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
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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.
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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
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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
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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.
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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.
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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.
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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
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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).
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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
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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
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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 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