in the Estate of Rodney Joe Knight
12-14-00300-CV
| Tex. App. | Apr 7, 2015Background
- Decedent Rodney Joe Knight died; appellee Roy D. Knight filed for probate of a written will and for letters testamentary on Nov. 20, 2013. A temporary restraining order issued Dec. 27, 2013 and hearings followed, including an evidentiary hearing on Jan. 7, 2014 and additional hearings through Sept. 16, 2014 when final judgment was entered.
- Appellant Natosha Moore (contestant) filed an initial handwritten Answer and Contest (Dec. 2, 2013) asserting she was the surviving spouse by informal (common-law) marriage and alleging the original will was lost/stolen or forged.
- At the Jan. 7, 2014 hearing the court considered temporary injunctive relief and the probate application; Moore testified but much of her testimony about an informal marriage was excluded under the Dead Man’s Rule (Tex. R. Evid. 601(b)) for lack of corroboration.
- Moore filed a Motion for Continuance on Jan. 7, 2014 claiming missing witnesses; the court stated it would "carry forward" the motion but proceeded to hear evidence and never formally denied the motion.
- Over the 252 days after Jan. 7, 2014, Moore did not request another evidentiary hearing, did not produce corroborating documents or witnesses (despite promising documents in her truck and a Rule 11 discovery agreement later repudiated by new counsel), and the trial court admitted the will and appointed an independent executor in the final judgment.
Issues
| Issue | Plaintiff's Argument (Moore) | Defendant's Argument (Roy Knight) | Held (as argued by Appellee/record support) |
|---|---|---|---|
| 1. Denial of Motion for Continuance | Trial court abused discretion by denying her verified motion for continuance to obtain witnesses. | Trial court never formally denied the motion; it carried the motion forward, Moore lacked diligence, affidavit failed Rule 252 requirements, and she waived error by participating. | Motion was carried (not denied); no preserved error because appellant proceeded and failed to show diligence or materiality. |
| 2. Compliance with Tex. R. Civ. P. 245 (45‑day notice for final trial setting) | Appellant contends Rule 245 was violated because Jan. 7 hearing functioned as final trial without required notice. | Jan. 7 was not a final trial setting but a hearing on temporary injunction and probate; Appellant never objected under Rule 245 in trial court and thus waived complaint. | No Rule 245 error preserved; Jan. 7 was not the first setting of a final trial. |
| 3. Denial of Due Process | Denial of continuance and proceeding to judgment deprived Moore of due process. | No ruling denying continuance was made; appellant had 8+ months to present evidence and did not; no denial of due process. | Appellee contends (and record shows) no due‑process violation because no adverse ruling was preserved and appellant failed to seek further proceedings. |
| 4. Whether informal‑marriage issue was tried by consent | Moore argues the informal‑marriage issue was not joined/triable and was tried by trial‑by‑consent (prejudicial). | Appellee notes Moore pleaded informal‑marriage claims, called witnesses on that issue at the Jan. 7 hearing, and therefore the issue was joined and tried by consent. | Record shows pleadings and testimony on informal marriage; issue was tried (or tendered) by appellant and is not preserved as a later surprise. |
Key Cases Cited
- Beaumont Bank N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991) (abuse‑of‑discretion standard for trial rulings)
- BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (standards for review of trial court discretion)
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (trial court discretion and standards for reversal)
- Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986) (continuance decision lies within trial court discretion)
- Wal‑Mart Stores, Tex., L.P. v. Crosby, 295 S.W.3d 346 (Tex. App. — Dallas 2009) (Rule 252 affidavit requirements and continuance denial)
- New York Party Shuttle, LLC v. Bilello, 414 S.W.3d 206 (Tex. App.—Houston [1st Dist.] 2013) (requirements for continuance and showing materiality of missing testimony)
- Frisch v. J.M. English Truckline, Inc., 246 S.W.2d 856 (Tex. 1952) (failure to use discovery not a basis for continuance)