George Brown v. Lucy Traylor and Leona Simpson--Appeal from Probate Court No 4 of Harris County

Opinion issued November 2, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01091-CV

____________

GEORGE C. BROWN, Appellant

V.

LUCY TRAYLOR, DARRYL KEITH WALKER, PAUL WAYNE WALKER, ANTHONY C. WALKER, TERRY L. WALKER, and JAMES E. WALKER, Appellees

On Appeal from Probate Court No. 4

Harris County, Texas

Trial Court Cause No. 323,033-401

SUPPLEMENTAL OPINION ON REHEARING

On April 27, 2006, the Court issued its opinion and judgment, which affirmed the lower-court judgment in part, reversed it in part with respect to the award of attorney s fees, and remanded the cause for a determination of certain matters relating to attorney s fees. Appellant, George C. Brown ( George ), has moved for rehearing and for en banc reconsideration. The panel denies the motion for rehearing. Furthermore, a majority of the justices of this Court deny the motion for en banc reconsideration. The panel s April 27, 2006 opinion and judgment remain unchanged by this supplemental opinion, which we issue to address very briefly the opinion dissenting from the denial of en banc reconsideration.

With the exception of the dissenting justice s arguments relating to the publication of a will, virtually all of the dissenting justice s arguments fall into one of the following categories: (1) unassigned, non-fundamental error raised neither in appellant s opening brief, in his untimely reply brief, // or in his motions for rehearing or for en banc reconsideration which we are prohibited from considering; // (2) non-fundamental-error challenges that were not preserved below; // or (3) credibility determinations, which we cannot make in a factual-sufficiency review. // As for the dissenting justice s arguments concerning publication, we have already explained why the self-proving-affidavit provision of the Probate Code, upon which the dissenting justice relies, does not apply to a will (like this one) that does not contain such an affidavit. See Brown v. Traylor, No. 01-04-01091-CV, slip op. at 31 32 n.24, 2006 WL 1098265, at *11 n.24 (Tex. App. Houston [1st Dist.] Apr. 27, 2006, no pet. h.) ( The purpose of the self-proving affidavit is to relieve the will s proponent of the burden of presenting witnesses to prove the will. Its purpose is not, however, to add anything to the list of formalities required for the execution of a will. Therefore, the requirement that a self-proving affidavit contain the witnesses averment that the testator published the will to them does not alter the other provisions of section 59(a), which do not require publication of the will itself. ) (citations omitted).

Tim Taft

Justice

Panel consists of Justices Taft, Higley, and Bland.

Appellant moved for rehearing. The panel denied the motion for rehearing.

A majority of the justices of the Court voted to deny appellant s motion for en banc reconsideration. See Tex. R. App. P. 41.2(c).

Justice Keyes, dissenting from denial of en banc reconsideration.