Reversed and Remanded and Opinion filed October 6, 2022.

In The

Fourteenth Court of Appeals

NO. 14-21-00356-CV

MARY HELEN GILL, Appellant

V.

SHAWNA VORDOKAS, Appellee

On Appeal from the Probate Court No. 4

Harris County, Texas

Trial Court Cause No. 470396

OPINION

In this heirship dispute between the decedent’s alleged common law wife and 

the decedent’s biological daughter, the sole issue we consider is whether the 

daughter conclusively proved that a petition for bill of review filed by the alleged 

common law wife was precluded under the doctrine of res judicata. The probate 

court granted a motion for summary judgment in favor of the daughter upon 

concluding that the petition was so precluded. We disagree with the probate court 

and conclude that the daughter failed to prove her res judicata defense as a matter of 
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law. We accordingly reverse the probate court’s summary judgment and remand the 

case to that court for additional proceedings.

BACKGROUND

When the decedent died, a will could not be located. The decedent’s daughter, 

Shawna Vordokas, then filed an application to determine heirship. Vordokas 

asserted in this application that the decedent had only four heirs, all of them being 

the decedent’s children. Vordokas represented that the decedent had previously been 

married twice, but that each of his marriages had ended in divorce. Vordokas also 

represented that, at the time of his death, the decedent had an unmarried companion, 

Mary Helen Gill.

The probate court conducted an heirship hearing, where only three witnesses 

testified. Vordokas was the first witness, and she testified that she and her siblings 

were the decedent’s only heirs. The remaining two witnesses were disinterested, 

having no stake in the decedent’s estate. They each testified that they believed that 

the decedent was unmarried at the time of his death and that his children were his 

only heirs. Gill did not attend the hearing, and an attorney ad litem who was 

appointed to represent the interests of any unknown heirs did not question any of the 

witnesses about the possibility of the decedent having a common law wife.

The probate court rendered an heirship judgment declaring that the decedent’s 

only heirs were his four children, and that each of his children had an equal onefourth interest in the estate.

Thirty days after this judgment, Gill filed a motion for new trial with the 

probate court, in which she asserted that she had not received timely notice of the 

heirship hearing, and that, until the decedent’s death, she had been the decedent’s 

common law wife of nearly twenty-three years. Gill failed to set this motion for a 
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hearing, and it was deemed overruled by operation of law. No appeal was ever taken 

from the heirship judgment.

Seventeen months after the motion for new trial was overruled by operation 

of law, Gill filed an original petition for a statutory bill of review. In this petition, 

Gill asserted that she was the decedent’s surviving spouse—and therefore his heir—

and that she had never received notice of the heirship hearing until after the hearing 

had concluded.

Vordokas filed an original answer in which she asserted the affirmative 

defense of res judicata. Vordokas then moved for summary judgment on that 

defense. Vordokas argued in her motion that res judicata applied because the 

heirship judgment was final, because Gill became a party to that judgment when she 

moved for a new trial and then failed to perfect an appeal, and because her petition 

for bill of review sought the same relief as her motion for new trial. Gill filed a 

response, arguing among other points that, because she sought a statutory bill of 

review, she was not subject to the same rules as an equitable bill of review, and that 

she had no burden to exercise diligence in moving for a new trial and appealing the 

heirship judgment.

The probate court disagreed with Gill and granted a summary judgment in 

favor of Vordokas. The probate court also added a notation to the judgment, which 

stated that Gill should take nothing on her bill of review because of her “failure to 

timely file an appeal in the underlying cause.” Gill now appeals from this summary

judgment.

ANALYSIS

We review summary judgments de novo. See Exxon Mobil Corp. v. Rincones, 

520 S.W.3d 572, 579 (Tex. 2017).
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Vordokas moved for summary judgment on her affirmative defense of res 

judicata. The purpose of that defense is to promote the finality of judgments. See 

Hallco Tex., Inc. v. McCullen County, 221 S.W.3d 50, 58 (Tex. 2006). Because a 

bill of review has a conflicting purpose—i.e., to set aside a final judgment—res 

judicata is not normally a defense to a bill of review, except in situations where a 

party petitions for multiple bills of review. See Transworld Fin. Servs. Corp. v. 

Briscoe, 722 S.W.2d 407, 407 (Tex. 1987) (“The grounds upon which a bill of 

review can be obtained are narrow because the procedure conflicts with the 

fundamental policy that judgments must become final at some point.”); e.g., Joiner 

v. Vasquez, 632 S.W.2d 755, 760 (Tex. App.—Dallas 1981, no writ) (op. on reh’g) 

(en banc) (holding that res judicata applied when a party filed three petitions for bill 

of review).

There are two types of bills of review: equitable and statutory. See Valdez v. 

Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015). To obtain an equitable bill of review, 

a petitioner must generally plead and prove the following three elements: (1) the 

petitioner has a meritorious claim or defense to the judgment; (2) the petitioner was 

prevented from making that claim or defense because of official mistake or because 

of the opposing party’s fraud, accident, or wrongful conduct; and (3) the petitioner’s 

inability to make the claim or defense was unmixed with any fault or negligence on 

the petitioner’s own part. Id. When cases involving res judicata have arisen in the 

context of an equitable bill of review, there is normally a failure by the petitioner to 

satisfy one of these three elements. See, e.g., Lentino v. Frost Nat’l Bank, No. 14-

05-01179-CV, 2007 WL 2198827, at *2 (Tex. App.—Houston [14th Dist.] Aug. 2, 

2007, pet. denied) (rejecting a bill of review because the petitioner’s claims and 

defenses were or could have been litigated in the underlying trial and appellate 

proceedings and were barred by res judicata). And when a petitioner fails to appeal 
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the denial of a motion for new trial or its overruling by operation of law—as Gill did 

here—that failure precludes an equitable bill of review because it demonstrates that 

the petitioner did not exercise the appropriate amount of diligence in the underlying 

proceeding. See French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967) (“So there is 

insufficient cause here for relief by bill of review. Respondent permitted the 

judgment to become final by his failure to invoke the right of appeal.”); see also Rizk 

v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980) (“Just as a bill of review may not be 

used when one neglects to urge a motion for new trial or appeal when he has time to 

do so, a bill of review may not be used as an additional remedy after one has timely 

filed a motion to reinstate and a motion for new trial and has made a timely but 

unsuccessful appeal.”).

But this case involves a statutory bill of review, which Gill sought under 

Section 55.251 of the Texas Estates Code. That statute provides that “an interested 

person may, by a bill of review filed in the court in which the probate proceedings 

were held, have an order or judgment rendered by the court revised and corrected on 

a showing of error in the order or judgment, as applicable.” See Tex. Est. Code 

§ 55.251(a); see also Tex. Est. Code § 22.029 (defining “probate proceedings” as “a 

matter or proceeding relating to a decedent’s estate,” which includes a determination 

of heirship). By its plain language, this statute authorizes a bill of review in a probate 

proceeding merely upon “a showing of error,” without the other elements required 

by an equitable bill of review. Thus, a petitioner in a probate proceeding can obtain 

this statutory bill of review even if the petitioner did not exercise the amount of 

diligence that would be demanded in the context of an equitable bill of review. See 

McDonald v. Carroll, 783 S.W.2d 286, 288 (Tex. App.—Dallas 1989, writ denied) 

(“The ordinary rules as to diligence in making motions for new trial and in appealing 

from the judgment complained of do not apply.”).
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Gill emphasized this point in her summary judgment response. She asserted 

that she “was not required to file an appeal of the Judgment Determining Heirship 

or a motion for new trial.” Nonetheless, the probate court granted a summary 

judgment to Vordokas precisely because Gill had not filed an appeal. We conclude 

that the probate court’s decision was erroneous, and that the error probably led to 

the rendition of an improper judgment. See Tex. App. P. 44.1(a).

CONCLUSION

The probate court’s summary judgment is reversed and the case is remanded 

to that court for additional proceedings.

/s/ Tracy Christopher

Chief Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Spain.