Opinion
No. 04-15-00110-CV
02-10-2016
IN RE THE ESTATE OF WILLIAM H. MCNUTT, Deceased
MEMORANDUM OPINION
From the County Court, Kimble County, Texas
Trial Court No. 2284
Honorable Joe Loving, Jr., Judge Presiding Opinion by: Jason Pulliam, Justice Sitting: Karen Angelini, Justice Luz Elena Chapa, Justice Jason Pulliam, Justice AFFIRMED IN PART; REVERSED AND REMANDED IN PART FOR DETERMINATION OF A LIMITED ISSUE
INTRODUCTION
This suit arises from a dispute whether Defendant William ("Bill") McNutt gave to his daughter, Plaintiff Sherry McNutt, an oral gift of a portion of the McNutt Ranch. The cause was originally tried in July 2011 and was reversed and remanded on appeal. Re-trial was limited to specific issues. This appeal arises from the jury trial on remand. We affirm in part and reverse and remand in part for re-trial on a specific issue.
FACTUAL BACKGROUND
Bill McNutt had two daughters, Sherry McNutt and Dawn McNutt Keller. Bill owned the 3,800-acre McNutt ranch located in Kerr and Kimble Counties. The McNutt Ranch is bisected by Interstate Highway 10. The acreage north of IH-10, comprising approximately 2,000 acres, is commonly referred to as the "north side", while the acreage to the south of IH-10, comprising approximately 1,800 acres, is commonly referred to as the "south side."
Sherry filed the original action against her father (and later his estate) in October 2007. In her petition in the original suit, Sherry alleged a cause of action for oral gift of land and sought judgment "for title to the north side of the McNutt Ranch." Sherry alleged Bill called her in 1983 after the death of the ranch foreman and asked her to return home from Colorado to manage the ranch. Sherry alleged Bill gave her, by oral gift, the foreman's house and the north side of the ranch in exchange for her work and assistance to her parents.
Sometime in 2005, a misunderstanding about the division of the hunting-lease compensation caused a rift between Sherry and her father. This rift eventually led Bill to revise his will, leaving the entire ranch in trust for Dawn McNutt Keller and her two children. Sherry then filed the original action.
After suit was filed, Bill conveyed the entire McNutt Ranch to McNutt Ranch, Ltd. Bill excepted from this conveyance his house on the south side, approximately 5 acres surrounding the house, as well as access to IH-10. Following this conveyance, Bill owned ninety-nine percent of McNutt Ranch, Ltd., and the remaining one percent was owned by the General Partner, McNutt Management, LLC. McNutt Management, LLC was owned by Dawn McNutt Keller and her two children, Martin Keller and Kasey Keller. The suit was amended to include as Defendant parties McNutt Ranch, Ltd., DMK Ranching LLC, and McNutt Management, LLC as General Partner of McNutt Ranch, Ltd. (Defendants collectively referred to as "the Ranch Entities"). Bill died during the pendency of the underlying suit.
After a two-day bench trial in July 2011, the trial court found Sherry failed to prove Bill gifted her the entire north side of the ranch; however, the trial court rendered judgment that Sherry proved the elements of an oral gift of land as to "a permanent residence structure existing on (5) five acres of land, with water. The five (5) acre tract includes access to the Highway I-10 service road."
On appeal, the court reversed the trial court's judgment. The court concluded the trial court was correct in finding Sherry failed to prove Bill gave her the 2000-acre north side by oral gift, but concluded it appeared from the record that Sherry might be able to recover under another legal theory that was not developed at trial. In re Estate of McNutt, 405 S.W.3d 194, 197 (Tex. App.—San Antonio 2013, no pet.) (McNutt I). The court in McNutt I remanded the cause "for a new trial on the theory of whether William H. McNutt made an oral gift to Sherry D. McNutt of the house and an appropriate amount of acreage for the full use and enjoyment of the house." Id. (Mandate). In the opinion, the court stated,
we believe remanding this case for a new trial on the theory of an oral gift of the house and an appropriate amount of acreage for the full use and enjoyment of the house is in the interests of justice.... For the reasons stated and in the interests of justice, we reverse the trial court's judgment and remand the cause to the trial court for a new trial on the legal theory of an oral gift of a house and the necessary plot of land surrounding the house for the full use and enjoyment of the house.Id. at 197.
The litigation continued in the trial court. Sherry amended her petition to assert a cause of action for an oral gift of real estate and sought a finding of "oral gift of the foreman's house and the surrounding five (5) acres, and a specific amount of land, being Pasture 9, for the full use and enjoyment of the house." Sherry also included a general request for relief, stating, "such other and further relief, at law or in equity, general or special, to which she may show herself justly entitled."
Following a jury trial, the trial court submitted two questions to the jury. Question One inquired: "Do you find from clear and convincing evidence that William H. McNutt made an oral gift of the 'foreman's' house to Sherry McNutt in 1983?" The jury responded "yes." Conditioned upon this affirmative answer, the jury proceeded to Question Two. Question Two inquired: "What amount of land, if any, do you find from clear and convincing evidence to be necessary for Sherry McNutt to have full use and enjoyment of the 'foreman's' house?" The jury answered: "1/2 of North Side".
The Ranch Entities filed a motion for judgment notwithstanding the verdict and a motion for new trial. The trial court denied all post-trial motions, and the Ranch Entities perfected this appeal.
DISCUSSION
I. Legal and Factual Sufficiency of the Evidence
A. Legal and Factual sufficiency of Evidence to support Jury Finding on Question One
In Question One, the jury was asked to determine whether Bill gave Sherry the foreman's house by oral gift. The jury responded, "yes."
The Ranch Entities contend the jury verdict pertaining to Question One is not supported by legally or factually sufficient evidence. The Ranch Entities contend the evidence does not support a firm belief that Bill gave Sherry the foreman's house or any part of the ranch by oral gift.
Applicable Law
An oral gift of real estate is a narrow and strictly-enforced exception to the strict writing requirement of all real estate transfers mandated by the Texas Property Code and the statute of frauds. Republic Nat. Bank of Dallas v. Stetson, 390 S.W.2d 257, 262 (Tex. 1965); Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex. App.—Dallas 2006, no pet.); see TEX. PROP. CODE ANN. § 5.021 (West 2014); TEX. BUS. & COM. CODE ANN. § 26.01(a),(b)(4) (West 2015). To satisfy the Property Code and take an oral gift of real estate from under the ambit of the statute of frauds, a claimant must prove: (1) a gift "in praesenti," that is, a gift that takes effect immediately; (2) immediate possession of the gift by the donee with the donor's consent; and (3) permanent and valuable improvements or 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).
The intent of the donor is the principal focus in any determination whether an oral gift has been made. Thompson v. Lawson, 793 S.W.2d 94, 96 (Tex. App.—Eastland 1990, writ denied). The donor must relinquish all dominion or control over the property given. Troxel, 201 S.W.3d at 297; Peterson v. Weiner, 71 S.W.2d 544, 546 (Tex. Civ. App.—San Antonio 1934, writ ref'd). Thus, the donee's possession must be in the nature of an owner's right to control. Dawson v. Tumlinson, 242 S.W.2d 191, 194 (Tex. 1951); Troxel, 201 S.W.3d at 297. "A mere intention to make a gift, however clearly expressed, which has not been carried into effect, amounts to nothing, and enforces no rights in the subject matter of the proposed gift upon the intended donee. The intention must be effective by complete and unconditional delivery." Grimsley v. Grimsley, 632 S.W.2d 174, 178 (Tex. App.—Corpus Christi 1982, no writ).
Standard of Review
Because an oral transfer of real estate is a strictly-enforced exception to the statute of frauds, a person claiming a gift of real estate by oral transfer must prove the oral gift under a clear and convincing evidence standard of proof. Nipp v. Broumley, 285 S.W.3d 552, 558-59 (Tex. App.—Waco 2009, no pet.) (citing Hayes v. Rinehart, 65 S.W.3d 286, 289 (Tex. App.—Eastland 2001, no pet.) and Dorman v. Arnold, 932 S.W.2d 225, 228 (Tex. App.—Texarkana 1996, no writ)). "Whenever the standard of proof at trial is elevated, the standard of appellate review must likewise be elevated." City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005) (quoting Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004)). In the context of a heightened standard of appellate review in a legal sufficiency challenge, the court of appeals must give "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); In re C.E., 100 S.W.3d 368, 370 (Tex. App.—San Antonio 2002, no pet.).
In conducting a legal sufficiency review under this heightened standard, a court should look at the evidence in the light most favorable to the jury's finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that this finding is true. City of Keller, 168 S.W.3d at 817. To give appropriate deference to the fact finder's conclusions, a reviewing court must assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d at 266). "A corollary to this requirement is that a court should disregard all evidence that a reasonable fact finder could have disbelieved or found to have been not credible." Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248-49 (Tex. 2008) (quoting Diamond Shamrock Ref. Co., 168 S.W.3d at 170). Similarly, a reviewing court must give due regard to all undisputed facts, even those that do not support the jury-finding. Columbia Med. Ctr. of Las Colinas, Inc., 271 S.W.3d at 248-49; Diamond Shamrock Ref. Co., 168 S.W.3d at 170.
Although the distinction is fine, "there is difference between a legal sufficiency and a factual sufficiency challenge when the burden of proof is clear and convincing evidence." In re J.F.C., 96 S.W.3d at 266. Under this heightened standard of proof and review the evidence is factually sufficient if a fact finder could reasonably form a firm belief or conviction about the truth of the allegations sought to be established. In re C.H, 89 S.W.3d 17, 25-26 (Tex. 2002). The reviewing court must review the entire record to determine if there exists disputed evidence that a reasonable fact finder could not have credited in favor of the finding. In re J.F.C, 96 S.W.3d at 266. If this disputed evidence is so significant that a fact finder could not reasonably have formed a firm belief or conviction about the truth of the matter to be proven, then the evidence is factually insufficient. 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, 168 S.W.3d at 819; see also Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 83 (Tex. App.—San Antonio 2011, no pet.). If appropriate, "[a] court of appeals should detail in its opinion why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding." In re J.F.C., 96 S.W.3d at 266-67.
Consequently, with regard to the Ranch Entities' legal and factual sufficiency challenge to Question One, this court must review all of the evidence under a clear and convincing standard of proof. This court must determine whether the evidence is legally and factually sufficient to support the jury's finding that Bill gave the foreman's house to Sherry by oral gift. This court will only review the evidence with regard to Question Two if the evidence is legally and factually sufficient to support the jury's finding on Question One.
Evidentiary Review
In support of the jury's verdict that Bill gave Sherry the foreman's house by oral gift, the appellate record contains evidence consisting of the testimony of David Ross, Tom Mayo, and Sherry McNutt.
Sherry McNutt testified that in 1983 Bill asked Sherry to come home to be foreman of the ranch, and in exchange, he gave Sherry by oral gift the foreman's house located on the north side. Sherry testified the foreman's house was renovated upon her return from Colorado, and upon completion, she took possession of the foreman's house. Sherry testified she resided in the foreman's house for approximately 25 years and personally made improvements to the house and its surrounding property.
With regard to her work as foreman, Sherry testified that in addition to doing some of the physical work needed on both sides of the ranch, she oversaw regular ranching activities and booked and leased hunts on both the north side and the south side. Sherry testified her parents received income from hunting activities on the south side, and she received income from the hunting activities on the north side. Sherry testified she received a salary for her work on the south side beginning in 1989. Bill received all income derived from ranch operations on the south side until 2001, at which time, Bill gave this income to Sherry and her mother, Beth. In 2003, Sherry began sharing income derived from the hunting operations of the north side with her mother.
David Ross testified he had multiple conversations on many different occasions with Bill, who told him "clearly and convincingly" that "the previous ranch foreman's house ... was given to Sherry." Ross testified he "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." Ross testified Bill never modified, retracted, or made any controverting statements regarding this gift of the foreman's house to Sherry.
Tom Mayo testified similarly to David Ross, stating that in multiple conversations Bill clearly told Mayo that he gave the foreman's house to Sherry. Mayo testified Bill never modified, retracted, or made any controverting statements regarding this gift of the foreman's house to Sherry.
While the veracity of this testimony evidence is not disputed, the Ranch Entities presented controverting evidence. During her cross examination, Sherry testified title was not formally transferred to her through any written document; she did not pay for all of the improvements to the foreman's house; she did not pay utilities or property taxes. Sherry testified Bill desired for title and utilities to remain in his name, and he paid taxes so he could receive the tax write-off.
Other evidence presented showed Bill never filed a gift tax return that showed he gave Sherry the foreman's house. Also, the Ranch Entities presented a letter from Bill's attorney to Sherry in 2005, when the rift developed between Bill and Sherry. This letter refers to the foreman's house as "your home." However, the letter goes on to inform Sherry her position of Ranch Foreman was terminated and established a set of rules "which will be enforced" if Sherry intended to continue "staying at his ranch." The letter stated that if Sherry did not obey the rules, Bill would have her evicted. Sherry testified she complied with Bill's rules as mandated by that letter in an effort to resolve the conflict that had arisen.
Application
The testimony of Sherry, Ross, and Mayo consistently established Bill gave the foreman's house to Sherry when she returned from Colorado in 1983. This evidence reveals Sherry took immediate possession of the house and made permanent and valuable improvements to the house and surrounding property. This evidence established Bill intended to give the house to Sherry upon her return, and Bill relinquished dominion and control of the foreman's house and acted as if the house belonged to Sherry. Bill communicated to others that he gave the foreman's house to Sherry. This evidence establishes all three elements required to prove an oral gift of real estate. This testimonial evidence is more than meager circumstantial evidence, but instead is clear and concrete.
Based upon this evidence, a reasonable jury could form a firm and rational belief that Bill gifted the foreman's house to Sherry by oral gift.
Review of the evidence contrary to the jury's finding does not rise to the level of discrediting the jury's finding or the evidence supporting it. It is undisputed that Bill paid for a portion of the improvements to the foreman's house; Bill paid the taxes, and; Bill paid for the utilities. This undisputed evidence controverts the evidence supporting the jury's finding. However, it is reasonable for the jury to form a firm belief or conviction that, in spite of these facts, Bill still intended to give the foreman's house to Sherry by oral gift. It is undisputed that Sherry received a minor salary for her work as the ranch foreman as her only form of compensation. It is also undisputed Sherry performed much of the physical work of improving the foreman's house. Thus, it is conceivable and reasonable that the jury found Bill paid for the hard costs of the improvements as compensation. It is also conceivable and reasonable the jury believed Sherry's testimony that Bill paid the taxes and utilities of the land encompassing the foreman's house because he wanted to maintain the tax write-off. This evidence, though controverting, could also have been interpreted by the jury to be consistent with the fact that Bill intended to give the foreman's house to Sherry as an oral gift, as any overt transfer of title would have inhibited his ability to get the tax benefits of ownership of the entire ranch.
Based upon review of the disputed and undisputed evidence in the light most favorable to the jury's finding, it is feasible that a reasonable fact finder would have resolved the disputed facts in favor of its finding. It is feasible a reasonable jury would have resolved the undisputed controverting evidence in a light consistent with its finding. Finally, it is feasible a reasonable jury could have formed a firm belief or conviction that Bill gave the foreman's house to Sherry by oral gift. Thus, the evidence is legally sufficient to support the jury's finding with regard to Question One.
Under a factual sufficiency review of the same evidence, the testimonies of Sherry, Ross, and Mayo established that Bill gave the foreman's house to Sherry by oral gift. The evidence presented that would controvert this jury finding is undisputed. Thus, this court may give regard to this controverting evidence. Sherry's testimony explains the controverting evidence and provides sufficient basis for the jury to find that Bill made an oral gift to Sherry and paid all expenses so he could receive the tax benefits of ownership of the entire McNutt Ranch. This resolution of the controverting evidence supports the jury's finding.
In light of review of the entire record, the jury could have reasonably formed a firm belief or conviction about the truth of Sherry's allegation and the jury's finding that Bill gave her the foreman's house by oral gift. Thus, the evidence is factually sufficient to support the jury's finding with regard to Question One.
The Ranch Entities' legal and factual sufficiency challenge to Question One is overruled.
B. Legal and Factual Sufficiency of Evidence to Support Jury Finding on Question Two
Based upon its affirmative finding on Question One, the jury was asked to determine in Question Two: "what amount of land, if any, is necessary for Sherry to have full use and enjoyment of the foreman's house?" In Response to Question Two, the jury answered: "1/2 of North Side."
The Ranch Entities contend the evidence presented was not legally or factually sufficient to support the jury's finding on Question Two.
This court cannot analyze the Ranch Entities' sufficiency challenge to Question Two prior to addressing their challenges to the efficacy of the question. Therefore, this court will next address the Ranch Entities' arguments pertaining to jury charge error on Question Two. If appropriate, we will return to the Ranch Entities' sufficiency challenge to Question Two.
II. Jury Charge Error-Question Two was Legally Incorrect
Within this challenge, the Ranch Entities present three arguments pertaining to the suitability of Question Two. First, the Ranch Entities challenge the trial court's submission of Question Two as improper, arguing the question allows for an automatic presumption that some amount of land must necessarily accompany a gift of the foreman's house. The Ranch Entities contend there is no legal authority for such a presumption, and the improper submission permitted the jury to award land to accompany any gift of the house without proof that Bill made an oral gift of the land to Sherry. Second, the Ranch Entities contend the question is legally incorrect because it violates the statute of frauds. Specifically, the Ranch Entities argue Question Two does not require a specific finding of the land that would accompany the foreman's house. The Ranch Entities contend the submission, as phrased, "permitted the jury to find that Sherry was entitled to some unidentified, undefined amount of acreage without satisfying any exception to the statute of frauds." Finally, the Ranch Entities contend the trial court erred by refusing to submit their proposed question. The Ranch Entities argue their proposed question was a better representation of McNutt I's directive on the issues to be litigated on remand. Again, the Ranch Entities contend the question submitted permitted an award of unspecified and unidentifiable land.
Standard of Review
The standard of review for an allegation of jury charge error is an abuse of discretion. H.E. Butt Grocery Co. v. Bilotto, 928 S.W.2d 197, 199 (Tex. App.—San Antonio 1996), writ granted (June 12, 1997), aff'd, 985 S.W.2d 22 (Tex. 1998). A trial court abuses its discretion by acting arbitrarily, unreasonably, or without consideration of guiding principles. Downer v. Aquamarine Operators Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159 (1986). "[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion...." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); H.E. Butt Grocery Co., 928 S.W.2d at 199.
A. Automatic Presumption
First, the Ranch Entities contend Question Two is legally incorrect because it automatically presumes that some amount of land must necessarily accompany a gift of the foreman's house. To establish an exception to the statute of frauds, the Ranch Entities argue Sherry must have been required to prove an oral gift of the land to accompany the house. Full analysis of this argument requires review and interpretation of the limited issues McNutt I directed to be re-tried upon remand.
"When [an appellate court] remands a case and limits a subsequent trial to a particular issue, the trial court is restricted to a determination of that particular issue." Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); McCalla v. Ski River Dev., Inc., 239 S.W.3d 374, 378 (Tex. App.—Waco 2007, no pet.); Lifshutz v. Lifshutz, 199 S.W.3d 9, 20 (Tex. App.—San Antonio 2006, pet. denied); In re Marriage of Stein, 190 S.W.3d 73, 75 (Tex. App.—Amarillo 2005, no pet.); Univ. of Tex. Sys. v. Harry, 948 S.W.2d 481, 483 (Tex. App.—El Paso 1997, no pet.). Thus, instructions given to a trial court upon remand on a limited issue will be adhered to and enforced in a subsequent appeal. Hudson, 711 S.W.2d at 630; Lifshutz, 199 S.W.3d at 20.
McNutt I remanded the case and limited the subsequent trial to particular, enunciated issues. See In re McNutt I, 405 S.W.3d at 197, mandate. Therefore, all parties, the trial court, and this court are bound by the directive given in McNutt I. Hudson, 711 S.W.2d at 630; Univ. of Tex. Sys., 948 S.W.2d at 483 (trial court committed reversible error by retrying issues beyond the scope of remand mandate). To determine the scope of remand, a court must examine both the opinion of the appellate court and its mandate. Hudson, 711 S.W.2d at 630; Lifshutz, 199 S.W.3d at 20.
In the mandate in McNutt I, the court stated it remanded the cause "for a new trial on the theory of whether William H. McNutt made an oral gift to Sherry D. McNutt of the house and an appropriate amount of acreage for the full use and enjoyment of the house." In re McNutt I, 405 S.W.3d 194 (mandate). In the opinion, the court stated,
we believe remanding this case for a new trial on the theory of an oral gift of the house and an appropriate amount of acreage for the full use and enjoyment of the house is in the interests of justice.... For the reasons stated and in the interests of justice, we reverse the trial court's judgment and remand the cause to the trial court for a new trial on the legal theory of an oral gift of a house and the necessary plot of land surrounding the house for the full use and enjoyment of the house.In re McNutt I, 405 S.W.3d at 197.
Based upon a reading of the entirety of the opinion and mandate in McNutt I, this court concludes from the intent expressed and the reasoning utilized that the scope of remand was limited to determine whether Bill gave the foreman's house to Sherry by oral gift. In re McNutt, 405 S.W.3d. at 197, mandate. If it was determined Bill gave the foreman's house to Sherry, then determination was to be made as to "the necessary plot of land surrounding the house for the full use and enjoyment of the house." Id. In directing the parties in this manner, McNutt I established a presumption that some land was "necessary ... for the full use and enjoyment of the house." Id.
The trial court's submission of Question Two followed the directive in McNutt I to the extent the question established a presumption that some land surrounding the foreman's house is necessary to provide full use and enjoyment of the foreman's house. Therefore, the Ranch Entities' argument on this appeal that Question Two improperly allowed for this automatic presumption is effectively a challenge to McNutt I. The Ranch Entities cannot challenge the court's conclusions and directive in McNutt I within the context of this appeal.
The Ranch Entities also seem to protest the trial court's adverse conclusion on this issue in rendering its final judgment in the previous trial. The Ranch Entities begin this argument with recitation of the trial court's actions and statements pertaining to this subject that were made during the previous trial. Similarly, if the Ranch Entities had objection to statements and actions made by the trial court in the previous trial, these issues should have been raised in the previous appeal. To the extent the Ranch Entities did raise this issue in the previous appeal, the court addressed and overruled the Ranch Entities' issue in McNutt I. Finally, because the trial court's actions and statements and any evidence admitted in the first trial are not relevant or of evidentiary value in the second trial, these statements are improperly presented in this appeal and will be disregarded. --------
Therefore, to the extent the Ranch Entities argue Question Two is legally incorrect because it improperly allowed an automatic presumption that some land surrounding the foreman's house is necessary, this issue is overruled.
B. Failure to Require Specific Finding as to Land Awarded
Next, the Ranch Entities argue Question Two was legally incorrect because it permitted the jury to make an award of land to Sherry without determining or identifying the specific property gifted to her and without her having to satisfy an exception to the statute of frauds.
As stated previously, McNutt I directed that on remand determination was to be made first whether Bill made an oral gift of the house to Sherry. If an affirmative finding was made on this issue, McNutt I instructed that a finding must be made as to "the necessary plot of land surrounding the house for the full use and enjoyment of the house." In re McNutt, 405 S.W.3d. at 197, mandate. By stating, "the necessary plot of land surrounding the house," McNutt I directed that any award of land must be surrounding or connected to the house and limited to that amount "necessary for the use and enjoyment of the house." See id.
Consistent with McNutt I, the jury charge submitted required that the jury make an affirmative finding that Bill gave the foreman's house to Sherry by oral gift before it could award any land. Also consistent with the directive in McNutt I, Question Two allowed for determination of any land necessary for the full use and enjoyment of the house. Finally, consistent with the directive in McNutt I, Question Two provided the jury an option to award no land if the jury found that no land would be necessary for Sherry's use and enjoyment of the foreman's house. ("What amount of land, if any, ....").
Inconsistent with the directive in McNutt I, however, Question Two allowed for an undefined award of land. Question Two did not require that any award of land surround or be connected to the foreman's house, itself. Question Two did not require any identification or specification of the land awarded. Instead, the question asked simply "what amount of land" would be necessary for the full use and enjoyment of the house. Thus, Question Two requested only that the jury determine an amount of land, but did not request the jury determine and identify "the necessary plot of land surrounding the house" as directed in McNutt I.
As maintained by the Ranch Entities, the statute of frauds requires that any judgment award of land must specifically identify and describe the property. See AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex. 2008) (quoting Hermann v. Likens, 39 S.W. 282, 284 (Tex. 1897)); Reid Estates Civic Club v. Boyer, Inc., No. 01-09-00282-CV, 2011 WL 6938513, at *14 (Tex. App. Dec. 29, 2011, no pet.); Gilbreath v. Yarbrough, 472 S.W.2d 185, 189 (Tex. App.—Tyler 1971, writ ref'd n.r.e.). Question Two was phrased in such a way that any answer would not adequately describe or identify any land awarded.
Because Question Two was not phrased to require that any award of land surround or be connected to the foreman's house and did not require the jury to specify the land awarded, the jury was asked to make a finding on a different issue than that directed by McNutt I. This court must adhere to and enforce instructions given to the trial court upon remand on this limited issue. Hudson, 711 S.W.2d at 630. Therefore, this court cannot uphold the jury's answer to Question Two.
The Ranch Entities argument that Question Two was legally incorrect because it "permitted the jury to find that Sherry was entitled to some unidentified, undefined amount of acreage" is sustained.
C. Improper Form/Failure to Submit the Ranch Entities' Proposed Jury Question
The Ranch Entities next contend the trial court submitted an improper jury charge because their proposed question was a better presentation of the issues to be determined. The Ranch Entities contend their proposed question would not have "permitted the jury to make an award to Sherry without her ever having identified the specific property gifted to her and without her having to satisfy an exception to the statute of frauds by proving the elements of an oral gift of real estate."
The Ranch Entities requested that a single question be submitted to the jury:
Do you find by clear and convincing evidence that William H. McNutt, Jr. made an oral gift of the 'foreman's' house and the necessary plot of land surrounding the house for the full use and enjoyment of the house, consisting of 5 acres more particularly described as [fill in description of gifted property], and Pasture #9 consisting of approximately 700 acres to Sherry McNutt?
First, as explained previously, McNutt I directed remand on the limited issue whether Bill gave the foreman's house to Sherry by oral gift, and if so, what land surrounding the house is necessary for her use and enjoyment of the house. However, the Ranch Entities' proposed jury question directs a finding on the issues whether Bill gave to Sherry by oral gift the house and any land. This proposed finding of an oral gift of land surrounding the house goes beyond the directive of McNutt I. Because the trial court was bound by the directive in McNutt I, and the Ranch Entities' proposed jury question sought a finding outside of this directive, the trial court did not abuse its discretion by denying submission of the Ranch Entities' proposed jury question.
In addition, the question as presented makes a presumption of fact that is within the province of the jury. Rather than request that the jury determine the plot of land surrounding the house necessary for its full use and enjoyment, the proposed jury question defines the "necessary plot" as 5 acres and Pasture 9. Because the proposed jury question includes a presumption of facts that should be determined by the jury, the trial court did not abuse its discretion by denying submission of the Ranch Entities' proposed jury question.
For these reasons, this issue is overruled.
D. Resolution
In this appeal, the Ranch Entities challenge both questions in the two-question jury charge. For the foregoing reasons, this court overrules the only challenge to Question One and concludes Question One is supported by the evidence. This court sustains the Ranch Entities' challenge to Question Two to the extent they argue the question improperly permitted the jury to award an undefined plot of land. The question is not enforceable because it requested a finding on a different issue than that directed by McNutt I.
Usually, a case is remanded for a new trial on all the issues of fact when an appellate court determines error occurred in the trial court. See Gordon v. Gordon, 704 S.W.2d 490, 491-92 (Tex. App.—Corpus Christi 1986, writ dism'd). Although it is unusual, an appellate court may also affirm in part and reverse in part the trial court's judgment and remand for further proceedings on a limited issue. See TEX. R. APP. P. 43.2(a),(c),(d); In re Marriage of Stein, 190 S.W.3d at 75. Similarly, Texas Rule of Appellate Procedure 44.1 provides an appellate court may reverse a trial court's judgment based upon an error of law if the error probably caused the rendition of an improper judgment. TEX. R. APP. P. 44.1(a). "If the error affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties, the judgment must be reversed and a new trial ordered only as to the part affected by the error." TEX. R. APP. P. 44.1(b).
The facts and procedural posture in this case present the unusual circumstance in which it is more appropriate to affirm in part and reverse in part the trial court's judgment and remand for further proceedings on the limited issue that was not tried as directed in McNutt I. The parties have already tried the issue whether Bill gave the foreman's house to Sherry by oral gift. The evidence presented is legally and factually sufficient to uphold this jury finding, and will be if re-tried again. Because the evidence is legally and factually sufficient to support the jury's response to Question One, the trial court's judgment, to this extent, is affirmed. Thus, the trial court's judgment based upon the jury's finding that Bill gave the foreman's house to Sherry by oral gift remains in effect. See Bramlett v. Phillips, 359 S.W.3d 304, 310 (Tex. App.—Amarillo 2012), aff'd, 407 S.W.3d 229 (Tex. 2013).
Pursuant to Rules of Appellate Procedure 43.2(a),(d) and 44.1, the trial court's judgment as it pertains to Question Two is reversed and remanded because the determination requested of the jury was outside the scope of the defined limited issue to be tried on remand. The error probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a). This error affects part, but not all of, the matter in controversy and is separable without unfairness to the parties. See TEX. R. APP. P. 44.1(b).
Thus, we must reverse the trial court's judgment as it pertains to Question Two, only, and remand for new trial to determine, as directed in McNutt I, "the necessary plot of land surrounding the house that is necessary for the full use and enjoyment of the house." On remand, Sherry may be allowed to amend her pleadings to conform to the issue to be determined and the specificity required of any determination.
Based upon the foregoing conclusion, this court cannot analyze the Ranch Entities' challenge to the legal and factual sufficiency of the evidence to support the jury finding on Question Two. The question was improper as submitted. Therefore, any conclusion would be inconsequential. See Hudson, 711 S.W.2d at 630 (instructions given to a trial court in the former appeal will be adhered to and enforced). This court will address the Ranch Entities' remaining appellate arguments to the extent they challenge the trial court's judgment in ways not affected by this court's determination with regard to the legal efficacy of Question Two.
III. Juror Misconduct
The Ranch Entities' argument with regard to juror misconduct is two-fold. First, the Ranch Entities contend the trial court's judgment should be overturned because certain jurors interjected facts outside the evidence during juror deliberations, and this influence caused jurors to allow bias and sympathy to play a part in the deliberations. Second, the Ranch Entities argue the bias displayed during deliberations proves specific jurors were not honest in answering questions during voir dire. The Ranch Entities contend, "[c]ertain members of the jury panel responded to voir dire questions with untruthful, erroneous, or incomplete answers and violated the trial court's instructions not to let bias or sympathy play into the rendition of their verdict."
In making these arguments, the Ranch Entities do not direct this court to any specific error committed by the trial court. Thus, this court must surmise the Ranch Entities intend to argue the trial court erred by denying their motion for new trial, in which they asserted juror misconduct on the same bases asserted here. On appeal, the Ranch Entities repeat the same argument made in their motion for new trial and repeat the content of juror affidavits attached to it. In these affidavits, the jurors attested to comments made during deliberations regarding facts and opinions outside the admitted evidence. This court will construe the brief liberally to argue the trial court erred by denying the Ranch Entities' motion for new trial on the issue of juror misconduct.
Applicable Law and Standard of Review
To warrant a new trial for jury misconduct, the movant of a motion for new trial must establish: (1) certain misconduct occurred; (2) the misconduct was material; and (3) probably caused rendition of an improper verdict. Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000). "To show probable injury, there must be some indication in the record that the alleged misconduct most likely caused a juror to vote differently than he would have done otherwise on one or more issues vital to the judgment." Pharo v. Chambers Cnty., 922 S.W.2d 945, 950 (Tex. 1996) (citations omitted).
A trial court's denial of a motion for new trial is reviewed for abuse of discretion. Holland v. Lovelace, 352 S.W.3d 777, 783 (Tex. App.—Dallas 2011, pet. denied). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Downer, 701 S.W.2d at 241-42. At a hearing on a motion for new trial, the trial court is the trier of fact and the sole judge of the witnesses' credibility. Holland, 352 S.W.3d at 783. As a result, an appellate court must "defer to the trial court's determinations on credibility when considering evidence concerning a motion for new trial." Id. An appellate court must assume the trial court made all findings necessary to support its denial of the motion for new trial. See id. Whether juror misconduct occurred and caused injury is a question of fact for the trial court. Id.; see also Pharo, 922 S.W.2d at 948.
A trial court may grant a motion for new trial if it reasonably appears from the accompanying evidence, the trial evidence and from the record as a whole that a juror's erroneous or incorrect answer given during voir dire was material and that injury probably resulted. TEX. R. CIV. P. 327(a). A juror may testify about juror misconduct or a fellow juror's failure to disclose bias provided the juror does not testify about comments or conduct that occurred during jury deliberations. Golden Eagle Archery, Inc., 24 S.W.3d at 371. Thus, a party may not satisfy its burden of proof to show juror misconduct on any bases based solely upon the testimony of fellow jurors regarding matters and statements that occurred during deliberations. TEX. R. CIV. P. 327(b); Golden Eagle Archery, Inc., 24 S.W.3d at 370.
Application
The evidence upon which the Ranch Entities rely to show juror misconduct with regard to both arguments consists solely of affidavits of fellow jurors regarding statements made during deliberations. This evidence is inadmissible to show jury misconduct. See Golden Eagle Archery, Inc., 24 S.W.3d at 370-72; TEX. R. CIV. P. 327(b). Because the only evidence presented to support the motion for new trial was inadmissible, the Ranch Entities did not satisfy their burden of proof on this issue to warrant a new trial. Therefore, the trial court did not abuse its discretion by denying the Ranch Entities' motion for new trial on either bases of alleged juror misconduct.
This issue is overruled.
IV. Res Judicata, Collateral Estoppel, Law of the Case
The Ranch Entities contend the legal principles of "law of the case", res judicata, and collateral estoppel precluded the trial court from giving effect to the jury's answer to Question Two. The Ranch Entities argue McNutt I held Sherry failed to prove Bill made an oral gift to her of the entire 2,000-acre north side "or that any significant part of it was gifted to her." The Ranch Entities go on to argue "[h]ad there been sufficient evidence presented in the previous trial to substantiate the elements of an oral gift as to a significant portion of the North Side of the Ranch, including the Foreman's House, this court would have reversed the previous judgment ... and found for Sherry...."
The Ranch Entities fail to direct this court to any specific error committed by the trial court to present anything for appellate review. However, this argument appears verbatim in the Ranch Entities' second amended motion for judgment notwithstanding the verdict (motion for JNOV). Therefore, this court must surmise the Ranch Entities argue the trial court erred by denying their motion for JNOV based upon the premise that the legal principles of "law of the case", res judicata, and collateral estoppel precluded the trial court from giving effect to the jury's answer to Question Two.
The Ranch Entities' JNOV and argument on appeal are limited to challenge of Question Two. This court has already determined Question Two was improper as submitted. Therefore, any analysis and conclusion with regard to this argument would be inconsequential. See Hudson, 711 S.W.2d at 630. Accordingly, this court will not address the Ranch Entities argument.
This issue is overruled as moot. The parties shall proceed on remand as directed.
V. Question Two is Immaterial
The Ranch Entities' argument consists solely of recitation of objections made in the trial court upon Sherry's attempt to present alleged improper evidence that Bill gave to her the north side by oral gift. The Ranch Entities provide excerpts from the trial transcript of Sherry's attempts to present this evidence. The Ranch Entities conclude by stating the effect of Sherry's and her witnesses' "improper injection of the issue of the gift of the North Side into this trial is evident from the jury's answer to Question No. 2." The Ranch Entities contend the "only reason the jury would have to use the phrase '1/2 of North Side' is because of Sherry's improper interjection of evidence outside the scope of issues to be litigated on remand."
The Ranch Entities' complaint regarding Sherry's alleged improper interjection of evidence does not present error that this court can remedy on appeal. For this reason, the Ranch Entities' argument is insufficiently briefed and waived on appeal. See TEX. R. APP. P. 38.1.
CONCLUSION
The judgment of the trial court is affirmed in part and reversed in part. The case is remanded to the trial court for further proceedings. The scope of remand is limited to a single determination. To clarify the scope of the remand, this court affirms the trial court's judgment limited to the jury's finding that Bill gave to Sherry the foreman's house by oral gift. This jury finding should guide the trial court's and the parties' re-trial on remand. The trial court's judgment pertaining to the jury's finding on Question Two is reversed and remanded. On remand, as directed in McNutt I, the trial court is instructed to determine the specific plot of land surrounding the house that is necessary for its full use and enjoyment.
Jason Pulliam, Justice