William Francis Harris v. Antionette Richardson Winston

Opinion issued May 24, 2007 In The Court of Appeals For The First District of Texas NO. 01-05-00962-CV WILLIAM FRANCIS HARRIS, Appellant V. ANTOINETTE RICHARDSON WINSTON, AS GUARDIAN OF THE PERSON AND ESTATE OF J.B.H., Appellee On Appeal from the Probate Court of Galveston County, Texas Trial Court Cause No. 64224A MEMORANDUM OPINION Appellant, William Francis Harris, appeals from the trial court's order granting summary judgment in favor of appellee, Antoinette Richardson Winston, guardian of the person and estate of Harris's minor child J.B.H., in a suit over the disposition of insurance proceeds. In two issues, Harris contends that the trial court improperly acted while his motion to recuse was pending, see Tex. R. Civ. P. 18a(c), and that the trial court "should pay claims to Appellant to which he may be entitled." Because Harris erroneously filed his motion to recuse with the district clerk's office instead of the county clerk's office, where documents for the probate court are properly filed, the probate court did not have a motion to recuse pending when the summary judgment was rendered. His remaining appellate challenges are inadequately briefed and present nothing for our review. We affirm. Background Harris is currently serving a 65-year prison sentence for the 2001 murder of Wenona Harris, his wife and the mother of his child, J.B.H. See Harris v. State, 133 S.W.3d 760, 763 (Tex. App.--Texarkana 2004, pet. ref'd); In re. J.B.H., No. 14-05-00745-CV, 2006 WL 2254130 (Tex. App.--Houston [14th Dist.] Aug. 8, 2006, no pet.). The appeal of Harris's conviction for murder was pending in the Texarkana Court of Appeals when he attempted to collect on a life insurance policy held by Wenona. Winston, as guardian of J.B.H., also filed a claim for the same death benefits. In April 2003, Standard Insurance Company, the company that held the policy on Wenona, filed an interpleader action in the 405th District Court in Galveston County, naming Winston and Harris as defendants. Standard Insurance paid $142,747.29 in benefits into the registry of the district court and was dismissed from the case. Winston filed a motion with the Galveston County probate court, which was overseeing the guardianship of J.B.H., to transfer the lawsuit over the insurance benefits from the 405th District Court to the probate court. The case was transferred to the probate court in October 2003 and re-styled with Winston as plaintiff and Harris as defendant. In February 2004, the Texarkana court of appeals affirmed Harris's murder conviction. Harris, 133 S.W.3d at 775. The court of appeals' mandate issued in October 2004. Shortly thereafter, Winston filed a motion for summary judgment in the probate court. Winston contended that Harris's rights to the insurance benefits were forfeited under the Texas Insurance Code due to his criminal conviction for the murder of the policy-holder and that J.B.H. was entitled to the insurance proceeds as first contingent beneficiary. Winston prayed that the funds in the court registry be disbursed to her as guardian of the estate and person of J.B.H. Harris filed his response to the motion for summary judgment in January 2005. The probate court set a hearing on the motion for summary judgment for March 3, 2005. However, when the probate court learned that Harris had filed a lawsuit against the probate court judge that was presiding over the motion for summary judgment concerning the insurance benefits, the probate court declined to set any hearings related to Harris. (1) On June 29, 2005, Winston's attorney sent a letter to the probate court judge informing her that the case in the 306th District Court had been dismissed as to all defendants and urging that Winston's motion for summary judgment be set on the probate court's submission docket as soon as possible. The probate court set two hearings: the first for July 14, 2005, on a motion to compel production filed by Harris, and the second for July 27, 2005, on Winston's motion for summary judgment. According to Harris, he verbally told the probate court judge at the July 14 hearing that he intended to move for her recusal. The written motion to recuse contained in the appellate record before us is a copy that was file stamped by the Galveston County District Clerk on July 26, 2005. (2) That motion to recuse asserted that the probate court judge had a personal bias or prejudice, personal knowledge of disputed evidentiary facts, and that the judge should recuse herself "BECAUSE SHE WAS A DEFENDANT IN A SUIT, AFFECTING A PARENT-CHILD RELATIONSHIP IN 306th FAMILY JUDICIAL DISTRICT." That motion to recuse was attached to a letter dated December 9, 2005, which disputed Harris's ability to pay costs associated with this appeal, written to Mary Ann Daigle, Galveston County Clerk, and file stamped December 14, 2005, by the County Clerk's office. On July 28, 2005, the probate court granted Winston's motion for summary judgment. The final judgment ordered that all funds held in the court registry be disbursed to Winston as guardian of the estate and person of J.B.H., for J.B.H.'s use and benefit "to be done only upon further order of the court." The judgment further stated that "any rights William Harris once had to any insurance proceeds of Wenona Harris are hereby forfeited pursuant to Texas Insurance Code Section 1103.151, and that [J.B.H.] is hereby entitled to all such proceeds pursuant to Texas Insurance Code Section 1103.152(a)-(b)." Recusal In his first issue, Harris contends that the probate court judge "Abused her Discretion by granting Appellee['s] . . . Motion for summary Judgment, when Appellant's Motion to Recuse was on file, and dismissed Appellant's Petition that was before the Court with prejudice." Winston responds that the probate court did not abuse its discretion because Harris did not file a motion to recuse with the probate court, and thus no motion to recuse was pending at the time the trial court rendered summary judgment. When a motion to recuse is filed with a trial court, the trial court judge has only two options. Johnson v. Pumjani, 56 S.W.3d 670, 672 (Tex. App.--Houston [14th Dist.] 2001, no pet.); Tex. R. Civ. P. 18a(c). She may recuse herself, or she may refer the matter to the presiding judge of the statutory probate courts to assign a judge to hear the motion. See Tex R. Civ. P. 18a(c) (stating that judge must recuse or refer to presiding judge of administrative judicial district); Hudson v. Tex. Children's Hosp., 177 S.W.3d 232, 235 (Tex. App.--Houston [1st Dist.] 2005, no pet.). This procedure is mandatory. Hudson, 177 S.W.3d at 235. If the motion to recuse is denied, an appellate court may review that denial on appeal from the final judgment for abuse of discretion. Tex. R. Civ. P. 18a(f); Barron v. State Att'y Gen., 108 S.W.3d 379, 382 (Tex. App.--Tyler 2003, no pet.). All documents filed in probate proceedings must be filed with the county clerk. Tex. Prob. Code Ann. § 11 (Vernon 2003)("All applications for probate proceedings, complaints, petitions and all other papers permitted or required by law to be filed in the court in probate matters, shall be filed with the county clerk."). As his proof that he filed a motion to recuse the probate court judge, Harris refers to a copy of a motion to recuse that was file stamped by the district clerk on July 26, 2005, two days before the trial court rendered the summary judgment in favor of Winston. This motion does not, however, bear any mark indicating receipt by the county clerk, which is the proper recipient for probate court filings. See id. Harris has thus failed to point to any motion to recuse that was pending before the probate court when the court rendered summary judgment against him. Our record contains a copy of the motion to recuse, even though it was originally filed with the district clerk, because Harris mailed a copy of that motion as an attachment to a letter that he sent to the Galveston County Clerk, Mary Ann Daigle. Harris's letter, dated December 9, 2005, was file stamped December 14, 2005, by the county clerk's office. Although a copy of the motion to recuse was received by the county clerk, it was not received until it was made an attachment to this December 2005 letter filed more than four months after the probate court rendered the summary judgment against him. Harris asserts that he verbally notified the probate court on July 14, 2005, that he would be filing a motion to recuse. Assuming Harris orally made a motion to recuse the probate court, oral motions to recuse are not valid under rule 18a, which requires that a written motion be filed and verified. See Barron, 108 S.W.3d at 382; see also Tex. R. App. P. 18a(a) ("any party may file with the clerk of the court a motion stating grounds why the judge . . . should not sit in the case"). (3) As further evidence that he filed a motion to recuse with the probate court, Harris refers to documents in an appendix to his reply brief. The documents are not part of our appellate record, and we may not consider them. See Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App.--Dallas 2005, no pet.); Adams v. Reynolds Tile and Flooring, Inc., 120 S.W.3d 417, 423 (Tex. App.--Houston [14th Dist.] 2003, no pet.). (4) We overrule Harris's first issue. (5) Other Claims In his second issue, Harris asks whether the probate court judge should "pay claims to appellant in which he may be entitled?" Harris asserts a variety of claims for affirmative relief within this issue. Apparently referring to the merits of Winston's motion for summary judgment, Harris contends that he is entitled to all insurance benefits paid due to Wenona's murder that have been placed in the probate court's registry. Harris further asserts a number of claims unrelated to the insurance proceeds at issue in this appeal, including: • that he is entitled to various items of personal property held as community property with his late wife; • that it is not in the best interests of J.B.H. for Winston to be his guardian, that Harris should be named sole conservator of his and his wife's minor child, and that Harris's mother should be named guardian of the child's person and estate; and • that he is entitled to funds for payment certain work he alleges he performed for his wife and for which he filed a mechanic's lien on property in Galveston County. (6) Harris has also filed a motion for "CLAIMS,TO BE PAID OUT OF THE COURT REGISTRY 64,224-A PURSUANT TO V.A.T.S. PROBATE CODE § 248-414." Winston asserts that Harris has failed to raise a proper point on appeal. She states that Harris's contentions do not relate to any part of the trial court's final judgment, that he does not cite to statutory or legal authority supporting his entitlement to his purported claims, that he did not raise these issues in his notice of appeal, and that he has not presented any argument for our review. The rules of appellate procedure require an appellant's brief to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h); Kaposta, 152 S.W.3d at 841. A pro se litigant is held to the same standards as a licensed attorney and must comply with applicable laws and rules of procedure. Kaposta, 152 S.W.3d at 841. The pro se appellant is required to properly present his case. Id. Harris cites to no authority and presents no argument in support of his contention that he is entitled to insurance benefits paid upon the death of his wife. See id. In his brief to this Court, he cites to no authority relating to the disposition of insurance benefits. In his reply brief, he cites to sections of the probate code concerning intestate succession and the distribution of community property, without acknowledging that the trial court expressly based its judgment on the provisions of the Insurance Code governing forfeiture by a beneficiary who is convicted for bringing about the death of the insured. See Tex. Ins. Code Ann. §§ 1103.151, 1103.152(a)-(b) (Vernon 2006); see also Tex. Prob. Code Ann. § 41(d) (Vernon 2003) (conviction as principal or accomplice in willfully bringing about death of insured works forfeiture of estate on beneficiary); see generally Tex. Prob. Code Ann. §§ 38-39, 41-42, 385-87 (Vernon 2003) (cited by Harris). Further, even if we consider his motion to be a supplemental brief, Harris states that he requests relief "INWHICH APPELLANT IS ENTITLED, PURSUANT TO V.A.T.S. PROBATE CODE § 248-414," but he does not explain how these sections could apply to this lawsuit. An appellant's failure to present sufficient argument or authority to support an issue waives that issue on appeal. See Kaposta, 152 S.W.3d at 841 ("An issue on appeal unsupported by argument or citation to legal authority presents nothing for the court to review.") Appellant has failed to preserve error for his sub-issues relating to the guardianship of J.B.H. and to his mechanic's lien. A party must obtain a ruling on a motion in order to preserve error on the issue raised by the motion. See Tex. R. App. P. 33.1(a)(2)(A); De Miño v. Sheridan, 176 S.W.3d 359, 373 (Tex. App.--Houston [1st Dist.] 2004, no pet.). Even if we were permitted to review these claims as having been properly raised by his numerous motions to the trial court, Harris does not point to any adverse ruling by the trial court on any of these additional sub-issues. Appellant has not preserved these matters for our review. We overrule Harris's second issue. Conclusion We affirm the judgment of the trial court. All outstanding motions are denied. Elsa Alcala Justice Panel consists of Justices Taft, Jennings, and Alcala. 1. Appellant named the probate court judge as a defendant in a separate lawsuit filed in the 306th Judicial District Court. See In re J.B.H., 14-05-00745-CV, 2006 WL 2254130 (Tex. App.--Houston [14th Dist.] Aug. 8, 2006, no pet.). In his brief to this Court, Harris refers to that lawsuit, and also to another lawsuit that he filed relating his wife's murder. None of those suits are properly before this court. See id.; see also Harris v. Aames Capital Corp., No. 14-06-00124-CV, 2007 WL 853810 (Tex. App.--Houston [14th Dist.] March 22, 2007, no pet. filed). 2. For clarity, we refer only to the motion to recuse that was filed with the district clerk on July 26, 2005, that Harris contends was pending when the probate court rendered the summary judgment. We note, however, that a prior motion to recuse was filed by Harris in July 2004. The probate court judge declined to recuse herself and referred the matter to Judge King, the Presiding Statutory Probate Judge, who assigned Senior Statutory Probate Judge Scanlan to hold a hearing on the motion. That prior motion to recuse was denied by Judge Scanlan in November 2004. Harris attempted immediately to appeal that decision, but no appeal was appropriate at that time because there was no final judgment in the case. See Tex. R. Civ. P. 18a (denial of motion to recuse may be reviewed for abuse of discretion on appeal from final judgment). In the present appeal, Harris does not challenge Judge Scanlan's decision to deny the prior motion to recuse, but he suggests that the October 2003 transfer to the probate court from the 405th District Court was improper. We note, however, that the October 2003 transfer occurred more than six months before Harris filed this first motion to recuse. 3. Harris filed a motion with this Court seeking an order that all reporter's records, including the record of the hearing of July 14, 2005, be prepared and sent to this Court. Because a record of Harris's oral motion is irrelevant to our disposition of this case, we overrule this motion. 4. The appendix contains a letter to Mary Ann Daigle, County Clerk of Galveston County, that is dated July 20, 2005, and that asks the county clerk to file stamp "these copy" and then to send the copies back to him. The letter does not describe any document, nor does the appendix have anything attached to the letter. The sole description in the letter that might suggest what was attached was in the line that states, "RE: Motion to Resucal [sic]/ Amended Motion Notice of Appeal." Even if we could consider the letter that was attached to the appendix, it does not show that a motion to recuse was filed with the county clerk or probate court when the summary judgment was rendered. 5. Because Harris has not demonstrated that he filed his motion to recuse prior to the trial court entering final judgment, we do not reach Winston's contention that Harris's first issue is waived because he did not file his motion to recuse at least ten days before the date set for the hearing on Winston's motion for summary judgment. See Hudson v. Tex. Children's Hosp., 177 S.W.3d 232, 239 & n.2 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (Bland, J., concurring) (courts of appeals have been inconsistent on question of whether trial court may deny motion to recuse without referral based on procedural defect). 6. Harris's mechanic's lien has been litigated and appealed to the Fourteenth Court of Appeals. See Harris, 2007 WL 853810, at *1.