Case Information

*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 12/01/15 4:35:22 PM KEITH E. HOTTLE Clerk *1 Jeff Small

Attorney at Law

12451 Starcrest, Suite 100

San Antonio, TX 78216.2988 210.496.0611/F: 210.579.1399 jdslaw@satx.rr.com

November 23, 2015

Mr. Keith C. Hottle, Clerk

Fourth Court of Appeals

300 Dolorosa, Suite 3200

San Antonio, TX 78205

Re: In re the Estate of William H. McNutt, Deceased;

Cause No. 04-15-00110-CV

Dear Mr. Hottle:

Petitioners, the McNutt Ranch Entities, respectfully submit this post-submission letter brief and ask that it be distributed to the members of the panel in the foregoing case,

Justices Angelini, Chapa, and Pulliam, which heard oral argument on November 17, 2015.

The McNutt Ranch Entities remain firm that Sherry failed to prove any oral gift of real estate, including as to the foreman’s house, and continue to urge that the entire trial

court judgment be reversed and that Sherry take nothing. Among other reasons, no matter

what else Sherry shows regarding the house, she failed to show any evidence that Bill

made a gift to her of the house in 1983–she never testified that he did, only that he

allegedly gifted her the entire northside of the Ranch. This Court decided otherwise in the

first appeal as to the gift of the northside.

That said however, for clarity’s sake, no matter how the Court resolves the issue as to Question No. 1, the only proper resolution as to Question No. 2 is for the Court to

reverse and render judgment as to that part of the judgment that Sherry take nothing.

Sherry waived her claim as to Question No. 2 because she submitted her cause on an incorrect, invalid legal theory. Thus, the proper resolution of that issue is rendition. See

Clayton W. Williams, Jr., Inc. v. Olivo , 952 S.W.2d 523, (Tex. 1997) (“Because the

[plaintiffs] did not secure proper jury findings on their only viable cause of action, they

waived that claim and are not entitled to any relief . . .”). “Upon appeal all independent

grounds of recovery or of defense not conclusively established under the evidence and no

element of which is submitted or requested are waived.” T EX . R. C IV . P. 279.

This Court gave Sherry the opportunity on remand to develop the theory of an oral gift both as to the house AND the necessary plot of land surrounding the house for full use

and enjoyment of the house. McNutt I, 405 S.W.3d at 197. But she failed and refused to

submit the question regarding “the necessary plot of land” under the theory of an oral gift

Mr. Keith Hottle, Clerk

November 23, 2015

Page 2

of real estate as directed by this Court. See id. Instead, Sherry opted to retry the alleged

gift of the 2000 acre, northside of the ranch, which had previously been decided adversely

to her.

It was Sherry’s burden, as a proponent of an exception to the statute of frauds as to the “necessary plot of land,” to seek and obtain a finding as to the elements of the oral-

gift-of-real-estate exception as to the plot of land as well as to the house. See Dynegy, Inc.

v. Yates , 422 S.W.3d 638, 641 (Tex. 2013). She failed to ask for or obtain findings

supporting an exception to the statute of frauds as to Question No. 2. Indeed, because

Sherry resisted submitting the issue posed in Question No. 2 subject to the elements of an

oral gift of real estate, and failed to obtain the necessary jury findings, she waived her claim

as to any award pursuant to Question No. 2. Thus, the only proper resolution as to

Question No. 2 is rendition of judgment that Sherry take nothing.

Were the Court to affirm only as to Question No. 1, it would follow that Sherry would need access over the Ranch to the foreman’s house. Accordingly, in that instance, the

Court should find that Sherry is entitled to an implied easement appurtenant for access

from the house to water and to the IH-10 access road as would be the case in any instance

where there has been a unity of ownership and there is a physical necessity for access to

water and an outlet road. See Drye v. Eagle Rock Ranch, Inc. , 364 S.W.2d 196, 208 (Tex.

1962) (use of the “servient” tract was necessary “for drainage, support, way, or water”);

Bains v. Parker , 143 Tex. 57, 182 S.W.2d 397, 399 (1944).

Accordingly, the McNutt Ranch Entities respectfully ask this Court to reverse the trial court’s judgment in its entirety. In the alternative, the McNutt Ranch Entities ask that if the

Court affirms the judgment as to Question No. 1 that it reverse and render judgment that

Sherry take nothing as to Question No. 2 and grant an easement to her that is no more

than necessary for access to water and the IH-10 access road from the house.

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

Respectfully submitted, /S/ Jeff Small

Jeff Small

Counsel for Appellants