                                IN THE
                        TENTH COURT OF APPEALS



                               No. 10-19-00001-CV

                     IN RE CANDICE MCCOMB,
             AS INDEPENDENT ADMINISTRATRIX OF THE
                 ESTATE OF CORY DELANE STEWART


                               Original Proceeding



                         MEMORANDUM OPINION


      On January 3, 2019, Relator, Candice McComb, as Independent Administratrix of

the Estate of Cory DeLane Stewart, filed a Petition for Writ of Mandamus asking this

Court to direct the Respondent, Judge Justin Lewis, to dismiss the Counter-Application

to Determine Heirship and the Counter-Application for Letters of Dependent

Administration, filed by Real Party in Interest, Melissa Adair-Stewart, for lack of

jurisdiction. We deny the Petition for Writ of Mandamus.
                                  BACKGROUND FACTS

       Cory DeLane Stewart died intestate on November 4, 2014. On November 13, 2014,

Candice McComb filed an Application for Letters of Independent Administration and

Determination of Heirship. The Application included the names of Cory Stewart’s

children, McComb and Michael Stewart as heirs. The Application requested that citation

be issued as required by law and that an attorney ad litem be appointed to represent any

unknown heirs.

       On December 3, 2014, the trial court signed a Judgment Declaring Heirship and

found that McComb and Michael Stewart were each entitled to a fifty percent share of

Cory Stewart’s real property and personal property. On December 1, 2016, Melissa

Adair-Stewart filed a Counter-Application to Determine Heirship and a Counter-

Application for Letters of Dependent Administration claiming she is the surviving

spouse of Cory Stewart. McComb filed a motion to dismiss both of the Counter-

Applications for lack of jurisdiction. The trial court denied the motion and set the case

for trial on February 4, 2019.    On January 9, 2019, this Court granted McComb’s

unopposed motion to stay the February 4 trial setting and requested a response from

Adair-Stewart. Adair-Stewart filed a response on January 30, 2019.

                                  STANDARD OF REVIEW


       To be entitled to mandamus relief, a relator must demonstrate (1) the trial court

clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re


In re Candice McComb
                                                                                    Page 2
Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Mid-Century Insurance

Company, 549 S.W.3d 730, 733 (Tex. App.—Waco 2017, no pet.). A trial court abuses its

discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear

and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the

law correctly to the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005)

(orig. proceeding) (per curiam); In re Mid-Century Insurance Company, 549 S.W.3d at 733.

                                          ANALYSIS


       McComb’s argues that the trial court did not have jurisdiction to consider the

motions filed by Adair-Stewart and that the motions filed by Adair-Stewart do not

qualify as a Bill of Review. The Order Granting Letters of Independent Administration

entered on December 3, 2014 was a final appealable order. TEX. ESTATES CODE ANN. §

32.001 (c) (West 2014). There was no appeal from the December 3 Order and there was

no motion for new trial or a motion to modify, correct, or reform the judgment filed.

Therefore, the trial court’s plenary jurisdiction expired thirty days from the date of the

December 3 Order. See TEX. R. CIV. P. 329b.

       On expiration of the time within which the trial court has plenary power, a

judgment cannot be set aside by the trial court except by bill of review for sufficient cause,

filed within the time allowed by law. TEX. R. CIV. P. 329b (f). A bill of review is an

independent action to set aside a judgment that is no longer appealable or subject to




In re Candice McComb
                                                                                        Page 3
challenge by a motion for new trial. Wembley Investment Company. v. Herrera, 11 S.W.3d

924, 926-27 (Tex. 1999).

       The Texas Estates Code provides:

       If an heir of a decedent who is the subject of a proceeding to declare heirship
       is not served with citation by registered or certified mail or personal service
       in the proceeding, the heir may:
               (1) have the judgment in the proceeding corrected by bill of review:
               (A) at any time, but not later than the fourth anniversary of the date
       of the judgment; or
               (B) after the passage of any length of time, on proof of actual fraud;
       and
               (2) recover the heir's just share of the property or the value of that
       share from:
               (A) the heirs named in the judgment; and
               (B) those who claim under the heirs named in the judgment and who
       are not bona fide purchasers for value.

TEX. ESTATES CODE ANN. § 202.203 (West 2014). In the Counter-Application to Determine

Heirship, Adair-Stewart states:

       This application is being filed pursuant to Texas Estates Code Section
       202.203. Applicant is an heir of decedent who was not served with citation,
       and is seeking a bill of review. More than four (4) years have not passed
       since the determination of heirship being made in this matter; said
       determination of heirship was entered on December 3rd , 2014.

       Although it is titled Counter-Application to Determine Heirship, Adair-Stewart is

clearly seeking a bill of review pursuant to Section 202.203 of the Texas Estates Code. We

determine the nature of a motion by its substance, not its title or caption. In re Brookshire

Grocery Company, 250 S.W.3d 66, 72 (Tex. 2008) (orig. proceeding).




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                                                                                         Page 4
       McCombs contends that because Adair-Stewart did not file the Counter-

Application as a separate proceeding, it cannot be considered as a bill of review. On May

27, 2017, the trial court entered an order denying McComb’s Motion to Dismiss for Lack

of Jurisdiction and ordered the trial court clerk to establish a separate docket number for

Adair-Stewart’s Counter-Application to Determine Heirship and Counter-Application

for Letters of Dependent Administration. On June 8, 2017, the County Clerk issued a

letter stating that after review of Section 52.052 (a) of the Texas Estates Code, it was

determined that the clerk would maintain only one cause number for the proceedings.

The language in the May 27, 2017 Order directing the trial court clerk to establish a

separate docket number was stricken from the Order.

       McCombs filed a Second Motion to Dismiss for Lack of Jurisdiction on August 28,

2017, arguing that Adair-Stewart had not filed a bill of review and the trial court did not

have plenary power over the judgment. The trial court denied the second motion to

dismiss on September 27, 2017.

       A bill of review is a separate proceeding from the underlying suit. Ross v. National

Center for the Employment of the Disabled, 197 S.W.3d 795, 798 (Tex. 2006). Texas procedure

has always mandated that a petition for bill of review be a new lawsuit filed under a

different cause number than the case whose judgment the bill of review complainant is

attacking. Amanda v. Montgomery, 877 S.W.2d 482, 485 (Tex. App. —Houston [1st Dist.]

1994, no pet.). However, as stated in In re Thompson:


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                                                                                     Page 5
       Some courts have held that a bill of review should not be dismissed solely
       on the basis that it was misfiled in the same case as the challenged
       judgment, rather than in a new action. See Chamberlain v. Alexander, No. 09-
       00-174-CV, 2001 WL 788408, at *2 (Tex. App. —Beaumont July 12, 2001, no
       pet.); Wells v. Maxey, No. 14-92-00789-CV, 1993 WL 143364, at *3 (Tex. App.
       —Houston [14th Dist.] May 6, 1993, writ denied); Postell v. Tex. Dept. of Pub.
       Welfare, 549 S.W.2d 425 (Tex. Civ. App. —Fort Worth 1977, writ ref'd n.r.e.).

In re Thompson, No. 01-17-00703-CV, 2018 WL 2106905, at * 4 (Tex. App. —Houston [1st

Dist.] May 8, 2018, no pet.).    In Postell, the court found that despite an improper

designation as a "Motion to Vacate Void Judgment and Set Aside Orders" the motion was

a bill of review. Postell v. Texas Department of Public Welfare, 549 S.W.2d 425 (Tex. Civ.

App. —Fort Worth 1977, writ ref'd n.r.e.). The court held that although a bill of review is

a separate suit and should be given a new docket number, it will not be dismissed if the

allegations are otherwise sufficient. Postell v. Texas Department of Public Welfare, 549

S.W.2d at 426-427.

       We find that Adair-Smith’s Counter-Application to Determine Heirship complies

with Section 202.203 of the Texas Estates Code and should be considered as a bill of

review. The trial court did not abuse its discretion in denying McComb’s motion to

dismiss. The trial court should transfer Adair-Stewart’s pleadings to a separate docket

number. See Postell v. Texas Department of Public Welfare, 549 S.W.2d at 427.

                                       CONCLUSION

       McComb’s Petition for Writ of Mandamus is denied.




In re Candice McComb
                                                                                        Page 6
                                            JOHN E. NEILL
                                            Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Petition denied
Opinion delivered and filed March 6, 2019
[OT06]




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