Affirmed and Memorandum Opinion filed July 22, 2014.




                                     In The

                     Fourteenth Court of Appeals

                             NO. 14-13-00054-CV

                     BRENDALYN LANE-JONES, Appellant
                                       V.
                THE ESTATE OF ODEAN JONES, Appellee

                On Appeal from the County Court at Law No 3
                          Fort Bend County, Texas
                   Trial Court Cause No. 04-CPR-018318D


                 MEMORANDUM OPINION

      Brendalyn Lane-Jones (“Lane”) has appealed to this court asserting the trial
court erred by dismissing her petition for declaratory judgment and by failing to
grant her motion for rehearing. Because Lane has not preserved any error for our
review, we affirm.
                                  I. BACKGROUND

      In July 2012, Lane filed an Original Emergency Petition for Declaratory
Judgment. At that time, there was a contemporaneous proceeding dealing with the
administration of the Estate of Odean Jones (“Estate”). In her petition, Lane
claimed she was the spouse of the decedent, Odean Jones (“Odean”), she requested
the trial court enjoin the Estate from distributing any property, and she asked to be
considered a valid heir to the Estate, thereby entitling her to receive a share.

      Litigation and appeals concerning the Estate date back to 2000. See In re
Wilson, No. 14-12-00092-CV, 2012 WL 8017141 (Tex. App.—Houston [14th
Dist.] 2012, orig. proceeding) (mem. op.). Odean had been missing since 2000 and
was presumed dead. His wife, Renita, died in 2002. Renita’s administrator, John
Wilson, applied to probate Odean’s 1996 will in 2004. Id. Odean’s siblings
intervened, and the trial court signed an agreed judgment in 2005. The judgment
reflects the parties’ agreement that the date of Odean’s death was deemed to be
January 5, 2010, unless Odean appeared before December 4, 2009. Odean’s will
would be admitted to probate on January 5, 2010, with distributions to be made
thereafter. The trial court retained jurisdiction to resolve issues until it signed a
final order closing the Estate. Id.

      In February 2012, our court rejected a petition for writ of mandamus
wherein Wilson challenged the trial court’s denial of his motion asking that, inter
alia, it dismiss an heirship proceeding filed by another of Odean’s half-siblings.
We held that the trial court retained plenary jurisdiction over the 2005 judgment.
The trial court signed a judgment declaring heirship on August 20, 2012. See In re
Estate of Jones, No. 14-12-00864-CV, 2013 WL 85163 (Tex. App.—Houston
[14th Dist.] 2013, no pet.) (mem. op.).



                                           2
      Thus, Lane’s Original Emergency Petition for Declaratory Judgment at issue
in this appeal was but one of the disputes related to the Estate. Lane filed her
action claiming to be Odean’s spouse eight years after Wilson applied to probate
Odean’s will and one month before the court signed its judgment declaring
heirship. This was the backdrop for the September 17, 2012 hearing concerning
matters of the Estate, a transcript of which is included in the record of Lane’s
appeal.

      At the September hearing, the trial court struck Wilson’s petition to
intervene in the heirship proceeding and denied his motion to vacate the heirship
judgment. However, there is nothing in the record of the September hearing to
suggest Lane presented to the trial court either her Original Emergency Petition for
Declaratory Judgment or her own petition in intervention, to which she refers in
her brief. There is also nothing in our record to suggest that Lane, herself, asked
the trial court to vacate the judgment to consider her claim to be Odean’s true wife.

      Wilson appealed the order striking his intervention and the disposition of the
heirship proceeding to this court.    We ultimately granted Wilson’s motion to
dismiss the appeal due to settlement. Id.

      On November 29, 2012, just prior to the expiration of plenary power over
the judgment declaring heirship, the heirship parties again appeared before the trial
court. The record of the November 29 hearing is also part of the record in Lane’s
appeal; however, the matters resolved at the hearing pertain to finalizing a
modified agreement and heirship judgment as between those parties.            At the
hearing, the trial court inquired about the other case pending–Brendalyn [Lane] –
and stated:

      I asked them to be here or send me some law, and I haven’t heard
      anything from them. They were aware of the hearings and – Mr.

                                            3
       Moerer, I notice you are here in the courtroom. You haven’t heard
       anything from them?
Mr. Moerer, another attorney in the cause, indicated that he had interviewed
Ms. Lane. The trial court added:

       I told him to bring me law or show up. It’s my understanding that the
       State of California does not recognize common-law marriage at all, so
       if it was not valid to start with, it’s not valid as far as the State of
       Texas, so I feel comfortable in dismissing her claims to anything.
       The trial court signed an “Order Dismissing Original Petition for
Declaratory Judgment” on December 3, 2012, providing:

              After a hearing on this matter on November 19, 2012, counsel
       for Lane was afforded the opportunity to provide the Court with
       additional evidence and case law in support of her position. To date,
       counsel has failed to provide this Court with any additional
       information or case law in support of Lane’s position.
             It is therefore ORDERED, that the Original Petition for
       Declaratory Judgment filed by Brendalyn Lane is dismissed with
       prejudice.
       On December 7, 2012, Lane filed what she named a motion for rehearing,1
in which she urged:

       Plaintiff’s Counsel, John L. Green, did request a continuance to
       respond to the California putative position. Defendant’s attorney,
       Jerry Bussell objected to the continuance and the Court entertained his
       objection; however, the Court then stipulated Plaintiff’s Counsel is to
       be allowed time to file a response in support of his client, Brendalyn
       Lane-Jones. In addition, Plaintiff has 20 days to file for a re-hearing

       1
          While Lane named her post-judgment motion a “motion for rehearing,” the substance
of the motion sought to assail the trial court order of dismissal, asking that it be set it aside and
seeking to relitigate the issues. Thus, her “motion for rehearing” extended the appellate
timetable as would a motion for new trial, which Lane considered her motion to be. See Lane
Bank Equip. Co. v. Smith Southern Equip., Inc., 10 SW.3d 308, 314 (Tex. 1999); Phillipi v. Citi
Residential Lending, Inc., No. 10-12-00302-CV, 2010 WL 1558108 at * 3 (Tex. App.—Waco
May 15, 2013, no pet.) (mem. op.). Indeed, in her appellate brief, Lane complains of the trial
court’s denial of her motion for new trial.

                                                 4
       pursuant to Texas Government Code Section 2001.1462 and is doing
       so in a timely manner ….”
Lane did not support any of these statements with evidence from the record.
Therefore, it is impossible to decipher what was presented to the trial court.

       On appeal, Lane urges that the trial court should have granted the motion for
new trial because it failed to give her an adequate opportunity to present evidence.
To her appellant’s brief, Lane attaches her counsel’s affidavit stating he “was
asked to produce more evidence in about two weeks.” This is the first time Lane
complains the trial court dismissed her petition for declaratory relief before her
supplemental authority and evidence was due.

       First, Lane may not complain of alleged error in the trial court’s premature
dismissal of her petition because she did not make that argument to the trial court
in her motion for rehearing. Tex. R. App. P. 33.1(a). Second, Lane may not rely
upon matters attached to her brief that are not contained within the record of the
cause. See Ramex Constr. Co. v. Tamcon Servs., 29 S.W.3d 135, 138 (Tex. App.—
Houston [14th Dist.] 2000, no pet. (op. on reh’g). Thus, we must disregard not
only the affidavit which attempts to establish facts that occurred in the trial court,
but also the other pleadings not in the record here.

       Finally, Lane may not complain of alleged error in failing to grant her a
continuance to provide additional evidence because she has not brought forth a
record of the November 19, 2012 proceedings. See Tex. R. App. P. 33.1(a). We
are unable to consider error because we do not know: (a) the nature of those
proceedings; (b) the evidence, if any, adduced at such hearing; (c) the requests
made by the court or the parties at such hearing; or (d) the specifics of any ruling


       2
           It is unclear from the motion why Lane believes the Administrative Procedures Act
applies to her petition.

                                             5
made by the trial court. On this record, we simply cannot evaluate the errors Lane
alleges.

      Accordingly, we affirm the dismissal order of the trial court.



                                      /s/       John Donovan
                                                Justice



Panel consists of Justices McCally, Busby, and Donovan.




                                            6
