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Click here for the full text of this decision FACTS:Raymond Harold Head was married to Joy Works from 1964 until her death in 1979. They had two daughters: Marla and Lori Anne. Raymond married Delores Alford on Nov. 2, 1996. Raymond died on Feb. 13, 2003. A week after Raymond’s death, Dale Works sought to probate Raymond’s purported will, which was executed Jan. 31, 1996. The will named Dale as the independent executor, and gave Marla one-half of the estate, and gave Lori and her son one-fourth of the estate, each. The will did not leave anything for Delores. Delores protested the petition to probate. She sent Dale a request for admissions, which Dale did not answer within the allowable time. Consequently, Delores filed a motion for summary judgment stating that the requests for admission were deemed admitted, and that Raymond died intestate. Dale’s response to the motion was to answer the requests for admissions. Dale admitted some answers, denied some, and wrote that he was unable to admit or deny that Raymond removed his will from his safety deposit box prior to his death. The trial court granted Delores’ motion for summary judgment on Oct. 20, 2003. Works filed a motion for reconsideration on Nov. 24. The motion did not specifically ask to withdraw the deemed admissions. Marla filed a motion for substitution of counsel on Jan. 4, 2004, the same day Dale filed an amended motion for new trial, which this time included a motion to withdraw the deemed admissions. Both of these motions were filed by the same attorney. The motion for new trial was overruled by operation of law, so Marla, Lori Anne and Clayton filed this restricted appeal. Delores argues that these beneficiaries cannot appeal. HOLDING:Appeal dismissed. The court confirms that under Texas Rule of Appellate Procedure 30, to be successful on a restricted appeal, the beneficiaries have to show: 1. the notice of restricted appeal must be filed within six months after judgment is signed; 2. by a party to the lawsuit; 3. who did not participate in the hearing that resulted in the judgment complained of; 4. who did not file a timely post-judgment motion or request for findings of fact and conclusions of law; and 5. error must be apparent on the face of the record. The court finds no dispute over either of the first two requirements. As far as the third element, the court agrees with Delores’ contention that Marla, Lori Anne and Clayton should be considered to have participated in the proceedings under the doctrine of “virtual representation.” There is no evidence that Dale’s interests were adverse to the beneficiaries, especially since Dale � as the independent executor of Raymond’s estate � had a statutory and fiduciary duty to protect their interests. On the fourth element, the court finds that because it has determined that the parties were represented at the proceedings below under the doctrine of virtual representation, Dale’s timely filing of a “Motion To Reconsider” may similarly be imputed to all the beneficiaries as post-judgment conduct that acts to preclude this restricted appeal under Rule 30. Additionally, the motion to substitute counsel that the beneficiaries filed was timely filed as well. Based on its findings on the third and fourth elements, the court finds it unnecessary to address the fifth element. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

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