Opinion issued October 21, 2014




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-13-00727-CV
                           ———————————
                      FREDERICK CHAVEZ, Appellant
                                        V.
       SEBASTIAN T. CHAVEZ AND MARY JO HARPER, Appellees


                     On Appeal from Probate Court No. 3
                           Harris County, Texas
                        Trial Court Case No. 409,456


                         MEMORANDUM OPINION

      Appellant, Frederick Chavez, challenges the probate court’s denial of his

petition for a statutory bill of review1 to set aside a summary judgment granted in


1
      See TEX. PROB. CODE ANN. § 31 (Vernon 2012). Section 31 has been recodified
      into substantively similar language at Texas Estates Code section 55.251. See
      TEX. EST. CODE ANN. § 55.251 (Vernon 2014) (formerly TEX. PROB. CODE ANN.
favor of appellees, Sebastian T. Chavez and Mary Jo Harper, and an order

admitting a will to probate. In three issues, appellant contends that the probate

court erred in granting summary judgment and admitting the will to probate based

on deemed admissions.

      We reverse and remand.

                                    Background

      In 2011, appellees filed an application in the probate court to admit a copy of

a lost 1995 will (the “1995 Will”) of their father, the decedent, George Chavez, Sr.

In the 1995 Will, the decedent bequeathed his estate to his wife and five children.

Appellant, proceeding pro se, filed an answer denying the validity of the 1995

Will. He asserted that the decedent, in 2008, executed a new will (the “2008

Will”), in which he expressly revoked all prior wills, noted that he was then pre-

deceased by his wife and one of his children, and named appellant as the

beneficiary of the estate.

      Appellees filed a no-evidence and matter-of-law summary-judgment motion,

asserting that the 1995 Will constituted the decedent’s last will and arguing that the

2008 Will is invalid because the decedent lacked testamentary capacity and the

will lacked due execution. Appellees asserted that appellant could adduce no

evidence to establish the validity of the 2008 Will. In support of their matter-of-

      § 31); Smalley v. Smalley, 436 S.W.3d 801, 806 n.7 (Tex. App.—Houston [14th
      Dist.] 2014, no pet.).


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law summary-judgment motion, appellees presented their requests for admissions,

arguing that because appellant had not answered them, they were deemed admitted

against him. Appellees asserted that the deemed admissions established that the

decedent lacked testamentary capacity at the time he executed the 2008 Will

because he was suffering from dementia or Alzheimer’s Disease and appellant had

facilitated preparation of the 2008 Will. Appellees further asserted that their

attached witness affidavits established that a neurologist had, in October 2008,

diagnosed the decedent with Alzheimer’s Disease and the decedent was, at the

time, “forgetful and confused.”

      On June 19, 2012, after appellant had not responded to the summary-

judgment motion or appeared at the summary-judgment hearing, the probate court

granted appellees summary judgment on both no-evidence and matter-of-law

grounds. On September 5, 2012, the probate court admitted the 1995 Will to

probate, authorized letters testamentary, and appointed appellees as independent

executors.

      On February 22, 2013, appellant filed his petition for bill of review,

challenging the probate court’s order granting appellees summary judgment and its

order admitting the 1995 Will to probate. He asserted that appellees had not served

him with their summary-judgment motion or notice of the hearing on their motion.

He also argued that the “motion for summary judgment was improperly granted



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based on deemed admissions” because appellees had never served him with their

requests for admissions.      He further argued that the probate court erred in

admitting the 1995 Will because the decedent, in the 2008 Will, had revoked the

1995 Will. After a hearing, the trial court denied appellant’s petition.

                                 Standard of Review

      Texas Probate Code section 31 authorizes a bill of review in probate

proceedings, as follows:

      Any person interested may, by a bill of review filed in the court in
      which the probate proceedings were had, have any decision, order, or
      judgment rendered by the court . . . revised and corrected on showing
      error therein; but no process or action under such decision, order, or
      judgment shall be stayed except by writ of injunction, and no bill of
      review shall be filed after two years have elapsed from the date of
      such decision, order, or judgment.

TEX. PROB. CODE ANN. § 31 (Vernon 2012). A statutory bill of review is not

subject to the limitations or requirements of an equitable bill of review. See

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

denied); Jackson v. Thompson, 610 S.W.2d 519, 522 (Tex. Civ. App.—Houston

[1st Dist.] 1980, no writ).

      In an appeal from the denial of a bill of review filed under section 31, an

appellate court must determine whether an interested person timely filed the bill of

review and specifically alleged and proved “substantial error” by the trial court. In

re Estate of Cunningham, 390 S.W.3d 685, 687 (Tex. App.—Dallas 2012, no pet.);



                                          4
In re Estate of Jones, 286 S.W.3d 98, 100–01 (Tex. App.—Dallas 2009, no pet.)

(noting relief under section 31 required movant to “allege substantial errors which,

if proven, would justify the correction or revision of the trial court’s . . . order”

admitting will to probate); Nadolney v. Taub, 116 S.W.3d 273, 278 (Tex. App.—

Houston [14th Dist.] 2003, pet. denied); Hoover v. Sims, 792 S.W.2d 171, 173

(Tex. App.—Houston [1st Dist.] 1990, writ denied); Hamilton v. Jones, 521

S.W.2d 350, 353 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.). The

error, which the movant must show by a preponderance of the evidence, need not

appear on the face of the record and may be proved at trial. Nadolney, 116 S.W.3d

at 278; Hoover, 792 S.W.2d at 173. In reviewing the denial of a petition for bill of

review, “every presumption is indulged in favor of the court’s ruling, which will

not be disturbed unless it is affirmatively shown that there was an abuse of judicial

discretion.” Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston

[14th Dist.] 2002, no pet.); Interaction, Inc. v. State, 17 S.W.3d 775, 778 (Tex.

App.—Austin 2000, pet. denied).

                                       Notice

      In three issues, appellant argues that the probate court committed

“substantial error” in granting summary judgment and admitting the 1995 Will to

probate, based in part on deemed admissions, because appellees did not serve him




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with their requests for admissions, summary-judgment motion, or notice of the

hearing on their motion.2

      Except on leave of court, a summary-judgment motion and any supporting

affidavits “shall be filed and served at least twenty-one days before the time

specified for hearing.” TEX. R. CIV. P. 166a(c). Not later than seven days before

the hearing, except on leave of court, the adverse party may file and serve

opposing affidavits or other written response.          Id.   “Notice of [a] summary

judgment hearing is essential to due process.” Clemons v. Denson, 981 S.W.2d

941, 944 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). Because summary

judgment is a harsh remedy, we strictly construe the notice requirements of the

rule. Etheredge v. Hidden Valley Airpark Ass’n, Inc., 169 S.W.3d 378, 383 (Tex.

App.—Fort Worth 2005, pet. denied).

      Further, although a party’s failure to timely respond to requests for

admissions normally results in the matters therein being deemed admitted against

him and conclusively established, such matters cannot be deemed admitted against

a party if service of the requests for admissions was not perfected. See TEX. R.

CIV. P. 198.2, 198.3; Wal–Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 355 (Tex.


2
      It is undisputed that appellant is an interested person and timely filed his petition
      for bill of review. See TEX. PROB. CODE ANN. § 31; Cunningham, 390 S.W.3d at
      687. Therefore, the only element in dispute is whether he showed substantial
      error.



                                            6
1998); Approximately $14,980.00 v. State, 261 S.W.3d 182, 186 (Tex. App.—

Houston [14th Dist.] 2008, no pet.) (“A party’s duty to respond is dependent upon

receipt of the requests.”); Payton v. Ashton, 29 S.W.3d 896, 898 (Tex. App.—

Amarillo 2000, no pet.) (noting “duty to respond does not ripen until service has

been perfected”).

      “Every notice required by the [Texas Rules of Civil Procedure], and every

pleading, plea, motion, or other form of request,” with exceptions not applicable

here, “may be served in person, mail, by commercial delivery service, by fax, by

email, or by such other manner as the court in its discretion may direct.” See TEX.

R. CIV. P. 21a; Etheredge, 169 S.W.3d at 382 (noting service of requests for

admissions requires compliance with rule 21a). Service by mail is complete upon

deposit of the document, enclosed in a postpaid, properly addressed wrapper, in a

post office or official depository under the care and custody of the United States

Postal Service. See TEX. R. CIV. P. 21a. “A certificate by a party or an attorney of

record, or the return of an officer, or the affidavit of any person showing service of

a notice shall be prima facie evidence of the fact of service.” Id. Further, notice

properly sent pursuant to rule 21a, raises a presumption of proper receipt by the

addressee. Id.; Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005). The

presumption of receipt may be rebutted by introducing opposing evidence that the

mailing was not received. See TEX. R. CIV. P. 21a.



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      Here, appellees’ summary-judgment motion contains a certificate of service,

signed by counsel, asserting that they sent it to appellant at his Eastwood address

“by fax, hand delivery, or certified mail on the 14th day of May 2012.” Appellees’

notice of the hearing on their summary-judgment motion also contains a certificate

of service, asserting that it was “served” on May 14, 2012.        Thus, by their

certificates of service, appellees invoked the presumption of proper service and

receipt. See TEX. R. CIV. P. 21a; Mathis, 166 S.W.3d at 745. “The presumption

vanishes, however, if opposing evidence is introduced that the notice in question

was not received.” Limestone Constr., Inc. v. Summit Commercial Indus. Props.,

Inc., 143 S.W.3d 538, 544–45 (Tex. App.—Austin 2004, no pet.).

      Appellant rebutted the presumption of service of appellees’ motion for

summary judgment and notice of hearing by presenting the certified mail return

receipt, which reflects that the post office “notified” appellant of the mailing on

May 15 and May 20, 2012 and then returned the item on May 30, 2012. A notice

sent by certified mail and returned does not provide the notice required under rule

21a. See Approximately, 261 S.W.3d at 189 (noting returned envelope bearing

post office notation package unclaimed sufficient to rebut presumption of service);

Limestone Constr., Inc., 143 S.W.3d at 545 (noting evidence post office’s attempts

to deliver summary-judgment motion had failed and package returned constitutes

proof of non-receipt); Rabie v. Sonitrol of Hous., Inc., 982 S.W.2d 194, 197 (Tex.



                                        8
App.—Houston [1st Dist.] 1998, no pet.) (holding summary-judgment motion and

submission notice sent by certified mail but returned unclaimed did not provide

nonmovant with due notice). Appellees asserted at the bill-of-review hearing that

service to appellant of their summary-judgment motion and notice of hearing was

by certified mail only.

      Further, appellees’ requests for admissions contain a certificate of service,

which was signed by counsel, who asserted that the requests were “forwarded” to

appellant at his Eastwood address “by hand-delivery, fax or certified mail on the

12th day of March 2012.” Again, appellees invoked the presumption of proper

service and receipt.      See TEX. R. CIV. P. 21a; Mathis, 166 S.W.3d at 745.

However, appellees’ certified mail envelope reflects that the post office “notified”

appellant at his Eastwood address on March 13 and 18, 2012 and then returned the

item as “unclaimed” on March 28, 2012. The returned envelope bearing the post

office’s “unclaimed” mark is sufficient to rebut the presumption of service. See

Approximately, 261 S.W.3d at 189; Etheredge, 169 S.W.3d at 382; Rabie, 982

S.W.2d at 197. And appellees asserted at the bill-of-review hearing that service to

appellant of their requests for admissions was by certified mail only.

      Appellees assert that even if appellant did not have actual notice of their

summary-judgment motion, hearing, and requests for admissions, he had

constructive notice because he engaged in selective acceptance and refusal of their



                                          9
certified mailings. Appellant asserts that “[w]ithout evidence in the record that

[he] dodged or refused delivery of certified mail, constructive notice cannot be

imputed to him.”

      Even if the presumption of actual notice is rebutted, “constructive notice”

may be established if the serving party presents evidence that the intended

recipient refused all certified mailings or engaged in repeated instances of selective

acceptance and refusal of certified mail relating to the case.       Etheredge, 169

S.W.3d at 382; see Roberts v. Roberts, 133 S.W.3d 661, 663 (Tex. App.—Corpus

Christi 2003, no pet.) (refusing all certified mail); Gonzales v. Surplus Ins. Servs.,

863 S.W.2d 96, 102 (Tex. App.—Beaumont 1993), overruled on other grounds,

Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002) (because

respondent engaged in repeated instances of selective acceptance and refusal of

certified mail, which evidenced purposeful effort to avoid service, constructive

notice of summary-judgment hearing deemed).

      Appellees argued in their response to appellant’s petition for bill of review,

and at the bill-of-review hearing, that appellant had engaged in selective refusal of

their certified mailings of their requests for admissions in March 2012 and their

summary-judgment motion and notice of hearing in May 2012 because he claimed

other certified mail that they had sent to him at the same address. They presented

to the bill-of-review court certified mail receipts showing that appellant had



                                         10
claimed items sent to him at his Eastwood address on November 10, 2012 and

December 20, 2012.

      Cases holding that a respondent had constructive notice of certified mailings

have done so based on evidence that the respondent refused all certified mail or

engaged in repeated instances of selective acceptance and refusal of certified mail,

evidencing a purposeful effort to avoid service. See Roberts, 133 S.W.3d at 663

(noting postal worker’s testimony defendant had informed him “she would not be

accepting any certified mail”); Sharpe v. Kilcoyne, 962 S.W.2d 697, 700 (Tex.

App.—Fort Worth 1998, no pet.) (noting defendant acknowledged having refused

multiple mailings pertaining to case); Gonzales, 863 S.W.2d at 102 (noting

defendant did not claim first mailing, claimed second, then did not claim third).

      Here, evidence that notice to appellant went unclaimed for a period of time

after the post office unsuccessfully attempted delivery, standing alone, does not

constitute evidence that appellant dodged or refused delivery. See Approximately,

261 S.W.3d at 189–90 (noting failure to claim mail not, on its own, evidence

defendant dodged or refused delivery of certified mail); Etheredge, 169 S.W.3d at

382; Pessel v. Jenkins, 125 S.W.3d 807, 810 (Tex. App.—Texarkana 2004, no pet.)

(noting evidence of one mailing of notice by certified mail, attempted to be

delivered twice, not proof of selective acceptance or refusal); Rabie, 982 S.W.2d at

197; see also Dowell v. Theken Spine, LLC, No. 14–07–00887–CV, 2009 WL



                                         11
1677844, at *2–3 (Tex. App.—Houston [14th Dist.] June 2, 2009, no pet.) (mem.

op.) (concluding evidence notice of summary-judgment hearing went “unclaimed”

after post office unsuccessfully attempted delivery and left notice of certified mail

at intended recipient’s address did not, standing alone, constitute evidence that

recipient dodged or refused delivery).        Further, evidence that appellant later

accepted certified mail related to the case does not indicate that he dodged or

refused service of mail six to nine months earlier.         See Myers v. Cnty. of

Williamson, No. 03-10-00410-CV, 2011 WL 6352288, at *4 (Tex. App.—Austin

Dec. 16, 2011, no pet.) (mem. op.). We conclude that constructive notice of the

summary-judgment motion, hearing on the motion, and requests for admissions

cannot be imputed to appellant on these facts.

      There having been no actual or constructive notice, in accordance with rule

21a, of appellees’ summary-judgment motion, notice of hearing, or requests for

admissions, we hold that the trial court erred in granting appellees summary

judgment and admitting the 1995 Will to probate.

      We sustain appellant’s three issues.




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                                   Conclusion

      We reverse the judgment of the probate court denying appellant’s petition

for statutory bill of review and remand this case to the trial court for further

proceedings consistent with this opinion.




                                             Terry Jennings
                                             Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.




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