In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-23-00418-CV

___________________________

On Appeal from the 271st District Court

Wise County, Texas

Trial Court No. CV23-06-463

Before Birdwell, Bassel, and Wallach, JJ.

Memorandum Opinion by Justice Wallach

JAMES MCWILLIAMS, Appellant

V. 

KO CONSTRUCTION, LLC, Appellee
2

MEMORANDUM OPINION

I. Introduction

In November 2021, Appellee KO Construction, LLC sued Appellant James 

McWilliams (doing business as J & J Truck & Trailer Repair) for breach of contract, 

negligence, breach of implied warranty, and violation of the Deceptive Trade Practices 

Act (DTPA), for a bad repair job a few months before. In December 2021, the trial 

court rendered a partial default judgment for KO as to McWilliams’s liability, and on 

August 12, 2022, the trial court rendered a final default judgment, awarding KO 

damages and attorney’s fees.

Almost a year later, on June 26, 2023, McWilliams filed a petition for bill of 

review, complaining that he had received no notice of the default judgment until May 

2023. The trial court denied the petition for bill of review, and McWilliams appeals, 

asserting that the trial court abused its discretion by doing so. Because the trial court 

did not abuse its discretion by denying McWilliams’s petition, we will affirm.

II. Background

We begin with a review of McWilliams’s petition for bill of review, followed by 

KO’s answer, the trial court’s hearing, and then post-hearing proceedings.

A. McWilliams’s petition for bill of review

In his petition for bill of review, McWilliams asserted that he had never 

received notice of either the partial or final default judgment until a Wise County 

deputy delivered a copy to him on May 4, 2023, and that the trial court clerk’s 
3

attempts to provide him with notice had been unsuccessful because KO’s attorney 

had provided a “knowingly false” Rule 239a certification of his last known address1 as 

1503 Mockingbird Lane, Bridgeport, Texas 76426 (the Mockingbird address). In the

petition, McWilliams listed his address as 303 Industrial Park, Bridgeport, Texas 

76426 (the Industrial Park address).

McWilliams argued that KO’s counsel had known when she made the Rule 

239a certification that “a more recent ‘good’ address for McWilliams[] would be his 

business or shop address [the Industrial Park address] . . . because this is where [KO’s] 

private process server had successfully served [him] less than a month earlier.” He further 

stated, “That this better, more recent, and more reliable address for McWilliams was 

known to [KO’s counsel] at the time of her [Rule] 239a certification seems 

irrefutable,” referencing the e-file certificate filed by KO’s counsel that accompanied 

the process server’s completion of service.2

1

Rule of Civil Procedure 239a requires a party who obtains a default judgment 

to certify the defendant’s “last known mailing address” to the court clerk, who then 

mails written notice of the default judgment to that address. Tex. R. Civ. P. 239a; Katy 

Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 162 (Tex. 2015) (citing Tex. R. 

Civ. P. 239a).

2

McWilliams also attacked KO’s damages affidavit and argued that he was 

never served with a proper notice or demand under the DTPA or under Civil Practice 

and Remedies Code Chapter 38, and he identifies these deficiencies on appeal. We do 

not reach them because our resolution of his two primary points is dispositive. See

Tex. R. App. P. 47.1.
4

To his petition, McWilliam attached a certified copy of the trial court clerk’s 

record. It showed that on November 15, 2021, McWilliams was served; that on 

December 22, 2021, the partial default judgment was entered, and a certified copy was 

mailed to McWilliams at the Mockingbird address; and that on December 29, 2021, 

the copy was returned “not deliverable as addressed.” It also showed that the final 

judgment was rendered August 12, 2022, and mailed to McWilliams at the 

Mockingbird address; there is no corresponding notation that it was returned as not 

deliverable. However, there is a notation as to the abstract of judgment on August 18, 

2022, stating that McWilliams was “[u]nserved.”

McWilliams also attached a copy of KO’s original petition, which listed 

McWilliams’s address for service as his residence at the Mockingbird address, and 

KO’s e-filed request for issuance, which listed McWilliams as the party to be served 

and his address as the Mockingbird address. The return of service shows that 

McWilliams was served “11/15/2021 @ 10:00 AM” at the Industrial Park address.

McWilliams also attached KO’s motion for entry of partial default judgment in 

which KO stated that McWilliams’s last known mailing address was the Mockingbird 

address. And he attached KO’s motion for final judgment, which did not state 

McWilliams’s last known mailing address, and to which KO had attached its chief 

operations officer’s affidavit to support a damages award and its counsel’s affidavit to 

support an attorney’s-fee award. McWilliams further attached KO’s August 15, 

2022 e-filed request for issuance of an abstract of judgment and writ of execution, 
5

which listed McWilliams’s address as the Industrial Park address, and the abstract of 

judgment, which issued with the Industrial Park address. KO’s April 14, 2023 e-filed

request for issuance of an abstract of judgment and writ of execution listed 

McWilliams’s address as the Mockingbird address.

B. KO’s Answer

KO answered McWilliams’s petition with a general denial and specifically 

denied that any wrongful acts had occurred, stating, “McWilliams admitted to being 

successfully served in the underlying suit, yet he did not file an answer or otherwise 

make an appearance in the underlying case.”3 KO further stated, “The last known 

mailing address was provided in the Rule 239a certificate. This same mailing address is 

to this day still listed as McWilliams’ mailing address according to the Wise County 

Appraisal District’s records.” KO attached to its answer an exhibit showing a July 17, 

2023 listing on the Wise County Appraisal District’s website for J & J Truck & Trailer 

Repair’s mailing address, which was James McWilliams at the Mockingbird address.

KO also raised as affirmative defenses McWilliams’s own fault, negligence, 

conscious indifference, and laches, asserting that McWilliams had had a full and fair 

opportunity to litigate the underlying case’s merits after he was successfully served. 

KO argued that McWilliams’s petition failed because McWilliams had failed to offer 

any evidence that his own fault or negligence did not contribute to or cause the lack 

3

Despite KO’s referencing this admission, McWilliams did not seek to amend 

his petition for bill of review.
6

of notice of the default judgment when McWilliams admitted that he had been

successfully served with the citation and a copy of the original petition but did not 

explain or excuse his failure to file an answer.

C. Bill of review hearing

The trial court heard McWilliams’s bill of review on August 31, 2023.4 During 

McWilliams’s counsel’s opening statement, the trial court asked, “The citation says 

that he was served on November 15th, 2021, at 10:00 a.m., at [the Industrial Park 

address]. Is that the correct business address?” McWilliams’s counsel replied, “That is 

his business address. He says he didn’t get served.” During KO’s opening statement, 

KO’s counsel noted, “[A]s counsel chastised and warned us in . . . his own brief, the 

merits of the underlying litigation are not what’s at issue here. What’s at issue is did 

the Plaintiff in this case receive service? Did he receive notice?”

After the trial court asked McWilliams’s counsel if he intended to offer any 

testimony at the hearing, McWilliams’s counsel called McWilliams to testify. 

4

As related to McWilliams’s complaints below and as a pretrial matter, a bill-ofreview plaintiff usually must present prima facie proof to support his or her 

meritorious-defense contention. Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979). 

This preliminary showing—known as a Baker hearing—is essential “to assure the 

court that valuable judicial resources will not be wasted by conducting a spurious ‘fullblown’ examination of the merits.” Id. The record does not contain the notice of 

hearing indicating whether this hearing was identified as or intended to be a 

preliminary Baker hearing. Cf. Pope v. Perrault, No. 01-21-00648-CV, 

2023 WL 4003516, at *6 (Tex. App.—Houston [1st Dist.] June 15, 2023, no pet.) 

(mem. op.) (“The appellate record in this case shows that both hearings were noticed 

as preliminary Baker hearings.”).
7

McWilliams testified that he had moved from the Mockingbird address five years 

before (approximately August 2018), when he and his ex-wife separated. He stated 

that it remained a good address for her but not for him. And he denied that he had 

ever been served in KO’s lawsuit even though “[e]verybody knows” his shop’s 

location. He stated that the first time he was served with any paperwork was “[w]hen 

[he] got the writ of execution” in April 2023.5

During cross-examination, McWilliams testified that his current residence was 

in Decatur, that his son—who had the same name as McWilliams—lived at the 

Mockingbird address, and that his mother owned the house at the Mockingbird 

address.

KO’s counsel then asked McWilliams about a 2018 white GMC truck that was 

originally titled in his name and registered at the Mockingbird address, which 

McWilliams stated had belonged to his ex-wife, who had since died.6 He stated, “I 

don’t even have that truck anymore.” A 2010 Hyundai had originally been registered 

in his name at the Mockingbird address, but McWilliams stated that it belonged to his 

daughter, who lived in Oklahoma, and that he “believe[d] it’s running Oklahoma 

tags.” A 2003 Ford truck had been registered at the Mockingbird address, and 

5

McWilliams also testified about the merits of his defenses.

6

McWilliams did not testify about when she died.
8

McWilliams stated that it was probably registered in his name and—as to the 

Mockingbird address—“that’s where it’s sitting.”

McWilliams agreed that his business, J & J Truck & Trailer Repair, paid 

business property taxes to the Wise County Appraisal District. When asked whether 

the appraisal district mailed the notices of appraised value and tax bills to the 

Mockingbird address, McWilliams replied, “I’m assuming so. Probably. But, I mean --

hell, I don’t know.” He agreed that his business was located at the Industrial Park 

address but said that its new address was 233 State Highway 114 because “[t]he City 

of Bridgeport changed addresses because the side of the road [his business is] on is 

not in the industrial park.” McWilliams did not know whether the Comptroller’s 

Office had his business listed at the Mockingbird address—stating, “I don’t know, 

probably”—because his ex-wife had been responsible for remitting the business’s 

sales tax. He stated that he had never registered an assumed name certificate with the 

state but had done so with the county and that he had dropped his “DBA paper” 

name, stating, “I stay under J&J because that’s what everybody knows me as, but as 

far as the DBA paper, I don’t use it.”

The following dialogue then occurred:

Q. Now, have you read what your counsel wrote in this case, that 

you were served with process?

A. I wasn’t served.

Q. Okay. So you’re denying that now?
9

A. I’ve always denied it. I was not served with process. I was 

served with a writ of execution.

Q. And so you never filed -- you didn’t file an answer in the 

underlying case?

A. No.

During his redirect examination, McWilliams stated, “I’ve been served with 

nothing except that writ of execution that I got, and they called me on the phone to 

get the right address.”

On recross examination, KO’s counsel asked the trial court to take judicial 

notice of McWilliams’s verified petition for bill of review, and the trial court did so. 

KO’s counsel then directed McWilliams to the petition’s sixth paragraph, in which 

McWilliams stated that KO’s counsel “knew that a more recent good address for . . . 

McWilliams would be his business or shop address at [the Industrial Park address] 

because this is where the Plaintiff’s private process server had successfully served 

McWilliams less than a month earlier,” and to the petition’s verification, which 

McWilliams agreed that he had signed and in which he had sworn that everything in 

the document was true. After McWilliams stepped down, KO’s counsel asked the trial 

court to review “by way of judicial notice” the 2023 appraisal district information 

attached as an exhibit to its answer. The trial court reviewed the information and then 

stated, “So noted.”7

7

McWilliams never objected that KO was going outside a Baker hearing’s scope. 

Cf. Pope, 2023 WL 4003516, at *7 (“Perrault objected twice during the de novo hearing 
10

At the hearing’s conclusion, McWilliams’s counsel argued that he did not 

receive notice “and there’s nothing in the file at all to reflect that he did.” KO’s 

counsel responded that, “[I]t’s not a strict I didn’t get notice so I get a . . . get-out-ofjail-free card. It’s a I didn’t get notice, and none of this is my fault that I didn’t get 

notice.” The trial court observed, “[T]here does seem to be evidence that this business 

continues to use the Mockingbird address even now for things that have to do with 

the business, so . . . I’m going to deny the bill of review and the judgment as originally 

entered by the Court will stand.”

D. Post-hearing proceedings

In its order denying the bill of review, the trial court stated that it had 

considered “the pleadings, records, and affidavits on file” and had ruled after “having 

heard the arguments of counsel at a hearing.” In its order, the trial court gave KO 

fourteen days to prove up its attorney’s fees and stated that McWilliams would then 

have fourteen days to file a response.

On September 13, 2023, McWilliams prematurely filed a request for findings of 

fact and conclusions of law.8 See Tex. R. Civ. P. 296 (providing request for findings 

on the ground that Pope was arguing outside the scope of a Baker hearing. Thus, 

Perrault’s conduct at both hearings indicates her understanding of the limited nature 

of the preliminary hearing.”).

8

The trial court signed a final judgment with no attorney’s-fee award on 

September 9, 2023 (the judgment was filed September 19, 2023). On September 20, 

2023, the trial court sua sponte vacated it.
11

and conclusions shall be filed “within twenty days after judgment is signed”); Tex. R. 

Civ. P. 306c (stating that no request for findings and conclusions shall be held 

ineffective because prematurely filed but rather is deemed to have been filed on the 

date of but subsequent to the time of signing of the judgment).

On September 26, 2023, McWilliams filed a motion for reconsideration in 

which he argued that dismissal at a preliminary Baker hearing on any ground other 

than his failure to present prima facie proof of a meritorious defense—a question of 

law—would be reversible error and that his allegations denying proper service of 

process had to be taken as true. The trial court denied the motion.

On October 4, 2023, McWilliams filed a notice of past due findings of fact and 

conclusions of law. The trial court signed the final judgment, in which it awarded 

attorney’s fees to KO, on October 12, 2023, making McWilliams’s request for 

findings and conclusions timely, see Tex. R. Civ. P. 306c, but making his notice of 

past-due findings and conclusions untimely, see Burley v. Burley, No. 02-16-00119-CV, 

2017 WL 4542854, at *2 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem. op.) 

(“Unlike a premature request for findings of fact and conclusions of law, Rule 306c 

does not provide for deeming as timely filed a premature notice of past due 

findings.”). The trial court did not file any findings and conclusions.

III. Discussion

We begin with a review of the law before applying it to McWilliams’s facts.
12

A. Bill of review

A bill of review is a method to attack a default judgment. See PNS Stores, Inc. v. 

Rivera, 379 S.W.3d 267, 275 (Tex. 2012). We review a trial court’s ruling on a bill of 

review for an abuse of discretion. York v. Cooper-York, No. 02-20-00356-CV, 

2021 WL 2753527, at *4 (Tex. App.—Fort Worth July 1, 2021, pet. denied) (mem. 

op.) (explaining that under the abuse-of-discretion standard, the court inquires as to 

whether the trial court acted without reference to any guiding rules or principles, i.e., 

whether its act was arbitrary or unreasonable).

As we have previously explained,

A bill of review functions as “an independent equitable proceeding 

brought by a party to a former action who seeks to set aside a judgment 

that is no longer subject to challenge by appeal.” To protect finality of 

judgments, “the petitioner’s burden is heavy[,] and the grounds on which 

relief may be obtained by a bill of review are narrow and defined.”

Id. (citations omitted). That is, “[t]he fact that an injustice might have occurred is not 

sufficient to justify relief by bill of review.” Sparlin v. Gomez, No. 02-20-00236-CV, 

2021 WL 4205058, at *1 (Tex. App.—Fort Worth Sept. 16, 2021, no pet.) (mem. op.). 

In reviewing the denial of a bill of review, every presumption is indulged in favor of 

the trial court’s ruling, which will not be disturbed unless an abuse of discretion is 

affirmatively shown. Id.

A bill-of-review plaintiff must ordinarily plead and prove (1) a meritorious 

defense to the underlying cause of action; (2) which the plaintiff was prevented from 

making by the fraud, accident, or wrongful act of the opposing party or official 
13

mistake; (3) unmixed with any fault or negligence on the plaintiff’s own part. York, 

2021 WL 2753527, at *4; see WWLC Inv., L.P. v. Miraki, 624 S.W.3d 796, 799 (Tex. 

2021) (stating same). As mentioned above, as a pretrial matter, a bill-of-review 

plaintiff must present prima facie proof to support his or her meritorious-defense 

contention. Baker, 582 S.W.2d at 408. A prima facie meritorious defense—a question 

of law for the court—is made out when it is determined that the bill-of-review 

plaintiff’s defense is not barred as a matter of law and that he or she will be entitled to 

judgment on retrial if no evidence to the contrary is offered. Id. at 408–09. If the court 

determines that a prima facie meritorious defense has not been made out, the 

proceeding terminates, and the trial court shall dismiss the case. Id. at 409.

If a prima facie meritorious defense is shown, the court will conduct a trial. Id.

At trial, the bill-of-review plaintiff has the burden to prove that the judgment was 

rendered as a result of the fraud, accident, or wrongful act of the opposite party or 

official mistake unmixed with any negligence of his or her own. Id. (noting that the 

less onerous standard for a movant in a timely filed motion for new trial “is justified 

inasmuch as the judgment has yet to become final and only a brief period of time has 

elapsed since its rendition”). The bill-of-review defendant has the burden to prove his 

or her original cause of action. Id.

However, a bill-of-review plaintiff claiming no service is relieved of the 

obligation to prove the first two elements because a judgment rendered without 

notice is constitutionally infirm regardless of whether the bill-of-review plaintiff has a
14

meritorious defense or was prevented from making it. Nussbaum v. Builders Bank, 

478 S.W.3d 104, 108 (Tex. App.—Fort Worth 2015, pet. denied) (op. on reh’g); see

Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012) (explaining that a 

bill-of-review plaintiff claiming a due-process violation for no service or notice is 

relieved of proving the first two elements and the third element—lack of 

negligence—“is conclusively established if the bill-of-review plaintiff can prove it was 

never served with process” (emphasis added)).

Accordingly, when a bill-of-review plaintiff alleges a lack of service, the twostep Baker procedure is slightly modified for that claim. Caldwell v. Barnes, 154 S.W.3d 

93, 96–97 (Tex. 2004). Because proof of non-service conclusively negates a plaintiff’s 

fault or negligence, the question of service is properly resolved at trial and not by the 

trial court in a pretrial proceeding if the material facts are disputed. Id. at 97. Thus, 

when a plaintiff seeks a bill of review based solely on a claim of non-service,9 the trial 

court should (1) dispense with any pretrial inquiry into a meritorious defense; (2) hold 

a trial, at which the bill-of-review plaintiff assumes the burden of proving that he was 

not served with process, thereby conclusively establishing a lack of fault or negligence 

in allowing a default judgment to be rendered; and (3) conditioned upon an 

9

Our sister court has noted that when a bill-of-review petition alleges nonservice as well as claims of meritorious defenses, the trial court may conduct a 

preliminary hearing on the meritorious defenses before—if the plaintiff shows a prima 

facie meritorious defense—reaching the fact question of service at trial. Pope, 

2023 WL 4003516, at *8 (“[A] petitioner is not required to establish prima facie proof 

of a claim of non-service to proceed to trial on that claim.”).
15

affirmative finding that the bill-of-review plaintiff was not served, allow the parties to 

revert to their original status as plaintiff and defendant with the burden on the original 

plaintiff to prove his or her case. Id. at 97–98.

However, a bill-of-review plaintiff who is not served with process because of 

his own fault or negligence is not entitled to relief in an equitable bill of review. 

Nussbaum, 478 S.W.3d at 109. For example, a bill-of-review plaintiff may be negligent 

by failing to update the Secretary of State with the address for its registered agent and 

registered office for service of process. See Campus Invs., Inc. v. Cullever, 144 S.W.3d 

464, 466 (Tex. 2004). But a bill-of-review plaintiff’s failure to receive notice of a 

default judgment because of his opponent’s knowing use of an outdated address in its 

Rule 239a certificate of last known address does not necessarily constitute negligence 

or fault attributable to the bill-of-review plaintiff so as to preclude him from 

establishing the third bill-of-review element. Nussbaum, 478 S.W.3d at 109 (citing Katy 

Venture, Ltd., 469 S.W.3d at 163).10

10In Katy Venture, the petitioners filed a petition for bill of review after a noanswer default judgment, alleging both that they did not receive actual service of 

process and that they did not receive timely notice of the default judgment because 

they had failed to update their registered address with the Secretary of State’s office. 

469 S.W.3d at 162. They also complained that the respondent had failed to properly 

certify their last known mailing address because the respondent had actual notice of 

their current address but certified their old registered address. Id. The respondent 

attempted to serve the petitioners through their registered agent, and the citation was 

returned “not deliverable as addressed” and “unable to forward,” and the 

respondent’s process server was similarly unsuccessful; the respondent then served 

process by mail on the Secretary of State as the petitioners’ agent, which sent the 

notice to the same outdated registered address. Id.
16

B. Analysis

McWilliams complains that the trial court abused its discretion by denying his 

petition for bill of review because the August 31, 2023 hearing was not noticed at least 

forty-five days before the hearing date, making the hearing’s purpose and scope 

limited to that of a Baker hearing, and that the trial court exceeded the Baker hearing’s 

scope by weighing competing evidence.

11

The supreme court held that the trial court should not have granted summary 

judgment in the respondent’s favor when the petitioners had presented some evidence 

that their failure to receive notice of the default judgment resulted solely from the 

respondent’s failure to properly certify their “last known mailing address”—when it 

knew their actual current mailing address—and not from any negligence or fault on 

the petitioners’ part. Id. at 162–64. The petitioners also sufficiently raised a fact issue 

as to whether their negligent failure to update their registered address had contributed 

to their failure to receive notice of the default judgment. Id. at 164.

11We agree with KO’s assertion that McWilliams’s brief is “difficult to follow as 

a result of its contradictions, the jumbling of the applicable test, and sparse citations 

to the record.” For example, during a nine-page blending of the statement of the case, 

the statement of facts, and legal argument, cf. Tex. R. App. P. 38.1(d), (g), McWilliams 

posits, “What does any of this have to do with the case that is now before this 

Honorable Court on appeal? That’s the $44,000.00 question and it’s coming up 

shortly so bear with and hang on.” Cf. Tex. R. App. P. 38.1(d), (g)–(i) (requiring briefs to 

state “concisely the nature of the case,” “concisely and without argument the facts 

pertinent to the issues or points presented,” and “a clear and concise argument for the 

contentions made”).

McWilliams’s statement of points identifies two specific points of error: “The 

trial court erred in denying [his] Petition for Bill of Review” and “The trial court erred 

in weighing any of Appellee’s controverting evidence at the preliminary Baker hearing 

on [his petition] because for Purposes of the Preliminary Baker Hearing, only 

questions of law are considered, matters for the finder of fact are left for trial.” He 

makes a variety of arguments in support of these two points. Based on our resolution 

below, we do not reach all his arguments. See Tex. R. App. P. 47.1 (“The court of 
17

We begin with McWilliams’s complaint about lack of forty-five days’ notice of 

a merits hearing under Rule of Civil Procedure 245. Rule 245 provides, in pertinent 

part, that “[t]he [c]ourt may set contested cases on written request of any party, or on 

the court’s own motion, with reasonable notice of not less than forty-five days to the 

parties of a first setting for trial, or by agreement of the parties.” Tex. R. Civ. P. 245. 

A party must timely and specifically object to the insufficiency of notice to preserve 

that complaint for review. In re V.B., No. 02-17-00318-CV, 2018 WL 771976, at 

*4 (Tex. App.—Fort Worth Feb. 8, 2018, no pet.) (mem. op.). Instead of objecting to 

the lack of notice,12 McWilliams’s counsel stated, “[Y]es, we’re ready to proceed.” 

McWilliams has waived his Rule 245 complaint, see id.; see also Tex. R. App. P. 33.1, 

and we overrule this portion of his two points.

We next consider McWilliams’s complaint that the trial court’s denial of his 

petition rested on its improper weighing of controverting evidence. McWilliams relies 

on Pope to support his argument. As set out below, Pope is inapposite.

In 2018, Pope lost managing conservatorship of her child after the child’s 

paternal grandmother, Perrault, allegedly forged Pope’s signature on an agreed order. 

appeals must hand down a written opinion that is as brief as practicable but that 

addresses every issue raised and necessary to final disposition of the appeal.”).

12We will assume, for the sake of argument, that there was an insufficient fortyfive days’ notice because the record does not contain any setting notices. We 

nonetheless note that the record shows that McWilliams filed his petition on June 26, 

2023; that KO was served with citation on June 30, 2023; and that the hearing was 

held on August 31, 2023—over forty-five days after KO was served.
18

2023 WL 4003516, at *1–2. Pope filed a pro se notice of appeal but then did not 

pursue the appeal; she also filed a motion for new trial, which the trial court denied. 

Id. at *2. In 2021, with the assistance of counsel, Pope filed a petition for bill of 

review, alleging that she had not been served with process in the underlying suit and 

raising two meritorious defenses—that Perrault had lacked standing and that Perrault 

had failed to overcome the fit-parent presumption. Id. She also alleged that Perrault 

had engaged in extrinsic fraud by forging her signature on the order and that she was 

neither at fault nor negligent in the order’s entry. Id.

Three days after Pope filed her petition, the trial court entered an order setting 

“a preliminary hearing under Baker v. Goldsmith” to determine whether Pope could 

make a prima facie showing of a meritorious defense. Id. at *3. At the hearing’s 

beginning, Pope’s counsel outlined the hearing’s purpose as “specifically just to show 

the prima facie case in order to proceed to trial on the remaining Bill of Review 

grounds of fraud and lack of negligence, on the lack of service.” Id. The only evidence 

at the hearing was the new-trial hearing’s transcript, which Perrault introduced 

without objection. Id. The associate judge recommended denying the bill of review 

because Pope had failed to pursue her direct appeal. Id. Pope filed a motion for a de 

novo preliminary hearing, arguing that the associate judge’s ruling had fallen outside 

the Baker hearing’s scope. Id.

At the de novo hearing’s beginning, Pope once more reiterated that the hearing 

was limited in scope to her meritorious-defense issue. Id. At the hearing’s conclusion, 
19

the trial court denied the bill of review based on an insufficient showing of no 

negligence on Pope’s part. Id. In a motion for new trial, Pope argued that the trial 

court had erred by—among other things—making findings outside the Baker

hearing’s scope and by violating her right to due process by converting the 

preliminary hearing into a trial on the merits without notice. Id. The trial court denied 

the motion after hearing arguments, noting that it “didn’t make a determination that 

we were having a limited scope or an open, full-scope hearing.” Id. at *4.

Our sister court observed that courts ordinarily “use a two-step inquiry when 

deciding a bill of review that is not based on a claim of non-service,” with the first 

step a pretrial Baker prima-facie-meritorious-defense hearing, while for claims of nonservice, the court should skip the first Baker step and proceed directly to trial under 

the second step. Id. at *5–6 (quoting Caldwell, 154 S.W.3d at 97–98). Because both the 

hearing before the associate judge and the de novo hearing were noticed as 

preliminary Baker hearings, the court concluded that the hearing notices did not 

apprise Pope that the court was holding a trial on the merits, and the evidence 

submitted at the hearing was at least partially relevant to the meritorious-defense 

issues. Id. at *7. And the trial court did not conduct the de novo hearing in accordance 

with the usual order of proceedings for a trial, “which begins with the parties making 

opening statements followed by the introduction of evidence by the party ‘upon 

whom rests the burden of proof on the whole case.’” Id. (quoting Barnes v. Deadrick, 
20

464 S.W.3d 48, 58 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (quoting Tex. R. 

Civ. P. 265)).

The court concluded that only the meritorious defenses should have been at 

issue in the preliminary hearing with the service claim reserved for the trial before the 

factfinder. Id. at *8. To the extent the trial court had dismissed the bill-of-review 

petition on a ground other than lack of prima facie proof of a meritorious defense, it 

had exceeded the preliminary Baker hearing’s scope, and therefore Pope’s non-service 

claim was not ripe for dismissal. Id. at *8, *10. As Pope had also provided prima facie 

proof of two meritorious defenses (standing and the fit-parent presumption), the 

court held that the trial court had erred by dismissing her bill of review on those 

grounds as well, reversed the judgment dismissing her bill of review, and remanded 

the case for further proceedings. Id. at *10–14.

The instant case is entirely dissimilar. The record contains no orders expressly 

setting the hearing as a Baker hearing. Cf. id. at *3. McWilliams’s counsel announced 

ready and then—in his opening statement—asserted that McWilliams had not been 

served,13 while KO’s counsel—in his opening statement—also addressed the service 

issue, placing the question squarely before the trial court. Although McWilliams’s 

13McWilliams’s counsel stated, “Although the file reflects service, he says he 

wasn’t served.” We note that if this had been a Baker hearing, McWilliams should not 

have addressed service at all and should have attempted to restrict the hearing to his 

meritorious defenses and should have objected when the trial court and opposing 

counsel went beyond them.
21

counsel did refer to the hearing as an “initial hearing” and state that disputed facts 

“are resolved in favor of the petitioning party if they have a question of fact,” when 

the trial court asked him if he intended to offer any testimony, he called McWilliams

to testify.

The record shows that the trial court skipped the first Baker step and proceeded 

to trial on the second step, with the attendant order of proceedings—opening 

statements and evidence put on by McWilliams as the party with the burden of 

proof—and no one objected. See Lemons v. EMW Mfg. Co., 747 S.W.2d 372, 373 (Tex. 

1988) (explaining that bill-of-review plaintiff failed to preserve its complaint that the 

trial was merely a Baker hearing when—once it was clear that the trial court intended 

to proceed with a trial—he failed to move for a continuance or to otherwise object); 

cf. Nava v. Schmidt, No. 04-22-00686-CV, 2023 WL 7005843, at *6–8 (Tex. App.—San 

Antonio Oct. 25, 2023, pet. denied) (mem. op.) (reversing denial of bill of review 

when disputed material facts on lack of notice determined the applicable procedure 

but “[t]he trial court did not call for opening statements, ask about witnesses, discuss 

exhibits to be offered, or otherwise state or indicate this was the beginning of a trial 

on the merits”); Pope, 2023 WL 4003516, at *7.

Further, based on the inconsistencies between McWilliams’s sworn petition and 

his testimony at the hearing,

14 the trial court could have reasonably concluded that 

14As factfinder, the trial court was the sole judge of witness credibility. See

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
22

McWilliams had actually been served or that McWilliams had failed to meet his 

burden to show that his own fault or negligence did not contribute to his alleged lack 

of service.

15 See Nussbaum, 478 S.W.3d at 109 (stating that a bill-of-review plaintiff 

who is not served with process because of his own fault or negligence is not entitled 

to relief).

Specifically, McWilliams admitted in his verified petition that he was 

successfully served with citation (corroborated by the return of service) but then 

denied under oath at the hearing that he had ever been served. See Sparlin, 

2021 WL 4205058, at *4 (upholding denial of petition for bill of review when plaintiff 

“created a demonstrable falsity”). The trial court also took judicial notice of the 

2023 appraisal district information attached to KO’s answer, which listed the mailing 

15McWilliams argues that we should apply a five-factor test from McDaniel v. 

Hale, 893 S.W.2d 652, 659 (Tex. App.—Amarillo 1994, writ denied) (op. on reh’g) 

(citing Hanks v. Rosser, 378 S.W.2d 31, 34 (Tex. 1964)), but those factors apply to a 

petition for bill of review when the defendant has been denied the opportunity to file 

a motion for new trial because of opposing counsel’s error. Per Hanks, as restated in 

McDaniel, a bill-of-review plaintiff could succeed by alleging and proving: (1) a failure 

to file a motion for new trial; (2) that he was prevented from filing by the 

misinformation of an officer of the court acting within his official duties; (3) the 

failure to answer was not intentional or the result of conscious indifference; (4) a 

meritorious defense; and (5) no injury will result to the opposite party by granting the 

bill of review. Id. (citing Hanks, 378 S.W.2d at 34–35).

While McWilliams tried to fit his facts under this standard, we think the 

applicable standard here is the one set forth under Caldwell because McWilliams’s 

primary disputed issue at the hearing was whether he was served at all. Further, in 

light of the evidence presented at the hearing, the trial court could have reasonably 

concluded that opposing counsel had committed no error by using the Mockingbird 

address, making the McDaniel test inapplicable.
23

address for J & J Truck & Trailer Repair as James McWilliams, at the Mockingbird 

address, and McWilliams did not object to the trial court’s taking judicial notice. The 

trial court was in the best position to determine which of McWilliams’s assertions to 

believe, and because McWilliams failed to timely file a notice of past due findings and 

conclusions, we must presume that the trial court made all the necessary findings to 

support its judgment. See Lemons, 747 S.W.2d at 373.

Based on the above, we conclude that the trial court did not abuse its discretion 

by denying McWilliams’s petition for bill of review, and we overrule the remainder of 

his two points without reaching his other arguments.16 See Tex. R. App. P. 47.1.

IV. Conclusion

Having overruled both of McWilliams’s points, we affirm the trial court’s 

judgment.

16That is, McWilliams’s own fault or negligence defeated his right to relief 

despite his raising what he characterized as meritorious defenses. See Lemons, 

747 S.W.2d at 373. And to the extent he adequately briefed a due-process complaint

regarding the preliminary-Baker-versus-trial distinction or related complaints, his 

failure to object in the trial court means it is not preserved for our review. See Tex. R. 

App. P. 33.1; Bowman v. KWA202, LLC, No. 02-22-00216-CV, 2023 WL 2607754, at 

*2 (Tex. App.—Fort Worth Mar. 23, 2023, no pet.) (mem. op.) (holding due-process 

complaint was both inadequately briefed and forfeited for lack of preservation 

because it was not raised in the trial court).
24

/s/ Mike Wallach

Mike Wallach

Justice

Delivered: August 22, 2024