Opinion issued August 18, 2020

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-01060-CV

———————————

LAVERNE NATALIE DAILEY, INDEPENDENT EXECUTRIX OF THE 

ESTATE OF RUTH CARTER CARROLL, DECEASED, Appellant

V.

ALMA MCAFEE, INDEPENDENT ADMINISTRATRIX OF THE ESTATE 

OF CARL M. CARROLL, JR., DECEASED AND ROBERT MAE MCAFEE, 

DECEASED, FORMER INDEPENDENT EXECUTRIX OF THE ESTATE 

OF CARL M. CARROLL, JR., DECEASED, Appellees

On Appeal from Probate Court No. 2

Harris County, Texas

Trial Court Case No. 297,526-402

MEMORANDUM OPINION

Appellant Laverne Natalie Dailey, Independent Executrix of the Estate of 

Ruth Carter Carroll, Deceased (“Dailey”), is appealing the probate court’s granting 
2

of the petition for bill of review filed by appellees Alma McAfee, Independent 

Administratrix of the Estate of Carl M. Carroll, Jr., Deceased and Robert Mae 

McAfee, Deceased, former Independent Executrix of the Estate of Carl M. Carroll, 

Jr., Deceased (“McAfee” or “Alma McAfee”). In four issues, Dailey argues that (1) 

the probate court did not have subject matter jurisdiction over McAfee’s bill of 

review proceeding because McAfee did not have standing to bring an equitable bill 

of review challenging the default declaratory judgment rendered in Dailey’s favor, 

(2) the probate court erred by concluding that it did not have subject matter 

jurisdiction over the declaratory judgment action and granting the bill of review on 

that basis, (3) the trial court erred by not conducting a trial on the merits before 

granting the bill of review, and (4) McAfee did not meet the mandatory elements to 

be entitled to the granting of an equitable bill of review.

1 We reverse the trial court’s 

judgment and remand for further proceedings consistent with this opinion.

Background

On June 21, 1983, Carl M. Carroll, Jr. (Carl) and Ruth Carter Carroll (Ruth) 

were divorced in Cause Number 1982-29693; In the Matter of the Marriage of Ruth 

Natalie Carter Carroll and Carl M. Carroll, Jr., in the 257th Judicial District Court 

of Harris County, Texas. Two days later, on June 23, 1983, Carl and Ruth signed a 

Settlement Agreement. 

1 We have reorganized Dailey’s issues and will address them in this order.
3

The divorce decree awards Ruth:

**500 shares of stock in C&RC-53, Inc., which she will exchange for 

1,000 shares of stock in C&RC-23, Inc., which is now owned by 

C&RC-53, Inc., and which will be spun off from C&RC-53, Inc., and 

will at that time contain the following assets (which are presently in 

C&RC-53, Inc.): Its one-third undivided interest in a 158.7975 acre 

tract or parcel of land lying and being situated in the A. R. Stephens, 

A-102, Survey of Washington County, Texas, being the same land 

previously conveyed to C&RC-53, Inc., by Ruth Natalie Carter Carroll 

on or about September ___, 1979, which conveyance will convey all 

land and all mineral interests now held by C&RC-53, Inc., and also onehalf of any cash remaining in the bank account of C&RC-53, Inc., after 

all current expenses and taxes are paid. These expenses include but are 

not limited to attorney’s fees, accountant’s fees, and taxes. [Carl] is 

hereby ORDERED as President of C&RC-53, Inc., to execute all 

necessary division orders, transfers, deeds, and checks necessary to 

affect the transfer of the above assets of C&RC-53, Inc. to C&RC-23, 

Inc. [Ruth] will then surrender her 500 shares in C&RC-53, Inc., to 

C&RC-53, Inc., and _____________ shall receive 1,000 shares of 

C&RC-23, Inc., which shares will then become the sole and separate 

property of [Ruth].

The divorce decree awards Carl: “500 shares of stock in C&RC-53, Inc., 

subject to the spinoff of certain of its assets into its wholly owned subsidiary 

C&RC-23, Inc., as outlined in Respondent’s award of properties.” 

Paragraph 7 of the Settlement Agreement states:

As for C & RC 53, [Carl] as President of said corporation shall draft 

and send within seven (7) days: but no later than the morning of June 

30, 1993 a division order to all lessees and persons who currently pay 

royalties on oil property to C & RC 53 directing them to send as of July 

l, 1983 to send all future royalty checks to C & RC 23, Inc. care of Ms. 

Ruth Carroll . . . .

Carl died on September 25, 1997. His estate was probated in Probate Court 

No. 2, Harris County, Texas, in Cause No. 297,526. Carl named his sister Robert 
4

Mae McAfee (“Ms. McAfee”) as the independent administrator of his estate. On 

January 22, 1999, Ms. McAfee filed an inventory that listed C & RC-53, Inc. as 

Carl’s separate property and an asset of his estate. 

Ruth died on February 23, 2011. Her estate was probated in Probate Court No. 

4, Harris County, Texas, in Cause Number 414,113. Laverne Natalie Dailey is the

independent executrix of Ruth’s estate. The record does not contain an inventory of 

Ruth’s estate.

Dailey alleges that WCS Oil and Gas Company (“WCS”) began holding in 

suspense overriding royalty proceeds derivative from leases held in the name of

C & RC-53, Inc. in 1996 because the term “overriding royalties” was not used in 

the divorce decree and related agreement.

A. Declaratory Judgments

On June 10, 2014, Dailey, as independent executrix of Ruth’s estate, filed a 

petition for declaratory judgment in Probate Court No. 2, of Harris County, Texas.

In her petition for declaratory judgment, Dailey stated:

On June 24, 1983, Carl M. Carroll, Jr. and Ruth Natalie Carter Carroll 

entered into a Settlement Agreement incident to ongoing divorce 

proceedings to award real property, oil property royalties, and all leases 

to Ruth Natalie Carter Carroll concerning the property held by C & RC 

53, Inc. The terms of the agreement were previously incorporated by a 

Decree of Divorce signed by the 257th Judicial District Court of Harris 

County, Texas on June 21, 1983.

It is the contention of the Plaintiff that [Carl failed to] abide[] by the 

terms of the Decree of Divorce and Settlement Agreement and never 
5

transferred ownership of the real property in question and continued to 

receive royalty payments until the time of his death. [Carl’s estate] 

listed the said real property in its inventory and has continued to receive 

royalty payments to this date. The above referenced conduct of [Carl] 

and his estate constitute fraud and conversion. Moreover, the Estate of 

Ruth Natalie Carter Carroll, Deceased did not discover said conduct 

until it was informed of a potential dispute by correspondence from 

WCS Oil & Gas Corporation on July 6, 2012.

Dailey asked the probate court to declare that “all real property, royalties and leases 

held by C & RC 53, Inc. belong to the Estate of Ruth Natalie Carter Carroll, 

Deceased and that said property was never part of the Estate of Carl M. Carroll, Jr., 

Deceased, pursuant to the Decree of Divorce and Settlement Agreement.” According 

to Dailey, she had made multiple demands to WCS for payment of the overriding 

royalties, but WCS had refused because “it believed confusion existed respecting the 

proper ownership of the overriding royalty interests.”

Ms. McAfee, the independent administratrix of Carl’s estate was served with 

citation on August 11, 2014. Ms. McAfee was over 90 years old at the time and had 

been diagnosed with dementia and diastolic heart failure in March 2012. She did not 

enter an appearance or file an answer in the declaratory judgment action.

On December 15, 2014, Probate Court No. 3 of Harris County, Texas 

appointed Ms. McAfee’s daughter, Alma McAfee, as her permanent guardian in 

Cause Number 419,773.

Because Ms. McAfee had not responded or filed an answer, Dailey filed a 

motion for default judgment on March 19, 2015. After a hearing on the motion, the 
6

probate court issued a “Final Declaratory Judgment” on March 31, 2015, in which it 

decreed that “all real property, royalties and leases held in the name of C & RC-53, 

Inc. belong to the Estate of Ruth Carter Carroll, Deceased and that said property was 

never part of the Estate of Carl M. Carroll, Jr., Deceased, pursuant to the Decree of 

Divorce and Settlement Agreement.”

In November 2015, Dailey filed another petition for declaratory judgment in 

Probate Court No. 4 naming WCS as the defendant and asking the court to declare 

that the “real property, royalties and leases held by C&RC 53, Inc. belong to the 

Estate of Ruth Natalie Carter Carroll, Deceased and that [WCS] be ordered to pay 

said royalties, of whatever kind, to the Estate of Ruth Natalie Carroll, Deceased.” In 

response, WCS filed a counter-petition for declaratory judgment naming Ms. 

McAfee and a beneficiary of Carl’s estate as cross-defendants.2

B. Bill of Review

McAfee was appointed dependent administratrix of Carl’s estate on August 

10, 2016 and qualified on August 16, 2016. McAfee filed a bill of review in Probate 

Court No. 2 on August 23, 2018, in her capacity as independent administratrix, 

seeking to set aside the March 2015 default declaratory judgment. Among other 

grounds, McAfee argued that the judgment was void and should be set aside because 

the probate court did not have subject matter jurisdiction.

2 That suit has been abated pending resolution of the present appeal.
7

The probate court held a status conference on November 13, 2018.

Although he had notice of the status conference, Dailey’s counsel did not 

attend. At the conference, McAfee’s counsel asked the court to enter a docket control 

order setting a trial date for the bill of review. Rather than setting a trial date, 

however, the court inquired about the underlying facts and focused the discussion 

on whether the court had jurisdiction over the declaratory judgment action being 

challenged by the bill of review. The court advised McAfee that the family court 

needed to determine who was entitled to the royalties under the divorce decree and 

informed McAfee, “The money is still being protected. If you want me to sign an 

order granting a Bill of Review just so you don’t have to worry about it, I’ll do that.” 

McAfee’s counsel informed the court that she was not asking the court to sign an 

order that day and inquired whether the court had concurrent jurisdiction with the 

district court that rendered the divorce decree. The court responded:

Well, I do have concurrent jurisdiction with the District Court if it’s a 

suit appertaining or incident to an estate in my Court.3 But I’m not sure 

that I could say that something that happened 40 years ago is 

appertaining or incident to an estate in my court. 

3

 The probate court was apparently referring to former section 5(f) or 5(h) of the 

Probate Code which were repealed in 2011. Under section 5(f), “All courts 

exercising original probate jurisdiction shall have the power to hear all matters 

incident to an estate.” TEX. PROBATE CODE §5(f) (repealed 2011). Section 5(h)

stated: “A statutory probate court has jurisdiction over any matter appertaining to 

an estate or incident to an estate and has jurisdiction over any cause of action in 

which a personal representative of an estate pending in the statutory probate court 

is a party.” Id. 5(h) (repealed 2011).
8

When the attorney informed the trial court that McAfee had asserted other 

meritorious defenses in addition to her jurisdictional argument, e.g., laches, the court 

stated:

If you think I’ve got jurisdiction and you want to prepare an order and 

I’ll sign it, we will see if anybody complains. But really, you need to 

get the two estates to agree on what was intended. If they won’t, then 

I’ll sign an order. But I don’t really have jurisdiction, I don’t think, 

because it’s not appertaining or incident to an estate in my court. It 

happened while the person was alive. There was nothing involving 

probate court. Do you see what I mean?

On November 19, 2018, the Court signed the “Order on Bill of Review”:

Upon review of the pleadings in this cause, the Court finds that the Bill 

of Review raises the question of the Court’s jurisdiction to grant the 

Declaratory Judgment. After considering the jurisdiction issue the 

Court finds that the Court did not have the authority to grant the Final 

Declaratory Judgment and that the Bill of Review should be granted.

THEREFORE, it is ORDERED that the Bill of Review is GRANTED.

It is further ORDERED that the Final Declaratory Judgment is NULL 

and VOID and will not have any force or effect. 

Dailey is appealing the order granting the bill of review. 

Subject Matter Jurisdiction over Bill of Review

In her first issue, Dailey argues that the probate court did not have subject 

matter jurisdiction over McAfee’s bill of review proceeding because McAfee did not 

have standing to bring an equitable bill of review. According to Dailey, McAfee did 

not have standing to bring the bill of review because the “real property, royalties and 

leases” at issue in this case “were divested from [Carl] long before he died, as to C 
9

& RC 23, Inc. and C & RC 53, Inc. Those particular gifts no longer existed as a 

matter of law and [McAfee] has not suffered any injury and there is no controversy 

among the parties to be adjudicated by the trial court as to the property.” Dailey’s 

argument, however, is based on the flawed premise that McAfee’s petition amounts 

to a collateral attack on the “property distribution” set forth by the 1983 divorce 

decree and settlement agreement. It does not. McAfee is challenging the default 

judgment that adjudicated the ownership of this property in her absence and by 

default. 

Standing, like other issues implicating a court’s subject matter jurisdiction, is 

a question of law that we review de novo. See In re H.S., 550 S.W.3d 151, 155 (Tex. 

2018). “A judgment rendered without subject-matter jurisdiction is void and subject 

to collateral attack.” Engelman Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 

746, 750 (Tex. 2017). Standing requires a concrete injury to the plaintiff and a real 

controversy between the parties that will be resolved by the court. Heckman v. 

Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012). Generally, to have standing (1) 

the plaintiff must be personally injured; (2) the plaintiff’s injury must be fairly 

traceable to the defendant’s conduct; and (3) the plaintiff’s injury must be likely to 

be redressed by the requested relief. See id. at 154–55. A standing inquiry requires 

a careful examination of the allegations in the petition to determine whether the 

particular plaintiff is entitled to an adjudication of the particular claims asserted. Id.
10

at 156. “A plaintiff does not lack standing simply because he cannot prevail on the 

merits of his claim.” DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 305 (Tex. 

2008).

Dailey alleged in her petition for declaratory judgment that Ruth had been 

awarded all real property, royalties, and leases held by C & RC 53. She further 

alleged that Carl, who never transferred the real property, royalty interests, and 

leases held by C & RC 53, as required by the divorce decree and settlement 

agreement, collected the royalty payments. According to Dailey, Carl’s estate 

“continued to receive royalty payments to this date.”

The record reflects that the inventory of Carl’s estate lists C & RC 53, Inc. as 

Carl’s separate property and states that “[t]he oil and gas ownership” and a parcel of 

real property located in Lavaca County were held in the name of C & RC 53, Inc.

The inventory also lists the Lavaca County property, and oil and gas ownership 

interests derivative of a property in Washington County, as real property belonging 

to Carl’s estate. The effect of the default declaratory judgment was to remove C & 

RC 53, Inc. and its assets from Carl’s estate and award them to Ruth’s estate. Thus, 

the record reflects that Carl’s estate was injured, i.e., lost assets, as a result of the 

Dailey’s declaratory judgment action and that Carl’s estate’s injury is fairly traceable 

to Dailey’s conduct. See Heckman, 369 S.W.3d at 154. This injury is also likely to 

be redressed by the requested relief, i.e., voiding the default judgment that removed 
11

the assets from the estate. See id.; see generally Ford Motor Co. v. Cammack, 999 

S.W.2d 1, 4 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (stating personal 

representatives of decedent’s estate is entitled to recover estate property).

Accordingly, we hold that McAfee, as the dependent administratrix of Carl’s 

estate, had standing to bring the bill of review challenging the default declaratory 

judgment. We overrule Dailey’s first issue.

Subject Matter Jurisdiction over Declaratory Judgment Proceeding

In her second issue, Dailey argues that the probate court erred by concluding 

that it did not have subject matter jurisdiction over her declaratory judgment action 

and granting the bill of review on this basis.

McAfee argues that the judgment is void because the probate court did not

have subject matter jurisdiction over the declaratory judgment action. A trial court’s 

prior judgment is void if the record demonstrates that the court lacked subject-matter 

jurisdiction over the suit. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 273 (Tex. 

2012). Although the judgment is presumed valid, the presumption disappears when 

the record establishes a jurisdictional defect. Id. Courts may look beyond the face of 

the judgment at issue to determine whether the record affirmatively demonstrates 

that the trial court lacked subject matter jurisdiction. Id. A party claiming that a 

judgment is void because the trial court lacked jurisdictional power to render it is 
12

not required to prove the elements of a bill of review. Narvaez v. Maldonado, 127 

S.W.3d 313, 317 (Tex. App.—Austin 2004, no pet.).

Here, McAfee argues that the judgment is void because the district court that 

rendered the divorce decree has exclusive jurisdiction over post-divorce actions

pursuant to section 9 of the Family Code and, therefore, probate courts do not have 

jurisdiction to interpret divorce decrees or divide marital property in post-divorce 

proceedings.

Statutory probate courts are courts of limited jurisdiction. See Stauffer v. 

Nicholson, 438 S.W.3d 205, 213 (Tex. App.—Dallas 2014, no pet.) (citing In re 

United Servs. Auto. Ass’n, 307 S.W.3d 299, 302–03 (Tex. 2010)) (contrasting 

limited jurisdiction of statutory probate courts with general jurisdiction of district 

courts); see also Narvaez v. Powell, 564 S.W.3d 49, 54 (Tex. App.—El Paso 2018, 

pet. denied). Dailey argues that the probate court had jurisdiction over her

declaratory judgment action pursuant to Chapter 32 of the Texas Estates Code. See 

TEX. EST. CODE §§ 32.001(b), 32.005(a), 32.007(4). Section 32.001(b) grants a 

probate court “pendent and ancillary jurisdiction as necessary to promote judicial 

efficiency and economy.” Id. § 32.001(b). In order for a probate court to assert 

jurisdiction over matters incident to an estate, a probate proceeding must already be 

pending in the probate court. See Narvaez, 564 S.W.3d at 57–58 (stating “probate 

courts exercise their ancillary or pendent jurisdiction over non-probate matters only 
13

when doing so will aid in the efficient administration of an estate pending in the 

probate court”) (citing Shell Cortez Pipeline Co. v. Shores, 127 S.W.3d 286, 294-95 

(Tex. App.—Fort Worth 2004, no pet.)). We note that McAfee does not dispute that 

Carl’s probate proceeding was pending when Dailey filed her petition for declaratory 

judgment in June 2014. We further note that if Carl’s probate proceeding was closed 

when Dailey filed her petition for declaratory judgment, the probate court would not 

have had jurisdiction to hear the petition. See Narvaez, 564 S.W.3d at 57–58. There 

is nothing in the appellate record, however, that reflects the status of the probate 

proceeding when the petition was filed. See PNS Stores, Inc., 379 S.W.3d at 273 

(stating trial court’s prior judgment is void and subject to collateral attack if record 

affirmatively demonstrates that court lacked subject matter jurisdiction over suit).

Because the appellate record does not demonstrate that the probate proceeding was 

closed when Dailey filed her petition, we must presume that the default declaratory 

judgment is valid. See id. (stating courts presume that judgment being collaterally 

attacked is valid unless record establishes jurisdictional defect, effectively rebutting 

presumption).

The question before us now is whether the district court that rendered the 

divorce decree has exclusive jurisdiction over post-divorce actions pursuant to 

section 9 of the Family Code, thereby depriving the probate court of subject matter 
14

jurisdiction that it would have otherwise had to hear the declaratory judgment 

petition.

A final, unambiguous divorce decree that disposes of all marital property bars 

relitigation. Pearson v. Fillingim, 332 S.W.3d 361, 364 (Tex. 2011). Unlike other 

types of final judgments, however, section 9 of the Texas Family Code provides a 

mechanism for seeking limited review of final divorce decrees. Specifically, the trial 

court that renders a divorce decree “retains the power” to enforce the property 

division in the decree or in an agreement incident to divorce that was approved by 

the court. TEX. FAM. CODE § 9.002; Pearson, 332 S.W.3d at 363. The court may 

enforce the division of property made or approved in the divorce decree by rendering 

further orders “to assist in the implementation of or to clarify the prior order.” TEX.

FAM. CODE § 9.006(a). It may also “specify more precisely the manner of effecting 

the property division previously made or approved if the substantive division of 

property is not altered or changed.” Id. § 9.006(b). 

Section 9, however, does not make the district court rendering the divorce 

decree a court of exclusive jurisdiction over post-divorce actions to construe or 

enforce contract rights acquired under the decree. See Chavez v. McNeely, 287 

S.W.3d 840, 844–85 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

In Chavez, this Court held that a district court in another county, which was 

not the court that rendered the decree, possessed jurisdiction over a post-divorce 
15

action to construe and enforce a party’s contract rights to property as set forth in the 

terms of the divorce decree. See id. We further held that Family Code section 

9.001(a) is permissive in nature, that the language of sections 9.001 and 9.002 does 

not indicate that the Legislature intended to make the district court rendering the 

divorce decree a court of exclusive jurisdiction over post-divorce actions to enforce 

contract rights acquired under the decree, and that breach of contract actions that 

rely on the decree invoke a district court’s powers of general jurisdiction to decide a 

dispute. Id. at 844–45; see generally In re Sims, 88 S.W.3d 297, 302–03 (Tex. 

App.—San Antonio 2002, orig. proceeding) (considering whether county court in 

which application to probate husband’s last will and testament was filed, or trial 

court that rendered divorce, both of which had concurrent jurisdiction over wife’s

first-filed claim to enforce divorce decree, had dominant jurisdiction over claim).

Accordingly, the district court that rendered the decree does not have 

exclusive jurisdiction over the declaratory judgment action that Dailey filed to 

construe the decree and related settlement agreement, and, therefore, the probate 

court was not prohibited from exercising its pendent and ancillary jurisdiction in this 

case. See TEX. EST. CODE § 32.001(b). Accordingly, the probate court erred by 

granting the bill of review based on jurisdiction. We sustain Dailey’s second issue.

However, when findings of fact and conclusions of law are not requested or 

filed, as in this case, we must affirm granting of a bill of review “if it is correct on 
16

any legal theory supported by the evidence.” Davis v. Smith, 227 S.W.3d 299, 302 

(Tex. App.—Houston [1st Dist.] 2007, no pet.). Therefore, we will address Dailey’s 

third and fourth issues challenging the propriety of granting the bill of review.

Bill of Review

In her third and fourth issues, Dailey argues that the trial court erred by not 

conducting a trial on the merits before granting the bill of review and that McAfee

did not meet the mandatory elements to be entitled to the granting of an equitable 

bill of review.

A bill of review is an equitable cause of action brought by a party to a former 

action seeking to set aside a judgment which is not void on the face of the record 

and is no longer appealable or subject to challenge by a motion for new trial or 

appeal.4 Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998); King Ranch, Inc. v. 

Chapman, 118 S.W.3d 742, 751 (Tex. 2003). It is a separate and independent suit, 

brought in the same court that entered the judgment being attacked under a different 

4 Dailey argues that the trial court erred by granting the bill of review because it was 

filed in the same cause number as the declaratory judgment. See In re Thompson, 

569 S.W.3d 169, 174–75 (Tex. App.—Houston [1st Dist.] 2018, orig. proceeding) 

(holding motion did not qualify as bill of review because it was not filed within 

four-year statute of limitations for bill of review, was not labeled as bill of review, 

did not otherwise meet requirements of bill of review, and was filed in same cause 

number as underlying case). Unlike in In re Thompson, however, McAfee’s filing 

was labeled as a bill of review, timely filed, and otherwise met the requirements for 

a bill of review. See generally id. at 174. We decline to overrule the trial court’s 

granting of the bill of review based solely on this technicality. See Blankenship v. 

Robins, 878 S.W.2d 138, 139 (Tex. 1994) (stating “the decisions of the courts of 

appeals [should] turn on substance rather than procedural technicality”).
17

cause number. See In re Thompson, 569 S.W.3d 169, 173–74 (Tex. App.—Houston 

[1st Dist.] 2018, orig. proceeding).

Generally, to set aside a judgment by bill of review, the petitioner must plead 

and prove the following: (1) a meritorious defense to the cause of action alleged to 

support the judgment, (2) that he was prevented from making by the fraud, accident, 

or wrongful act of his opponent, (3) unmixed with any fault or negligence of his 

own. Caldwell, 975 S.W.2d at 537; King Ranch, Inc., 118 S.W.3d at 751–52. Courts 

generally use a two-step inquiry when deciding a bill of review as set forth in Baker 

v. Goldsmith, 582 S.W.2d 404 (Tex. 1979). See Beck v. Beck, 771 S.W.2d 141, 141–

42 (Tex. 1989); see also Ramsey v. State, 249 S.W.3d 568, 576 (Tex. App.—Waco 

2008, no pet.) (“The Baker pretrial hearing is a ‘suggested procedure’ which a trial 

court may choose not to employ.”). The court should first determine as a pretrial 

matter whether the petitioner presented prima facie proof of a meritorious defense. 

Baker, 582 S.W.2d at 408–09; see also Beck, 771 S.W.2d at 141–42. If the petitioner 

does not establish prima facie proof, the court should dismiss the case. Baker, 582 

S.W.2d at 409; Beck, 771 S.W.2d at 142. If, however, the petitioner does establish 

prima facie proof, then the court should proceed with a trial on the merits of the 

petition. Baker, 582 S.W.2d at 409;

5 Beck, 771 S.W.2d at 142.

5

It is not necessary, despite this two-step inquiry, for the trial court to conduct a 

separate hearing in determining whether the petitioner has presented prima facie 

proof of a meritorious defense. Boateng v. Trailblazer Health Enters., L.L.C., 171 
18

If, however, the bill of review plaintiff alleges that judgment was rendered 

without proper notice, she is relieved from showing the first and second elements, 

i.e., that she has a meritorious defense that she was prevented from making by the 

fraud, accident, or wrongful act of her opponent. See Caldwell v. Barnes, 154 S.W.3d 

93, 96–97 (Tex. 2004) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 85

(1988)). The plaintiff must still prove the third element, that “judgment was rendered 

unmixed with any fault or negligence” on her part. See Caldwell, 154 S.W.3d at 97. 

When a plaintiff seeks a bill of review based solely on a claim of non-service, the 

trial court will employ a slightly different bill of review procedure than the one set 

forth in Baker. Id. In the face of a claim of non-service, 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 the plaintiff 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 

affirmative finding that the 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. We review a trial court’s ruling on a bill of

review for an abuse of discretion. Davis, 227 S.W.3d at 302.

S.W.3d 481, 488 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Ortmann v. 

Ortmann, 999 S.W.2d 85, 88 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).
19

Here, the record reflects that the probate court did not comply with either billof-review procedure. See Baker, 582 S.W.2d at 409; Caldwell, 154 S.W.3d at 97–

98. Instead, the probate court discussed the factual basis of the bill of review with 

McAfee’s counsel during a status conference that Dailey’s counsel did not attend.

During that status conference, the probate court determined that the default 

declaratory judgment that it had previously entered was void because it did not have 

jurisdiction to hear the case, and the court granted the bill of review on that basis. 

As previously discussed, the probate court’s decision to grant the bill of review on 

this ground was erroneous because, based on the record before us, the probate court 

had jurisdiction to hear the declaratory judgment petition.

In addition to her jurisdictional argument, McAfee also alleged that the default 

judgment should be set aside by a bill of review because: (1) Carl’s estate had a 

meritorious defense to the declaratory judgment action, e.g., failure of service, 

statute of limitations, and laches,6(2) McAfee was prevented from presenting a 

defense by Dailey, who served the petition on Ms. McAfee, Dailey’s elderly aunt, 

even though Dailey knew or should have known that Ms. McAfee was incapacitated 

and would be unable to respond on behalf of the estate, and (3) unmixed with any 

6 McAfee also alleged that the trial court’s lack of subject matter jurisdiction over the 

declaratory judgment action was one of her meritorious defenses. 
20

fault or negligence on McAfee/Carl’s estate’s part. See Caldwell, 975 S.W.2d at 537; 

King Ranch, Inc., 118 S.W.3d at 751–52.

It is apparent from the hearing transcript that the trial court neither considered

whether McAfee had established prima facie proof for one of her other meritorious 

defenses, e.g., laches and statute of limitations, or her argument that the bill of review 

should be granted based on lack of service, nor received evidence on those issues.

In the absence of any evidence supporting McAfee’s bill of review, we conclude that 

the trial court abused its discretion by granting the bill of review. See Ford Motor 

Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012) (stating trial court abuses its 

discretion by ruling without supporting evidence).

We sustain Dailey’s third issue.7

Conclusion

We reverse the trial court’s judgment and remand for further proceedings 

consistent with this opinion.

Russell Lloyd

Justice 

Panel consists of Justices Lloyd, Kelly, and Countiss.

7 Based on our resolution of Dailey’s third issue, we do not need to address the

remaining issue.