In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00421-CV
IN RE ESTATE OF GARY MARK MCQUIGG, DECEASED
On Appeal from the 222nd District Court
Deaf Smith County, Texas
Trial Court No. CI-15B-024, Honorable Roland D. Saul, Presiding
October 20, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Steven Holmes filed an application to probate a will purporting to be the act of the
decedent, Gary Mark McQuigg, dated April 26, 2013. The trial court conducted a bench
trial and, following the receipt of testimony, denied the application to admit the will to
probate and entered a final declaratory judgment declaring that the purported will was a
product of fraud. Holmes gave notice of appeal and subsequently filed a motion for new
trial, and an amended motion for new trial, contending that he had newly-discovered
evidence. After conducting a hearing on Holmes’s motion for new trial, the trial court
denied the same. Holmes now appeals, contending that the newly-discovered
evidence, a Texas driver’s license and social security card issued in the name of the
decedent, was sufficient to entitle him to a new trial. Further, Holmes contends that the
newly-discovered evidence was sufficient evidence to demonstrate that the April 26,
2013 document was the last will and testament of the decedent. Disagreeing with
Holmes, we will affirm the judgment denying the application and granting the declaratory
judgment.
Factual and Procedural Background
McQuigg died on May 7, 2013. Following his death, an application for letters of
administration was filed, followed by an application to probate the will dated April 26,
2013, and then followed by an application to probate a will dated August 21, 2001. After
the filing of the application for letters of administration and the application to probate the
competing wills, the case was transferred from the County Court of Deaf Smith County
to the 222nd District Court of Deaf Smith County. All causes of action involving the
decedent’s estate were consolidated into one cause of action. All of the various
applications were contested by the other applicants.
After mediation was ordered, the applicant for letters of administration withdrew
her application and her opposition to the probate of the August 21, 2001 will. Likewise,
the opposition to the 2001 will was withdrawn by one of the other contestants. The
result was that the trial was held on the application by Holmes for probate of the April
26, 2013 will; the application for probate of the August 21, 2001 will; and the declaratory
judgment action seeking a declaration that the April 26, 2013 will was the product of
fraud.
Trial was held before the court, without a jury, on October 14, 2015. At that trial,
only the application submitted by Holmes to probate the 2013 will was tried. On
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October 20, 2015, the trial court severed the various causes and entered two orders
and a declaratory judgment. The trial court entered a declaratory judgment finding that
the 2013 will was fraudulent, invalid, contained forged signatures, and could not be
admitted to probate. Holmes filed a motion for new trial and an amended motion for
new trial.
The trial court held a hearing on Holmes’s new trial motion. After hearing the
evidence and argument of counsel, the trial court denied the motion. The trial court’s
order denied any relief requested by Holmes and left standing the order admitting the
2001 will to probate, denying the probate of the 2013 will, and granting the declaratory
judgment. It is from this order that Holmes appeals.
After Holmes filed his notice of appeal, this Court admonished Holmes in a letter
dated April 5, 2016, that the reporter’s record had not been requested or payment made
for the same. We further advised Holmes that “the Court will only consider and decide
those issues or points raised that do not require a reporter’s record.” To date, no
reporter’s record has been provided to the Court.
Holmes contends that there is newly-discovered evidence that entitles him to a
new trial and, further, that the evidence establishes that the April 26, 2013 will is, in fact,
the last will and testament of the decedent. Disagreeing with Holmes for the reasons
set forth below, we will affirm the judgment of the trial court in denying the motion for
new trial.
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Standard of Review and Applicable Law
We review a trial court’s refusal to grant a motion for new trial under an abuse of
discretion standard. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex.
2009) (per curiam). A trial court abuses its discretion when it acts in an unreasonable or
arbitrary manner without reference to any guiding rules and principles. See K-Mart
Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam).
“A party seeking a new trial on grounds of newly-discovered evidence must
demonstrate to the trial court that (1) the evidence has come to its knowledge since the
trial, (2) its failure to discover the evidence sooner was not due to lack of diligence, (3)
the evidence is not cumulative, and (4) the evidence is so material it would probably
produce a different result if a new trial were granted.” Waffle House, Inc. v. Williams,
313 S.W.3d 796, 813 (Tex. 2010). The mere allegation of newly-discovered evidence
will not suffice to require the granting of a new trial; rather, the movant must introduce
admissible evidence at the hearing on the motion for new trial establishing all of the
requisite elements for newly-discovered evidence. See Bell v. Showa Denko K.K., 899
S.W.2d 749, 757 (Tex. App.—Amarillo 1995, writ denied).
Analysis
We begin our analysis with the reminder that Holmes did not request that the
court reporter prepare and file a record of the testimony at the motion for new trial
hearing. This is an immediate problem for Holmes; for without a record before us, we
cannot ascertain whether sufficient evidence was presented to prove the elements of a
motion for new trial on the grounds of newly-discovered evidence. See Waffle House,
Inc., 313 S.W.3d at 813. Likewise, all we are left with are the allegations contained in
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Holmes’s brief, and this is not sufficient to carry his burden. See Bell, 899 S.W.2d at
757. Accordingly, we cannot find that the trial court abused its discretion in denying
Holmes’s motion for new trial. See Dolgencorp of Tex., 288 S.W.3d at 926. We
therefore overrule both of Holmes’s issues presented in this appeal.
In an effort to try to overcome the shortcomings outlined above, Holmes attached
an appendix to his brief. The appendix contains the purported deposition of R.C.
Hoelscher and matters related to that deposition. Hoelscher was Holmes’s original
attorney and the original applicant to probate the April 26, 2013 will. Holmes’s brief
alleges that this deposition testimony proves the matters averred to in the brief
regarding the newly-discovered evidence. However, there is a significant problem to
our consideration of this information. Hoelscher’s deposition appears nowhere in the
appellate record before this Court. We may not consider matters that are not contained
in the appellate record of the case before the Court. See Fox v. Alberto, 455 S.W.3d
659, 668 n.5 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Therefore, we will not
consider the deposition attached in the appendix of Holmes’s brief.
Conclusion
Having overruled each of Holmes’s issues on appeal, we affirm the judgment
entered by the trial court.1
Mackey K. Hancock
Justice
1
Pending before the Court is the request by the appellees to sanction Holmes for filing a frivolous
appeal. See TEX. R. APP. P. 45. The decision to impose sanctions is left to the sound discretion of the
Court. See Lane-Valente Indus, Inc. v. J.P. Morgan Chase, N.A., 468 S.W.3d 200, 207 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). We decline to exercise that discretion and deny the request for
sanctions.
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in Re Estate of Gary Mark McQuigg
Combined Opinion