In the Matter of the Eugene A. McClintock Living Trust Dated January 29, 2010 v. the State of Texas

AFFIRM; Opinion Filed September 9, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00373-CV

IN THE MATTER OF THE EUGENE A. MCCLINTOCK LIVING TRUST
DATED JANUARY 29, 2010

On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-22-06694

MEMORANDUM OPINION
Before Justices Molberg, Breedlove, and Kennedy
Opinion by Justice Kennedy
Kenneth Lee McClintock, a pro se litigant, appeals the trial court’s final

judgment in a lawsuit McClintock initiated as a beneficiary of the Eugene A.

McClintock Living Trust Dated January 29, 2010 (the “Trust”) against the Trust’s

trustee Kelly A. Cleaver. That final judgment incorporated the trial court’s grant of

a take-nothing judgment on McClintock’s claims and award of damages, attorney’s

fees, court costs, and postjudgment interest on Cleaver’s counterclaims against

McClintock.

McClintock failed to comply with the briefing requirements of appellate rules

after receiving notice of the deficiency and an opportunity to cure. TEX. R. APP. P.
44.3. Thus, he waived his complaint. Because all dispositive issues are settled in

law, we issue this memorandum opinion. See TEX. R. APP. P. 47.2(a), 47.4. We

affirm the trial court’s judgment.

BACKGROUND

On June 27, 2022, McClintock filed a petition seeking an order or judgment

compelling Cleaver to render an accounting of the Trust, requiring clawback of

Cleaver’s compensation as trustee, including findings Cleaver breached her

fiduciary duties of disclosure and discretion, and awarding actual and exemplary

damages for the alleged breaches. Cleaver answered, generally denying

McClintock’s claims and asserting affirmative defenses of res judicata, collateral

estoppel, settlement and release, and statute of limitations. She later filed a

counterclaim, asserting breach of a settlement agreement between herself and

McClintock. McClintock amended his petition to include claims for fraudulent

inducement to contract, fraud by nondisclosure, negligent misrepresentation,

common law fraud, and declaratory judgment regarding the validity of the settlement

agreement.

On February 14, 2023, Cleaver filed a motion for summary judgment, which

the trial court granted in its March 24, 2023 Final Order Granting Summary

Judgment, which rendered judgment that McClintock take nothing on his claims and

that Cleaver recover from McClintock actual damages, reasonable and necessary

attorney’s fees, court costs, and postjudgment interest on the foregoing. That

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judgment also awarded conditional appellate attorney’s fees should Cleaver prevail

on an appeal of the judgment to an intermediate court of appeals or the Texas

Supreme Court. This appeal followed.

On November 21, 2023, McClintock filed his brief. On November 28, this

Court sent written notice to McClintock that his brief did not satisfy the minimum

requirements of the Texas Rules of Appellate Procedure. That notice advised

McClintock that his brief was deficient as follows:

(1) it does not contain a complete list of all parties to the trial court’s
judgment;

(2) it does not contain a table of contents with references to the pages of the
brief;

(3) the table of contents does not indicate the subject matter of each issue or
point, or group of issues or points;

(4) it does not contain an index of authorities arranged alphabetically and
indicating the pages of the brief where the authorities are cited;

(5) it does not contain a concise statement of the case, the course of
proceedings, and the trial court's disposition of the case supported by
record references;

(6) it does not concisely state all issues or points presented for review;

(7) it does not contain a concise statement of the facts supported by record
references;

(8) it does not contain a succinct, clear, and accurate statement of the
arguments made in the body of the brief;

(9) the argument does not contain appropriate citations to authorities;

(10) the argument does not contain appropriate citations to the record;

(11) it does not contain a short conclusion that clearly states the nature of
relief sought;
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(12) it does not contain a proper certificate of compliance;

(13) it does not contain a proper certificate of service; and

(14) the trial court’s judgment is omitted from the appendix.

We gave McClintock ten days to correct the specified deficiencies and

cautioned him that failure to make those corrections “may result in dismissal of this

appeal without further notice from the Court.” McClintock failed to file an amended

brief, and this appeal was submitted on McClintock’s deficient brief.

DISCUSSION

On appeal, as in trial, a pro se appellant must properly present her case. See

Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet.

denied). Although we liberally construe pro se briefs, litigants who represent

themselves are required to comply with applicable rules and are held to the same

standards as litigants represented by counsel. See Mansfield State Bank v. Cohn,

573 S.W.2d 181, 184–85 (Tex. 1978); In re N.E.B., 251 S.W.3d 211, 211–12 (Tex.

App.—Dallas 2008, no pet.). To hold otherwise would give pro se litigants an unfair

advantage over litigants with an attorney. In re N.E.B., 251 S.W.3d at 212.

The Texas Rules of Appellate Procedure control the required contents and

organization of an appellant’s brief. See TEX. R. APP. P. 38.1; ERI Consulting

Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). Under those rules, an

appellant’s brief must concisely state all issues or points presented for review and,

among other things, “contain a clear and concise argument for the contentions made,

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with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i).

Briefing rules are to be construed liberally in an effort to ascertain the real basis of

appeal. Manney & Co. v. Tex. Rsrv. Life Ins. Co., 407 S.W.2d 345, 349 (Tex. App.—

Dallas 1966, no writ).

Briefs are meant to acquaint the court with the issues in a case and to present

argument that will enable the court to decide the case. TEX. R. APP. P. 38.9.

Substantial compliance with the briefing rules is sufficient. Id. If, after reviewing

the appellant’s brief, we determine there is a formal defect in the appellant’s briefing

because the appellant has flagrantly failed to acquaint the court with the issues in the

case and present argument that will enable us to decide the case, we may require a

brief to be amended. Id. We may make any order necessary for a satisfactory

submission of the case. Id. When an appellant submits a brief from which we cannot

identify the legal arguments and issues, the brief must be corrected to permit a

satisfactory submission of the case before we resolve the appeal. Where the briefing

defect has been noted, and the party has been given the opportunity to cure but fails

to do so, we may resolve the case as necessary. See TEX. R. APP. P. 44.3.

Despite having been given an opportunity to correct the deficiencies in his

brief, appellant failed to do so. Therefore, this case was submitted on McClintock’s

November 21, 2023 brief consisting of four pages. Those pages include a paragraph

titled “facts” that does not include any record references. See TEX. R. APP. P.

38.1(g). The conclusion seeks “a court order mandating standard AICPA Trust

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accountancy that cannot be waived and the appointment of a qualified successor

trustee,” which does state the nature of relief this Court may afford. See TEX. R.

APP. P. 38.1(j), 43.2 (listing permitted types of judgment). The remainder of the

brief is comprised of “legal arguments,” all of which appear to be arguments

supporting his claims at the trial court, rather than contentions of trial court error

reviewable by this Court. See TEX. R. APP. P. 38.1(h), (i). In addition, McClintock’s

brief does not contain a complete list of all parties to the trial court’s judgment and

counsel appearing in the trial or appellate courts, a table of contents, an index of

authorities, or a statement of the case. See TEX. R. APP. P. 38.1(a)–(d). He also

failed to include an appendix with the trial court’s judgment. See TEX. R. APP. P.

38.1(k).

McClintock has the burden to present and discuss his assertions of error in

compliance with the appellate briefing rules. See TEX. R. APP. P. 38.1. We may not

speculate as to the substance of the specific issues McClintock may be trying to raise

with these arguments and may not make a party’s argument for him. Strange, 126

S.W.3d at 678. We have no duty or right to perform an independent review of the

record and the applicable law to determine if the trial court erred. Id. And there is

no court reporter's record in this case because McClintock failed to secure the record

despite opportunities to do so.

We are reluctant to decide a case on the basis of briefing waiver, as the rules

express a clear preference for resolution on the merits where possible. But where,

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as here, the party has been notified of procedural and substantive deficiencies in a

brief and fails to correct them so as to remit a satisfactory submission of the case,

we are presented with only the presumption of correctness of the underlying

judgment.

CONCLUSION

We affirm the trial court’s judgment.

/Nancy Kennedy/
NANCY KENNEDY
230373F.P05 JUSTICE

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

IN THE MATTER OF THE On Appeal from the 134th Judicial
EUGENE A. MCCLINTOCK District Court, Dallas County, Texas
LIVING TRUST DATED Trial Court Cause No. DC-22-06694.
JANUARY 29, 2010, Opinion delivered by Justice
Kennedy. Justices Molberg and
No. 05-23-00373-CV Breedlove participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

It is ORDERED that appellee KELLY A. CLEAVER recover her costs of
this appeal from appellant KENNETH L. MCCLINTOCK.

Judgment entered this 9th day of September 2024.

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