Kalina v. Burns (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(Hedges)
probate law: mental capacity of testator to convey real estate property, undue influence, void deed, claim of ,
jury charge error)
AFFIRMED: Opinion by
Chief Justice Hedges   
Before Chief Justice Hedges, Justices Brock Yates and Frost  
14-08-00589-CV  Larry Kalina, Diane Kalina and Clint Kalina v. Cody Will Burns, Individually and as
Administrator of the Estate of Karen Dean Burns, Deceased   
Appeal from 12th District Court of Madison County

Affirmed and Memorandum Opinion filed July 23, 2009.

In The

Fourteenth Court of Appeals

NO. 14-08-00589-CV



DECEASED, Appellee

On Appeal from the 12th District Court

Madison County, Texas

Trial Court Cause No. 06-11234-012-10

M E M O R A N D U M   O P I N I O N

Pursuant to section 73.001 of the Texas Government Code, the Texas Supreme Court has transferred this
cause from the Tenth Court of Appeals to the Fourteenth Court of Appeals.  Tex. Gov't Code Ann. § 73.001.  In
this cause, appellants, Larry Kalina, Diane Kalina, and Clint Kalina, appeal from a judgment in which the trial
court decreed, based on a jury finding, that at the time decedent Karen Dean Burns conveyed certain real
property to Larry Kalina, she lacked the requisite mental capacity to make such conveyances.  Based on that
finding, the court further decreed that the conveyance deeds were void and that all interest in the property
remained with the estate of Karen Burns, as represented by the administrator of the estate, appellee Cody Wills
Burns.  In three issues, appellants challenge the legal sufficiency of the evidence to support the jury's finding
regarding mental capacity and contend that the trial court erred in refusing to include two additional instructions
in the jury charge.  We affirm.


On November 2, 2005, Karen Burns signed a warranty deed conveying certain real property she had inherited
to Larry Kalina.[1]  On January 16, 2006, Karen signed another deed conveying additional real property to
Kalina.  In exchange for the conveyances, Karen was designated beneficiary of a $150,000 annuity, under which
she was to receive $1,000 a month for twenty years.  Also pursuant to her agreement with Kalina, Karen was
permitted to remain on the property for the rest of her life.  Karen died of an apparent suicide on November 4,
2006.  Cody Burns, in his individual capacity as Karen's son and heir and in his capacity as administrator of her
estate, filed suit seeking to set aside the deeds conveying the two tracts of property from Karen to Kalina.[2]

At trial, the primary issues were whether Karen executed the deeds as a result of undue influence from Kalina,
and whether Karen lacked the requisite mental capacity at the time she executed the deeds.  As will be
discussed in greater detail below, regarding capacity, appellee produced evidence that around the time the
deeds were executed, Karen suffered from alcoholism and mental illness.  He further produced evidence that
Karen appeared to be intoxicated at the time she signed one of the deeds and that Karen did not realize, after
signing the deeds, that she had conveyed her property.  Meanwhile, appellants produced evidence that the
notary public who notarized Karen's signatures on the two deeds would not have done so had Karen exhibited
any signs of incapacity.

In the jury charge, the trial court asked the jury (1) whether Karen Alack[ed] mental capacity at the time she
executed the deeds," and (2) whether Karen “execute[d] the deeds . . . as a result of the undue influence of
[Kalina]."  The court rejected several possible additions to the charge proposed by appellants.  The jury found
that Karen indeed lacked capacity at the time she executed the deeds but she did not do so as a result of
Kalina's undue influence.  Based on this verdict, the trial court decreed that the conveyance deeds were void
and that all interest in the property remained with Karen Burns' estate.  The trial court additionally awarded
appellee, in his individual capacity and as administrator of Karen Burns' estate, his court costs, and awarded
him, in his capacity as administrator, all necessary writs and processes for enforcement of the judgment.  The
court further ordered the consideration Kalina paid for the property returned to him.

Legal Sufficiency

In their first issue, appellants contend that the evidence is legally insufficient to support the jury's finding that
Karen lacked the requisite mental capacity at the time she executed the deeds.  We must sustain a legal
sufficiency challenge if the record demonstrates that:  (1) there is a complete absence of evidence on a vital
fact; (2) rules of law or evidence prevent the court from giving weight to the only evidence offered to prove a
vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence establishes
conclusively the opposite of the vital fact.  City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).  We
consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that
supports it.  Id. at 822.  The evidence is legally sufficient if it would enable reasonable and fair-minded people to
reach the verdict under review.  Id. at 827.  We credit favorable evidence if reasonable jurors could, and
disregard contrary evidence unless reasonable jurors could not.  See id.

The jury charge defined “mental capacity" in regards to Karen's actions as “sufficient mind and memory to
understand the nature and effect of the act in which she was engaged and the business which she was
transacting."  The law generally presumes that a person possesses the requisite mental capacity at the time of
executing a conveyance deed; thus, a party contesting such capacity must shoulder the burden of proof.  
Decker v. Decker, 192 S.W.3d 648, 652 (Tex. App.- Fort Worth 2006, no pet.). Evidence concerning capacity
either prior to or subsequent to the time of the conveyance may be relevant to the capacity issue.  Id. (citing
Haile v. Holtzclaw, 414 S.W.2d 916, 926 (Tex. 1967), et. al).  Circumstantial evidence may be relevant to proving
capacity or the lack thereof, including:  (1) the conduct of the party in question, (2) circumstances tending to
produce a particular mental condition, and (3) prior or subsequent existence of a mental condition from which a
party's capacity or incapacity at the time in question may be inferred.  In re Estate of Robinson, 140 S.W.3d 782,
793 (Tex. App.- Corpus Christi 2004, pet. denied).  The question of capacity is generally one for the jury.  See
id. at 793-94.

As mentioned above, there was considerable evidence regarding Karen's alcoholism and mental illness around
the time she conveyed her two tracts of property to Kalina.  Several people testified that they regularly saw
Karen intoxicated.  Mike Ferris testified that he had known Karen for a long time and that there came a point
when he “never saw her sober" even though he saw her almost daily.  When asked on cross examination,
however, Ferris could not recall whether he had seen Karen on the days she executed the deeds.  Charles
Baker similarly described seeing Karen on a regular basis and stated that A[e]very time [he] saw her she was
intoxicated."  He also could not say whether he saw her on the dates she executed the deeds.  Bruce Gaylor
testified that he saw Karen on a fairly regular basis, and there was only one such time that he could remember
on which she was not definitely intoxicated.  Gaylor was not asked whether he saw Karen on the days that she
executed the deeds.

Karen's longtime physician, Dr. Charles White, testified in detail about her mental condition during the time
period in which she executed the deeds.  He explained that she suffered from bipolar disorder, anxiety, and
panic attacks.  He further verified her “chronic alcoholism" and stated that she sometimes “heard voices telling
her to do things."  At one point, according to White, Karen was hospitalized for self-mutilation after she scrubbed
one of her breasts with sandpaper because voices had told her to do so.  White said that he prescribed
medications for Karen's conditions, but she refused to take them consistently.  White acknowledged that Karen's
judgment may have been coherent at times and that “there [were] times when she could perform as good as

Lanier Stevens testified that he is a preacher who knew Karen and her family.  He confirmed Karen's drinking
problem and said that at times “she would talk . . . almost out of her head. . . . [S]he had visions and dreams of
things that she would see . . . ."  He described her behavior as “erratic" and “irrational" and said that she would
sometimes fall into a “melancholy hopelessness."

Regarding the particular days on which Karen signed the deeds, Laura Nash, who worked at the front desk at
the title company where at least one of the deeds was signed, testified that she specifically remembered Karen
coming in to sign one of the deeds because the sales price was Avery, very, very low" for the amount of
property.  Nash further stated that Karen on that day was “kind of stumbly and giggly and . . . she seemed to be

Additionally, Gaylor testified that Karen came to his office at one point and started crying.  She said AI think I
made the mistake [sic] and lost my place. . . .  Larry Kalina had me sign a bunch of papers.  I don't know what all
I signed."  According to Gaylor, Karen further told him that she thought Kalina was lending her money and only
wanted the papers as security on the loan; she said “That is my home.  I would never sell it . . . ."  Ferris further
testified that when he asked Karen whether she had sold the property, after hearing that she had, she replied

The foregoing evidence tends to show that Karen suffered from persistent mental incapacity (through
intoxication and mental illness) around the time that she executed the deeds.  There was also direct evidence of
incapacity on the very day that she signed at least one of the deeds, and there was evidence that Karen did not
understand what she had done until sometime after executing the deeds.  This evidence supports the jury's
finding that she lacked the requisite mental capacity at the time of signing.  See Decker, 192 S.W.3d at 652; In
re Estate of Robinson, 140 S.W.3d at 793.

In contrast, appellants emphasize testimony by Starre McKay, the notary public who notarized Karen's
signatures on both conveyance deeds, wherein she stated that although she didn't specifically remember Karen,
she [McKay] would not have notarized the signatures if Karen had “exhibited signs of being drunk or
incapacitated."  Appellants further assert that “there was no evidence to contradict the direct testimony of Starre
McKay."  However, whether there was contradictory evidence or not, the jury, as sole judge of the credibility of
witnesses and the weight to be given their testimony, was free to discount, or disregard altogether, McKay's
testimony.  See City of Keller, 168 S.W.3d at 819-20 (“Courts reviewing all the evidence in a light favorable to
the verdict [must] assume that jurors credited testimony favorable to the verdict and disbelieved testimony
contrary to it. . . .  Jurors may disregard even uncontradicted and unimpeached testimony from disinterested
witnesses.").[3]  Based on the foregoing analysis, we find that the evidence is legally sufficient to support the
verdict.  Accordingly, we overrule appellants' first issue.

Jury Instructions

In their second and third issues, appellants contend that the trial court erred in refusing to include in the jury
charge two additional instructions relating to mental capacity.  We review a trial court's rejection of a proposed
charge instruction under an abuse-of-discretion standard.  Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.
2006).  Within that discretion, the trial court should submit instructions which are raised by the pleadings and
evidence and reasonably necessary to enable the jury to render a verdict.  See Tex. R. Civ. P. 277, 278; Shupe,
192 S.W.3d at 579.

In their second issue, appellants contend that the trial court should have submitted the following proposed
instruction:  “Unsoundness of mind at another time prior to or after the making of a deed may or may not indicate
lack of mental capacity at the time of making the deed."  Appellants do not cite any authority requiring such an
instruction in cases where a grantor's mental capacity is at issue.[4]  Although the instruction may be a logical
and correct statement, it does not appear particularly helpful to a jury, much less necessary for the jury to
render a proper verdict.  See generally Decker, 192 S.W.3d at 652 (holding that evidence relating to capacity
prior to or subsequent to the time of a conveyance may be relevant to determining the capacity of the grantor at
the time of the conveyance).  Indeed, the instruction appears to do no more than present a matter of common
sense on which it was not necessary to instruct the jury.  We further note that the jury charge properly and
specifically asked whether Karen Alack[ed] capacity at the time she executed the deeds," thus confining the
jury's consideration to the relevant time periods without necessity of an additional instruction.  Consequently, the
trial court did not abuse its discretion in rejecting this proposed instruction.  We overrule appellants' second

In their third issue, appellants contend that the trial court should have submitted the following additional
instruction: “The law presumes that the grantor of the deed had sufficient mental capacity at the time of
execution of the deed to understand his or her legal rights."  Again, appellants do not cite any authority requiring
such an instruction in mental capacity cases.  The language in question apparently came from Decker, which
appellants cited in their proposed instructions.  192 S.W.3d at 652.  The Decker court, however, makes the
quoted statement only in explaining that the burden of proof is on the party seeking to show a grantor's absence
of mental capacity as a method of setting aside a deed.  Id.  The court does not suggest that this particular
language should be included in a mental capacity jury submission.  Here, the charge as submitted already
properly placed the burden of proof regarding mental capacity on appellee.[5]  Appellants offer no explanation
as to why their proposed instruction was required in addition to the proper burden-of-proof instruction already
contained in the charge.  Accordingly, we find that the trial court did not abuse its discretion in rejecting
appellants' proposed charge instruction.  We overrule appellants' third issue.

We affirm the trial court's judgment.              

/s/      Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Yates and Frost.

[1]  Although three members of the Kalina family; Larry, Diana and Clint; are listed on the briefs and in the trial
court pleadings, only Larry Kalina is mentioned in the deeds, the jury charge, and the trial court's judgment.  
Accordingly, we will use the name “Kalina" to refer only to Larry Kalina in the remainder of this opinion.

[2]  One additional plaintiff and several additional defendants were involved at times in the proceedings below.  
None of these parties remained in the lawsuit at the time of trial; thus, they are neither party to, nor subject of,
the present appeal.

[3]  McKay acknowledged that she did not specifically remember Karen and that she would have been with
Karen for no more than five minutes.

[4]  The proposed instruction is nearly verbatim language from Smith v. Smith, 607 S.W.2d 617, 620 (Tex. Civ.
App.- Waco 1980, no writ).  However, the discussion in Smith is simply a generalized discussion of what types of
evidence might demonstrate mental incapacity; nothing in Smith suggests that the quoted language constitutes
a necessary jury instruction.  Id.

[5]  The trial court instructed the jury that:

A “Yes" answer must be based upon a preponderance of the evidence.  If you do not find that a preponderance
of the evidence supports a “Yes" answer, then answer “No."  The term “preponderance of the evidence" means
the greater weight and degree of credible evidence admitted in this case.

The court further structured the mental capacity question such that a “yes" answer by the jury meant that it
found that Karen lacked mental capacity at the time she executed the deeds.  In this fashion, the burden of proof
was placed on Burns.