James F. McKinnon v. Robert Stone Wallin and William Brandon Wallin ( 2018 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00592-CV
James F. McKinnon, Appellant
v.
Robert Stone Wallin and William Brandon Wallin, Appellees
FROM THE COUNTY COURT OF GILLESPIE COUNTY
NO. 10093, HONORABLE POLLY JACKSON SPENCER, JUDGE PRESIDING
MEMORANDUM OPINION
James F. McKinnon, acting pro se, appeals from the trial court’s final judgment and
imposition of equitable lien following a jury trial.1 McKinnon primarily complains about evidentiary
rulings by the trial court and contends that the trial court improperly had him removed from the
courtroom, violating his due process rights. For the following reasons, we affirm the trial court’s
final judgment and imposition of equitable lien.
1
McKinnon’s appeal was filed in the Fourth Court of Appeals but transferred to this Court
by order of the Texas Supreme Court pursuant to section 73.001 of the Texas Government Code.
See Tex. Gov’t Code § 73.001 (authorizing Texas Supreme Court to transfer cases from one court
of appeals to another “at any time that, in the opinion of the supreme court, there is good cause for
the transfer”); Misc. Docket No. 17-0113 (Tex. Sept. 8, 2017).
Background2
Cherry S. McKinnon, who was the wife of McKinnon, died in August 2012.3
Appellees Robert Stone Wallin and William Brandon Wallin were Cherry’s children from a prior
marriage. After disputes arose among the parties concerning Cherry’s estate and the character of
certain marital property, appellees filed a petition for declaratory judgment and imposition of
equitable lien in February 2013. Among the subjects of the declarations that they sought was
property known as Tin Star Ranch, which was purchased by Cherry and McKinnon in
September 2006 during their marriage. McKinnon filed a countersuit and petition for declaratory
judgment. The parties disputed the character of Tin Star Ranch—the percentage of the property that
was community property and the percentage that was Cherry’s separate property.
In June 2016, the trial court granted in part and denied in part appellees’ no evidence
and traditional motions for summary judgment. In its orders, the trial court made declarations,
including that: “A separate property contribution by Cherry S. McKinnon in the amount of
$2,227,959.36 was made toward the purchase of the real property known as the Tin Star Ranch (not
referring to any portion of that certain 9.98 acres commonly referred to as the Tin Star Ranch
2
Because the parties are familiar with the facts of the case and its procedural history, we do
not recite them in this opinion except as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
3
We refer to Cherry S. McKinnon by her first name because she shares the same last name
with appellant.
2
Homestead).”4 According to factual assertions in McKinnon’s original answer, Cherry’s
separate property contribution was “the proceeds from the sale of decedent’s separate ranch,
Honey Rock Ranch.”
The jury trial occurred on September 19, 2016. The disputed issue of fact at trial was
whether Cherry intended to make a gift to McKinnon of any portion of her separate property interest
in the property known as Tin Star Ranch. Appellees’ witnesses testified about the structure of the
purchase of Tin Star Ranch and the sources of funds that Cherry and McKinnon used to purchase
the property. In addition to the separate property contribution made by Cherry, Cherry and
McKinnon borrowed money to pay a portion of the purchase price. As to her separate property
contribution, Cherry utilized a “qualified intermediary” for tax deferral purposes. To claim the tax
deferral, which Cherry had done, appellees’ witnesses testified that she was required to maintain her
separate property interest in Tin Star Ranch.5
McKinnon left the courtroom during appellees’ case in chief and did not return for
the remainder of the trial. At the time that he exited the courtroom, he was cross-examining one of
appellees’ witnesses, and the trial court had instructed him several times to take a seat because he
was refusing to follow the trial court’s instructions as to relevant lines of questioning. After he
continued to refuse to follow the trial court’s instructions and referenced a lawsuit that he had against
the trial court “for being unfair and unbiased (sic) in the courtroom,” the trial court instructed him
to “take a seat in the hallway.” In response, McKinnon told the trial court, “I’ll just go home then.”
4
The Tin Star Ranch Homestead is not relevant to this appeal.
5
The exhibits included the McKinnons’ jointly filed 2006 federal income tax return.
3
The trial court responded, “You may make that choice.” McKinnon then replied, “I will do so. I’ll
go home. You’re gonna do what you want anyhow in the courtroom. Why do you need me?”
Shortly after this exchange with the trial court, McKinnon thanked the jury for their time and exited
the courtroom.
The trial court’s instructions to the jury in the charge included: “[I]n this case, as a
matter of law, that $2,227,959.36 of the proceeds used to purchase Tin Star Ranch was the separate
property of Cherry S. McKinnon.” The jury was asked the following question: “Do you find by
clear and convincing evidence that on September 29, 2006, Cherry S. McKinnon intended to make
a gift of one-half of her $2,227,959.36 separate property interest in the Tin Star Ranch to
James F. McKinnon?” The jury answered “No” to this question and also found amounts for costs
and reasonable attorney’s fees incurred by appellees. The trial court thereafter rendered judgment
in accordance with its summary judgment rulings and the jury’s verdict, including making the
following declarations in its judgment:
• “Cherry McKinnon’s separate property estate contributed $2,227,959.36
(Two Million, Two Hundred Twenty-Seven Thousand, Nine Hundred Fifty-
Nine and 36.100 Dollars) toward the purchase of the Tin Star Ranch.”
• “No gift was made by Cherry McKinnon to James McKinnon of any part of
her separate property interest in the Tin Star Ranch.”
• “At the time of her death, the separate property estate of Cherry McKinnon
owned a 65.02% interest in the Tin Star Ranch.”
This appeal followed.
4
Analysis
In his “statement of issues presented,” McKinnon complains that the trial court did
not allow him “to talk about Honey Rock Ranch” and improperly “ordered [the] bailiff to remove
[him] from the courtroom” and argues that his due process rights were violated.6
McKinnon, however, generally fails to support his issues with “clear and concise
argument for the contentions made, with appropriate citations to authorities and to the record.” See
Tex. R. App. P. 38.1(i) (requiring “clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record”); Briggs v. Bank of Am., N.A.,
No. 04-16-00087-CV, 2017 Tex. App. LEXIS 1423, at *4–5 (Tex. App.—San Antonio
Feb. 22, 2017, no pet.) (mem. op.) (“When an appellant fails to cite applicable authority, fails to
provide relevant citations to the record, or fails to provide substantive analysis for an issue
presented in the brief, nothing is presented for our review.”); Davis v. American Express Bank,
No. 03-12-00564-CV, 2014 Tex. App. LEXIS 9662, at *7 (Tex. App.—Austin Aug. 29, 2014, no
pet.) (mem. op.) (noting that “[a]ppellate issues must be supported by argument and authority,
and if they are not so supported, they are waived”); Lee v. Kaufman, No. 03-10-00148-CV,
6
We consider the issues and arguments that McKinnon raises in his amended brief that was
filed on August 2, 2017. McKinnon initially filed a brief on March 9, 2017, but the Fourth Court
of Appeals ordered him to file an amended brief based on the court’s determination that his initial
brief flagrantly violated Texas Rule of Appellate Procedure 38. See Tex. R. App. P. 38 (addressing
requisites of briefs), 38.9(a) (authorizing court of appeals to require brief to be amended if court
“determines that this rule has been flagrantly violated”). McKinnon then filed an amended brief on
March 24, 2017. Thereafter, the Fourth Court of Appeals abated the appeal and remanded the case
to the trial court for a hearing to resolve issues related to the accuracy of the reporter’s record. After
the appeal was reinstated, the Fourth Court of Appeals ordered McKinnon to file or supplement his
brief by a certain date and, if he did so, that his amended brief would replace his brief that was filed
at the end of March 2017. He thereafter filed his amended brief on August 2, 2017.
5
2011 Tex. App. LEXIS 6969, at *9–10 (Tex. App.—Austin Aug. 26, 2011, no pet.) (mem. op.)
(finding issue waived that was not supported “with arguments, legal authority, or citations to
the record”).
“[P]ro se appellants are held to the same standard as parties represented by counsel
to avoid giving unrepresented parties an advantage over represented parties.” Stewart v. Texas
Health & Human Servs. Comm’n, No. 03-09-00226-CV, 2010 Tex. App. LEXIS 9787, at *5–6
& n.1 (Tex. App.—Austin Dec. 9, 2010, no pet.) (mem. op.) (citing Mansfield State Bank
v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978)). Holding McKinnon to this standard, we
conclude that he has waived his issues by inadequate briefing. See Tex. R. App. P. 38.1(i); Briggs,
2017 Tex. App. LEXIS 1423, at *9 (holding that pro se appellant’s brief was “procedurally and
substantively inadequate” and that appellant had presented nothing for review on appeal).
Nonetheless, we will attempt to address his arguments as best we understand them. See Stewart,
2010 Tex. App. LEXIS 9787, at *6 n.1 (addressing pro se appellant’s “complaints as best we can”).
Evidentiary and Summary Judgment Rulings
McKinnon complains that the trial court did not allow him to “talk about Honey Rock
Ranch.” He also complains that the trial court did not allow him “to speak about liberty or the flag”
in violation of his freedom of speech, that he should have been allowed to cross-examine appellees’
witnesses about Honey Rock Ranch, that he “could have shown that a premarital agreement was not
signed by either party, which makes it community property,” and that he appealed the trial court’s
summary judgment orders that addressed Honey Rock Ranch.
6
To support his position that he appealed the summary judgment orders, McKinnon
includes as exhibits to his brief copies of documents file-stamped by the Gillespie County Clerk in
July 2016 in which he purported to appeal from the trial court’s summary judgment rulings.7 These
documents, however, were not properly included in the record on appeal, and we may not consider
them. See Tex. R. App. P. 34.1 (addressing contents of appellate record), 38.1(g) (requiring
appellate briefs to contain statement of facts supported by record references); Save Our Springs All.,
Inc. v. City of Dripping Springs, 304 S.W.3d 871, 892 (Tex. App.—Austin 2010, pet. denied)
(“We are limited to the appellate record provided.”); Burke v. Insurance Auto Auctions Corp.,
169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied) (explaining that documents that are
cited in brief and attached as appendices may not be considered by appellate courts if they are not
formally included in record on appeal).
The appellate record also does not contain the summary judgment motions or
evidence so we must presume that the omitted documents supported the trial court’s summary
judgment rulings. See Enterprise Leasing Co. v. Barrios, 156 S.W.3d 547, 549–50 (Tex. 2004) (per
7
The documents are titled: (i) Motion on Appeal on Traditional Motion for Summary
Judgment against attorney Polly Jackson Spencer Conspiring in with Attorney Shelly Fristoe and
Brandon and Robert Wallin, and Attorney Chris Wallindorf Attorney for the Estate of the Deceased
Cherry S. McKinnon. Depriving Deceased Cherry S. McKinnon Rights to Freedom of Speech in
the Constitution and Depriving Liberty Interest in our Flag to Deceased Cherry S. McKinnon in her
Last Will and Testament and Life Before Death and After Death in One’s Will; and (ii) Motion of
Appeal on No-Evidence Motion for Summary Judgment. Against Attorney Polly Jackson Spencer,
Attorney Shelly Fristoe, and Attorney Chris Wallindorf Attorney for the Estate of the Deceased
Cherry S. McKinnon. For Using Courts to Deprive Deceased Cherry S. McKinnon of her Rights in
the First Amendment of the Constitution of the United States of America, for Selling of Interest of
Property Known as Tin Star Ranch of James F. McKinnon. And that James F. McKinnon is Still
Executor of Estate of Deceased Cherry S. McKinnon, Depriving of Liberty in our Flag.
7
curiam) (explaining that, “[i]f the pertinent summary judgment evidence considered by the trial court
is not included in the appellate record, an appellate court must presume that the omitted evidence
supports the trial court’s judgment”); Mallios v. Standard Ins. Co., 237 S.W.3d 778, 781–83 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied) (explaining that it is burden of party challenging
grant of summary judgment to include complete summary judgment record considered by trial court
in ruling on motion for summary judgment and that “otherwise, the appellate court may apply the
presumption that the omitted documents support the trial court’s judgment and affirm the grant of
summary judgment on that basis”).
As to McKinnon’s complaint that he was not allowed to cross-examine appellees’
witnesses, he has failed to preserve this complaint for our review because he did not make an offer
of proof concerning the substance of what the excluded testimony would have been. See Tex. R.
Evid. 103; In re M.G.N., 491 S.W.3d 386, 399 (Tex. App.—San Antonio 2016, pet. denied)
(explaining offers of proof that preserve challenges to trial court’s exclusion of evidence); Akin
v. Santa Clara Land Co., 34 S.W.3d 334, 339 (Tex. App.—San Antonio 2000, pet. denied) (“The
failure to make an offer of proof containing a summary of the excluded witness’s intended testimony
waives any complaint about the excluded evidence on appeal.”). And, finally, as to McKinnon’s
complaint that the trial court did not allow him to “talk” or “speak,” his unsworn statements would
not have been evidence, see Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam)
(observing that statements of attorney who is not sworn as witness generally are not evidence); and
he was no longer participating in the trial—having decided to “go home”—when it was time to
present his case, see Tex. R. Civ. P. 265 (generally setting forth order of proceedings for jury trials);
8
Tex. R. Evid. 611 (addressing court’s role in controlling “mode and order of examining witnesses
and presenting evidence”).
The trial court’s discretion over the conduct of a trial is great, including intervening
in the trial to maintain control. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240–41 (Tex. 2001).
Based on our review of the record, the trial court acted well within its discretion when interacting
with McKinnon to maintain control over the proceeding. See id. McKinnon repeatedly did not
comply with the rules or follow the trial court’s instructions. See Mansfield State Bank, 573 S.W.2d
at 184 (“The right of self-representation is not a license to abuse the dignity of the courtroom.
Neither is it a license not to comply with the relevant rules of procedural and substantive law.”
(quoting Faretta v. California, 422 U.S. 806, 835 n.46 (1975))).
On these bases, we overrule McKinnon’s issues that challenge the exclusion of
evidence, the trial court’s summary judgment rulings, and his complaint that the trial court did not
allow him to “talk” or “speak.”8
McKinnon’s Absence from a Portion of the Trial
McKinnon argues that the trial court improperly “ordered the bailiff to remove [him]
from the courtroom and continued the court hearing without [him] being represented” in violation
of his due process rights. McKinnon, however, has not preserved this complaint for our review.
8
McKinnon also asserts that the trial court’s judgment is not supported by “factually
sufficient evidence” and contrary to the overwhelming weight of the “excluded evidence” because
the trial court would not consider his evidence. He, however, has failed to preserve a complaint as
to the factual sufficiency of the evidence. See Tex. R. Civ. P. 324 (requiring motion for new trial
to preserve complaint that evidence was factually insufficient to support jury finding); Standley
v. Sansome, 367 S.W.3d 343, 351 (Tex. App.—San Antonio 2012, pet. denied).
9
To preserve complaint for appellate review, a party generally must present a timely
request, objection, or motion, state the specific grounds therefor, and obtain a ruling from the trial
court. See Tex. R. App. P. 33.1. And the preservation requirement generally applies to
constitutional challenges. See Low v. Henry, 221 S.W.3d 609, 619 (Tex. 2007) (concluding that
relevance objection did not preserve due process complaint based on lack of notice); In re L.M.I.,
119 S.W.3d 707, 710–11 (Tex. 2003) (holding that due process argument that appellant was raising
with appellate court was not preserved below); Marin Real Estate Partners v. Vogt, 373 S.W.3d 57,
92–93 (Tex. App.—San Antonio 2011, no pet.) (“Even constitutional error can be waived if not
raised in the trial court.”). McKinnon has not identified in the record where he made the trial court
aware of his complaint that the trial court was violating his due process rights when McKinnon left
the courtroom and did not return during the trial.9
Further, even if he had preserved this complaint, we would conclude that it was
without merit because the record reflects that he left the courtroom voluntarily. Although McKinnon
alleges that the reporter’s record was altered to make it appear that he left voluntarily, the Fourth
Court of Appeals during the pendency of this appeal abated the appeal and remanded the case to the
trial court to hold a hearing on the accuracy of the trial transcript. Following an evidentiary hearing,
9
McKinnon also argues that the trial court violated due process by “saying openly” to the
jury that Honey Rock Ranch was the separate property of Cherry. Again, he did not raise this
argument with the trial court and, therefore, has not preserved it for our review. But, even if he had,
we would reject the argument. The trial court appropriately advised the jury of its summary
judgment rulings, including instructing the jury in the jury charge that, as a matter of law,
“$2,227,959.36 of the proceeds used to purchase Tin Star Ranch was the separate property of Cherry
S. McKinnon.” See Tex. R. Civ. P. 277 (addressing submission of case to jury), 278 (addressing
submission of questions, definitions, and instructions to jury).
10
the trial court found that the transcript had not been altered and was accurate. The trial court held
this hearing in June 2017, and McKinnon did not appear for the hearing. The witnesses at the
hearing included the court reporter who transcribed and recorded the trial, and she testified that the
transcript was accurate, and the exhibits from that hearing included the audio recording of the trial.
Based on the evidence, the trial court made findings of fact in its order, including that: (i) the
transcript from the trial was “accurate and unaltered”; (ii) “McKinnon’s allegations that the
Reporter’s Record was altered to make it appear as though he left the courtroom voluntarily when
he was actually ejected by the trial judge have no basis in fact”; and (iii) “McKinnon’s allegations
that words reflecting instructions by the trial judge to the bailiff to remove McKinnon from the
courtroom were purposefully omitted from the Reporter’s Record have no basis in fact.”
Based on our review of the record, we conclude that it does not support McKinnon’s
contentions that the trial court ordered the bailiff to remove him from the courtroom or that the trial
transcript was altered.10 On this basis, we overrule McKinnon’s issues that address his absence from
portions of the trial.
10
As support for his position that the transcript was altered, McKinnon cites an affidavit
from one of the jurors that he included as an exhibit to his brief. The affidavit was not properly
included in the appellate record, and we may not consider it. See Tex. R. App. P. 34.1, 38.1(g); Save
Our Springs All., Inc. v. City of Dripping Springs, 304 S.W.3d 871, 892 (Tex. App.—Austin 2010,
pet. denied); Burke v. Insurance Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas
2005, pet. denied).
11
Conclusion
For these reasons, we affirm the trial court’s final judgment and imposition of
equitable lien.11
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Pemberton and Goodwin
Affirmed
Filed: August 14, 2018
11
To the extent that McKinnon raises new arguments in his reply brief, they are waived, and
we do not consider them. See McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex.
App.—Houston [1st Dist.] 2007, pet. denied) (“An issue raised for the first time in a reply brief is
ordinarily waived and need not be considered by this Court.”); Hutchison v. Pharris, 158 S.W.3d
554, 564 (Tex. App.—Fort Worth 2005, no pet.) (same). Further, we deny McKinnon’s motions that
are pending before this Court, including his motion to this Court to hold a hearing on his request to
modify the reporter’s record.
12