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

M E M O R A N D U M O P I N I O N

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.
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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.).
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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. 
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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.
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pursuant to Texas Government Code Section 2001.1462and 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.
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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.