ACCEPTED
04-15-00110-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
8/19/2015 3:07:00 PM
KEITH HOTTLE
CLERK
NO. 4-15-00110-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
FOR THE FOURTH DISTRICT OF TEXAS8/19/2015 3:07:00 PM
SAN ANTONIO, TEXAS KEITH E. HOTTLE
Clerk
__________________________________________________________________
IN RE THE ESTATE OF
WILLIAM H. BUTT, DECEASED
__________________________________________________________________
On Appeal from the County Court of Kimble County, Texas
Sitting in Matters Probate; Cause No. 2284
Hon. Joe H. Loving, Presiding
__________________________________________________________________
BRIEF OF APPELLEE,
SHERRY MCNUTT
__________________________________________________________________
GENE GARCIA
State Bar No. 07634500
809 S. Port Ave.
Corpus Christi, Texas 78405
(361) 883-8651
(361) 288-8392 – facsimile
email: gene@garciatexaslaw.com
ATTORNEYS FOR APPELLEE,
SHERRY MCNUTT
IDENTITY OF PARTIES AND COUNSEL
1. Appellants – McNutt Ranch, Ltd.
DMK Ranching, L.L.C.
McNutt Management, L.L.C.
2. Counsel for Appellant
Craig White Allen J. Ahlschwede
Law Office of Craig L. White 522 Main Street
111 W. Olmos Dr. Junction, Texas
San Antonio, Texas 78212 325-446-9425
210-829-7183 ajalaw@ahlschwedelaw.com
craigwhite@111westolmos.com
Former Trial and Appellate
Jeff Small Counsel:
Law Office of Jeff Small
12451 Starcrest, Suite 100 J. Ken Nunley
San Antonio, Texas 78216
210-496-0611 Dennis Bujnoch
jdslaw@satx.rr.com
3. Appellee – Sherry McNutt
4. Counsel for Appellee
Gene Garcia
809 S. Port Ave.
Corpus Christi, Texas 78405
(361) 883-8651
(361) 288-8392 – facsimile
email: gene@garciatexaslaw.com
Trial Counsel:
John F. Nichols, Sr.
5020 Montrose Blvd., Suite 400
Houston, Texas 77006
713-654-0708/F: 713-654-0706
john@nicholslaw.com
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ......................................................... ii
INDEX OF AUTHORITIES ................................................................................. iv
STATEMENT OF THE CASE .............................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ............................................. 2
STATEMENT OF FACTS .................................................................................... 2
ARGUMENT......................................................................................................... 4
I. Oral Gifts of Real Property. ....................................................................... 4
II. The evidence introduced at trial was legally and factually sufficient
to support the jury’s finding that William H. McNutt gave Appellee
the foreman’s house and ½ of the North Side in 1983. .............................. 5
a. Appellate Review of Clear and Convincing Evidence. ............................ 6
b. Testimony of Witnesses at Trial. ............................................................. 7
III. The Trial Court Did Not Err In Refusing To Grant A Directed
Verdict Or A Judgment N.O.V. ................................................................15
a. Standard of Review ................................................................................15
b. The Evidence Was Legally Sufficient To Withstand The Motion
For Directed Verdict and Motion for Judgment Notwithstanding
the Verdict. ............................................................................................17
IV. The Jury Charge Submitted To The Jury Was Correct. .............................18
V. Appellants failed to properly present evidence of juror misconduct
that would be sufficient to set aside the jury’s verdict. .............................23
CONCLUSION ....................................................................................................23
PRAYER ..............................................................................................................24
CERTIFICATE OF COMPLIANCE.....................................................................25
CERTIFICATE OF SERVICE ..............................................................................26
iii
INDEX OF AUTHORITIES
Cases
Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d
225 (Tex.App.—San Antonio 2001, rev. denied) ........................................ 17, 18
Berry Prop. Mgmt., Inc. v. Bliskey, 850 S.W.2d 644 (Tex.App.—Corpus
Christi 1993, writ dism'd by agr.) ......................................................................19
Best v. Ryan Auto Group, Inc., 786 S.W.2d 670 (Tex.1990) .................................16
Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex.1980) .........................18
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ......................................6, 17
Collora v. Navarro, 574 S.W.2d 65 (Tex.1978) ....................................................15
Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S. W. 2d 392 (Tex. 1991) ..........15
Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex.2000) ..............23
Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921). ................................ 4
In re C.E., 100 S.W.3d 368 (Tex.App.—San Antonio 2002, no pet.) ..................... 6
In re C.H., 89 S.W.3d 17, 25 (Tex.2002) ............................................................... 6
In re J.F.C., 96 S.W.3d 256 (Tex. 2002) ................................................................ 6
In re M.M., 184 S.W.3d 416 (Tex.App.—Dallas 2006, no pet.) ............................. 7
Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d
551, 555 (Tex.1986) ..........................................................................................19
M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620
(Tex.App.—Houston [1st Dist.] 1987, no writ) .................................................16
Mancorp, Inc. v. Culpepper, 802 S.W.2d 226 (Tex.1990) ............................... 16, 17
Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57 (Tex.App.—San
Antonio 2011, no pet.) ....................................................................................... 7
Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308 (Tex.1986) ......................16
Oadra v. Stegall, 871 S.W.2d 882 (Tex.App. —Houston [14th Dist.] 1994,
no pet.) ............................................................................................................... 5
Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S. W. 3d 74 (Tex.
2000) ................................................................................................................15
Qantel Bus. Sys., Inc. v. Custom Controls, 761 S.W.2d 302 (Tex.1988).......... 16, 17
iv
Richardson v. Laney, 911 S.W.2d 489 (Tex.App. —Texarkana 1995, no
writ) ................................................................................................................... 5
Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647 (Tex.1990) .......................18
Thompson v. Dart, 746 S.W.2d 821 (Tex.App. —San Antonio 1988, no writ) ....... 4
Woodworth v. Cortez, 660 S.W.2d 561 (Tex.App. —San Antonio 1983, writ
ref’d n.r.e.) ......................................................................................................... 5
Rules
TEX. R. APP. P. 44.1(a); .........................................................................................19
TEX. R. CIV. P. 301 ................................................................................................15
Tex. R. Civ. P. 327(b) ...........................................................................................23
v
NO. 4-15-00110-CV
IN THE COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS
SAN ANTONIO, TEXAS
__________________________________________________________________
IN RE THE ESTATE OF
WILLIAM H. BUTT, DECEASED
__________________________________________________________________
On Appeal from the County Court of Kimble County, Texas
Sitting in Matters Probate; Cause No. 2284
Hon. Joe H. Loving, Presiding
__________________________________________________________________
BRIEF OF APPELLEE
__________________________________________________________________
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
APPEALS:
Appellee, Sherry McNutt (“Appellee”), submits this Brief and requests the
Court to affirm the decision of the trial court.
STATEMENT OF THE CASE
This case first went to trial in 2011 to determine whether William H. McNutt
made a gift of the north 2000 acres of his ranch to his daughter, Sherry McNutt,
Appellee, in 1983. The trial court found that William H. McNutt gifted the
“foreman’s house” and five acres of land that was located on the north 2000 acres
of his ranch, but also found that he did not gift the entire north side of the ranch to
1
her. The case was appealed to this court which upheld the decision that there was
not a gift of the entire north side of the ranch, but remanded the case for a new trial
on the issues of whether there was a gift of the foreman’s house and an appropriate
amount of acreage for the full use and enjoyment of the house.
After the second trial, the jury once again found that William H. McNutt
gifted the foreman’s house to Appellee and that “1/2 of the North Side” was the
necessary amount of land to allow Appellee an appropriate amount of acreage for
the full use and enjoyment of the house. Appellants have appealed the judgment of
the trial court awarding Appellee the foreman’s house and ½ of the North Side of
the ranch.
STATEMENT REGARDING ORAL ARGUMENT
Appellee does not believe that oral argument will aid this Court in
determining the issues presented by this appeal. The facts in this case are straight-
forward and the issues in this case have previously been addressed by this Court.
STATEMENT OF FACTS
In 1983, William H. McNutt called his daughter, Appellee, Sherry McNutt,
and asked her to return to the ranch and run it for him. William H. McNutt told
Sherry McNutt that if she agreed to return half the ranch was hers. Sherry McNutt
returned to the ranch, made substantial improvements to the foreman’s house and
to the surrounding area, garden, and barns. She ran two operations, livestock and
2
goats and sheep, until the family and herself ventured into exotics. Sherry McNutt
managed the South side exotic operation for her dad, William H. McNutt until
2001 when William H. McNutt gave the all the wildlife to Mrs. McNutt and to
Sherry McNutt including the income thereof.
At no time prior to his death did William H. McNutt ever try to dispossess
Sherry McNutt of the foreman’s house. William never sought to undo the finality
of the 1983 gift of the foreman’s house and the appropriate amount of acreage for
the full use and enjoyment of the house.
After a bench trial in 2011, Judge Loving found that William H. McNutt
gave the foreman’s house to Sherry McNutt. On appeal, this Court found that
there was sufficient evidence of a gift of the foreman’s house and remanded the
case to determine the appropriate amount of acreage for the full use and enjoyment
of the house. After a second trial, the jury again found that William H. McNutt
gave the foreman’s house to Sherry McNutt, and after hearing the testimony the
jury found that ½ of the North Side was the appropriate amount of acreage for the
full use and enjoyment of the house.
SUMMARY OF ARGUMENT
The gift of the foreman’s house legally meets the requirements of an oral gift
of real property. The evidence at trial establishes that William H. McNutt gave the
foreman’s house to Sherry McNutt in 1983. Since the evidence at trial was legally
3
and factually sufficient to support the jury’s finding of a gift to Sherry McNutt, the
Court did not err in refusing to grant the Appellant’s Motion for Directed Verdict
and Motion for Judgment N.O.V.
This case was remanded for the determination of two issues: (1) was there an
oral gift of the foreman’s house to Appellee, and; (2) what amount of land an
appropriate amount of acreage for the full use and enjoyment of the house. These
issues were correctly submitted to the jury in the form of the jury charge given by
the trial court.
Although Appellants argue that misconduct occurred during the jury
deliberations, they have failed to present any admissible evidence of the alleged
misconduct.
ARGUMENT
I. Oral Gifts of Real Property.
There are three elements required to establish an oral gift of real property:
(1) a gift in praesenti, (2) possession under the gift by the donee with the donor's
consent, and (3) permanent and valuable improvements made on the property by
the donee with the donor's knowledge or consent or, without improvements, the
existence of such facts as would make it a fraud upon the donee not to enforce the
gift. Thompson v. Dart, 746 S.W.2d 821, 825 (Tex.App. —San Antonio 1988, no
writ); see also Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921).
4
“In praesenti” means at the present time; thus, to be a gift in praesenti, the donor
must, at the time he makes it, intend an immediate divestiture of the rights of
ownership out of himself and a consequent immediate vesting of such rights in the
donee. Id.
However, a presumption of gift arises if a parent delivers possession,
conveys title, or purchases property in the name of a child. Oadra v. Stegall, 871
S.W.2d 882, 891 (Tex.App. —Houston [14th Dist.] 1994, no pet.); Richardson v.
Laney, 911 S.W.2d 489, 492 (Tex.App. —Texarkana 1995, no writ); Woodworth v.
Cortez, 660 S.W.2d 561, 564 (Tex.App. —San Antonio 1983, writ ref’d n.r.e.).
This is a rebuttable presumption that the opponent must show by clear and
convincing evidence at trial. Richardson, 911 S.W.2d at 492.
II. The evidence introduced at trial was legally and factually sufficient to
support the jury’s finding that William H. McNutt gave Appellee the
foreman’s house and ½ of the North Side in 1983.
Appellants’ fourth issue challenges the legal and factual sufficiency of the
evidence to support the jury’s finding that William H. McNutt gave the foreman’s
house and ½ of the North Side of the ranch in 1983. A review of the testimony at
trial shows that the overwhelming weight of the evidence supports the jury’s
findings.
5
a. Appellate Review of Clear and Convincing Evidence.
When the burden of proof at trial requires clear and convincing evidence, the
Court of Appeals must review the sufficiency of the evidence by giving “due
consideration to evidence that the fact finder could reasonably have found to be
clear and convincing.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); (relying on In
re C.H., 89 S.W.3d 17, 25 (Tex.2002)); In re C.E., 100 S.W.3d 368, 370
(Tex.App.—San Antonio 2002, no pet.). In a legal sufficiency review, we look at
all the evidence in the light most favorable to the fact finding to determine whether
a reasonable trier of fact could have formed a firm belief or conviction that the
finding was true. In re J.F.C., 96 S.W.3d at 266. Unless the Court determines that
no reasonable fact finder could form a firm belief or conviction that the fact is true,
the Court must conclude that the evidence is legally sufficient. Id.
In a factual sufficiency review, the Court must give due consideration to
evidence that the fact finder could reasonably have found to be clear and
convincing. Id., citing In re C.H., 89 S.W.3d at 25. The Court should consider
whether disputed evidence is such that a reasonable fact finder could not have
resolved the dispute in favor of its finding. Id. On Appeal, the Court may not
substitute its judgment for that of the fact-finder because the fact-finder “[is] the
sole judge of the credibility of the witnesses and the weight to give their
testimony.” City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); see also
6
Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 83 (Tex.App.—San
Antonio 2011, no pet.). The evidence is factually sufficient if a factfinder could
reasonably form a firm belief or conviction about the truth of the matter to be
proven. In re J.F.C., 96 S.W.3d at 266; see also In re M.M., 184 S.W.3d 416, 418
(Tex.App.—Dallas 2006, no pet.).
b. Testimony of Witnesses at Trial.
The following testimony supports the jury’s verdict that William H. McNutt
gave his daughter the foreman’s hours in 1983:
Testimony of David Ross
Q. (By Mr. Nichols) Now, Mr. Ross, regarding the house that's on the
north side of I-10 on the McNutt Ranch --
A. Yes.
Q. -- did you ever have any conversations with Bill McNutt regarding
that house?
A. Yes.
Q. What did he tell you?
A. Well, that it was the previous ranch foreman's house and that it was
given to Sherry. In fact, I helped Sherry remodel that house, helped
her furnish it, spent time there as a guest with other projects that she
worked on around there, building barns, building her gardens,
landscaping, et cetera.
Q. All right. My question to you, sir, was Bill McNutt clear or unclear
about that statement that you just made?
A. I felt it was clear.
7
Q. All right, and my second part of my question was, was his
statement to you convincing or unconvincing?
A. It would be convincing.
Q. All right, and through the years that you went out to the McNutt
Ranch, did you ever hear Bill McNutt make any statements in
contravention of what you just testified to?
A. No. I did not.
Q. All right. So the home that's on the north side, to paraphrase your
testimony, he said that's Sherry's home.
A. Correct.
RR 1; p. 153, l. 15 – p. 154, l. 20.
Q. All right. Now -- so from the time that you met him, your
testimony is never at any time did he ever modify, retract, or make
any statements regarding Sherry McNutt's use of the acreage on the
north side of that for the full use and enjoyment of the house?
A. No.
RR 1; p. 157, ll. 19-24.
Testimony of Tom Mayo
Q. All right, and what -- did he ever refer to any restrictions on
Sherry's use, occupation, possession of that acreage on the north side
of I-10?
A. No. It was her place.
RR 1; p. 194; ll. 3-7.
Testimony of Sherry McNutt
Q. All right. So the residence that's on that north side which is I guess
referred to sometimes as the foreman's house?
A. Yes, sir.
8
Q. Did you -- when you moved back, did you occupy that residence?
A. There was construction going on when I first moved back.
Q. All right.
A. When my parents were aware that I was coming, they had asked
me to come, they started to fix it up. I actually stayed with my parents
in their home until an unfortunate accident -- I mean, incident that the
carpenters were terminated, and so I moved in with the house
unfinished really, and I finished it myself.
Q. Okay. Now, Mr. Ross who testified as our first witness here --
A. Uh-huh.
Q. -- he testified that he worked and did work on that ranch shortly
after you came back and that you did too. Correct or not correct?
A. Yes, sir.
Q. All right, and so you worked yourself to make improvements to
that house?
A. Yes, sir.
Q. And for what period of time do you suspect that it was -- that you
worked and did clean-up, paint-up, fix-up?
A. It was ongoing.
Q. Okay, and from 1983 till what period of time did you more or less
have the full occupancy of that residence on the north side?
A. Until the lawyers and accountants and my dad became ill and my
sister showed up.
RR 1; p. 243, l. 20 – p. 245, l. 3
Q. And Exhibit No. 3[sic], how do -- how do they refer to that house
on there, the foreman's house that you --
A. Your house.
9
Q. Your home or your house?
A. I'm sorry. "Your home." Yes.
Q. Okay.
A. Yes.
Q. All right, and was that consistent or inconsistent with his conduct
all the way up to that point?
A. Consistent.
RR 1; p. 259. ll. 2-13
Q. And describe the conversation that you had with your father when
he gave you that foreman's house.
A. He called me in Colorado and asked me to come home. The
foreman had died in 1981. He and mother tried to -- to run the ranch
themselves and were, I guess, incapable of -- they didn't want to do it
anymore. So they asked me to come home to run the ranch, and he
would give me half the ranch.
Q. It's your testimony that in 1981, your daddy wasn't capable of
running that ranch. Is that what you just testified to?
A. That's what he told me in '83. I went home in '83. He ran it from
'81 into '83.
Q. Okay. So he called you --
A. Or he and mother did.
Q. He called you and what did he say?
A. If I would come home and run the ranch, he would give me half the
ranch.
Q. Okay, and -- and he said he would give you half the ranch.
A. Yeah.
Q. Something in the future.
10
A. Yes, sir.
Q. Okay.
A. Not necessarily in the future.
Q. But didn't you just say --
A. He gave it to me when I went home.
RR 2; p. 42, l. 10 – p. 43, l.11
Q. (By Mr. Nichols) Tell -- then tell the lady and the gentlemen of the
jury as closely as possible what he told you in that telephone
conversation in 1983.
A. That he needed me and he wanted me to come back, and of course
that had been my lifelong dream. He told me he would give me half
the ranch when I came back.
Q. Did he say which half?
A. Specifically at that time, no, but when I moved into the foreman's
house, it became the -- the north side --
Q. All right.
A. -- and my sister lives on the south side. Q. All right, and at that
point in time from
1983 -- are you sure as to the date, 1983? A. Yes.
Q. All right. So his statement, if you would come back, he would do
this, and you came back and therefore he did that.
A. Yes, sir.
RR 2; p.116, l. 17 – p. 117, l. 12.
With respect to the amount of land that Appellee needed in order to enjoy
her gift of the foreman’s house, Appellant testified as follows:
11
Q. Okay. Now -- now, what kind of operations were you running on
the McNutt Ranch on the south side that you received a salary for?
A. Cattle, sheep, goats, deer, wild game or exotic game.
Q. All right. What about over on the other side of I-10?
A. Same.
Q. Same thing?
A. Yes.
Q. What do you feel would be necessary for you to have for the full
use and enjoyment of that house over there on the north side of I-10?
A. Acreage enough to run those operations.
RR 2; p. 10, l. 14 – p. 11, l. 2.
The only evidence introduced at trial to rebut the presumption of a gift was
that Appellant did not pay taxes on the property and that Bill McNutt did not file a
gift tax return in 1983 with respect to his gift of the foreman’s house to his
daughter. However, there was plenty of evidence at trial to rebut this argument:
Testimony of Tom Mayo
Q. In fact, all your properties that you've ever owned you've had a
warranty deed, correct, a deed of trust?
A. No.
Q. Okay. What were the circumstances that you didn't have a deed of
trust?
A. Land was granted to me by my father or it was going to be granted
by mother and father, but they didn't grant it because they wanted to
take certain deductions on whatever they were spending on the house
-- on the property, in this case land.
12
RR 1; p.208, ll. 6-12.
Q. (By Mr. Nichols) All right. If you want the tax write-off on a piece
of property or an operation, isn't it -- isn't it in your best interest to
keep it in your name?
A. Sure.
RR 1; p. 210, ll.18-22.
Testimony of Sherry McNutt
Q. (By Mr. Nichols) All right. Looking at the demonstrative aid, do
you see pastures 7, 8, 9, 10, 11, 12, 13, and 14?
A. Yes, sir.
Q. All right. Did you have a conversation with your dad about you
paying the taxes on that property?
A. Yes.
Q. All right, and tell the lady and the gentlemen of the jury what his
response was.
A. He wanted the tax write-off.
Q. All right. So he paid the taxes. He got the tax write-off.
A. Yes, sir.
RR1; p. 238, ll.10-22.
Q. (By Mr. Nichols) Okay. What did you tell your father about paying
the taxes on the house?
A. I would pay them.
Q. All right. What did he say?
A. He wanted them for a write-off.
RR 2; p. 21, ll. 21-25.
13
The evidence is undisputed that Bill McNutt delivered possession of the
foreman’s house to his daughter in 1983. Since that time, Bill McNutt continually
referred to the foreman’s house as his daughter’s house. He even admitted as such
in his attempts, through his attorney, to place restrictions on Appellee’s use of the
house. Moreover, there is evidence that Appellee made improvements to the
foreman’s house. Appellants describe all of this evidence as meager; yet it was
sufficient to convince a judge and a jury that William H. McNutt gave his daughter
the foreman’s house in 1983. Further, two members of this panel believed there
was enough evidence of a gift to remand this case for a new trial. Interestingly,
most of the evidence cited by Appellants’ to support their position that there was
no gift comes from the first trial and has no bearing on this analysis.
Appellants argue that the evidence detailed above was not specific enough to
support a finding that Appellee received a gift of ½ of the North Side of the ranch.
Interestingly, the record is replete with objections from Appellants’ counsel
whenever anyone attempted to testify about a specific piece of property.
After reviewing all of this evidence, there is legally sufficient evidence that a
reasonable fact finder could conclude that William H. McNutt gifted his daughter
the foreman’s house and an appropriate amount of land that encompassed half of
the north side of his ranch. The evidence is also factually sufficient to support the
jury’s findings. The only evidence that there was not a gift of the foreman’s house
14
was that William H. McNutt did not file a gift tax return and continued to pay taxes
on the property at issue. Given the testimony that William H. McNutt wanted to
continue to receive tax benefits from the property, a reasonable fact finder could
have easily decided that this evidence did not negate a finding that William H.
McNutt gave the foreman’s house and an appropriate amount of land to his
daughter.
III. The Trial Court Did Not Err In Refusing To Grant A Directed Verdict
Or A Judgment N.O.V.
a. Standard of Review
A trial court may order a directed verdict in favor of a defendant when: (1) a
plaintiff fails to present evidence raising a fact issue essential to the plaintiff's right
of recovery; or (2) the plaintiff admits or the evidence conclusively establishes a
defense to the plaintiff's cause of action. See Prudential Ins. Co. of Am. v. Fin. Rev.
Servs., Inc., 29 S. W. 3d 74, 77 (Tex. 2000). A motion for judgment n.o.v. should
be granted only if the evidence is legally insufficient to support the jury's findings
or if a directed verdict would have been proper because a legal principle precludes
recovery. TEX. R. CIV. P. 301; see Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818
S. W. 2d 392, 394 (Tex. 1991).
A directed verdict is appropriate when reasonable minds can draw only one
conclusion from the evidence. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978);
M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623
15
(Tex.App.—Houston [1st Dist.] 1987, no writ). In evaluating a directed verdict, we
determine if there was legally sufficient evidence that would support each of the
elements of the cause of action. M.J. Sheridan, 731 S.W.2d at 623. If the Smiths
introduced some evidence on each of the elements for design defect, the trial court
erred in granting Aqua–Flo's motion for directed verdict. Id. at 624. In evaluating
the evidence, we examine it in the light most favorable to the party against whom
the verdict was rendered, and disregard all contrary evidence and inferences.
Qantel Bus. Sys., Inc. v. Custom Controls, 761 S.W.2d 302, 303 (Tex.1988); M.J.
Sheridan, 731 S.W.2d at 623.
A trial court may disregard a jury's findings and grant a motion for JNOV
only when there is no evidence upon which the jury could have made its findings.
Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990). When determining
whether the trial court erred in granting a motion for JNOV, the appellate court
must consider only the evidence and the reasonable inferences that support the
jury's answers. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990).
The record is reviewed in the light most favorable to the jury's finding, considering
only the evidence and inferences that support the finding and rejecting the
evidence and inferences contrary to the finding. Navarette v. Temple Indep. Sch.
Dist., 706 S.W.2d 308, 309 (Tex.1986). To uphold a JNOV, the appellate court
must decide that no evidence supports the jury's findings. Mancorp, 802 S.W.2d at
16
227–28; Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d
225, 245 (Tex.App.—San Antonio 2001, rev. denied). Richardson v. Wal–Mart
Stores, Inc., 963 S.W.2d 162, 164 (Tex.App.—Texarkana 1998, no pet.). The
JNOV should be reversed when there is more than a scintilla of competent
evidence to support the jury's finding. Aquila Southwest Pipeline, Inc., 48 S.W.3d
at 245.
In City of Keller v. Wilson, the Court discussed, both from the historical and
legal perspective, the standard for review for each of the subject motions and
decided that “the standards for taking any case from the jury should be the
same…” 168 S.W.3d at 811. Whether the inclusive or exclusive standard, if
properly applied, is used to decide whether the evidence at trial would enable
reasonable and fair-minded people to reach the verdict under review, the resulting
decision should be the same. Id.
b. The Evidence Was Legally Sufficient To Withstand The Motion
For Directed Verdict and Motion for Judgment Notwithstanding
the Verdict.
In the first appeal, this Court of Appeals upheld the trial court’s decision that
Mr. William H. McNutt had orally gifted the house, previously known as the
foreman’s house, situated in the specifically identified and completely segregated
part of the McNutt ranch, referred to as the “North side” and remanded to have the
17
trier of fact determine “an appropriate amount of acreage necessary for the full use
and enjoyment of the house…”
The 13th Amended Petition, which was the live pleading at trial and
admitted into evidence, asserted that the gift of the house included 5 acres
surrounding the house and parcel 9, consisting of approximately 700 acres. The
trial court prevented direct testimony as to any particular parcel of real estate in the
North side, and limited the testimony to an oral gift of the house and an appropriate
amount of acreage for the full use and enjoyment of the house. As detailed above,
there was legally and factually sufficient evidence to support the jury’s verdict.
The trial court correctly denied the motion for directed verdict and motion for
judgment notwithstanding the verdict.
IV. The Jury Charge Submitted To The Jury Was Correct.
The standard of review for error in the court's charge is abuse of discretion.
Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). In order for
the appellate court to reverse on a jury charge error, the appellant must show
harmful error. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749–50
(Tex.1980); Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48
S.W.3d 225, 232 (Tex.App.—San Antonio 2001, rev. denied). Error in the jury
charge is reversible only if it probably caused the rendition of an improper
judgment or probably prevented the appellant from properly presenting the case on
18
appeal. See TEX. R. APP. P. 44.1(a); Timberwalk Apts., Partners, Inc. v. Cain, 972
S.W.2d 749 (Tex.1998). To determine whether an alleged error in the charge is
reversible, the reviewing court must consider the pleadings of the parties, the
evidence presented at trial, and the charge in its entirety. See Id at 756; Island
Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d 551, 555
(Tex.1986). An improper jury charge requires reversal only when, under the
circumstances of the case, including the charge as a whole and the statements and
arguments of counsel, the error was calculated to cause and probably did cause the
rendition of an improper judgment. Berry Prop. Mgmt., Inc. v. Bliskey, 850 S.W.2d
644, 661 (Tex.App.—Corpus Christi 1993, writ dism'd by agr.).
Appellants’ argument is essentially that its trial strategy backfired on them.
Appellants’ repeatedly objected to any testimony as to a specific parcel of land that
accompanied the gift of the foreman’s house to Appellant in 1983, and the trial
court sustained these objections. RR 1; p. 194, l.8 – p. 201, l.2; p.262, l.13 – p.275,
l. 18. Appellants now complain that there is no evidence to support the jury’s
finding that “½ of the North Side” of the ranch was an appropriate amount of
acreage for the full use and enjoyment of the house. Appellee testified at trial
regarding what was necessary to fully enjoy the foreman’s house. Appellants’
proposed question is tantamount to including a specific amount of damages in a
damages question.
19
The controlling issue on retrial, consistent with the “law of the case”
principle was submitted to the jury in two questions with the proper legal standard.
The first question, the gift to Sherry McNutt of the “foreman’s” house was again
determined by the fact finder in the affirmative. It was not submitted as an oral gift
of the entire 2000 acre/North side issue, in accord with the “law of the case”
principle. The second question was submitted to the jury in the specific language
that this Court remanded for determination and it was done within the limitation of
“no oral gift of the entire 2000 acre/North side” context. Question 2 was decided
by the fact finder from the testimony relevant to the amount of acres, if any, is an
appropriate amount of acreage for the full use and enjoyment of the house. The
charge submitted is verbatim from this Court’s opinion.
Question 2 permitted the jury to only determine, by clear and convincing
evidence, an appropriate amount of acreage for the full use and enjoyment of the
house. This Court specifically remanded the case for that same identical
determination. Appellee understands that Judge Loving’s statements at the pre-
trial hearing as to a “presumption” were not submitted nor binding on the jury, but
this particular “foreman’s” house already determined to have been gifted to Sherry
McNutt has always been situated on the specifically identifiable North side. In the
context of the house gift, excluding the entire 2,000 acre/North side and following
the “law of the case”, Appellee presented without objection, and with the wavier
20
and acquiescence of Appellant’s trial counsel, during various cross-examination,
testimony relevant to the twenty year plus history of the possession of the house
and property without limitation or restriction by William H. McNutt for Sherry
McNutt’s full use and enjoyment of the house.
Moreover, it was the Appellants that objected to any parcel within the entire
2000 acre/North side, being identified, and they should not be allowed to benefit
from the limitations they urged.
The trial court submitted its charge based on the pleadings, the oral gift
exception to the statute of frauds as to the “foreman’s” house and the equitable
exception concerning the developed testimony on the appropriate acreage for the
full use and enjoyment of the “foreman’s” house.
The proposed submission by the Ranch entities is not substantially correct.
First, the proposed charge does not contain a date reference. Second, the proposed
charge is a comment on the evidence. Third, the proposed charge confuses the
initial gift of property as to the entire 2000 acres/North side, and the specific
remand instruction concerning the appropriate amount of acreage for the full use
and enjoyment of the “foreman’s” house. Fourth, the proposed charge sponsored a
metes and bounds description on the North side, that would have been contrary to
the completed oral gift of the “foreman’s” house and the acres to have full use and
21
enjoyment thereof. Lastly, the proposed charge called for multi-issue resolution
that would leave any answer therein from being directly traced.
The trial court submitted the charge that reflected all the admitted evidence,
whether from direct examination or cross-examination, tried by consent, or waived,
but before the jury and the “law of the case”.
Sherry McNutt did not relitigate the 1983 oral gift of the entire 2,000
acre/North side issue. Sherry McNutt tried only the very specific fact to be
determined on remand, and not determined in the first trial. If appellant’s position
is correct, the Ranch entities might have prevailed by for a pre-trial disposition as a
matter of law. The Ranch entities allowed the fact issues, raised by the testimony,
to be submitted to the jury.
Appellee’s live pleading, provided notice of the 1983 oral gift of the
“foreman’s” house with the surrounding five (5) acres and parcel A that Appellee
estimates as being 700 acres and in the prayer for a relief that included general
relief and specific as Appellee may show herself justly entitled.
The pleadings at trial allowed for the testimony admitted to be submitted to
the jury in the form of Question 1 and Question 2 that are within the bounds of the
“law of the case” and the specific fact remanded.
22
V. Appellants failed to properly present evidence of juror misconduct that
would be sufficient to set aside the jury’s verdict.
In their fifth issue, the Appellants argue that juror misconduct resulted in an
improper verdict. In support of their Amended Motion for New Trial, Appellants
submitted the affidavit of two of the jurors, Daniel Meyer and Dale Gipson,
alleging that two of the other jurors injected facts into the deliberations that were
outside the evidence.
To warrant a new trial for jury misconduct, the movant must establish (1)
that the misconduct occurred, (2) it was material, and (3) probably caused injury.”
Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex.2000). Jurors are
prohibited from testifying about matters and statements occurring during
deliberations. Tex. R. Civ. P. 327(b); Id. at 370. Proof of a juror’s failure to
disclose bias must come from some source other than a fellow juror’s testimony
about deliberations.” Id.
The evidence presented by Appellants relates to statements allegedly made
by jurors during deliberations and is not provided from a source outside the jury.
As such, the affidavits presented by Appellants are inadmissible to show jury
misconduct. Accordingly, this Court should overrule Appellants’ Issue Number 5.
CONCLUSION
Three fact finders have determined that William H. McNutt in 1983 gave his
daughter, Sherry McNutt, the foreman’s house. On remand, Sherry McNutt
23
presented evidence of her own ranching operations, cattle and sheep and goats,
later Sherry McNutt and William McNutt, together and separately, ventured into
the exotic market. Sherry McNutt managed William H. McNutt’s exotics on the
“South” side of the ranch until 2001, when William H. McNutt gave all the wild
game to Mrs. Johnie Beth McNutt and Sherry McNutt including the income from
hunting and the sale of exotics. Never during William H. McNutt’s lifetime did he
undertake an act inconsistent with the completed gift in 1983, no limitation in the
use of the “North” side as exercised by Sherry McNutt. Sherry McNutt committed
her life to the 1983 gift by William H. McNutt, she believed and relied upon the
word of her dad, as a true Texan, a man’s word is his bond, plus William H.
McNutt was her trusted and confidential companion, to undo William H. McNutt’s
word is a detriment to Sherry McNutt.
PRAYER
Appellee, Sherry McNutt, prays that the Court will affirm the judgment of
the trial court, and for such further relief to which she may be entitled.
24
Respectfully submitted,
/s/ Gene Garcia
GENE GARCIA
State Bar No. 07634500
809 S. Port Ave.
Corpus Christi, Texas 78405
(361) 883-8651
(361) 288-8392 – facsimile
email: gene@garciatexaslaw.com
ATTORNEYS FOR APPELLEE
CERTIFICATE OF COMPLIANCE
In accordance with Texas Rule of Appellate Procedure 9.4, I certify that the
foregoing computer-generated brief contains 5,490 words.
/s/ Gene Garcia
25
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing instrument was delivered to
all counsel of record by electronic service on August 19, 2015:
Craig White
Law Office of Craig L. White
111 W. Olmos Dr.
San Antonio, Texas 78212
210-829-7183
craigwhite@111westolmos.com
Jeff Small
Law Office of Jeff Small
12451 Starcrest, Suite 100
San Antonio, Texas 78216
210-496-0611
jdslaw@satx.rr.com
/s/ Gene Garcia
26