in Re Estate of Gary Mark McQuigg
07-15-00421-CV
| Tex. App. | Oct 20, 2016Background
- Decedent Gary Mark McQuigg died May 7, 2013; competing applications sought probate of a purported will dated April 26, 2013 and an earlier will dated August 21, 2001.
- Steven Holmes filed to probate the April 26, 2013 will; other contestants opposed and proceedings consolidated and transferred to district court.
- Bench trial on Holmes’s 2013 will application occurred; the trial court found the 2013 document fraudulent, containing forged signatures, and denied its probate, admitting the 2001 will.
- Holmes moved for a new trial based on allegedly newly-discovered evidence (a Texas driver’s license and Social Security card in the decedent’s name); the trial court held a hearing and denied the motion.
- On appeal Holmes argued the new evidence warranted a new trial and that the 2013 document was the decedent’s last will; no reporter’s record from the new-trial hearing was provided to the appellate court.
- The appellate court affirmed, holding Holmes failed to show the trial court abused its discretion and declined to consider deposition material not in the appellate record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether newly-discovered evidence (DL and SS card) entitled Holmes to a new trial | The documents were discovered after trial, were non-cumulative, and would probably change the outcome | Trial court acted within discretion; Holmes failed to prove elements for new trial and record of hearing was not provided on appeal | Denied — appellate court affirmed denial of new trial for lack of adequate record and because Holmes did not meet the burden on newly-discovered evidence |
| Whether the April 26, 2013 document is the decedent’s last will | The new evidence supports authenticity and thus probate of the 2013 will | 2013 document found fraudulent and forged; insufficient admissible proof on appeal | Denied — probate of the 2013 will remains rejected; 2001 will admitted |
Key Cases Cited
- Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922 (Tex. 2009) (abuse of discretion review for denial of new trial)
- Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010) (elements required to obtain new trial for newly-discovered evidence)
- Bell v. Showa Denko K.K., 899 S.W.2d 749 (Tex. App.—Amarillo 1995) (party must introduce admissible evidence at motion-for-new-trial hearing to prove newly-discovered evidence)
- Fox v. Alberto, 455 S.W.3d 659 (Tex. App.—Houston [14th Dist.] 2014) (appellate court may not consider matters not in the appellate record)