons, the discussions about the formation of a trust and an

agreement as to its terms were not finalized until April, 2011. On April 20, 2011,

Lyda Cay and her husband, George (the appellee) met with Harry Jr. and his wife

and children at Mary Emma’s house in San Antonio. The purpose of the meeting

was to discuss various family business matters. Those business matters were (1) a

disputed balance on a personal loan made by the Smith family to the Winkenhower

family during the time the Winkenhower family was taking care of Mary Emma

and (2) the issue of honoring Mary Emma’s wish concerning the ultimate

disposition of the Medina Ranch. CR 162-95.

      At that meeting, Harry Jr. and Lyda Cay agreed that if Harry Jr. would

convey his undivided one-half interest in their mother’s home to Lyda Cay, then

Lyda Cay would forgive the indebtedness owed her on the personal loan and she

would contribute her interest in the Medina Ranch to a bloodline trust. Harry Jr.

would contribute his interest in the Medina Ranch to this soon to be created trust as

well. CR 162-95. Harry Jr. signed a document promising to relinquish his interest


                                         -2-
in the San Antonio homestead for forgiveness of the debt. CR 140. Thereafter,

Harry Jr. paid consideration by signing the deed relinquishing such interest (CR

177-79) and made improvements to the Medina Ranch in anticipation of its

transfer into the bloodline trust. CR 162-63.

      Unfortunately, Lyda Cay’s illness took her life less than two months later on

June 20, 2011 before the agreement could be formalized or the trust could be

created. Lyda Smith’s will was admitted to probate in Tarrant County on March 6,

2012. Lyda’s will named her husband, George Allen Smith, as the Independent

Executor of her Estate. The probate matter is still pending in Tarrant County

Probate Court No. 2. CR 131-40.

      Smith filed his petition seeking partition of the Medina Ranch on

January 21, 2014. CR 5-7. By way of amended answer and counterclaim,

Winkenhower alleges that he performed under the oral agreement and that his

partial performance is an exception to the statute of frauds. Winkenhower also

alleges that because Smith has benefited from Winkenhower’s performance under

the oral agreement, Smith is estopped from denying the agreement. Winkenhower

seeks enforcement of the oral agreement. CR 145-48. The motion for summary

judgment, responses, replies and ultimately several trial court orders followed,

including the order granting Smith’s summary judgment motion, from which this

appeal ensues.


                                         -3-
                       SUMMARY OF THE ARGUMENT

      The agreement of Harry Jr. and Lyda Cay to honor their mother’s wish

concerning the family ranch has been thwarted by Lyda Cay’s husband who,

having accepted benefits under the agreement, now seeks to repudiate that

agreement by partitioning the family ranch. Competent summary judgment

evidence was introduced to raise genuine issues of material fact on the existence of

the children’s agreement, on Harry Jr.’s performance of the agreement and on

Smith’s knowing acceptance of the benefits of the agreement. The trial court erred

in summarily ending these factual disputes before such disputes could be properly

evaluated by a fact finder. Winkenhower is entitled to a jury trial on these issues.

                                   ARGUMENT

I.    Standard of review for traditional and no-evidence summary judgments.

      A party may move for both traditional and no-evidence summary

judgment. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004). Appellate courts

review the grant of summary judgment, both traditional and no-evidence, de

novo. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003); Strandberg v. Spectrum Office Bldg., 293 S.W.3d 736, 738 (Tex. App.—

San Antonio 2009, no pet.). A party moving for traditional summary judgment has

the burden of establishing that no material fact issue exists and the movant is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). In reviewing the



                                         -4-
granting of a traditional summary judgment, appellate courts consider all the

evidence in the light most favorable to the non-movant, indulging all reasonable

inferences in favor of the non-movant, and determine whether the movant proved

that there were no genuine issues of material fact and that it was entitled to

judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–

49 (Tex. 1985).

      A movant is entitled to no-evidence summary judgment if, “[a]fter 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.” TEX. R. CIV. P. 166a(i). The trial court must grant the motion unless the

non-movant produces summary judgment evidence to raise a genuine issue of

material fact on the issues the movant has raised. TEX. R. CIV. P. 166a(i). “A

genuine issue of material fact exists if more than a scintilla of evidence

establishing the existence of the challenged element is produced.” Ford Motor Co.

v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence

exists when the evidence “rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions.” King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 751 (Tex. 2003).

      When determining if more than a scintilla of evidence has been produced in

response to a Rule 166a(i) motion for summary judgment, the evidence must be


                                        -5-
viewed in the light most favorable to the non-movant. Johnson v. Brewer &

Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002). Both direct and circumstantial

evidence may be used to establish any material fact. Lozano v. Lozano, 52 S.W.3d

141, 149 (Tex. 2001); Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.

1993).

II.   Winkenhower raised genuine issues of material fact on the existence of
      an oral agreement.

      Winkenhower’s summary judgment evidence supports the existence of a

valid, enforceable, oral contract, specifically: there was a meeting of the minds

when George and Lyda Cay Smith and Winkenhower and his wife and three

children met at Mary Emma’s house on April 20, 2011. At that meeting, Lyda Cay

agreed to honor her parents’ wishes and contribute her share of the Medina Ranch

to a blood-line trust in exchange for Winkenhower relinquishing his share of his

mother’s house in San Antonio along with satisfying debt he owed to Lyda Cay.

      Winkenhower’s deposition testimony, to which there was no specific

objection, raises a genuine issue of material fact on the existence of this oral

agreement.

             Q:   Is it your position that the proposed partition (of
                  the Medina Ranch) is not fair to you or that the
                  property cannot be or should not be partitioned?

             A:   Is should not be partitioned.
             Q:   Okay. Now tell me why you say that.


                                       -6-
             A:   Because I gave up through – my sister and I agreed
                  that she would take the house in town, and I would
                  get the –actually the --- her part of Medina would
                  be taken, put in a bloodline trust for my children.

CR 184-85.

             Q:   You say that in spring of 2000 that there was an
                  oral agreement that in exchange for conveying
                  your interest in the San Antonio house, that Lyda
                  Cay was to convey the interest in the ranch.

             A:   That is correct.
CR 186-87.

             Q.   But, in fact, I wrote you a letter and asked you to
                  go ahead and convey the house over to the estate
                  as a result of the existence of your written
                  agreement in 16, correct?

             A.   Yes. And at that time I told you there was an
                  agreement between my sister and I. And that you
                  said, Hanks says there was no contract. And I’m
                  saying there is a verbal contract.
CR 188.

             Q:   The counterclaim that you made mentions that
                  there would be a bloodline trust created, correct?

             A:   That’s correct.

CR 189.

             Q:   Well, and so here’s what I’m trying to figure out
                  is, are you---do you have an obligation to convey
                  the property into a bloodline trust?
             A:   I do.

CR 190.


                                      -7-
             Q:   And you then—did you then negotiate with your
                  sister as to how that would happen and under what
                  circumstances?

             A:   Prior to that meeting [April 23, 2011], there was a
                  bloodline trust being worked on.

             Q:   Being worked on.
             A:   Yes, by Brent [Smith’s attorney in this appeal]

             Q:   Okay. And did he --- do you have any
                  correspondence with him or from him or a draft
                  from him with regard to the bloodline trust?
             A:   Yes.
CR 191.

             Q:   Do you recall whether this document, which is
                  titled Response to Trust Agreement was sent to
                  Mr. Hamilton as attorney drafting the trust
                  agreement?
             A:   I don’t know.
             Q:   Okay. And, if you would look at the last page, and
                  describe for the jury what that says.
             A:   From Habys to G.S. Smith at Bell Helicopter.

CR 192-93.

             Q:   And is there a reason do you recall a reason that
                  you did not get a like representation? [referring to
                  CR 95-96]
             A:   No, because they had agreed to it.

CR 194.




                                       -8-
            Q:     And with regard to your children, you believe your
                   agreement in April of 2011, do you believe it was
                   with – between you and your sister?
            A:     I do.

CR 195.

      Winkenhower’s summary judgment evidence raises a genuine issue of

material fact about whether there was an oral agreement between Winkenhower

and his sister whereby both of them would transfer their respective interests in the

Medina Ranch into a family trust and in consideration, Winkenhower would

transfer his interest in the family home to his sister. Such transfer of

Winkenhower’s interest in the family home also extinguished a loan balance he

owed to his sister. CR 162-95. There is an offer, acceptance, mutual assent, and

consideration. B & W Sup. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—Houston

[1st Dist.] 2009, pet. denied); Academy of Skills & Knowledge, Inc. v. Charter Sch.,

USA, Inc., 260 S.W.3d 529, 536 (Tex. App.—Tyler 2008, pet. denied);

McLaughlin, Inc. v. Northstar Drilling Techs., 138 S.W.3d 24, 27 (Tex. App.—San

Antonio 2004, no pet.).

      Smith has breached this agreement. Smith has filed the subject suit seeking

partition or sale of the Medina Ranch. This partition is Winkenhower’s injury. The

filing of the partition suit expresses the intent to ignore the agreement. Partition

would deprive Winkenhower and his family of the use and enjoyment of the entire



                                        -9-
tract known as the Medina Ranch. The partition undermines the intent

Winkenhower’s parents and sister had concerning the use of this property.

Winkenhower gave up his interest in the family home and stands ready to convey

his Medina Ranch interest into the agreed upon trust. Winkenhower has performed.

Smith has accepted the benefit of that performance but refuses to honor the

obligation that goes with that acceptance.

III.   Winkenhower raised genuine issues of material fact on his performance
       of the oral agreement to avoid the application of the statute of frauds.

       An oral agreement may be enforceable despite the statute of frauds if the

agreement has been partially performed. See Stovall & Assocs. v. Hibbs Fin. Ctr.,

Ltd., 409 S.W.3d 790, 800 (Tex. App.—Dallas 2013, no pet.). A partially

performed oral contract for the sale or lease of real estate is enforceable. Id. at 801;

Choi v. McKenzie, 975 S.W.2d 740, 743 n. 2 (Tex. App.—Corpus Christi 1998,

pet. denied).

       To raise genuine issues of material fact on partial performance, a party need

only show more than a scintilla of evidence that he or she paid consideration, took

or surrendered possession of land and made valuable improvements to land or, if

no improvements were made, that other factors would make the transaction

fraudulent if not enforced. Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex. 1992)

(purchaser); Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d at 800-01

(lessee); see Sharp v. Stacy, 535 S.W.2d 345, 347 (Tex. 1976).

                                         -10-
      Winkenhower paid consideration by signing a deed conveying his interest in

his mother’s property to his sister’s estate which allowed all the consideration for

that sale to be paid to his sister’s estate. Winkenhower surrendered possession and

title of his mother’s home in San Antonio when he signed the deed. Winkenhower

made improvements to the family ranch in Medina, Texas. CR 162-195. More than

a scintilla of evidence exists on Winkenhower’s performance of an oral agreement

in that the evidence rises to the level that would enable reasonable and fair minded

people to differ in their conclusions on this issue. King Ranch, Inc. v. Chapman,

118 S.W.3d at 751. This is all Winkenhower has to show to entitle him to present

his counterclaim to a fact finder. The trial court should not have summarily ended

that claim by its judgment. The fact finder must be permitted to evaluate this

disputed issue to prevent a fraud from being perpetrated on Winkenhower.

IV.   Winkenhower raised genuine issues of material fact on quasi-estoppel to
      avoid the application of the statute of frauds.

      Quasi-estoppel is an equitable doctrine that prevents a party from asserting,

to another’s disadvantage, a right that is inconsistent with a position previously

taken by that party. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864

(Tex. 2000). Although similar to equitable estoppel, quasi-estoppel does not

require “proof of a false statement or detrimental reliance.” Cambridge Prod., Inc.

v. Geodyne Nominee Corp., 292 S.W.3d 725, 732 (Tex. App.—Amarillo 2009, pet.

denied); accord Fasken Land & Minerals, Ltd. v. Occidental Permian, Ltd., 225

                                       -11-
S.W.3d 577, 593 (Tex. App.—El Paso 2005, pet. denied). Quasi-estoppel focuses

on one party’s unjustly received benefits rather than on the other party’s detriment.

       Quasi-estoppel “applies when it would be unconscionable to allow a person

to maintain a position inconsistent with one to which he acquiesced, or from which

he accepted a benefit.” Lopez, 22 S.W.3d at 864; see also Forney 921 Lot Dev.

Partners, I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258, 268 (Tex. App.—

Dallas 2011, pet. denied); Hamilton v. Morris Res., Ltd., 225 S.W.3d 336, 346

(Tex. App.—San Antonio 2007, pet. denied); Atkinson Gas Co. v. Albrecht, 878

S.W.2d 236, 240 (Tex. App.—Corpus Christi 1994, writ denied) (“[Q]uasi

estoppel forbids a party from accepting the benefits of a transaction ... and then

subsequently taking an inconsistent position to avoid corresponding obligations or

effects.”).

       The statute of frauds defense is unavailable to a party who knowingly

accepts the benefits of another party’s full performance and partly performs. 626

Joint Venture v. Spinks, 873 S.W.2d 73, 76 (Tex. App.—Austin 1993, no writ);

Estate of Kaiser v. Gifford, 692 S.W.2d 525, 526 (Tex. App.—Houston [1st Dist.]

1985, writ ref’d n.r.e.). This exception to the statute of frauds for fully performed

contracts is well settled under Texas law. Frost Nat’l Bank v. Burge, 29 S.W.3d

580, 595 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Winkenhower has fully




                                        -12-
performed. CR 177-80. He has given up his interest in the family homestead.

Smith demanded and knowingly accepted that interest.

      Smith claims that forgiveness of debt is the only consideration for

Winkenhower’s relinquishment of his homestead. CR 41-112. [Affidavit of Smith

with attached exhibits]. That issue is disputed. CR 162-195. [Affidavits of

Winkenhower family members and deposition transcript of Winkenhower]. Smith,

himself, was discussing both the debt and the trust with Winkenhower and his side

of the family. CR 167-68. Reasonable and fair minded persons could believe that

the interest in the family homestead was being used as consideration for both

subjects. It is clear from the summary judgment record that both subjects were

topics of discussion. Because Smith’s summary judgment evidence is predicated

on his own affidavit and because his credibility may well be a dispositive factor in

the resolution of the case, summary judgment is inappropriate. Casso v. Brand, 776

S.W.2d 551, 558 (Tex. 1989). The trier of fact will need to resolve this dispute.

V.    Winkenhower presented competent summary judgment evidence.

      Smith filed numerous objections to Winkenhower’s summary judgment

evidence. CR 196-214. The trial court sustained a number of them and denied

others. Tab C. CR 234-37. Smith’s objections are categorized so Winkenhower

will respond to these categories. More than a scintilla of evidence on the issues




                                        -13-
raised in Winkenhower’s counterclaim survive this analysis and thus require that

the summary judgment be reversed.

      A.     Parol-Evidence Rule.
      Smith claims that Winkenhower is seeking to alter an agreement to convey

Winkenhower’s interest in the homestead in exchange for the satisfaction of a debt.

Winkenhower has never plead or argued that he seeks to modify a written contract

with an oral agreement. Winkenhower’s contention, which is supported by more

than a scintilla of evidence, is that there is an oral agreement, that he has fully

performed under that agreement, that Smith has received the benefits of

Winkenhower’s performance and that Winkenhower is thus entitled to enforce that

oral agreement.

      In determining when the rule is applicable, the Texas Supreme Court has

cited Professor Wigmore thusly: “the fundamental question is as to the intent of the

parties to restrict the writing to specific elements or subjects of negotiation; and if

that intent existed, then the other subjects of negotiation can be established, even

though they be (as they usually are) different from the writing.” Jackson v.

Hernandez, 285 S.W.2d 184, 190-91 (Tex. 1955) (holding that the parol evidence

rule was not applicable where the oral agreement pertained to a trust independent

of the terms of the deed, but not contradicting those terms). The writing in question

here is restricted to the subjects that were in existence at the time: the debt and the



                                         -14-
homestead. The trust, much discussed but yet to be created at the time of the family

meeting, was the mutual agreement of Harry Jr. and Lyda Cay to convey their

interests in the Medina Ranch into a trust for the benefit of the Winkenhower

family. Smith’s testimony in his summary judgment affidavit would have one

believe that discussions concerning a trust for the Medina Ranch is a pure fantasy

of Winkenhower. But Smith’s own email (CR 167-68) belies that notion.

      B.     Dead Man’s Rule.
      The Dead Man’s Statute (now rule, Tex. R. Evid. 601(b)) is narrowly

construed. Lewis v. Foster, 621 S.W.2d 400, 404 (Tex. 1981). It specifically

provides that the disqualification of a surviving party to transactions with the

deceased may be waived when that witness is “called to testify thereto by the

opposite party.” A waiver occurs when the testimony of a deceased at a former trial

or deposition is offered at a subsequent trial by the deceased's executor. A waiver

also occurs when the executor testifies to acts and statements of his deceased.

When the party entitled to the protection of the statute calls the adverse party to the

stand and asks about a transaction with or statement by the decedent, the statute is

waived as to that transaction. This is likewise true when the matters are inquired

about in a deposition. Id. at 403; see also Fulmer v. Rider, 635 S.W.2d 875, 878-79

(Tex. App.—Tyler 1982, writ ref’d n.r.e.) (waiver of Dead Man’s Rule was

allowed because inquiry initiated the specific testimony).



                                         -15-
      Smith testified in his summary judgment affidavit that “[w]e again discussed

with Wink the debt and oil royalties owed…Lyda and I were happy to get a

resolution of the issue and agreed…..During our time at the Woodway House or

thereafter Lyda and Wink did not discuss or agree to a transfer of any of their

interests in the Medina Ranch to a Trust.” CR 42. Smith’s attorney questioned

Winkenhower on every aspect of this oral agreement in Winkenhower’s

deposition. Smith attached the deposition as evidence to his summary judgment

motion. CR 121-43.

      A summary judgment is the result of a trial. By predicating his summary

judgment motion on this testimony, Smith waived the application of Rule 601(b).

Every issue about which Smith raises the objection of the Dead Man’s Rule is

inquired about in great detail in this summary judgment trial. Smith is in no

position to raise the Dead Man’s Rule in his continuing effort to retain the benefits

of the oral agreement and avoid that agreement’s obligations.

      C.     Conclusory, speculative and hearsay.
      If there is a pattern to be gleaned from the trial court’s rulings sustaining and

denying Smith’s objections to Winkenhower’s summary judgment evidence, it

appears that objections of “interested witness” and “relevancy” were denied and

objections of “hearsay,” “speculation” and “conclusory” were generally granted.




                                        -16-
But the affidavit testimony is in substantial compliance with the Texas Rules of

Evidence.

      The testimony in the affidavits that form part of Winkenhower’s summary

judgment evidence are rationally based on the witnesses’ perceptions and are

helpful to a clear understanding of the witnesses’ testimony and the determination

of a fact in issue. Rather than contravening Texas Rule of Evidence 701, the

testimony is consistent with the purpose and scope of that rule.

      Much of the testimony is based on the witnesses’ personal knowledge of the

event from which any opinion is drawn. See e.g., Yancy v. United Surgical

Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007) (registered nurse was

competent to testify about her personal observations of patient). The opinions in

the affidavits are reasonable inferences from the perceived facts. Indeed, since the

adoption of Rule 701, courts routinely permit lay testimony about another person’s

unspoken state of mind. See e.g., Turro v. State, 950 S.W.2d 390, 402-03 (Tex.

App.—Fort Worth 1997, pet. ref’d); Ethicon, Inc. v. Martinez, 835 S.W.2d 826,

830-32 (Tex. App.—Austin 1992, writ denied); Campbell v. Groves, 774 S.W.2d

717, 719 (Tex. App.—El Paso 1989, writ denied); Chase Commercial Corp. v.

Datapoint, Corp., 774 S.W.2d 359, 368 (Tex. App.—Dallas 1989, no writ);

Anguiano v. State, 774 S.W.2d 344, 346 (Tex. App.—Houston [14th Dist.] 1989, no

pet.); Byrum v. State, 762 S.W.2d 685, 689-90 (Tex. App.—Houston [14th Dist.]


                                        -17-
1988, no pet.); Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 838 (Tex. App.—

Houston [1st Dist.] 1987, writ ref’d n.r.e.).

      Texas Rule of Evidence 803(3) provides a hearsay exception for statements

expressing a declarant’s then-existing (1) state of mind or emotion in issue in the

case, (2) bodily condition, (3) state of mind-usually intent, plan, motive, or design-

offered as circumstantial evidence of future conduct, or (4) memory and belief

relating to the execution, revocation, identification, or terms of the declarant’s will.

In short, anything the declarant was thinking or feeling at the time of the statement

may be admitted as an exception to the hearsay rule.

      The leading case on offering state-of-mind evidence as circumstantial

evidence of future conduct is Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285

(1892). The Hillmon doctrine-admitting statements of intent, plan, motive, or

design to prove the performance of the act intended-has been widely accepted by

Texas courts. Davis v. Argonaut Sw. Ins. Co., 464 S.W.2d 102, 103-04 (Tex.

1971); Liberty Mut. Ins. Co. v. Nelson, 142 Tex. 370, 372-74, 178 S.W.2d 514,

515-17 (1944); Lowe v. State, 163 Tex. Crim. 578, 579-82, 294 S.W.2d 394, 396-

98. The doctrine was left undisturbed when the rules of evidence were

promulgated. Tex. R. Evid. 803(3).

      The trial court sustained far more objections than is warranted. The sum and

substance of the affidavit testimony and the deposition testimony of Winkenhower


                                          -18-
is not objectionable as a violation of either the Parol Evidence Rule or the Dead

Man’s Rule. Nor does the vast majority of this summary judgment evidence violate

Texas evidence rules 701 or 801.

                          CONCLUSION AND PRAYER

      Because Winkenhower raised a genuine issue of material fact on every

element of his counterclaim and because the facts raised were competent summary

judgment evidence, it was error for the trial court to grant Smith’s summary

judgment motion. Nor will Smith’s self-serving affidavit support a traditional

motion for summary judgment. Accordingly, Winkenhower prays that this Court

reverse the summary judgment entered below and remand this case for trial on the

merits on Winkenhower’s counterclaim. Winkenhower prays for such other and

further relief to which he is entitled.

                                  Respectfully submitted,

                                  Cynthia Cox Payne
                                  State Bar No. 24001935
                                  1118 Main Street
                                  Bandera, Texas 78003
                                  (830) 796-7030 – Phone
                                  (830) 796-7945 – Fax
                                  cpayne@paynelawfirm.net




                                          -19-
                               /s/Dan Pozza
                               Dan Pozza
                               State Bar No. 16224800
                               239 East Commerce Street
                               San Antonio, Texas 78205
                               (210) 226-8888 – Phone
                               (210) 224-6373 – Fax
                               danpozza@yahoo.com

                               ATTORNEYS FOR APPELLANT
                               HARRY OLIVER WINKENHOWER

                        CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the above and foregoing Brief of
Appellant was served via electronic transmission, on this the 29th day of June,
2015, to:

Brent Barton Hamilton
Attorney at Law
1602 13th Street
Lubbock, Texas 79402-3831
brent@shlawgroup.com

Attorney for George Allan Smith
Independent Executor of the Estate of
Lyda Catherine Smith, Deceased



                                               /s/Dan Pozza




                                        -20-
                    CERTIFICATE OF COMPLIANCE



1.   The undersigned certifies that this Brief of Appellant complies with the type-
     volume limitation of Tex. R. App. P. 9.4(i)(2)(D) because this brief contains
     4,297 words, excluding parts of the brief exempted by Tex. R. App. P.
     9.4(i)(1).
2.   This brief complies with the typeface requirement of Tex. R. App. P. 9.4(e)
     because this brief has been prepared in a conventional typeface of 14-point
     font in the text.




                                             /s/Dan Pozza




                                      -21-
TAB A
fl   '




                                                 CAUSE NO. CV-14-0000018

            GEORGE ALLAN SMITH, Independent                   § IN THE 198"' DISTRICT COURT
            Executor of the Estate of Lyda Catherine          §
            Smith, Deceased                                   §
                             Plaintiff,                       §
                                                              §
            v.                                                § IN AND FOR
                                                              §
            HARRY OLIVER WINKENHOWER                          §
                       Defendant.                             § BANDERA COUNTY, TEXAS

                      ORDER ON PLAINTIFF'S TRADITIONAL AND NO EVIDENCE
                 MOTION FOR SUMMARY JUDGMENT ON DEFENDANT'S COUNTERCLAIMS

                   On August 29, 2014, the Comi heard oral argument regarding Plaintiffs Traditional and

            No Evidence Motion for Summary Judgment on Defendant's Counterclaims in the above styled

            and numbered cause. The Court, after consideration of the merits and the arguments and

            authorities of counsel, GRANTS the Plaintiffs Motion for Summary Judgment as to all efta0o
                                                                                       ;w./
            Defendant's counterclaims.<>.(.- P~wr1v'f<.   Pa>.·€o"'"'4"\<.'C:' 1 Fl<Au<> 1 lD.Ul'\d' i£r?'of'Pet-.



                   SIGNED this     ?z




            ~' ~;;_ #JI), 'l??t. 11k                                                              FILED "•·
                                                                                                           _t'..IVI. ON
         '13' c/Jdlr[;/loJ tf'~lil .11I .J'1.5?J                                        /\'i'1Jilo·cLOCK

                                                                                               OCT o9 2014
                                                                                     TAMMY l(NEUPeFl; 198TH DISTRICT CL~AK
                                                                                        r:>~ANDl:RA COUNTY, TEXAS
                                                                                      BY ~,,,,__0. •       1 _-    DEPUTY




                                                             241
TAB B
~-
                                                                                                                   1
                                            NO. CV-14-0000018

     GEORGE ALLEN SMITH,                              §    IN THE DISTRICT COURT
     INDEPENDENT EXECUTOR OF THE                      §
     ESTATE OF LYDA CATHERINE                         §
     SMITH, DECEASED                                  §
     Plaintiff,                                       §
                                                      §
     v.                                               §    216TH JUDICIAL DISTRICT
                                                      §
     HENRY OLIVER WINKENHOWER                         §
     Defendant.                                       §    OF BANDERA COUNTY, TEXAS

                      ORDER ON DEFENDANT'S OBJECTIONS TO EVIDENCE

            On August 29, 2014, the Court considered Defendant Objections to Plaintiff's Evidence

     in Plaintift"s Motion for a No-Evidence and a Traditional Motion for Summary Judgment on

     Defendant's Counterclaim, the Response filed by Defendant, the Reply filed by Plaintiff and the

     Reply fifed by Defendant. After reviewing the pleadings, evidence and hearing the arguments of

     counsel, the Court finds that:

            Objection No. 1                 GRANTED                           DENIED

            Objection No. 2                 GRANTED                           DENIED       /

            Objection No. 3                 GRANTED        /                  DENIED
                                                           ~                  DENIED
            Objection No. 4                 GRANTED

            Objection No. 5                 GRANTED - - - -                   DENIED           ~

            IT IS THEREFORE ORDERED that the above rulings are made in connection with

     Defendant's Objections to Evidence in Plaintiff's Motion for a No-Evidence and a Traditional

     Motion for Summary ?1\1gment on Defendant's Counterclaim.

            SIGNED on        U./u~~     /   ,2014.


                                                                               ,,r"/ :~"C·ci.'O'CI< _:e_M. oN
           d.     P"-'i;e,   ,5'M.1t1t. '!115                                         OCT O9 2014
           '(b.   /J11m;//z,,..   'ifOIP•771·37Sl>                           TAMMY KNEUPER, 19BTH DISTRICT CLERK
                                                                                  m.;:c~Y, TEXAS
                                                                             BY_               ,,,_'l~EPUTV
                                                     239
TAB C
                                       CAUSE NO. CV-14-0000018

GEORGE ALLAN SMITH, Independent                 § IN THE 19811' DISTRICT COURT
Executor of the Estate of Lyda Catherine        §
Smith, Deceased                                 §
                 Plaintifl;                     §
                                                §
v.                                              § IN AND FOR
                                                §
HARRY OLIVER WINKENHOWER                        §
           Defendant.                           § BANDERA COUNTY, TEXAS

                     ORDER ON PLAINTIFF'S OBJECTIONS TO
                  DEFENDANT'S SUMMARY JUDGMENT EVIDENCE

       On August 29, 2014, the Court heard the Plaintiffs Objections to Defendant's Summary

Judgment Evidence, and the Court is of the opinion that such objections should be:


OBJECTION I:
                        zined
OBJECTION 2:          _ _ Sustained

OBJECTION 3:                 Sustained

OBJECTION 4:           /Sustained                   Denied

OBJECTION 5:                 Sustained       ___:::::"Denied

OBJECTION 6:         ____::::::._Sustained          Denied

OBJECTION 7:                 Sustained       ~Denied


OBJECTION 8:           /Sustained                   Denied

OBJECTION 9:            /sustained             _,---Denied
                        /
OBJECTION 10:                Sustained              Denied

OBJECTION 11:           /Sustained                  Denied

OBJECTION 12:
                       ../
                     - - Sustained                  Denied

OBJECTION 13:           /Sustained                  Denied

CAUSE NO. CV-14-0000018; ORDER ON OBJECTIONS TO DEFENDANT'S SUMMARY JUDGMENT EVIDENCE
PAGE I OF4
OBJECTION 14:              /Sustained              Denied

OBJECTION 15:                 Sustained            Denied

OBJECTION 16:                 Sustained    _LDenied

OBJECTION 17:              /sustab1ed              Denied

OBJECTION 18:                 Sustained            Denied

OBJECTION 19:              Austained               Denied /IS fr> "'" lc,.. ",,...,;,   ,.-lat~

OBJECTION 20:                 Sustained       ---1lenied

OBJECTION 21:          /Sustained                  Denied

OBJECTION 22:          /sustained                  Denied

OBJECTION 23:                 Sustained            Denied

OBJECTION 24:              ---Sustained            Denied

OBJECTION 25:                 Sustained            Denied

OBJECTION 26:                 Sustained            Denied

OBJECTION 27:                 Sustained            Denied

OBJECTION 28:          /      Sustained            Denied

OBJECTION 29:        __L_ Sustained                Denied

OBJECTION 30:        _!_Sustained                  Denied

OBJECTION 31:                 Sustained            Denied

OBJECTION 32:                 Sustained       /Denied

OBJECTION 33:           /sustained                 Denied

OBJECTION 34:          /Sustained                  Denied

OBJECTION 35:           /Sustained                 Denied

OBJECTION 36:           /Sustained                 Denied
CAUSE NO. CV-14-0000018; ORDER ON 0BJECfIONS TO DEFENDANf'S SUMMARY JUDGMENT EVIDENCE
PAGE20F4




                                             235
'       '
    '



            OBJECTION 37:              /sustained              Denied

            OBJECTION 38:                 Sustained            Denied

            OBJECTION 39:         _ L Sustained                Denied

            OBJECTION 40:         ___.e_ Sustained             Denied

            OBJECTION 41:                 Sustained            Denied

            OBJECTION 42:         ~Sustained                   Denied

            OBJECTION 43:              /Sustained              Denied

            OBJECTION 44:         ~Sustained                   Denied

            OBJECTION 45:                 Sustained    / - Denied
                                                       -
            OBJECTION 46:          ./
                                 - - Sustained                 Denied

            OBJECTION 47:        -/ - Sustained                Denied

            OBJECTION 48:         / Sustained                  Denied
                                 --

            OBJECTION 49:          /     Sustained             Denied

            OBJECTION 50:         /      Sustained             Denied

            OBJECTION 51:                Sustained     ~ Denied
            OBJECTION 52:        ~Sustained                    Denied

            OBJECTION 53:        _L_ Sustained                 Denied

            OBJECTION 54:        ~ Sustained                   Denied

            OBJECTION 55:        -/- Sustained                 Denied

            OBJECTION 56:              /Sustained              Denied

            OBJECTION 57:                Sustained             Denied

            OBJECTION 58:                Sustained             Denied

            OBJECTION 59:                Sustained             Denied

            CAUSE NO. CV-14-0000018; ORDER ON OBJECTIONS TO DEFENDANT'S SUMMARY JUDGMENT EVIDENCE
            PAGE30114


                                                         236
   '   '




           OBJECTION 60:               Sustained              Denied

           OBJECTION 61:               Sustained              Denied

           OBJECTION 62:            /Sustained                Denied
                                ~
           OBJECTION 63:               Sustained              Denied




                  S!GNEDthis_~_dayof               Dell-- ,2014.



                                                                                        ".,, i=ILE:D f
                                                                                     AT'.:'\_"-'~l:J'bLOCK ._._M. ON

                                                                                            OCT og 2014
                                                                                  TAMMY KNEUPER, 196TH DISTRICT CLERK
                                                                                  BY /':'BANDERA
                                                                                          •      COUNTY,
                                                                                                 . !\... , TEXAS
                                                                                                           ·-· ..
                                                                                     ~~-DEPUTY




           CAVSENO. CV-14-0000018; ORDER ON OBJECTIONS TO DEFENDANT'S SUMMARY JUDGMENT EVIDENCE
           PAGE4 OF4




                                                        237
'-----------------------------~··---·-.
                                                                                                                       '




                                              BROADCAST REPORT
                                                                                     TIME       10/02/2014 08:21
                                                                                     NAME       KERR DISTRICT JUDGES
                                                                                     FAX        8307922294
                                                                                     TEL        8307922290
                                                                                     SER.#      U53274M2J313789

                                                                                                                           .,:1
         PAGE(S)                                                      04



DATE    TIME       FAX NO. /NAME                        DURATION           PAGE(S)     RESULT       COMMEffT
                                      ~
                                              -
10/02   08: 20     1830795794~,~· /'(Ll//.le..                   47        04          OK                      ECM
10/02   08: 21     18057713750     , -N-am1z..;,,,...            37        04          OK                      ECM




                                                           238
TAB D
· April 22, 2001
                        •                                   •
 Harry 0. Winkenhower Jr. &
 Lyda Cay Smith,

 This letter is written to inform both of my children of my wishes for the
 ranch in Medina, Texas. In the near future I will have my wishes legally
 written into my will.

 The ranch Oliver and I purchased in Medina; Texas was to be used for the
 family and their :friends ..

· I do not wish for the ranch to ever be separated or sold. It is to be passed
  down to the family. No one may sell out their interest in the property
. because they have none. It is to remain one. property and I will it to
  bloodline family.                                          ·

 No spouse of Harry Winkenhower or Lyda Cay Smith or any grandchiidren
 or great grandchildren may claim any part of the ranch as theirs.

 What will replace this letter is a bloodline will. Only bloodline family
 members .will be able to have any claim to the ranch.

 These are my wishes children and I know you will both respect what I       am
 asking of you.

 Thank you,




                          FAANl(MORGAN
                      MY·COMMfSBlON l:XPIAE'S
                          Janua'l' 20, 2003   · (




                                                    166
