the Estate of John Aroon Sookma ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-394-CV
THE ESTATE OF JOHN AROON
SOOKMA, DECEASED
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FROM PROBATE COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In this restricted appeal, Appellant Julia Ann Sookma, pro se, appeals
from a probate court order striking her pleadings. We affirm.
Background
Julia married John Sookma in 1985. One child, K.S., was born to the
marriage. Julia and John divorced in 1999.2
1
… See T EX. R. A PP. P. 47.4.
2
… Julia implies—without explanation or references to the record or legal
authority—that the divorce decree was somehow ineffective.
John died intestate in March 2005. His sister, Leslie Sookma-Rortvedt,
filed an application for letters of independent administration in September 2005
in Probate Court Number Two of Tarrant County. The application identified
K.S. as John’s sole heir. Julia—on her own behalf and as K.S.’s next
friend—filed challenges to Leslie’s application. Leslie then filed a motion for
sanctions under civil practice and remedies code chapter 10, asserting that
Julia’s challenges had no basis in law or fact and that Julia filed them solely to
harass, create unnecessary delay, and increase the cost of litigation. Julia filed
a motion to transfer the probate proceeding to a district court. 3
The probate court issued letters testamentary to Leslie on March 25,
2006 and signed a judgment declaring K.S. to be John’s sole heir. On the same
day, the probate court signed an order imposing sanctions on Julia, (1) finding
that she had filed her pleadings for an improper purpose and that they had no
basis in law or fact; (2) striking her pleadings; (3) ordering her not to file any
more pro se pleadings with the court; and (4) ordering her to pay to Leslie
$2,400 in attorney’s fees and $85 in costs.
3
… Julia filed her motion to transfer under probate code section 5(b),
which mandates—in counties with no statutory probate or county courts—the
transfer of contested probate proceedings filed in a constitutional county court
to a district court. See T EX. P ROB. C ODE A NN. § 5(b) (Vernon 2003). The two
probate courts of Tarrant County are statutory probate courts. T EX. G OV’T C ODE
A NN. § 25.2221(c) (Vernon 2004). Thus, probate code section 5(b) did not
apply to the proceedings.
2
Despite the court’s order, in April 2006, Julia filed her pro se “Notice of
Felony Criminal Mail Fraud by [Leslie],” “Motion to Revoke [Leslie’s] Surety
Bond for Fraud upon the Court and Heirs,” “Motion to Set Aside Exempt
Property,” and “Motion to Set Aside Order for Sanctions and Judgment.”
On May 3, 2006, the probate court judge recused himself sua sponte; the
reason for the recusal does not appear in the record. The presiding judge of the
statutory probate courts transferred the proceedings to Probate Court Number
One of Tarrant County.
In June 2006, Probate Court Number One scheduled a status conference
for July 5, 2006, and instructed Julia to appear in person if she had not
retained an attorney. When Julia failed to appear for the status conference, the
probate court entered an “Order Imposing Sanctions Sua Sponte,” striking the
pleadings Julia filed after Probate Court Number Two’s March 25, 2006
sanctions order as a sanction for “the failure to appear or give notice of an
intended failure to appear at the Status Conference and for violation of previous
orders of the court.” 4
4
… For reasons not explained in her brief, Julia consistently refers to this
order as imposing “nunc pro tunc” sanctions.
3
Julia filed a notice of restricted appeal on October 26, 2006, appealing
from the July 5 order and the “Final Orders signed April 28th, May 3rd, May
15th, May 18th, May 25th, June 6th, June 8th, [and] June 27.” 5
Discussion
1. Restricted Appeal
To prevail in a restricted appeal, an appellant must show that (1) a notice
of appeal was filed within six months of the date the complained-of judgment
or order was signed; (2) appellant was a party to the suit who did not
participate in the hearing that resulted in the judgment or order; (3) appellant
did not timely file a post-judgment motion, request findings of fact and
conclusions of law, or file a notice of appeal within the time permitted under
rule 26.1(a); and (4) the complained-of error is apparent from the face of the
record. T EX. R. A PP. P. 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845,
848 (Tex. 2004); see T EX. R. A PP. P. 26.1(c).
2. Probate Court Number One’s Jurisdiction to Sanction Julia
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… The record contains no orders dated April 28 or June 8, 2006. The
May 3, 2006 order is the order by which the judge of Probate Court Number
Two recused himself, and the May 15 and 18, 2006 orders are the orders
assigning and transferring the case to Probate Court Number One. On May 25,
2006, the probate court signed an order increasing Leslie’s bond to $252,000.
On June 6, 2006, the probate court signed a temporary restraining order to
prevent a mortgage company from foreclosing on what had been John and
Julia’s marital home. On June 27, the probate court appointed an attorney ad
litem to represent the interests of K.S.
4
In her first issue, Julia argues that “Probate Court No. 1 was without
jurisdiction to Contestant’s [sic] strike pleadings based on void Final Judgments
and Orders from Probate Court No. 2 . . . and abused its authority in granting
excessive ‘nunc pro tunc’ sanctions.” 6 We will consider the three components
of her issue—that Probate Court Number One lacked jurisdiction to impose
sanctions, that Probate Court Number Two’s initial sanctions order was void,
and that Probate Court Number One abused its discretion by imposing excessive
sanctions—each in turn.
First, Julia offers no argument, analysis, or explanation to support her
contention that Probate Court Number One lacked jurisdiction to sanction her.
When a party fails to support an issue with argument, she waives any error on
appeal. Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886
(Tex. App.—Houston [1st Dist.] 1995, no writ). Moreover, a lack of jurisdiction
is not apparent from the record; Julia appeared and participated in the
proceedings in Probate Court Number Two, and the proceedings were
transferred to Probate Court Number One by order of the presiding judge of the
statutory probate courts in accordance with the rules of civil procedure. See
6
… Julia argues all of her issues together in one discussion. It is difficult
or impossible to determine which portions of the argument pertain to which
issues, if any. The argument also references facts and documents that do not
appear in the record.
5
T EX. R. A PP. P. 30; T EX. R. C IV. P. 18. Therefore, we overrule this part of her
first issue.
Julia next argues that Probate Court Number Two’s March 25, 2006
sanctions order was void because the judge was disqualified under article V,
section 11 of the Texas constitution, which prohibits a judge from sitting in a
case in which the judge is interested, where the parties are connected to the
judge by affinity or consanguinity, or when the judge has been counsel in the
case.7 See T EX. C ONST. art. V, § 11. The record shows only that the judge of
Probate Court Number Two recused himself under rule of procedure 18b; it
does not show why he recused himself, and nothing in the record suggests that
the reason was one of the relationships identified by article V, section 11.
Because error is not apparent from the face of the record, we overrule this part
of Julia’s first issue.
Finally, Julia argues that Probate Court Number One abused its discretion
by imposing sanctions when she failed to appear for the July 5 status
conference because she had no notice that her failure to appear would result
in sanctions. See Murphree v. Ziegelmair, 937 S.W.2d 493, 495 (Tex.
7
… Julia cannot otherwise challenge the March 25, 2006 sanctions order
by restricted appeal because she filed her notice of appeal more than six
months later. See T EX. R. A PP. P. 30. Therefore, she cannot challenge the trial
court’s findings that her pleadings had no legal or factual basis and were filed
for improper purposes.
6
App.—Houston [1st Dist.] 1995, no writ) (holding trial court abused its
discretion by striking party’s pleading and granting default judgment as sanction
for failing to appear at pretrial hearing when party had no notice that failure to
appear would result in sanctions).
But the order also recites as grounds for striking her pleadings the
sanctions order imposed by Probate Court Number Two, which prohibited Julia
from filing additional pro se pleadings. Julia does not challenge this second
basis for the sanctions order. Generally, an appellant must attack all
independent bases or grounds that fully support a complained-of ruling or
judgment. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Hong Kong
Dev., Inc. v. Nguyen, 229 S.W.3d 415, 456 (Tex. App.—Houston [1st Dist.]
2007, no pet.) (op. on reh’g). This rule exists because if an independent
ground fully supports the complained-of ruling or judgment, but the appellant
assigns no error to that independent ground, then (1) we must accept the
validity of that unchallenged independent ground and thus (2) any error in the
grounds challenged on appeal is harmless because the unchallenged
independent ground fully supports the complained-of ruling or judgment.
Walling, 863 S.W.2d at 58; Hong Kong Dev., Inc., 229 S.W.3d at 456.
The independent ground for sanctions cited by the probate court—Julia’s
failure to abide by the prior sanctions order— fully supports the court’s order
striking her pleadings. Inherent in a court’s ability to issue orders is a court’s
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authority to enforce those orders. Hamilton v. Morris Res., Ltd., 225 S.W.3d
336, 346 (Tex. App.—San Antonio 2007, pet. denied). A trial court has the
power to strike pleadings and render a default judgment as a sanction for
violation of a pretrial order. Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex.
1990) (holding trial court did not abuse its discretion by striking pleadings and
rendering default judgment as sanction for violation of pretrial order and
collecting similar cases). Because Julia does not challenge the portion of the
order striking her pleadings for failing to comply with the prior order, we
overrule the remainder of her first issue.
Julia’s fourth issue is “[w]hether Appellant’s due process and due course
of law rights to have a jury decide superior right to appointment of
administrator.” Essentially, Julia complains that the trial court erred by failing
to grant her a jury trial on the contested issue of Leslie’s appointment as
administrator after Julia paid the jury fee and requested a jury. See T EX. P ROB.
C ODE A NN. § 21 (Vernon 2003) (“In all contested probate . . . proceedings . . .
the parties shall be entitled to trial by jury as in other civil actions.”). As we
noted above, a trial court may strike pleadings and render a default
judgment—that is, a judgment without a jury trial—at its discretion as a
sanction for violation of a pretrial order. See Koslow’s, 796 S.W.2d at 704.
Because the probate court did not abuse its discretion by striking Julia’s
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pleadings, including her jury request, we hold that it did not err by failing to
submit to a jury the issues contested by Julia, and we overrule her fourth issue.
3. Julia’s Remaining Issues
Julia’s second issue is “[w]hether the probate court abused its
constitutional duty to sign the Order approving or disapproving Inventory,
Appraisement and List of Claims prior to allowing a disqualified administrator
with bogus surety bonds to illegally withhold exempt funds.” The argument
section of her brief contains the heading “Inventory, Appraisement & Claims of
Estate. No Judicial Admission by Consent of Contents” and—two pages later,
after a lengthy hornbook discussion of the duties of attorneys ad litem—a
summary of a single off-point case and the sentence “Do not consent to or
approve an inventory which designates a decedent’s property in a manner
contrary to the client’s best interest.”
Her third issue is “[w]hether the trial court abused its discretion and
statutory duty to Order § 271 homestead and exempt property to be set-a-side
or her guardian evidence was legally sufficient in light of the variance between
the Appellant’s injury defense ramified from a major automobile accident and
medical restricted.” The argument portion of her brief does not discuss this
issue at all.
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An issue on appeal unsupported by argument or citation to any legal
authority presents nothing for the court to review. Strange v. Cont’l Cas. Co.,
126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied), cert. denied, 543
U.S. 1076 (2005). Further, “we know of no authority obligating us to become
advocates for a particular litigant through performing their research and
developing their argument for them.” Tello v. Bank One, N.A., 218 S.W.3d
109, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Thus, an
inadequately briefed point may be waived on appeal. Hall v. Stephenson, 919
S.W.2d 454, 467 (Tex. App.—Fort Worth 1996, writ denied); see also Fredonia
State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994)
(discussing “long-standing rule” that point may be waived due to inadequate
briefing).
We hold that Julia waived her second and third issues by failing to
adequately brief them, and we therefore overrule them.
Conclusion
Having overruled all of Julia’s issues, we affirm the trial courts’ orders.
PER CURIAM
PANEL M: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: July 3, 2008
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