Reversed and Remanded and Majority and Concurring Opinions filed August
30, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00816-CV

VERNON KENT MAREE AND FRONT ROW PARKING INC., Appellants

                                          V.
                    BALDEMAR (VAL) ZUNIGA, Appellee

             On Appeal from the County Civil Court at Law No. 4
                           Harris County, Texas
                      Trial Court Cause No. 1063505

                   CONCURRING OPINION
      I join my colleagues in the disposition of this case because a preliminary
hearing conducted on a bill of review for the purpose of determining a prima facie
case is limited to a meritorious defense. See Caldwell v. Barnes, 154 S.W.3d 93,
97 (Tex. 2004) (citing Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex. 1979)
(holding that “a bill of review plaintiff is required, as a pretrial matter, to present
prima facie proof of a meritorious defense to the underlying cause of action”)).
Therefore, the trial court erred in resolving pretrial, without the protections of
summary judgment practice, whether Appellants had established a prima facie case
on element three regarding the fault or negligence of the defaulted party.
      I write separately to point out that the trial court’s error was, if not invited,
engineered. Appellee set a hearing on its “Motion to Determine Whether Plaintiff
has Established Prima Facie Case.” As the Majority notes, Appellee did not
reference Baker v. Goldsmith in the motion. And, although the Majority states that
the “order gave notice to the parties of a Baker v. Goldsmith preliminary hearing,”
there is no order in this record referencing Baker v. Goldsmith. Instead, it is
Appellee’s notice setting the hearing on “Defendant’s Motion to Determine
Whether Plaintiff has Established a Prima Facie Case for a Bill of Review” that
gave notice of the hearing, and it does not reference Baker v. Goldsmith.
      Appellants did little to set the record straight. Appellants’ sole reference to
Baker v. Goldsmith in its response to the motion argued that under this authority
Appellants did not even need to establish a prima facie case on meritorious
defense. And, Appellee set forth all three of the bill of review elements it needed
to prove as part of its case, including fault or negligence.
      Finally, in the oral hearing on the motion, neither party referenced Baker v.
Goldsmith.     And, when the trial court requested authority for Appellants’
unsupported statement that the hearing should be limited to questions of a
meritorious defense, Appellants did not identify or supply Baker v. Goldsmith.
      Therefore, although we reverse the trial court for failing to properly limit the
pretrial “Baker hearing,” we should also acknowledge that the trial court was never
advised it was conducting a Baker hearing.



                                        /s/       Sharon McCally
                                                  Justice

Panel consists of Chief Justice Frost and Justices McCally and Brown. (Frost, C.J.,
majority).

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