NO. 04-15-00077-CV

__________________________________________________________________ 

IN THE COURT OF APPEALS 

FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS 

SAN ANTONIO, TEXAS 

__________________________________________________________________ 

HARRY OLIVER WINKENHOWER, 

APPELLANT 

v. 

GEORGE ALLAN SMITH, INDEPENDENT EXECUTOR OF THE 

ESTATE OF LYDA CATHERINE SMITH, DECEASED, 

APPELLEE.

__________________________________________________________________ 

On appeal from the 198th Judicial District Court of Bandera County, Texas

__________________________________________________________________ 

BRIEF OF APPELLEE GEORGE ALLAN SMITH 

__________________________________________________________________ 

Brent B. Hamilton 

State Bar No. 00796696 

brent@bhlawgroup.com 

BRADY & HAMILTON, LLP

1602 13th Street 

Lubbock, Texas 79401 

Phone: (806) 771-1850 

Fax: (806) 771-3750 

Attorney for Appellee, 

George Allan Smith 

APPELLEE ASSERTS THAT ORAL ARGUMENT IS UNNECESSARY AS 

THE DISPOSITIVE ISSUES HAVE BEEN AUTHORITATIVELY 

DECIDED; HOWEVER, IF APPELLANT IS GRANTED ORAL 

ARGUMENT, APPELLEE REQUESTS ORAL ARGUMENT.

ACCEPTED

04-15-00077-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

7/24/2015 9:27:14 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 07/24/2015 9:27:14 AM KEITH E. HOTTLE Clerk
i

I. TABLE OF CONTENTS

I. TABLE OF CONTENTS .............................................................................................. i

II. TABLE OF AUTHORITIES ....................................................................................... ii

III. STATEMENT OF THE CASE .................................................................................. vii

IV. ISSUES PRESENTED................................................................................................. ix

V. STATEMENT OF THE FACTS...................................................................................1

VI. SUMMARY OF THE ARGUMENT ............................................................................3

VII. ARGUMENTS AND AUTHORITIES..........................................................................4

A. Standard of Review .......................................................................................................4

1. Summary Judgment Evidence..................................................................................4

2. Summary Judgment ..................................................................................................5

B. The trial court properly exercised its discretion when it excluded certain items 

within Winkenhower’s summary judgment evidence; the trial court’s Order on 

Smith’s Objections to Winkenhower’s summary judgment evidence should be 

affirmed..........................................................................................................................6

C. The trial court’s granting of summary judgment on Winkenhower’s partial 

performance claim was proper and should be affirmed. ...........................................16

1. The summary judgment record does not support Winkenhower’s claim that an 

oral agreement existed...........................................................................................16

2. Winkenhower’s attempt to enforce an alleged oral agreement is barred by the 

Statute of Frauds. ..................................................................................................18

3. Winkenhower never took any action in accordance with the alleged oral 

agreement; the partial performance exception to the Statute of Frauds does not 

apply.......................................................................................................................19

D. The trial court’s order granting summary judgment on Winkenhower’s quasiestoppel claim was proper and should be affirmed. ...................................................22

VIII. CONCLUSION AND PRAYER..................................................................................23

CERTIFICATE OF SERVICE ..............................................................................................25

CERTIFICATE OF COMPLIANCE.....................................................................................26
ii

II. TABLE OF AUTHORITIES

Cases Page(s)

Casso v. Brand, 

776 S.W.2d 551 (Tex. 1989)..............................................................................15

City of Brownsville v. Alvarado,

897 S.W.2d 750 (Tex. 1995)............................................................................... 4

Doncaster v. Hernaiz, 

161 S.W.3d 594 (Tex. App.—San Antonio 2005, no pet.)...............................4, 5

Downer v. Aquamarine Operators Inc.,

701 S.W.2d 238 (Tex. 1986)............................................................................... 5

E.I. du Pont de Nemours & Co. v. Robinson,

923 S.W.2d 549 (Tex. 1995)............................................................................... 5

Exxon Corp. v. Breezevale, Ltd., 

82 S.W.3d 429 (Tex. App.—Dallas 2002, pet. denied). .....................................20

Fears v. Texas Bank, 

247 S.W.3d 729 (Tex. App.—Texarkana 2008, reh’g overruled).......................19

Fort Worth Osteopathic Hosp., Inc. v. Reese, 

148 S.W.3d 94 (Tex. 2004)................................................................................. 6

Frankoff v. Norman, 

448 S.W.3d 75 (Tex. App.—Houston [14th Dist.] 2014, reh’g overruled)..passim

Gee v. Liberty Mut. Fire Ins. Co.,

765 S.W.2d 394 (Tex. 1989)............................................................................... 4

Ginsberg v. Fifth Court of Appeals,

686 S.W.2d 105 (Tex. 1985)..........................................................................5, 13

Gonzalez v. Gonzalez, 

552 S.W.2d 175 (Tex. Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.) .........21
iii

H.S.M. Acquisitions, Inc. v. W.,

917 S.W.2d 872 (Tex. App.—Corpus Christi 1996, writ denied).......................16

Hubacek v. Ennis State Bank, 

317 S.W.2d 30 (Tex. 1958)................................................................................. 8

Jones v. Strayhorn, 

321 S.W.2d 290 (Tex. 1959)............................................................................... 5

Lewis v. Adams,

979 S.W.2d 831 (Tex. App.—Houston [14th Dist.] 1998, no pet.)....................8, 9

Loftin v. Martin,

776 S.W.2d 145 (Tex. 1989)............................................................................... 5

Lopez v. Munoz, Hockema & Reed, L.L.P.,

22 S.W.3d 857 (Tex. 2000)..........................................................................22, 23

McIntyre v. Ramirez, 

109 S.W.3d 741 (Tex. 2003)........................................................................12, 15

Michael v. Busby, 

162 S.W.2d 662 (Tex. 1942)............................................................................... 9

Nagle v. Nagle, 

633 S.W.2d 796 (Tex. 1982)....................................................................6, 19, 21

Natural Gas Pipeline Co. of Am. v. Justiss, 3

97 S.W.3d 150 (Tex. 2012)................................................................................13

Owens-Corning Fiberglass Corp. v. Malone, 

972 S.W.2d 35 (Tex. 1998)................................................................................. 4

Paciwest, Inc. v. Warner Alan Props, LLC, 

266 S.W.3d 559 (Tex. App.—Fort Worth 2008, pet. denied)...................4, 14, 15

Purcell v. Bellinger, 

940 S.W.2d 599 (Tex.1997)...............................................................................12
iv

Randall's Food Mkts., Inc. v. Johnson,

891 S.W.2d 640 (Tex. 1995)......................................................................6, 8, 23

Ryland Grp. v. Hood, 

924 S.W.2d 120 (Tex. 1996)..............................................................................12

State v. Bristol Hotel Asset Co.,

65 S.W.3d 638 (Tex. 2001)................................................................................. 4

Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., Ltd., 

409 S.W.3d 790 (Tex. App.—Dallas 2013, no pet.).....................................20, 21

Tex. Dep‘t of Human Servs. v. E.B., 

802 S.W.2d 647 (Tex. 1990).......................................................................passim

Trico Techs. v. Montiel, 

949 S.W.2d 308 (Tex. 1997)..............................................................................15

Universal Credit Co. v. O'Neal, 

140 S.W.2d 596 (Tex. App.—Amarillo 1940, no pet.).................................6, 8, 9

Valence Operating Co. v. Dorsett,

164 S.W.3d 656 (Tex. 2005)............................................................................... 5

Warren v. Mayhew, 

221 S.W.2d 394 (Tex. App.—Dallas, reh’g denied) ........................................... 9

Statutes

TEX. BUS. & COM. CODE § 26.01(b)(4) (West 2005) .............................................19

Rules

TEX. R. APP. P. 44.1(a)........................................................................................... 5

TEX. R. CIV. P. 166a(c) .........................................................................................15

TEX. R. EVID. 601(b).............................................................................................10

TEX. R. EVID. 701 .................................................................................................12
v

TEX. R. EVID. 801 .................................................................................................11

TEX. R. EVID. 901(b)(9). .......................................................................................14
vi

CITING CONVENTIONS

For the convenience of the Court and the Parties, the following citation 

abbreviations and party references are used throughout this brief:

Citations to the Clerk’s Record, filed with this Court on March 6, 2015, will be 

referred to as “CR.”

Citations to the Reporter’s Record, filed with this Court on March 30, 2015, will be 

referred to as “RR.”

The named Plaintiff in the original district court action is “George Allan Smith, 

Independent Executor of the Estate of Lyda Catherine Smith, Deceased.” The 

Plaintiff is the Appellee in the current appeal before this Court. Hereinafter, where 

the lower court or appellate court party designations are not necessary to the 

statement being made, this brief shall refer to the Plaintiff/Appellee as “Smith” or 

the “Estate.”

The named Defendant in the original district court action is Harry Oliver 

Winkenhower. Defendant Winkenhower has filed the appeal that is before this 

Court and is the named Appellant. Again, throughout this brief, where the lower 

court or appellate court party designations are not necessary, references to the 

Defendant/Appellant in this brief will use “Winkenhower.” 
vii

III. STATEMENT OF THE CASE

Smith1and Winkenhower are undivided one-half interest owners in certain 

real property, referred to by the parties as the “Medina Ranch,” in Bandera County, 

Texas. RR, p. 6, l. 6-8. In January 2014, Smith filed a partition action to extricate 

the Estate’s ownership interest from certain impediments created by Winkenhower; 

Smith was concerned about several federal tax liens and other judgment liens 

encumbering Winkenhower’s interest, and both disagreed about the maintenance 

and operation of the property. CR 5-7. 

Smith’s lawsuit seeks partition of the Medina Ranch. CR 5-7. In response to 

Smith’s suit for partition, Winkenhower asserted counterclaims of breach of 

contract/partial performance, fraud, and quasi estoppel. CR 15-16; 145-148. Smith 

then filed a Motion for Summary Judgment on Defendant’s Counterclaims. CR 20-

142. Winkenhower filed a Response to Smith’s Motion and filed Objections to 

certain items of Smith’s summary judgment evidence. CR 152-195. In turn, Smith 

filed a Reply to Winkenhower’s Response and also filed Objections to 

Winkenhower’s summary judgment evidence. CR 196-220. The trial court entered 

its Orders on the evidentiary objections on October 1, 2014. CR 234-239. On 

October 6, 2014, the trial court granted Smith’s Motion for Summary Judgment on 

 

1 Acting in his capacity as executor, Smith filed the partition action on behalf of the Estate. The Estate matter is still 

pending in Tarrant County Probate Court No. 2, and has not been closed. Because the Estate is the owner of the 

property at this time, all references to “Appellee”, “Smith”, or “the Estate” are intended to include and to refer to the 

Estate of Lyda Catherine Smith, with George Allan Smith acting as the Executor, as well as to Lyda Catherine 

Smith’s ownership of the real property when she was still alive, as applicable. 
viii

Defendant’s Counterclaims. CR 241. 

Winkenhower now brings this appeal, challenging the trial court’s October 6 

summary judgment ruling as to partial performance and quasi-estoppel, and 

challenging the October 1 order excluding items within Winkenhower’s offered

summary judgment evidence. Smith files this reply, urging this Court to affirm the 

actions of the 198th District Court and remand this cause back to the trial court so 

the partition action can be concluded. 
ix

IV. ISSUES PRESENTED

1. The trial court properly exercised its discretion when it excluded certain items

within Winkenhower’s summary judgment evidence; the trial court’s Order on 

Smith’s Objections to Winkenhower’s summary judgment evidence should be 

affirmed.

2. The trial court’s order granting Smith’s motion for summary judgment as to 

Winkenhower’s partial performance counterclaim was proper and should be 

affirmed. 

3. The trial court’s order granting Smith’s motion for summary judgment as to 

Winkenhower’s quasi-estoppel counterclaim was proper and should be affirmed. 
1

V. STATEMENT OF THE FACTS

Smith filed a Petition for Partition of Real Property in the trial court on

January 21, 2014; Smith’s suit seeks partition of real property (“Medina Ranch”) in 

which Smith and Winkenhower own equal undivided interests. CR 5-7. Smith’s 

motivation for the partition is due to the fact that Winkenhower’s undivided onehalf interest in the property is encumbered by both judgment liens and federal tax 

liens. CR 5-7; 76-96. Also, the owners have significant disagreements about the 

operation and maintenance of the Medina Ranch. CR 20. In response, 

Winkenhower filed counterclaims seeking to avoid the partition, alleging there was 

an oral contract to transfer the Medina Ranch to a “bloodline trust.” CR 15-16; 

145-148. However, a bloodline trust did not exist at the time of the alleged oral 

contract, nor was one ever created.

The basis for Winkenhower’s claim that an oral contract exists stems from a 

discussion between Winkenhower and Lyda Smith, which took place while the two 

were together in San Antonio on Easter Weekend in April of 2011. At the time, 

Winkenhower and Ms. Smith discussed the ownership of a house the two siblings

inherited from their parents (“Woodway Home”), maintenance and operation of the 

Medina Ranch, as well as Winkenhower’s indebtedness to her. CR 117-120. The 

following day, Winkenhower drafted a written contract (“April 2011 contract”). 

The express terms of that agreement only dealt with the Woodway Home. In that 
2

agreement, Winkenhower agreed to relinquish his interest in the Woodway Home,

in exchange for Ms. Smith agreeing to release him from certain debt obligations 

owed to her.

Tellingly, the April 2011 contract made no mention whatsoever of the 

Medina Ranch, or of a supposed bloodline trust. CR 20-142; 196-220. Despite this, 

however, Winkenhower now attempts to alter the written instrument he drafted 

himself, three years after its full performance, with parol evidence and in direct 

violation of the Statute of Frauds. Neither the record nor Texas law support such an 

attempt. Therefore, the trial court appropriately entered its Order on Smith’s 

Objections to Defendant’s summary judgment evidence and granted Smith’s 

Motion for Summary Judgment, based on the summary judgment record before it. 

CR 241.

Winkenhower now files this appeal, complaining of the trial court’s October 

1, 2014 Order on Smith’s Objections to Winkenhower’s summary judgment 

evidence (hereinafter “October 1 Order” or “Order on Evidence”), and the October 

6, 2014 Order granting Smith’s Traditional and No-Evidence Motion for Summary 

Judgment on Winkenhower’s Counterclaims (hereinafter, “October 6 Order” or 

“Summary Judgment Order”). Smith respectfully requests that this Court affirm the 

actions of the trial court in their entirety.
3

VI. SUMMARY OF THE ARGUMENT

Smith filed a Petition for Partition of Real Property in the trial court on

January 21, 2014; Smith’s suit seeks partition of real property (“Medina Ranch”) in 

which Smith and Winkenhower own equal undivided interests. In response, 

Winkenhower filed counterclaims seeking to avoid the partition, alleging there was 

an oral contract to transfer the Medina Ranch to a trust that does not exist.

Smith filed a Motion for Summary Judgment on Winkenhower’s claims. The 

trial court granted Smith’s Motion for Summary Judgment, as well as certain 

objections to Winkenhower’s offered summary judgment evidence. Winkenhower 

now appeals. 

Smith respectfully urges this Court to affirm the trial court’s October 1 and 

October 6 Orders in their entirety, excluding those items of Winkenhower’s 

summary judgment evidence under the October 1 Order, and affirming the trial 

court’s grant of summary judgment. The trial court properly exercised its 

discretion when it sustained Smith’s objections to Winkenhower’s summary 

judgment evidence and excluded those items containing hearsay, speculation, 

unauthenticated documents, and improper conclusions from interested witnesses. 

Further, the trial court’s grant of summary judgment on Winkenhower’s 

partial performance and quasi-estoppel counterclaims was proper and should be 

affirmed. Winkenhower’s claims are based on his contention that an oral 
4

agreement regarding real property should be enforced. However, there is no 

evidence in the summary judgment record supporting the existence of an oral 

contract, and an oral agreement regarding real property is void by virtue of the 

application of the Statute of Frauds. Further, Winkenhower’s attempts to rescue the 

purported oral agreement from the Statute of Frauds fail because the summary 

judgment record is devoid of any evidence of partial performance. Therefore, this 

Court should affirm the trial court’s orders.

VII. ARGUMENTS AND AUTHORITIES

A. Standard of Review

1. Summary Judgment Evidence

Whether to admit or exclude evidence during a trial is a matter committed to 

the trial court's sound discretion. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 

647 (Tex. 2001) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 

(Tex. 1995); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989)). 

The standard in a summary judgment context is no different. Appellate courts 

review a trial court’s decision to sustain or overrule an objection to summary 

judgment evidence for an abuse of discretion. Paciwest, Inc. v. Warner Alan 

Props., LLC, 266 S.W.3d 559, 567 (Tex. App.—Fort Worth 2008, pet. denied); 

Doncaster v. Hernaiz, 161 S.W.3d 594, 601 (Tex. App.—San Antonio 2005, no 
5

pet.) (citing Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 

1998)).

An abuse of discretion occurs when the trial court acts without reference to 

any guiding principles. Tex. Dep‘t of Human Servs. v. E.B., 802 S.W.2d 647, 649 

(Tex. 1990). That is, a reviewing court cannot conclude that a trial court abused its 

discretion if, in the same circumstances, it would have merely ruled differently or 

if the trial court committed a mere error in judgment. E.I. du Pont de Nemours & 

Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995) (citing Loftin v. Martin, 776 

S.W.2d 145, 146 (Tex. 1989); Downer v. Aquamarine Operators Inc., 701 S.W.2d 

238, 242 (Tex. 1986); Jones v. Strayhorn, 321 S.W.2d 290, 295 (Tex. 1959)). The 

decision whether to admit evidence rests within the discretion of the trial court; 

even if a trial court errs in excluding summary judgment evidence, the appellant 

must show the error was calculated to cause and probably did cause the rendition 

of an improper judgment in order to obtain a reversal based on the exclusion. 

Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985); Doncaster, 

161 S.W.3d at 601; TEX. R. APP. P. 44.1(a).

2. Summary Judgment 

A trial court’s granting of summary judgment is reviewed de novo. Frankoff 

v. Norman, 448 S.W.3d 75, 80 (Tex. App.—Houston [14th Dist.] 2014, reh’g 

overruled) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
6

2005)). In reviewing either a no-evidence or a traditional summary judgment 

motion, all evidence favorable to the nonmovant is taken as true, and courts draw 

every reasonable inference and resolve all doubts in favor of the nonmovant. Id. 

A trial court should sustain a no-evidence motion for summary judgment in 

the following circumstances: when (1) there is a complete absence of evidence of a 

vital fact; (2) the court is barred by rules of law or evidence from giving weight to 

the only evidence offered to prove a vital fact; (3) the evidence offered to prove a 

vital fact is no more than a mere scintilla; or (4) the evidence conclusively 

establishes the opposite of the vital fact. Frankoff, 448 S.W.3d at 81.

On the other hand, an appellate court should affirm a grant of traditional

summary judgment if the court, accepting as true all evidence in favor of the 

nonmovant, finds that the movant conclusively negated at least one of the essential 

elements of the nonmovant’s cause of action, or the movant established that the 

nonmovant failed to produce any evidence of one or more essential elements of its 

claims. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); 

Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). 

B. The trial court properly exercised its discretion when it excluded certain 

items within Winkenhower’s summary judgment evidence; the trial 

court’s Order on Smith’s Objections to Winkenhower’s summary 

judgment evidence should be affirmed.

Smith’s Motion for Summary Judgment was filed because the alleged oral 

agreement between Winkenhower and Lyda Catherine Smith regarding real 
7

property is unenforceable, and because a separate written contract cannot be altered 

by parol evidence. See CR 20-142; Nagle v. Nagle, 633 S.W.2d 796, 798 (Tex. 

1982); Universal Credit Co. v. O’Neal, 140 S.W.2d 596, 599 (Tex. App.—

Amarillo 1940, no writ). Smith’s summary judgment evidence consists of an 

affidavit from George Smith and excerpts of the Harry Winkenhower deposition 

transcript. CR 41-70; 76-96; 108-142. In response to Smith’s Motion for Summary 

Judgment, Winkenhower’s offered summary judgment evidence included multiple 

affidavits from interested witnesses—whose testimony was conclusory, based on 

hearsay, speculative, and fraught with improper legal conclusions from laypersons.

CR 152-195. As a result, Smith raised 63 objections to Winkenhower’s summary 

judgment evidence. CR 196-216.

On October 1, 2014, the trial court judge for the 198th District Court in 

Bandera County entered its Order on Smith’s Objections to Defendant’s summary 

judgment evidence, sustaining 41 of Smith’s 63 evidentiary objections, and thereby 

excluding most of Winkenhower’s summary judgment evidence from the summary 

judgment record. CR 234-237. Winkenhower now appeals to this Court and 

arbitrarily asserts that “the trial court erred in sustaining Smith’s objections.”

Appellant’s Brief at xi.

The first two objections raised in Smith’s Reply to Winkenhower’s Motion 

for Summary Judgment Response were properly sustained by the trial court judge, 
8

and the trial court’s order should be affirmed. As set forth below, in the absence of 

parol evidence or such evidence that violates the “Dead Man’s Rule”, the summary 

judgment record demands that this Court affirm the trial court’s granting of 

summary judgment for Smith. There is no evidence of one or more essential 

elements of Winkenhower’s counterclaims. See Randall’s Food Mkts., Inc., 891 

S.W.2d at 644.

The parol evidence rule prohibits the introduction of oral testimony to vary, 

modify or change the terms of a written contract, in the absence of an allegation of 

fraud, accident or mistake. Universal Credit Co., 140 S.W.2d at 599. The parol

evidence rule is not a rule of evidence, but a rule of substantive law. Lewis v. 

Adams, 979 S.W.2d 831, 836 (Tex. App.—Houston [14th Dist.] 1998, no pet.)

(citing Hubacek v. Ennis State Bank, 317 S.W.2d 30, 31 (Tex. 1958). When parties 

have entered into a binding written agreement, the rule precludes the enforcement 

of inconsistent prior or contemporaneous agreements. Id. Therefore, Smith asserted 

that the Parol Evidence Rule operates to preclude any evidence that would alter the 

written April 2011 contract between Winkenhower and Lyda Catherine Smith. See

CR 198.

It is undisputed that the day following the alleged oral agreement in April 

2011, Harry Winkenhower and Lyda Catherine Smith entered into a written 

agreement, wherein Winkenhower agreed to convey his interest in a home in San 
9

Antonio, Texas to Ms. Smith in exchange for Ms. Smith’s agreement to forgive 

Winkenhower’s indebtedness to her. See CR 95-96. On October 16, 2012,

Winkenhower executed a deed conveying the home to Smith and in turn, the Estate

released the Debt in direct conformity with the April 2011 Contract. CR 99-100. 

The April 2011 agreement was a clear, direct, written agreement between the 

parties. See CR 95-96. However, Winkenhower now attempts to alter the 2011 

contract, regarding the conveyance of his interest in the San Antonio home in 

exchange for debt forgiveness, with parol evidence, three years after its execution 

and full performance.2

Parties to a written agreement subject to the Statute of Frauds may not, by 

mere oral agreement, alter or change one or more of the terms thereof, and thus 

make a new contract. Michael v. Busby, 162 S.W.2d 662, 664 (Tex. 1942); Warren 

v. Mayhew, 221 S.W.2d 394, 396-97 (Tex. App.—Dallas, reh’g denied). The April 

2011 contract was in writing and its terms did not include, nor make any reference 

to, the Medina Ranch or the creation of a bloodline trust. CR 95-96.

Winkenhower’s attempts to now enforce an alleged oral agreement by modifying 

the April 2011 contract are a clear violation of the parol evidence rule. Universal 

Credit Co., 140 S.W.2d at 599. Therefore, the trial court properly exercised its 

discretion in excluding any offered evidence of statements altering the 2011 

 

2 As a practical matter, it should be noted that Winkenhower could not convey his interest into a bloodline trust 

unencumbered, without first paying his judgment and federal tax liens; those same liens being the motivation for 

which Smith seeks the partition.
10

contract from the summary judgment record. CR 234; Lewis, 979 S.W.2d at 836

(holding that the parol evidence rule precludes the admission and enforcement of 

any oral agreement regarding real property, because the parties had entered into a 

written contract for the sale of real property). 

Texas Rule of Evidence 601(b) states, “neither party shall be allowed to 

testify against the others as to any oral statement by the testator, intestate or ward, 

unless that testimony to the oral statement is corroborated . . . the provisions of this 

article shall extend to and include all actions by or against the heirs or legal 

representatives of a decedent based in whole or in part on such oral statement.”

TEX. R. EVID. 601(b). Therefore, Smith’s second evidentiary objection was raised 

in response to Winkenhower’s attempt to introduce statements of the Testator Lyda 

Smith, in violation of the Dead Man’s Rule, or Texas Rule of Evidence 601. CR 

199. Lyda Smith died on June 20, 2011. See CR 45. Yet, the entirety of 

Defendant’s summary judgment evidence is based upon and replete with 

uncorroborated statements of the Testator Lyda Smith. The statements clearly 

violate Texas Rule of Evidence 601 and do not constitute proper summary 

judgment proof. Therefore, the trial court properly exercised its discretion when it 

ordered the exclusion of any offered evidence of statements by any deceased 

persons from the summary judgment record. CR 234.

In addition to the inappropriate parol evidence and evidence that violates the 
11

Dead Man’s Rule, Winkenhower’s summary judgment proof was replete with 

objectionable evidence based on hearsay, speculation, and improper conclusions. 

The trial court’s October 1 Order should be affirmed, as explained in more detail 

below.

The trial court properly exercised its discretion in sustaining Objections 4, 

10, 11, 12, 13, 17, 19, 21, 29, 33, 36, 40, 43, 46, 49, 52, 54, and 63, raised by 

Smith, because the summary judgment evidence offered by Winkenhower included

hearsay. Statements made by someone other than the affiant, which are offered to 

prove the truth of the matter asserted, are hearsay; such statements must be 

excluded from the summary judgment record. TEX. R. EVID. 801. The affidavits 

attached to Winkenhower’s Response to the Motion for Summary Judgment were 

full of inadmissible hearsay. See CR 162; 164-165; 169-174; 181-183. These 

statements do not, as Winkenhower contends, fall within recognized exceptions to 

the hearsay rule. Nor do the cases cited by Appellant lend support to the notion that 

affidavits, which include statements from persons other than the affiant, offered to 

prove the truth of the matter asserted, are admissible. Instead, the trial court’s order 

to exclude paragraph 3 of Henry Oliver Winkenhower’s Affidavit (CR 162); 

paragraphs 3-5 and 7 of Christie Haby’s Affidavit (CR 164-165); paragraphs 3-5 

and 8 of Angie Winkenhower’s Affidavit (CR 169; CR 170); paragraphs 3-8 of 

Trey Winkenhower’s Affidavit (CR 171-172); paragraphs 3-4 of Hunter 
12

Winkenhower’s Affidavit (CR 173-174); and Exhibit H to Winkenhower’s 

Response to Smith’s Motion for Summary Judgment (CR 181-183) from the 

summary judgment record was proper and should be affirmed. See Tex. Dep‘t of 

Human Servs., 802 S.W.2d at 649.

In addition, the trial court properly exercised its discretion in sustaining

Objections 6, 8, 22, 24, 28, 30, 34, 37, 44, 47, 48, 50, 53, and 55, raised by Smith 

in his Reply to Winkenhower’s Response to the Motion for Summary Judgment, 

because the evidence offered by Winkenhower was conclusory and presented 

improper legal conclusions by lay witnesses in violation of the Texas Rules of 

Evidence. An affidavit must be based on facts and cannot merely recite factual 

conclusions. Conclusory statements that are not supported by facts are not proper 

summary judgment proof. See McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex.

2003); Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex. 1997); Ryland Grp. v. 

Hood, 924 S.W.2d 120, 122 (Tex. 1996). Further, the rules of evidence do not 

allow a layperson affiant to draw legal conclusions. Instead, “the witness' 

testimony in the form of opinions or inferences is limited to those opinions or 

inferences which are (a) rationally based on the perception of the witness and (b) 

helpful to a clear understanding of the witness' testimony.” TEX. R. EVID. 701. The 

affidavits attached to Winkenhower’s Motion for Summary Judgment Response 

contained impermissible, conclusory statements and improper legal conclusions. 
13

See CR 163; 169-174. Winkenhower’s appeal does not specifically address each 

of the objections raised by Smith on conclusory and improper legal conclusion 

grounds; Winkenhower only generally states that the opinions in the affidavits are 

“reasonable inferences”—this is not sufficient proof to reverse the trial court’s 

October 1 Order. See Ginsburg, 686 S.W.2d at 108. 

Winkenhower has failed to meet his burden and show that the trial court’s 

October 1 Order, sustaining Smith’s objections to conclusory statements and 

improper legal conclusions, was an abuse of discretion. Therefore, the trial court’s 

order to exclude paragraphs 4 and 5 of Henry Oliver Winkenhower’s Affidavit 

(CR 163); paragraphs 5, 7, and 8 of Angie Winkenhower’s Affidavit (CR 169-

170); paragraphs 3, 4, 6, and 8 of Trey Winkenhower’s Affidavit (CR 171-172); 

and paragraphs 3 and 4 of Hunter Winkenhower’s Affidavit (CR 173-174) from 

the summary judgment record was proper and should be affirmed. See Tex. Dep‘t 

of Human Servs., 802 S.W.2d at 649.

Testimony based on guesswork or conjecture is speculative in nature and 

should be excluded. Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 

156 (Tex. 2012). Upon review of the affidavits that Winkenhower attached to his 

Response to Smith’s Motion for Summary Judgment, the trial court properly

sustained objections 35, 39, and 42, because the evidence offered by Winkenhower 

was speculative. In addition, the trial court properly exercised its discretion in 
14

excluding paragraphs 3, 4, and 6 of Trey Winkenhower’s Affidavit (CR 171) from 

the summary judgment record. Again, Winkenhower failed to specifically address 

Smith’s objections based on speculation and the trial court’s order pertaining to the 

same; in the absence of proof that the trial court abused its discretion, the trial 

court’s order should be affirmed. See Tex. Dep‘t of Human Servs., 802 S.W.2d at 

649.

Texas Rule of Evidence 901(b)(9) requires computer evidence to meet 

authentication standards “describing the process or system used to produce a result 

and showing that the process or system produces an accurate result;” attachments

that do not meet these standards are inadmissible. TEX. R. EVID. 901(b)(9). The 

trial court sustained Smith’s objections 14 and 62 because the documents at CR 

166-168 and CR 181-183 are unauthenticated instruments in violation of Rule 

901(b)(9). Winkenhower has failed to show that the trial court abused its discretion 

in excluding this evidence; he merely states that “the trial court sustained far more 

objections than is warranted.” Appellant’s Brief at p. 18. However, this is not the 

standard of review for evidentiary rulings. See Paciwest, 266 S.W.3d at 567.

Therefore, Smith respectfully submits that the trial court’s October 1 order 

sustaining Smith’s objections 14 and 62 should be affirmed. See Tex. Dep‘t of 

Human Servs., 802 S.W.2d at 649.

Furthermore, testimony from an interested witness must be clear, positive, 
15

direct, credible, free from contradiction, and uncontroverted even though it could 

have been readily controverted. TEX. R. CIV. P. 166a(c); McIntyre v. Ramirez, 109 

S.W.3d 741, 749 (Tex. 2003); Trico Techs v. Montiel, 949 S.W.2d 308, 310 (Tex.

1997). If the testimony does not meet the foregoing requirements, it will not 

support a summary judgment. See Casso v. Brand, 776 S.W.2d 551, 558 (Tex.

1989). The entire affidavit of Haley Elizabeth Winkenhower, submitted by 

Winkenhower as support for his Response to the Motion for Summary Judgment,

failed to meet these requirements; accordingly, the trial court excluded her 

affidavit (CR 175-176) from the summary judgment record. Moreover, 

Winkenhower has failed to show that the trial court’s order was without reference 

to guiding principles. Tex. Dep’t of Human Servs., 802 S.W.2d at 649. Because 

Ms. Winkenhower is an interested witness and stands to benefit financially from 

her testimony, the trial court appropriately exercised its discretion when it 

excluded her testimony from the he summary judgment record. See Casso v. 

Brand, 776 S.W.2d 551, 558 (Tex. 1989). 

Winkenhower has failed to establish that the October 1 Order was entered 

without reference to any guiding legal principles or that the trial court otherwise 

abused its discretion. Tex. Dep’t of Human Servs., 802 S.W.2d at 649. As such, the 

trial court’s October 1 Order should be affirmed, and the summary judgment 

evidence listed above should be excluded from the summary judgment record in 
16

this matter. Paciwest, 66 S.W.3d at 567. Furthermore, in the absence of 

Winkenhower’s summary judgment evidence, there is no evidence in the record to 

support Winkenhower’s counterclaims, and the trial court’s summary judgment for 

Smith should be affirmed.

C. The trial court’s granting of summary judgment on Winkenhower’s 

partial performance claim was proper and should be affirmed.

1. The summary judgment record does not support Winkenhower’s 

claim that an oral agreement existed. 

Winkenhower contends that he and his sister entered into an oral agreement, 

modifying the written April 2011 contract, whereby Lyda Smith would convey her 

interest in the Medina Ranch to a bloodline trust. Appellant’s Brief at p. 2. 

However, the summary judgment record that was properly before the trial court 

does not support Winkenhower’s claim that an oral agreement existed; therefore, 

this Court should affirm the trial court’s grant of summary judgment in favor of 

Smith.

An appellate court may consider the record only as it existed at the time the 

summary judgment was signed. H.S.M. Acquisitions, Inc. v. W., 917 S.W.2d 872, 

878 (Tex. App.—Corpus Christi 1996, writ denied) (citations omitted) (emphasis 

added). The Order on Plaintiff’s Objections to Defendant’s summary judgment 

evidence was signed on October 1, 2014. CR 234-237. The Order on Plaintiff’s 

Traditional and No-Evidence Motion for Summary Judgment on Defendant’s 
17

Counterclaims was signed on October 6, 2014. CR 241. Therefore, at the time the 

Order granting Summary Judgment was entered, the summary judgment record 

was devoid of any evidence supporting the existence of an oral modification to the 

written April 2011 contract because the trial court properly excluded all evidence 

referencing the alleged oral agreement.

The undisputed and relevant summary judgment evidence indicates that 

Winkenhower and Lyda Smith were equal undivided owners of the Medina Ranch 

as well as a home inherited from their parents (the “Woodway Home”). While

together in San Antonio on Easter weekend in April of 2011, Winkenhower and 

Lyda Smith discussed Winkenhower’s indebtedness to Ms. Smith, as well as 

ownership of the Woodway Home and maintenance of the Medina Ranch. CR 117-

120. At the conclusion of the meeting, Winkenhower typed up a contract (April 

2011 contract) whereby he agreed to relinquish his interest in the Woodway Home, 

in exchange for Ms. Smith forgiving Winkenhower’s indebtedness to her; the April 

2011 contract made no mention whatsoever of the Medina Ranch or a bloodline 

trust. CR 20-142; 196-220. Furthermore, the summary judgment evidence that was 

properly before the trial court showed that on October 16, 2012, Winkenhower

executed a deed conveying the Woodway Home to Smith, and Smith released 

Winkenhower’s indebtedness, in direct conformity with the April 2011 Contract.

CR 99-107.
18

The summary judgment record does not contain any evidence that: a 

bloodline trust was ever formed; Winkenhower and Lyda Smith ever discussed 

proposed terms or took any action to create a bloodline trust; Winkenhower and 

Lyda Smith had any further correspondence regarding the ownership of the Medina 

Ranch or the creation of a bloodline trust; Winkenhower and Lyda Smith ever 

created any writing or sought to amend the 2011 Contract in conformity with the 

purported oral contract; Winkenhower and Lyda Smith ever made demand on one 

another to act in conformity with the purported oral contract; or, that Winkenhower 

and Lyda Smith ever amended or created a new Last Will and Testament in 

conformity with the purported oral contract. In short, the summary judgment 

record contains absolutely no evidence of an oral contract to convey the subject 

property into a trust. Thus, this Court should affirm the trial court’s order granting 

Smith’s summary judgment. See Frankoff, 448 S.W.3d at 81. 

2. Winkenhower’s attempt to enforce an alleged oral agreement is 

barred by the Statute of Frauds.

Assuming, arguendo, that the trial court’s October 1 Order was in error, and 

Winkenhower’s evidence regarding an alleged oral agreement is admitted in the 

record, this Court should still affirm the trial court’s summary judgment ruling on 

Winkenhower’s partial performance claim.

Winkenhower’s counterclaim for breach of contract is based upon an alleged 

oral contract regarding conveyance of real property. RR, p. 13, l. 12-17; CR 15-16; 
19

145-148. (emphasis added) An oral agreement concerning the conveyance of an 

interest in real estate violates the Statute of Frauds and is unenforceable. Nagle, 

633 S.W.2d at 798. It is well-settled law that under the Statute of Frauds, promises

subject to the statute can only be enforced if such promises are in writing. Id. In

addition, the statute applies to contracts for the sale of real estate. Id. (citing TEX.

BUS. & COM. CODE § 26.01(b)(4)). Therefore, all conveyances of real property 

must be in writing and signed by the party to be charged, in order to be an 

enforceable agreement. Fears v. Tex. Bank, 247 S.W.3d 729, 735 (Tex. App.—

Texarkana 2008, reh’g overruled) (citing § 26.01(b)(4)). 

As such, the alleged oral agreement is void and unenforceable because 

Winkenhower’s claims are rooted in his attempt to enforce an oral agreement 

concerning real property; thus, this Court should affirm the trial court’s summary 

judgment order in favor of Smith. See Nagle, 633 S.W.2d at 799; Fears, 247 

S.W.3d at 735; § 26.01(b)(4).

3. Winkenhower never took any action in accordance with the alleged 

oral agreement; the partial performance exception to the Statute of 

Frauds does not apply. 

Alternatively, Winkenhower claims that although the alleged oral agreement 

may fall within the Statute of Frauds, the partial performance exception applies, 

effectively rescuing the alleged oral agreement from the requirement that the 
20

agreement be in writing. However, the summary judgment evidence does not 

support this claim. 

Under the partial performance exception to the Statute of Frauds, an “oral 

agreement that does not satisfy the traditional statute of frauds but that has been 

partially performed may be enforced if denying enforcement would itself amount 

to a fraud.” Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 800 

(Tex. App.—Dallas 2013, no pet.). Moreover, the actions asserted to constitute 

partial performance “must be such as could have been done with no other design 

than to fulfill the particular agreement sought to be enforced.” Id. (quoting Exxon 

Corp. v. Breezevale, Ltd., 82 S.W.3d 429, 439-40 (Tex. App.—Dallas 2002, pet. 

denied). Winkenhower asserts that because he “made improvements to the ranch,” 

he has partially performed the alleged oral agreement serving as the basis of his 

counterclaim. Appellant’s Brief at p. 3. The alleged terms of the oral agreement, 

however, have nothing to do with maintenance of the property. Rather, 

Winkenhower has alleged that in April 2011, he and Lyda Smith agreed that a 

bloodline trust would be created, and each would convey their respective interest in 

the Medina Ranch into the trust. 

However, there is no evidence that Winkenhower conveyed his half-interest 

into a trust. Indeed, there is no evidence that a trust was ever created. Simply put, 

there is no evidence of partial performance. Furthermore, the obligation of upkeep 
21

and preservation of a ranch rests upon the collective owners as a matter of course. 

Any evidence that Winkenhower “made improvements to the ranch” does not 

constitute partial performance of the alleged oral agreement, sufficient to rescue it 

from the application of the Statute of Frauds. Appellant’s Brief at p. 3; Stovall & 

Assocs., P.C., 409 S.W.3d at 800 (explaining that, to constitute partial 

performance, the actions at issue must have been done for no other purpose than to 

fulfill the agreement sought to be enforced). 

Additionally, it is important to note that the original lawsuit—a partition 

action—enables Winkenhower to assert a claim for reimbursement of appropriate 

charges during resolution of the partition matter. Gonzalez v. Gonzalez, 552 

S.W.2d 175, 181 (Tex. Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.) (noting, 

“Since the care, maintenance, upkeep and preservation of property rests upon 

owners collectively, a tenant in common who expends funds for necessary or 

proper preservation of common properties is entitled in a judicial partition of 

jointly owned properties to have all such expenditures charged to tenants in 

common in accordance with their pro rata ownership.”) Because the alleged 

contract regarding conveyance of ownership interests in the Medina Ranch to a 

trust was oral, and because there is no evidence of partial performance of that oral 

agreement, the trial court’s summary judgment on Winkenhower’s partial
22

performance claim was proper and should be affirmed. Nagle, 633 S.W.2d at 799; 

Frankoff, 448 S.W.3d at 81.

D. The trial court’s order granting summary judgment on Winkenhower’s 

quasi-estoppel claim was proper and should be affirmed. 

Winkenhower also claims that the doctrine of quasi-estoppel should apply in 

this matter, operating to remove the alleged oral agreement regarding the Medina 

Ranch from the application of the Statute of Frauds. CR 146. Quasi-estoppel 

precludes a party from asserting, to another's disadvantage, a right inconsistent 

with a position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 

S.W.3d 857, 864 (Tex. 2000). The doctrine 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. Id.

Winkenhower’s quasi-estoppel claim is similarly based on his contention 

that he has somehow performed part of the oral agreement that he alleges existed, 

and that Smith accepted the “benefit” of such performance. Appellant’s Brief at p. 

11-13. But, as outlined above, the summary judgment record is devoid of any 

evidence that any actions took place in furtherance of an alleged oral agreement

regarding the Medina Ranch. For example, there is no evidence that a bloodline 

trust was ever discussed after the April 2011 meeting; there is no evidence that a 

bloodline trust was ever created; and there is no evidence that Winkenhower 

conveyed, or attempted to convey, his one-half interest into a trust. Simply put, 
23

there is no evidence that any of the terms of the alleged oral agreement were 

performed or partially performed. Furthermore, there is no evidence that Smith 

received any benefit due to the alleged oral agreement regarding the Medina 

Ranch. This is true because Smith’s half-interest is still encumbered by 

Winkenhower’s federal tax and other liens, and remains subject to Winkenhower’s 

demands regarding the maintenance and operation of the property, effectively 

precluding Smith from managing the Estate’s half-interest. CR 20; 76-94. And, 

Smith is now incurring additional legal costs because of Winkenhower’s attempts 

to avoid partition of the Medina Ranch based on unenforceable and inaccurate 

claims. Therefore, it is obvious Smith has not received a benefit. See Lopez, 22 

S.W.3d at 864. As such, the trial court’s summary judgment in favor of Smith on 

Winkenhower’s quasi-estoppel claim was proper and should be affirmed. Lopez,

22 S.W.3d at 864; Frankoff, 448 S.W.3d at 81; Randall's Food Mkts., Inc., 891 

S.W.2d at 644. 

VIII. CONCLUSION AND PRAYER

This is a partition lawsuit whereby Smith tries to extricate himself from 

certain judgment and federal tax liens, and disputes about the Medina Ranch.

Winkenhower tries to block partition by attempting to introduce an alleged oral 

agreement in order to transfer real estate into a trust that was never created. Both 

law and equity justify the trial court’s grant of Summary Judgment in favor of 
24

Smith.

Therefore, for the reasons set forth herein, Appellee George Allan Smith, 

Independent Executor of the Estate of Lyda Catherine Smith, Deceased asks that 

this Court affirm the Judgment of the trial court in its entirety, including the Order 

on Smith’s Objections to Winkenhower’s summary judgment evidence. Appellee 

Smith further prays for the award of his costs on appeal and for any and all other 

relief to which he may show himself entitled.

Respectfully submitted,

BRADY & HAMILTON, LLP

 /S/ Brent B. Hamilton

Brent B. Hamilton

State Bar No. 00796696

brent@bhlawgroup.com

1602 13th Street

Lubbock, Texas 79401

Telephone: (806) 771-1850

Facsimile: (806) 771-3750

ATTORNEY FOR APPELLEE

GEORGE ALLAN SMITH, 

INDEPENDENT EXECUTOR OF 

THE ESTATE OF LYDA 

CATHERINE SMITH, DECEASED
25

CERTIFICATE OF SERVICE

This certifies that the undersigned served this Brief of Appellee George 

Allan Smith, Independent Executor of the Estate of Lyda Catherine Smith, 

Deceased, on all parties of record by sending it via certified mail, overnight 

delivery, or other acceptable method under the Texas Rules of Appellate Procedure 

on the 24

th day of July, 2015 to the following:

Dan Pozza

State Bar No. 16224800

Attorney at Law

239 East Commerce Street

San Antonio, Texas 78205

Telephone: (210) 226 – 8888 

Facsimile: (210) 224 – 6373 

danpozza@yahoo.com

Cynthia Cox Payne

State Bar No. 24001935

P.O. Box 1178

1118 Main Street

Bandera, Texas 78003

Telephone: (830) 796 - 7030

Facsimile: (830) 796 – 7945

cpayne@paynelawfirm.com 

 /s/ Brent B. Hamilton

Brent B. Hamilton
26

CERTIFICATE OF COMPLIANCE

1. Pursuant to Rule 9.4 of the Texas Rules of Appellate Procedure, I certify 

that this document complies with the typeface and style requirements. 

This document has been prepared in a proportionally spaced typeface 

using Microsoft Word® 2013 in Times New Roman font, size 14.

2. I further certify that this document contains 5,429 [7500 is max] words, 

excluding the parts of the brief exempted by the Texas Rules of Appellate 

Procedure, as determined by the computer software’s word-count 

function, and does not exceed the word limit requirements of Rule 

9.4(i)(2)(C) of the Texas Rules of Appellate Procedure. 

I certify that this brief complies with all the requirements as to form, where 

applicable, pursuant to Rule 9.4 of the Texas Rules of Appellate Procedure.

 /s/ Brent B. Hamilton

Brent B. Hamilton

ATTORNEY FOR APPELLEE