Wilkerson v. Wilkerson

321 S.W.3d 110, 2010 WL 2221791
CourtCourt of Appeals of Texas
DecidedAugust 5, 2010
Docket01-09-00319-CV
StatusPublished
Cited by11 cases

This text of 321 S.W.3d 110 (Wilkerson v. Wilkerson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilkerson v. Wilkerson, 321 S.W.3d 110, 2010 WL 2221791 (Tex. Ct. App. 2010).

Opinions

OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Dennis J. Wilkerson, challenges the trial court’s order granting ap-pellee, Linett M. Wilkerson’s, application for a family violence protective order under section 82.002 of the Texas Family Code. See Tex. FamlCode Ann. § 82.002 (Vernon 2008). In four issues, Dennis asserts that this case is not an “appropriate case” for the issuance of a family violence protective order, the trial court’s family violence protective order “is based on argument, innuendo, and inadmissible evidence,” and there is legally insufficient evidence to support the trial court’s findings that family violence occurred in the past and is likely to occur in the future.

We affirm.

Factual and Procedural Background

Linett is the third wife of James H. Wilkerson (Jim), who died on November 11, 2003. Dennis is Jim’s son from his first marriage. In September 2004, Linett sued Dennis, asserting claims against him for breach of fiduciary duty and fraud “relating [to] the mismanagement and con[112]*112version of partnership and corporate assets of various family-owned entities.” In February 2009, Linett, the executor of Jim’s estate and the trustee of trusts for their four children, filed her application for a family violence protective order against Dennis alleging that he, in “an attempt to coerce” her into abandoning her underlying lawsuit, had made threats of bodily injury and death against her and her and Jim’s four children, Rushton, Jarod, An-driel, and Loriel. Linett attached to her application her affidavit in which she described threats made by Dennis toward her and her children as well as threats made by Robert Lee “Buddy” Williams, who Linett described as Dennis’s friend and business associate.

Dennis filed an answer, generally denying Linett’s allegations, and Dennis filed a competing application for injunctive relief. Dennis stated that the underlying lawsuit involved a complex dispute regarding the ownership and valuation of various family-owned entities. Dennis alleged that he had been business partners with his father Jim in a number of successful entities and that, following Jim’s death, Linett began threatening and harassing him and other employees of these entities. Dennis also asserted counterclaims for invasion of privacy and defamation.1

The trial court conducted a two-day hearing on Linett’s application. At the hearing, Linett testified that she had been married to Jim for sixteen years until Jim’s death from cancer in late 2003. Lin-ett explained that Jim had been diagnosed with cancer in 1996 and that she had served as Jim’s caretaker during his illness. Linett and Jim had four children together, ranging in ages from 10 to 14, at the time of Jim’s death.

Shortly after Jim’s death, Dennis came to her house to ask about her future plans. When Linett explained to Dennis that she intended to learn about the family businesses, Dennis became furious and told Linett that she had “no business” in one of the businesses, the Augusta Pines golf course. Dennis then instructed Linett to follow him to the gazebo outside, where Dennis told Linett that he ran the business. He told her that he was “a good shot,” grabbed some cans from a refrigerator in the gazebo, tossed them on the ground, pulled out a gun, and shot each of the cans. He then told Linett, “I never miss.” Linett was trembling and felt threatened, and she felt Dennis was capable of causing bodily harm to her and her children. Dennis then instructed Linett to follow him to his truck, showed her ammunition in his glove compartment, and said, “See, I always have plenty of ammunition.” Linnet went to her room and began crying, but did not call the police, explaining that it was not her nature to get law enforcement authorities involved, that this was her husband’s son, and that she was trying to prevent her children from learning that they had “a violent brother.” Linett stated, however, that she subsequently hired a private investigator, Bill Young, for safety reasons. She also testified that, after the shooting incident, she no longer allowed Dennis on the premises.

Linett further testified that in January 2004, she began working at Augusta Pines on a frequent basis to become involved in the businesses. As executor of Jim’s estate, Linett hired accountants to gather necessary financial information to probate the estate and to audit the family-owned entities. At one point, Dennis called a meeting and told Linett that she was not to “get in his way,” she had to ask him [113]*113first if she needed anything, that he would steal, cheat, and lie to get his way, and if she got in his way “something would happen” to her. Linett stated that Dennis threatened her with bodily injury over nine times while at Augusta Pines. In September 2004, after Dennis had refused her attempts to obtain financial information, she filed the underlying lawsuit.

After Linett filed the lawsuit, Williams, Dennis’s friend, came to her house twice regarding the lawsuit. During the second visit, Linett testified that Williams told her that Dennis had sent him to make her an offer of $4 million to never return to Augusta Pines and to let Dennis run the business. During this visit, Williams told her, “You do realize anything can happen to you? You can disappear and nobody will know. We can take your children hunting and there can be an accident and nobody will know what happened.” After Williams made these statements, Jarod, Linett’s son, walked toward her and Williams, and Williams invited Jarod on a hunting trip. After Jarod expressed interest, Williams turned to Linett and said, “See how easy that would be.” Linett felt like she was “dying” because she believed that Williams was threatening her children too.

Subsequently, at some point in 2005, after Linett had filed a temporary restraining order in order to get records needed as executor of the estate, Linett met with Williams at a restaurant at Williams’s request. Williams told her that he had been sent there by Dennis to act as a mediator and try to settle the lawsuit for $10 million. After Linett declined the offer, Williams told her that she was being offered a lot of money to walk away with her and her children’s lives. Linett said that she asked her investigator, Young, to come with her to the restaurant because she did not feel safe. Finally, Linett testified that in January 2009, shortly after a scheduled mediation in the underlying lawsuit had failed, she received a call from her son Jarod informing her that Williams had come to their house, drunk, with a gun, looking for her.

On cross-examination, Linett agreed that Dennis never caused her any physical harm and that she never informed law enforcement authorities of any threats. She also agreed that, after the shooting incident, she and her family visited Dennis’s home for a holiday celebration explaining that it was the first Christmas after her husband’s death and that she didn’t want to spoil her children’s Christmas traditions. Although she further agreed that she had allowed her sons to go hunting with Dennis around this time, she remembered the hunting trip as occurring shortly after Thanksgiving in early December prior to the shooting incident. She stated that Dennis had not been to her house in four to five years and that in the beginning of 2004, she made repeated trips to Augusta Pines to review records. At some point, Dennis began telling her that he was going to kick her out of Augusta Pines and that he planned to call the police.

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Wilkerson v. Wilkerson
321 S.W.3d 110 (Court of Appeals of Texas, 2010)

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Bluebook (online)
321 S.W.3d 110, 2010 WL 2221791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkerson-v-wilkerson-texapp-2010.