                                MEMORANDUM OPINION
                                       No. 04-08-00043-CV

                            In re Estate of Henry H. BLANKENSHIP,
                                             Appellant

                        From the Probate Court No. 2, Bexar County, Texas
                                     Trial Court No. 135874
                            Honorable Tom Rickhoff, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Karen Angelini, Justice
                 Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: May 6, 2009

REVERSED AND REMANDED

           This appeal concerns a complicated will contest. The probate court granted Appellee

Kathleen Blankenship Nicholas’s plea to the jurisdiction challenging Appellant Lucia

Blankenship Mooney’s July 2006 Original Petition. We hold the probate court erred when it

granted Kathleen’s plea because Lucia’s pleadings sufficiently allege facts that show the probate

court had jurisdiction. Accordingly, we reverse the probate court’s November 30, 2007 Order

and remand this cause for further proceedings consistent with this opinion.

                                             BACKGROUND

           The factual and procedural histories of this case are complex and span over three

decades. To begin, sisters Lucia and Kathleen are two of Henry H. and Maria Blankenship’s
                                                                                    04-08-00043-CV


eleven children. At the time of his death, Henry had both land and children in Mexico and the

United States. This case arises from a dispute over two testamentary instruments; one executed

in Mexico and a second executed in the United States.

A. Two Wills, Two Applications for Probate

       Lucia argues that Henry’s 1967 will, executed in Mexico (the Mexican will), devised all

of his property—in Mexico and the United States—to his children in equal shares. Kathleen

counters that Henry’s 1973 will codicil (the U.S. will), executed approximately two weeks prior

to his death, created a testamentary trust which provided a life estate in the U.S. property for

Maria (Henry’s now deceased wife) with the remainder to their three youngest children:

Kathleen and her younger twin brothers. In May 1973, San Antonio Bank & Trust (SABT), the

executor of the estate under the U.S. will and trustee of the testamentary trust, filed an

application to probate the U.S. will. Twelve days later, in June 1973, Enrique, Henry’s oldest

son, filed an application to probate the Mexican will in the United States.

       In the same document with his application to probate the Mexican will, Enrique contested

the U.S. will. After some intra-family negotiations and an alleged settlement, SABT’s lawyer

filed the Mexican will in the Bexar County deed records in January 1978. For twenty-five years,

the probate court did not issue any orders on the U.S. will application or Enrique’s contest of the

U.S. will. Then, in June 2003, Maria died. Within a few months, the disputes resumed.

B. Estate Disputes Resume

       On November 4, 2003, the probate court dismissed Enrique’s 1973 contest of the U.S.

will for want of prosecution. Shortly thereafter, the court used SABT’s 1973 application to

admit the U.S. will to probate as a muniment of title as reflected in its Order of November 13,

2003. In her July 26, 2006 Original Petition attacking the order, Lucia asserts:



                                                -2-
                                                                                     04-08-00043-CV


        (1) the U.S. will proponents agreed in 1975 to renounce the U.S. will, recognize the
            Mexican will, and have it filed in the Bexar County deed records;
        (2) as evidence of the settlement, the attorney for the U.S. will proponents filed the
            Mexican will;
        (3) the filing of the Mexican will in 1978 disposed of Henry’s property in Bexar County;
        (4) the U.S. will proponents violated the agreement by seeking to probate the U.S. will
            approximately twenty-five years after the Mexican will had been filed; and
        (5) the U.S. will proponents engaged in extrinsic fraud to obtain the November 13, 2003
            Order because the proponents knew about the settlement and deliberately failed to
            notify Lucia of their actions seeking to probate the U.S. will.

Because, inter alia, the U.S. will proponents failed to give Lucia notice of their submission of the

November 13, 2003 Order to the court, Lucia sought discovery sanctions.

        Responding to Lucia’s Petition, Kathleen filed a plea to the jurisdiction attacking Lucia’s

suit as untimely because it was filed after the probate court’s plenary power had expired. In

reply, Lucia filed a plea to the jurisdiction attacking the November 13, 2003 Order admitting the

U.S. will to probate and seeking Rule 13 sanctions against Kathleen. The probate court granted

Kathleen’s plea to the jurisdiction, dismissed Lucia’s Petition, and denied Lucia’s plea to the

jurisdiction.

                                        ISSUES ON APPEAL

        On appeal, Lucia raises three issues: (1) the probate court erred in its November 30, 2007

Order dismissing Lucia’s July 2006 action and granting Kathleen’s plea to the jurisdiction, (2)

the probate court erred by refusing to consider and grant Lucia’s requests for sanctions, and (3)

the probate court erred by probating the U.S. will without proper notice to Lucia.

                   DISMISSAL OF CHALLENGE TO ALLEGEDLY VOID ORDER

        In her first issue, Lucia asserts the probate court erred in its November 30, 2007 Order

granting Kathleen’s plea to the jurisdiction, dismissing Lucia’s July 2006 Petition asserting the

November 13, 2003 Order was void, and denying Lucia’s plea to the jurisdiction.


                                                -3-
                                                                                      04-08-00043-CV


A. Standard of Review

         A plea to the jurisdiction may challenge the subject matter jurisdiction of the court. Tex.

Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). If the plea is appealed,

we review the order de novo. Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d

151, 156 (Tex. 2007). In our review, we tailor our analysis based on whether the movant

challenges the plaintiff’s pleadings or the existence of jurisdictional facts. Miranda, 133 S.W.3d

at 226–27. If the plea challenges the pleadings, we determine if the pleader has affirmatively

demonstrated the court’s jurisdiction to hear the case. Id. at 227. “We construe the pleadings

liberally in favor of the plaintiffs and look to the pleaders’ intent.” Id. at 226 (citing Tex. Ass’n

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).

B. Construing Pleadings As a Collateral Attack

         In July 2006, more than two years after the November 13, 2003 Order became a final,

appealable order, Lucia filed an Original Petition or Motion to Set Aside the November 13, 2003

Order.    The probate court considered the substance of Lucia’s pleadings and decided her

pleadings could not be construed as a direct appeal (no notice of appeal), a statutory bill of

review or a will contest (not filed within two years), or an equitable bill of review (improper

form, failure to pursue available legal remedies). The probate court then held that it lacked

jurisdiction over Lucia’s Petition, dismissed it, and denied her plea. However, as described

below, the substance of Lucia’s Petition provides another basis for the probate court’s

jurisdiction.

         1. Construing Pleadings

         Appellate decisions should “turn on substance rather than procedural technicality.”

Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121 (Tex. 1991) (citing Gay v. City



                                                -4-
                                                                                       04-08-00043-CV


of Hillsboro, 545 S.W.2d 765, 766 (Tex. 1977)). In our review, we “look to the substance of a

plea for relief to determine the nature of the pleading, not merely at the form of title given to it.”

State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); accord TEX. R. CIV. P. 71. A

pleading’s style does not control over its substance and purpose. Hodge v. Smith, 856 S.W.2d

212, 214 n.1 (Tex. App.—Houston [1st Dist.] 1993, writ denied); Nichols v. Prejean, 673

S.W.2d 394, 396 (Tex. App.—Tyler 1984, no writ), overruled on other grounds by Smith v.

Smith, 694 S.W.2d 426, 430 (Tex. App.—Tyler, writ ref’d n.r.e.). For instance, where a pleading

is not expressly styled as—but its substance is that of—a collateral attack, the court may construe

the pleading based on its substance. See TEX. R. CIV. P. 71. Where the substance of the pleading

warrants, the court may also “construe the [plaintiffs’] pleadings as containing an implicit

request for a declaratory judgment.” Edwards Aquifer Auth. v. Bragg, 21 S.W.3d 375, 381

(Tex. App.—San Antonio 2000), aff’d, 71 S.W.3d 729 (Tex. 2002).

       2. Declaratory Judgment Action in Will Contest

       The Uniform Declaratory Judgments Act (UDJA) is intended “to settle and to afford

relief from uncertainty and insecurity with respect to rights . . . and it is to be liberally construed

and administered.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.002 (Vernon 2008); accord Cobb

v. Harrington, 144 Tex. 360, 367, 190 S.W.2d 709, 713 (1945); Puretex Lemon Juice, Inc. v.

Cal. Prods., Inc., 324 S.W.2d 449, 453 (Tex. Civ. App.—San Antonio 1959), aff’d, 160 Tex.

586, 334 S.W.2d 780 (1960). The UDJA also provides that “[a] person interested under a . . .

will . . . may have determined any question of construction or validity arising under the

instrument . . . and obtain a declaration of rights, status, or other legal relations thereunder.”

TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (Vernon 2008). Heirs at law and devisees

under a will are interested persons with standing to contest a will, see TEX. PROB. CODE ANN.



                                                 -5-
                                                                                      04-08-00043-CV


§ 3(r) (Vernon 2003); Foster v. Foster, 884 S.W.2d 497, 501 (Tex. App.—Dallas 1993, no writ),

and they may do so in a declaratory judgment action, see Hartman v. Solbrig, 12 S.W.3d 587,

594 n.7 (Tex. App.—San Antonio 2000, pet. denied); Harkins v. Crews, 907 S.W.2d 51, 55 (Tex.

App.—San Antonio 1995, writ denied).

       3. Collateral Attack on Order

       A declaratory judgment action may be coincident with a collateral attack. See City of

Celina v. Dynavest Joint Venture, 253 S.W.3d 399, 403 (Tex. App.—Austin 2008, no pet.);

Glunz v. Hernandez, 908 S.W.2d 253, 255 (Tex. App.—San Antonio 1995, writ denied). A

collateral attack is used to attack a void order and has no set procedure or statute of limitations.

Roman Catholic Diocese of Dallas v. County of Dallas Tax Collector, 228 S.W.3d 475, 480

(Tex. App.—Dallas 2007, no pet.); Zarate v. Sun Operating Ltd., 40 S.W.3d 617, 620–21 (Tex.

App.—San Antonio 2001, pet. denied). “A trial court has jurisdiction over [a] collateral attack[]

seeking a declaration that a challenged [order] is void.” Dynavest, 253 S.W.3d at 404. Although

not available for intrinsic fraud, “a collateral attack on a judgment on the basis of extrinsic fraud

is allowed.” Browning v. Prostok, 165 S.W.3d 336, 348 (Tex. 2005).

C. Analysis

       The substance of Lucia’s pleadings reflects a declaratory judgment action and a collateral

attack of a void judgment. See Dynavest, 253 S.W.3d at 404; Bragg, 21 S.W.3d at 381. Lucia

was an interested person who sought to protect her property interest under the Mexican will. See

TEX. PROB. CODE ANN. § 3(r) (Vernon 2003); Foster v. Foster, 884 S.W.2d 497, 501 (Tex.




                                                -6-
                                                                                                    04-08-00043-CV


App.—Dallas 1993, no writ). By her pleadings, Lucia initiated a declaratory judgment action. 1

See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (Vernon 2008). Further, Lucia asserted the

November 13, 2003 Order was void, expressly alleged extrinsic fraud, and sought to avoid the

effects of the order. See Browning, 165 S.W.3d at 346.

         Responding to Lucia’s July 2006 Petition, Kathleen’s plea to the jurisdiction challenged

Lucia’s pleadings, but not the existence of jurisdictional facts.                      See generally Miranda,

133 S.W.3d at 226–28. Kathleen’s plea recited the dates of the November 13, 2003 Order and

Lucia’s July 2006 Petition to show Lucia’s Petition was filed after the probate court’s plenary

power had expired. According to Miranda, the probate court was left to determine whether

Lucia’s pleadings “alleged facts that affirmatively demonstrate[d] the court’s jurisdiction to hear

the cause.” See id. at 226.

         In its review, the probate court was obliged to follow two guidelines: first, “construe

[Lucia’s] pleadings liberally in [her] favor . . . and [second,] look to [her] intent.” Id.; cf. Heard,

603 S.W.2d at 833 (approving construing a pleading based on its substance rather than merely its

title). First, Lucia’s pleadings articulate jurisdictional facts supporting both jurisdiction and

venue for her suit in the probate court. Specifically, Lucia asserted she was challenging an order

issued in the administration of an estate, the property in dispute was in Bexar County, the

defendant (Kathleen) resided in Bexar County, Lucia was a beneficiary under the Mexican will,

Lucia’s property rights would be adversely affected by the U.S. will, and she sought affirmative




1
  A declaratory judgment action is an additional remedy to other available remedies. Tex. Mun. Power Agency v.
Pub. Util. Comm’n, 100 S.W.3d 510, 516 (Tex. App.—Austin 2003, pet. denied); see Gunter’s Unknown Heirs &
Legal Representatives v. Lagow, 191 S.W.2d 111, 113 (Tex. Civ. App.—Austin 1945, writ ref’d). Parties seeking to
protect their interest in real property may bring a declaratory judgment action even when a trespass to try title suit
may also have been used. Salinas v. Gutierrez, 341 S.W.2d 558, 560 (Tex. Civ. App.—San Antonio 1960, writ ref’d
n.r.e.); see Lagow, 191 S.W.2d at 113.

                                                        -7-
                                                                                      04-08-00043-CV


relief from the probate court. See TEX. PROB. CODE ANN. §§ 5, 5A (probate court jurisdiction),

§ 6 (proper venue) (Vernon 2003).

       Second, Lucia pled the basis for a collateral attack: she challenged the November 13,

2003 Order as void and expressly charged extrinsic fraud. She alleged the U.S. will proponents

used a Rule 11 letter and a partially executed settlement agreement “to induce [her] inaction in

reliance upon the representation and agreement.” See Browning, 165 S.W.3d at 347 (“[A]

fiduciary’s concealment of material facts to induce an agreed or uncontested judgment, which

prevents a party from presenting his legal rights at trial, is extrinsic fraud.”). Lucia did not need

to follow a particular procedure to present her collateral attack, and her attack was not barred by

a statute of limitations. See Roman Catholic Diocese of Dallas, 228 S.W.3d at 480; Zarate,

40 S.W.3d at 621–22.

       Reviewing the probate court’s November 30, 2007 Order, we hold the probate court erred

by granting Kathleen’s plea to the jurisdiction for lack of jurisdiction. Lucia’s pleading is

properly construed as a collateral attack on an allegedly void order, see Heard, 603 S.W.2d at

833, and it “alleged facts that affirmatively demonstrate[d the probate] court’s subject matter

jurisdiction,” Miranda, 133 S.W.3d at 226.         Therefore, construing the substance—but not

deciding the merits—of Lucia’s case, we sustain Lucia’s first issue on appeal.

                                    DENIAL OF DUE PROCESS

       In addition to her argument that the probate court’s order was void as a result of extrinsic

fraud, Lucia argues the November 13, 2003 Order was void for lack of procedural due process.

In her July 2006 Petition, Lucia complained that the November 13, 2003 Order was void because

it denied her due process based on lack of notice prior to the November 2003 hearing and the

Order deprived her of an interest in real property. See In re Keeling, 227 S.W.3d 391, 395 (Tex.



                                                -8-
                                                                                                   04-08-00043-CV


App.—Waco 2007, no pet.). Although the probate court dismissed Lucia’s suit for want of

jurisdiction, we held the court had jurisdiction over her pleadings as a collateral attack. Because

we hold that Lucia’s July 2006 Petition was properly before the court as a collateral attack, we

do not address the merits of whether the November 13, 2003 Order was void for lack of due

process. See TEX. R. APP. P. 47.1 (requiring concise opinions addressing only those issues

“necessary to final disposition of the appeal”).

                                   DENIAL OF MOTIONS FOR SANCTIONS

         In her second issue, Lucia asserts the probate court abused its discretion by refusing to

hear and denying her motion for sanctions. In her September 2006 Plea to the Jurisdiction and

Motion for Sanctions, Lucia claimed the trial court lacked jurisdiction to enter the November 13,

2003 Order, and also sought Rule 13 sanctions against Kathleen for submitting the October 2003

Order on behalf of SABT, a by-then non-existent entity, and other pre-November 13, 2003

conduct. On October 11, 2007 the court heard the parties’ competing pleas to the jurisdiction.

The record reflects that the court directed its attention exclusively to the competing pleas to the

jurisdiction “because that may end up resolving everything.” There is no evidence in the record

that the court addressed Lucia’s motion for sanctions before it granted Kathleen’s plea to the

jurisdiction and denied Lucia’s plea to the jurisdiction. 2 Because the motion for sanctions was

never heard or expressly ruled upon, there is nothing before us to review. See TEX. R. APP. P.

33.1(2) (requiring a trial court ruling—or refusal to rule—as a prerequisite to presenting a

complaint for appellate review). We, therefore, decline to address the merits of the motion for

sanctions so that the trial court may consider it on remand.


2
  Appellee claims the court’s consideration of the motion for sanctions is reflected in the court’s denial of Lucia’s
pleading entitled Plea to the Jurisdiction and Motion for Sanctions. However, there is no evidence in the record that
the motion for sanctions was ever considered and according to the record the denial pertains to Lucia’s plea to the
jurisdiction.

                                                        -9-
                                                                                                  04-08-00043-CV


                                        LATE REPORTER’S RECORD

        In her brief, Appellee Kathleen asserts Appellant Lucia waived each issue because Lucia

initially failed to include the reporter’s record in the appellate record and to make appropriate

citations to the record. See TEX. R. APP. P. 38.1(h) (“The brief must contain . . . appropriate

citations to authorities and to the record.”). Lucia admits she made a late request for the

reporter’s record, but rejects Kathleen’s complaints as meritless.

        Resolving Kathleen’s Motion to Strike the late reporter’s record, the plain language of

Rule 34.6(b)(3) controls: “An appellate court must not refuse to file a reporter’s record . . .

because of a failure to timely request it.” See TEX. R. APP. P. 34.6(b)(3); Daniels v. Univ. of Tex.

Health Science Ctr. of Tyler, 222 S.W.3d 4, 5 (Tex. App.—Tyler 2004, no pet.); Arevalo v.

Millan, 983 S.W.2d 803, 807 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (en banc) (per

curiam).

        Here, Lucia timely filed her notice of appeal and her appellant’s brief. However, she

failed to timely file the reporter’s record—but later requested it. This court granted Lucia’s

motion for an extension of time to file a reply brief until August 4, 2008, which is the day this

court received the reporter’s record. The next day, Kathleen moved to strike the late reporter’s

record. Notably, before the December 9, 2008 submission date, Lucia updated her brief to

include citations to the clerk’s record. In compliance with Rule 34.6(b)(3), we have filed the

reporter’s record. 3      See TEX. R. APP. P. 34.6(b)(3); Daniels, 222 S.W.3d at 5; Arevalo,

983 S.W.2d at 807. Accordingly, we deny Kathleen’s motion to strike the reporter’s record.




3
 In her plea to the jurisdiction, Kathleen challenged Lucia’s pleadings, not the existence of jurisdictional facts.
Thus, our review of Kathleen’s plea was limited to examining Lucia’s pleadings for facts demonstrating jurisdiction.
See Miranda, 133 S.W.3d at 226.

                                                       - 10 -
                                                                                    04-08-00043-CV


                                          CONCLUSION

       We hold the probate court erred in dismissing Lucia’s July 2006 Petition for want of

jurisdiction because the court should have construed the pleading as a declaratory judgment

action and a collateral attack over which the court had jurisdiction. See TEX. R. CIV. P. 71;

Dynavest Joint Venture, 253 S.W.3d at 404; Bragg, 21 S.W.3d at 381. Therefore, we sustain

Lucia’s first issue. Because there is no record that the trial court considered Lucia’s request for

sanctions, we overrule Lucia’s issue that the probate court abused its discretion by failing to

grant sanctions against Kathleen. Accordingly, we reverse the probate court’s November 30,

2007 Order and remand this cause to the probate court for further proceedings consistent with

this opinion.



                                                  Rebecca Simmons, Justice




                                               - 11 -
