COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS
J OSEPH HAMM, J ESSI CA C. HAMM, AND JENNI FER H. HA MM, Appellants,

v. J OHN M. ROB I

NSON, HAL L ROYAL TY COMPANY, AND CI MAREX ENERGY COMPANY, Appellee s. § § § § § § No. 08-08-00243- CV

Appea l from the 143rd District Court of Reeve s County , Texas (TC# 07-10-18954- CVR)

O P I N I O N Appellants, J oseph, J essica, and J ennife r Hamm, appea l the trial court’s summary judgme nt in favor of Appellees, J ohn M. Robinson, Hall Roy alty Company , and C imarex Energ y Company following the former ’s filing of a bill of revie w, challeng ing a termination judgme nt for lack of service . We reve rse. BACK GR OUND The hear t of this case conce rns who reta ins an interest in the land located in Reeve s County , Texas, which was purcha sed by J o hn C. Kinsley in 1923, based on the rules of desce nt and distribution. Therefor e, we beg in with a rec itation of the applica ble fa mily

tree s. I n the mid-1800s, John H

. Kinsley marrie d Rebec ca L

. Kinsley , and the couple beg ot thr ee children, J ennie Bla

nche Kinsley , J ohn C. Kinsley , and Anna S. Kinsley

. Although Anna died at ag e
one, Bla nche and J ohn C. Kinsley survived. Presumably , J ohn H. Kinsley prede cea sed Rebec ca, and Rebec ca die d in 1932.
J ohn C. Kinsley marrie d Eva in 1915. Although J ohn and Eva had no children toge ther, Eva had two from a previous marria g e, Wil bur Ro b i nson and Edwina Sutherland. I n 1942, J ohn C.Kinsley died intestate in L os Ang el e s , Ca li f ornia, and in 1970, Eva died intestate in I ndio, California. Edwina died without children in 1996, and Wil bur died intestate in 1963, survived by his only child,
J ohn M. Robinson (Appellee)

. Although a marria g e is not specific ally found in the rec ord, Bla nche Kinsley ’s last name is ref err ed t o as Ha m m in a trust document executed by Rebec ca in 1930. She had three children,
Howar d K. Hamm, Rosalind Hamm, and Warren W. Hamm. Bla nche died in 1955, leaving her
assets by will in equal portions to Howar d, Rosalind, and Warren Hamm. Howar d Hamm later beg ot three sons, Warren H., Robert L ., and Howar d K. Hamm, J r. Rosalind Hamm beg ot one son, J ohn
R. Har man, J r., and Warren W. Hamm beg ot one son, Thomas Hamm. Of that g ener ation, Warren
H. Hamm had three children, Matthew, Eleanor , and Russell Hamm, and Thomas Hamm had three children, Joseph, J essica, a nd J ennife r Ha mm (Appellants). The Purchase of the Land, the Re ceiv ership, and the Termination
As noted previously , J ohn C. Kinsley marrie d Eva in 1915. Eig ht y ear s later, while residing
in I llinois , J ohn purcha sed a trac t of land in Reeve s County , Texas, from W. W. Dea n. The deed named J ohn C. Kinsley as the g rante e and rec ited a consideration of $200 as the purcha se price for the land. The deed w as re corde d with the Reeve s County Clerk.
Severa l deca des later, on May 4, 1999, Fr ontier L and Corporation, unable to locate J ohn C. Kinsley or his heirs, filed a petition for appointment of a rec eiver for missing and unknown mineral

owner s, including J ohn and Eva Ki n sley , and their heirs. After serving the potential owner s by publication in the Pecos Enterpr ise newspa per, wh i ch circ ulated in Reeve s, Ward, and L oving counties, the district court, on J uly 28, 1999, appointed Randall Rey nolds to repr esent the unknown

owner s as attorney ad litem. Rey nolds filed an answe r on behalf of all the owner s, including any and all heirs of John and Eva Kinsley

.On Aug ust 6, 1999, the court hear d Fr ontier’s application for the appointment of a rec eiver

for undivided mineral interests. The court found that all owner s, including John and Eva Kinsley , and their heirs, appea

red throug h their attorney , Rey nolds. The court further found t h at after due diligenc e, those owne rs wer e unable to be locate d and were served by citation by publication, and
that citation was duly returne d. The court then appointed Tom Nanc e as rec eiver , and Nanc e, in turn, executed an oil and g as lease o n t h e proper ty on Aug ust 18, 1999, with Helmer ich & Pay ne, I nc. (now Cimarex Energ y Company). Cimarex subsequently drilled a well on the trac t and paid roy alties in se para te acc ounts e stablished for John and Eva Kinsley with the Reeve s County District Clerk.
On Marc h 24, 2006, J ohn M. Robinson and Hall Roy alty Company fi l ed a motion to terminate the rec eiver ship and reque sted distribution of the assets in the rec eiver ’s possession. J ohn Robinson claimed he was the rig htful heir to the land, and Hall cla i m ed an i n t er est pursuant to a wellbore roy alty convey ance executed b y J o hn Robinson, g ranting Hall 50 perc ent of his roy alty interest until Dece mber 1, 2005, a nd 25 perc ent there afte r. 1
The motion was serve d on Rey nolds as attorney ad litem, and on J une 8, 2006, Rey nolds participa ted in the hear ing on the same as counsel for all unknown heirs of J ohn and Eva Kinsley

. On J uly 27, 2006, the court enter ed an order decla ring J ohn Robinson owned the land and distributed $225,184.25 to Robinson, and $210,892.15 to Hall.

U n d e r T e x a s l a w , J o h n R o b i n s o n w o u l d r e t a i n s o m e o w n e r s h i p i n t h e p r o p e r t y r e g a r d l e s s a s t o w h e t h e r 1 J o h n C

. K i n s l e y a d o p t e d W i l b u r R o b i n s o n a s h i s s o n o r w h e t h e r t h e p r o p e r t y i s c h a r a c t e r i z e d a s c o m m u n i t y o r s e p a r a t e p r o p e r t y . A c c o r d i n g t o t h e r u l e s o f i n t e s t a t e s u c c e s s i o n f o r c o m m u n i t y p r o p e r t y , i f a p e r s o n d i e s w i t h o u t c h i l d r e n , s u r v i v e d o n l y b y a s p o u s e , t h e r e a l p r o p e r t y p a s s e s t o t h e s p o u s e
. T E X
. P R O B
. C O D E A N N
. § 4 5 ( a ) ( V e r n o n 2 0 0 3 )

. U p o n t h a t s p o u s e ’ s d e a t h , t h e p r o p e r t y p a s s e s t o h e r c h i l d r e n
. I d

. a t § 3 8 ( a ) ( 1 ) ( V e r n o n 2 0 0 3 )

. I f a n y o f t h o s e c h i l d r e n d i e w i t h o u t i s s u e o r s u r v i v i n g s p o u s e s , t h e p r o p e r t y p a s s e s t o t h e o t h e r c h i l d a n d t h e n t o t h a t c h i l d ’ s d e s c e n d a n t s
. I

d

. a t § 3 8 ( a ) ( 3 )

. F o r n o n - c o m m u n i t y p r o p e r t y , w h e n a p e r s o n d i e s l e a v i n g a s p o u s e a n d n o c h i l d r e n , t h e s p o u s e i s e n t i t l e d t o o n e - h a l f o f t h e r e a l p r o p e r t y a n d t h e o t h e r h a l f p a s s e s t o t h e d e c e a s e d ’ s p a r e n t s
. I d

. a t § 3 8 ( b ) ( 2 )

. I f t h e d e c e a s e d ’ s p a r e n t s a r e n o l o n g e r l i v i n g , t h a t h a l f o f t h e p r o p e r t y p a s s e s t o t h e d e c e a s e d ’ s s i b l i n g s , a n d t h e n t o t h e i r c h i l d r e n
. I d

. B e c a u s e a d o p t e d c h i l d r e n a r e c o n s i d e r e d l i n e a l h e i r s i n T e x a s , t h e r u l e s o f i n t e s t a t e s u c c e s s i o n d o n o t c h a n g e
. S e e T E X
. P R O B
. C O D E A N N
. § 4 0 ( V e r n o n 2 0 0 3 )

.The Bill of Review

L ater , on October 22, 2007, Appellants filed a petition for bill of revie w, asser ting an interest
in the land and that they wer e entitled to notice of the termination hear ing. The af fi d av i t s from 2
J oseph, J essica, and J ennife r Hamm, eac h aver red that in 2004, Hall informed them that as heirs of
J ohn C. Ki nsley , they wer e potentially entitled to funds owed to him, and that Hall would not disclose the wher eabouts o f t h o s e as s ets unless they first signe d a contra ct, convey ing to Hall 50
perc ent of the funds plus 50 perc ent of the underly ing mineral interest. The aff idavits further stated
that when Appellants ref

used Hall’s offe r, Hall cea sed communica tion with them, leaving them to locate the proper

ty on their own, whic h they did not find until Dec ember 2006. Appellants moved for summary judgme nt claiming , as interested owne rs i n t h e land, they

wer e entitl ed to be ser

ved with notice of the t ermination hearing since Hall knew their location i n 2004, rathe r than such notice simply being serve d o n the attorney ad litem. Appellee s moved for
summary judgme nt on no-evide nce and traditional g rounds, asser ting first that Appellants had no interest in the land in that they failed to overc ome the presumption of community proper ty and there

was no evidenc e the proper ty was purcha sed with s ep ar ate funds, and second that Appellants’ interests wer e duly repr esente d by the attorney ad litem making their claims of owner ship in the land barr ed by res judicata. After a hear ing, the court, without specify ing what g rounds summary judgme nt would be g rante d on, g rante d summary judgme nt in favor of

Appellee s. DISCUSSIO N
On appea l, Appellants bring three issues. The first alleg es that the trial court err ed by deny ing their motion for summary judgme nt when they wer e never serve d with the motion to

A p p e l l a n t s ’ p o t e n t i a l o w n e r s h i p i n t h e l a n d i s b a s e d o n t h e i r c l a i m t h a t t h e l a n d w a s J o h n C

. K i n s l e y ’ s 2
s e p a r a t e p r o p e r t y . T E X
. P R O B
. C O D E A N N
. § 3 8 ( b ) ( 2 )

.terminate the rec eiver ship, the second contends that the trial court err ed in g ranting Appellee s’ noevidenc e motion for s u m m ar y judgme nt when Appellants prese nted prima fac ie proof that the
proper ty was John C . Kinsley ’s sepa rate proper

ty , and the third asserts that the trial cour t erre d by
g ranting Appellee s’ traditional motion for summary judgme nt on g rounds that their claims wer e barr ed on principles of res judicata. Finding the trial court err ed by deny ing Appellants’ motion for
summary judgme nt, we deter mine Appellants’ fi rs t i s s u e is dispositi ve and need not addre ss Appellants’ r emaining issues. Standard of Review “A bill of re view is an equitable proce eding broug ht by a party seeking to set aside a prior j u dg ment that is no longe r subject to challeng e by a motion for new trial or appea l.” Ca l d w el l v. Barnes , 154 S.W

. 3 d 93, 96 (Tex. 2004) ( citing Bake r v. Goldsmith , 582 S.W .2d 404, 406 (Tex. 1979)). The party seeking a bill of revie w must ordinarily plead and prove (1) a meritorious defe nse to the underly ing cause of action, (2) whic h he wa s preve nted from making by the fra ud, acc ident,

or wrong ful act of the opposing party or officia l mistake , (3) unmix ed with any fault or neg lige nce on their own pa

rt. Bake r , 582 S.W .2d at 406-07.
Howeve r, when a party claims non-ser vice, he need not prove a meritorious defe nse or that
fra ud, acc ident, wrong ful act, or officia l mistake preve nted him from prese nting such a defe nse. Caldwell , 154 S.W .3d at 96-97; see also Peralta v. Heights Med. Ctr., Inc. , 485 U.S. 80, 86-87, 108
S.Ct

. 896, 99 L .Ed.2d 75 (1988) (holding that the meritorious defe nse require ment in a bill of revie w
proce eding violates due proce ss wher e the bill of revie w plaintiff has no notice of the proce eding in which the defa

ult judgme nt was rende red) ; Texas Industries, Inc. v. Sanchez , 525 S.W .2d 870, 871 (Tex. 1975) (holding that proof of not havin g b een serve d with citation obviates the nece ssity of pleading and proving that p arty was preve nted from making his meritorious defe nse by fra ud,acc ident, or wrong ful act of the opposite party ). Rather, he simply must prove that the judgme nt was rende red unmix ed with any fault or neg lige nce of his own, which is conclusively established by proving he wa s never

serve d with proce ss. Caldwell , 154 S.W .3d at 97. When a trial court g rants summary judgme nt on a bill of revie w, we apply the g ener al standard of revie w of a summary judgme nt. See Boaz v. Boaz , 221 S.W .3d 126, 131 (Tex. App.–Houston [1st Dist.] 2006, no pet.); Brown v. Vann , No. 05-06-01424- CV, 2008 WL 484125,

at *4 (Tex. App.–Dallas Fe b.25, 2008, no pet.) (mem. op.) (ca ses revie wing summary judgme nt on bill of revie w). To preva il on a traditional summary -judg ment motion, the movant bear s the burden of proving that h e i s en t i t l ed to judgme nt as a matter of law and that there is no g enuine issue of materia l f act. T E X
. R. C I V
. P. 166a (c) ; Cathey v. Booth , 900 S.W .2d 339, 341 (Tex. 1995)

. When deciding whether a disputed, materia l fac t issue prec ludes summary j u d gm en t , we take as true evidenc e favor able to the nonmovant, indulge ever y rea sonable infere nce in favor of the nonmovant, and resolve any doubts in the nonmovant’s favor

. Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W .2d 546, 548-49 (Te x . 1985). Application Appellants’ first issue contends that the trial court err ed by deny ing their motion f or summary judgme nt on g rounds that they wer e never serve d. Appellants’ sole basis in filing the bill of revie w was that they , believing they owned an interest in the l and based on re prese ntations made by Hall
in 2004, should have been serve d with notice of the termination and dis t ri b u t i o n of the assets. Although Appel l an t s rec og nize that an attorney ad litem repr esente d J ohn C. Kinsley ’s unknown heirs’ potential interests in the rec eiver ship and termination hear ings, they , citing Mullane v. Central
Hanove r Bank & Trust Co. , 339 U.S. 306, 314, 70 S.Ct

. 652, 94 L .Ed. 865 (1950), arg ue that such

re p re sentative notice for them was incompatible with the require ments of due proce ss when Hallpreviously contac ted them and knew their location. I n other words, Appellants contend they wer e 3
entitled to individual notice when Appellee s filed their motion to terminate so that they could obtain their own c ounsel and re prese nt themselves at the ter mination hearing

. I nitially , we a ddress whe ther the non- service issue should have g one to the jury . As noted befor e, to be entitled to a traditional summary judgme nt, there must be no g enuine issues of materia l fac t. T E X
. R. C I V
. P. 166a(c ); M.D. Ande rson H osp. & Tumor I

nstitut e v. W

illri ch , 28 S.W .3d 22,
23 (Tex. 2000). I n Caldwell , the parties, at the bill-of-re view hear ing, contested whether the named defe ndant in the orig inal law suit was actua lly serve d. Caldwell , 154 S.W .3d at 96. The defe ndant claimed that he was not, attaching various aff idavits to his bill of revie w that showed he was not at the location the proce ss se rver claimed on the day he was alleg edly serve d. Id

. Finding a materia l question of fac t as to whether the defe ndant was actua lly serve d, the Supreme Court deter mined that the contested issue of service should have been submitt ed to a jury , rathe r than decide d by the trial court in a pr etrial proc eeding

. Id . at 97-98.
Howeve r, we are not prese nted with a case conce rning whether Appellants we re ever
persona lly serve d with notice of the termination proce eding s. I ndeed, it is undisputed that they wer e
not. I nstead, we are asked to deter mine whether Appellants wer e entitled to individual notice once Hall knew their location, d es p i te the attorney ad litem’s appointment. This is not a question of materia l fac t, but of law, and there fore , the issue was proper ly submitt ed on summary judgme nt. See
Doe v. Boys Clubs of Greater Dallas, Inc. , 907 S.W .2d 472, 477 (Tex. 1995); Koelsch v. Indus. Gas Supply Corp ., 132 S.W .3d 494, 497 (Tex. App.–Ho u s t o n [1st Dist.] 2004, pet. denied) (whe n a question of law, rathe r than a questi on of fac t, is prese nted, the trial court may proper ly rende r

W e n o t e t h a t a t t h e t e r m i n a t i o n h e a r i n g , H a l l a c k n o w l e d g e d t h a t i t p r e v i o u s l y c o n t a c t e d A p p e l l a n t s b u t 3 l a t e r d e t e r m i n e d t h e y d i d n o t o w n a n i n t e r e s t i n t h e l a n d

.summary

judgme nt).
We now turn t o wh et her Appellants wer e entitled to notice. As an elementa ry and fundame ntal require ment, our sy stem of justice compre hends due proce ss to include notice and an opportunity to be hear d by interested parties to the action. See Peralta , 485 U.S. at 84; Mullane , 339
U.S. at 313-14; Ex parte Peterson , 444 S.W .2d 286, 288-89 (Tex. 1969). I ndeed, in any proce eding
that is to be acc orded finality , due proce ss require s that interested parties rec eive notice rea sonably calc ulated, under the circ umstances, to apprise them of the pendenc y of the action and aff ord them the opportunity

to prese nt their obj ections. Peralta , 485 U.S. at 84; Mullane , 339 U.S. at 314-15; Dispensa v. Univ. State Bank , 987 S.W .2d 923, 926 (Tex. App.–Houston [14t h Dist.] 1999, no pet.). Failure to g ive adequate notice violates “the most rudimentary demands of due proce ss of law.” Armstrong v. Manzo , 380 U.S. 545, 550, 85 S

. C t

. 1 1 87, 14 L .Ed.2d 62 (1965); Jimene z v. Transw estern Prop. Co. , 999 S.W .2d 125, 128 (Tex. App.–Houston [14t h Dist.] 1999, no pet.). Under the circ umstances prese nted in this case , we find that Appellants wer e ent i tled to notice. They , as J ohn C. Kinsley ’s heirs, may have a potential interest in the proper ty , and there fore , any proce eding s or judgme nts conce rning that proper ty nece ssarily aff

ect that potential int er es t

. Acc ording ly , Appellants wer e entitled to an opportunity to prese nt their objections. See Peralta , 485
U.S. at 84 (intere sted parties are entitled to notice for purposes of prese nting their objections when those i n t er es t s are aff

ecte d by a proce eding that is to be acc orded finality). As their wher eabouts

we re known by the opposing party seeking to terminate the rec eiver ship, we conclude that Appellants we re e ntitled to notice of the t ermination. See M ullane , 339 U.S. at 318 (“[w]here the

names and post office addre sses of those aff ecte d by a proce eding are at hand, the rea sons disappea r for r esort to means le ss likely than the mails to apprise the m of its pendency .”).
Neve rtheless, Appellee s arg ue that Appellants’ interests wer e repr esente d by an attorney adlitem at the termination hear ing and thus service on him was sufficie nt. Howeve r, acc ording to the

court order appointing the rec eiver and attorney ad litem, the latter was only appointed to repr esent
any unknown heirs of J ohn C. Kinsley

. Hall then chose to l o ca t e v ar i o us heirs and found them.
Be cause Hall, an opposing party who filed the motion to terminate the rec eiver ship, knew Appellants

wer e hei rs o f J ohn C. Kinsley and their wher eabouts, he cannot claim that service on the attorney ad litem, who was solely appointed to r epre sent unknown heirs, was rea sonably calc ulated notice. See Peralta , 485 U.S. at 84 (due process requires an interested p arty to be served with rea sonably calc ulated notice)

. Appellee s also arg ue that since t h ey deter mined Appellants lacke d an interest in the land, Appellants wer e not entitled to notice. Whether Appellants o wn ed an i n t erest in the land was an issue to be deter

mined by the fac t finder afte r notice was had on all potential and known interested parties, not for Hall to preliminarily deter mine on its own. As Hall knew Appellants’ wher eabouts

at the time it filed the motion to terminate the rec eiver ship, we bel i ev e Hall was require d to g ive notice to Appellants. See In the Matter of Marriag e o f Peac e , 631 S.W .2d 790, 794 (Tex. App.–Amar illo 1982, no writ) (holding individual entitled to notice when his name and addre ss are known, and his leg al intere sts are dire ctly aff ecte d by the proc eeding s in question).
Acc ording ly , we conclude that Ap p el l ants, as a matter of law, wer e entitled to notice. As Appellants wer e never serve d, we need not deter mine whether they had a meritorious defe nse or that
fra ud, acc ident, wrong ful act, or officia l mistake preve nted t hem from prese nting suc h a defense. Peralta , 485 U.S. at 86-87; Caldwell , 154 S.W .3d at 96-97; Sanchez , 525 S.W .2d at 871. Fur ther,
h av ing established that they wer e never serve d with proce ss, we conclude that the judgme nt was rende red unmix ed with any fault or neg lige n ce o f Appellants. Caldwell , 154 S.W .3d at 97. There fore , Appellants wer e entitled to summary judgme nt on their petition for bill of re v i ew as amatter of la w, and the tr ial court e rre d by failing to gr ant the same . I ssue One is sustained.
CONCLUSION Having s u s t ai n ed Appellants’ first issue, we reve rse the judgme nt of the trial court and

rema nd for f urther pr ocee dings.

GUADA L UPE RI VERA, J ustice April 30, 2010
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.