Patrick L Mays, Individually and in His Capacity as Former of the Estate of Maudie R Mays Davenport v. Linda Ross

IN THE TENTH COURT OF APPEALS No. 10-02-00227-CV Patrick L. Mays, individually and in his capacity as former executor of the estate of maudie r. mays davenport, Appellant v. Linda Ross, Appellee From the County Court at Law Ellis County, Texas Trial Court # 01-E-2213 MEMORANDUM Opinion Patrick Mays filed an application to probate the June 2000 will of Maudie R. Mays Davenport, Deceased. Linda Ross filed a will contest alleging that Davenport had revoked her June 2000 will by executing a holographic will in July 2001. A jury found that the July 2001 will was Davenport’s last will and testament. The trial court signed a judgment in accordance with the jury’s verdict, admitted the July 2001 will to probate, and appointed Ross as dependant administratrix of the estate with will annexed in accordance with the terms of the will. Mays appeals on five issues: (1) whether it was error for the court reporter to have not transcribed Mays’s objections to Ross’s filing of a disclaimer; (2) whether the court reporter’s error prevented Mays from presenting an issue on appeal; (3) whether Ross’s filing of a disclaimer within seven days of trial caused surprise and prejudice; (4) whether there was extrinsic fraud; and (5) whether the court has lost jurisdiction as a result of Ross’s disclaimer. We will overrule the issues and affirm the judgment. BACKGROUND Mays previously filed a motion with this court requesting abatement for a hearing in the trial court to correct inaccuracies in the reporter’s record. See Tex. R. App. P. 34.6(e). Mays contended that the reporter’s record was inaccurate because it did not reflect that he objected to Ross’s filing of a disclaimer of any interest in the estate under section 37A of the Probate Code. See Tex. Prob. Code Ann. § 37A (Vernon 2003). We abated the appeal to the trial court for a hearing on the issue. The trial court ordered the court reporter to insert Mays’s trial counsel’s objection to the disclaimer and the trial court’s overruling of that objection. As to the substance of Mays’s objection, the record, as corrected, states only that there was a bench conference off the record. Court Reporter Mays’s first two issues contend that it was error for the court reporter to have not transcribed Mays’s objections, during a bench conference, to Ross’s filing of a disclaimer and that this error prevented Mays from presenting an issue on appeal. Rule 13.1 of the Texas Rules of Appellate Procedure states in part that the official court reporter must “attend court sessions and make a full record of the proceedings unless excused by agreement of the parties.” Tex. R. App. P. 13.1. However, under these circumstances, we believe that the omission has not operated to Mays’s detriment. His objection is now in the record, and we will consider it in the appeal. We overrule these issues. Ross’s Disclaimer Mays argues in issue three that the trial court abused its discretion by allowing Ross to file a disclaimer after voir dire and before opening statements. Mays argues that filing a disclaimer is governed by Rule 63, which states that “any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter . . . shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.” Tex. R. Civ. P. 63. The disclaimer was not a “pleading” in the sense that it was a petition or answer. Id. 45. It did not seek relief from the court. Id. 47. It did not amend an earlier pleading. Id. 63. Thus, we conclude that Rule 63’s time limit did not apply to the disclaimer. Id. Accordingly, the trial court did not err by overruling Mays’s objection. We overrule this issue. Extrinsic Fraud In issue four, Mays contends that Ross’s disclaimer was ineffective and that her representations that she had never received any monetary benefits or gain from the estate were fraudulent. The basis for the assertions of fraud were facts Mays alleges he learned “subsequent to the trial.” This issue is not properly before us. Generally, the mode for obtaining equitable relief from a judgment obtained by extrinsic fraud is by bill of review. Crouch v. McGaw, 134 Tex. 633, 638, 138 S.W.2d 94 (1940). We overrule this issue. Jurisdiction Mays contends that the trial court lost jurisdiction to hear Ross’s contest of the will after she filed her disclaimer of any pecuniary interest in the estate. Mays argues that by disclaiming such interest in the will, Ross lost standing to continue the suit. However, Ross is the named executor of the holographic will. An executor may tender a will for probate. See Plummer v. Robertson, 666 S.W.2d 656, 658 (Tex. App.—Austin 1984); see also Logan v. Thomason, 202 S.W.2d 212, 215 (Tex. 1947). We overrule this issue. CONCLUSION Having overruled all of the issues, we affirm the judgment. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed November 3, 2004 [CV06]