                                   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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