Opinion by Justice ROBERT M. FILLMORE.
Appellant Carol Kam
On July 14, 2011, Carol filed an "Application to Set Aside Order Probating Will, for Determination of Heirship, Suit for Declaratory Judgment, and Removal of Independent Executor" in In the Estate of Robert S. Kam, Deceased, PR-11-1368-3, Probate Court No. 3, Dallas County, Texas (the will contest).
The February Trust contained a specific provision indicating that Carol was to receive $10,000. There was no provision in the Amended Trust indicating Carol was to receive any sum of money. The Second Amendment added a paragraph to the Amended Trust whereby $10,000 was to be distributed to Carol if she survived Robert. The Amended Trust contains a no-contest clause revoking the benefits of any beneficiary under that trust who contested the validity of the trust or instituted any proceeding attempting to circumvent the provisions of the trust. The no-contest clause provides it does not apply when "a contest is brought and maintained in good faith, and probable cause exists for bringing the contest" and "the court in which a contest is brought shall determine if an action was brought and maintained in good faith and if probable cause existed." The no-contest clause further provides David, as trustee, "shall be reimbursed for the reasonable costs and expenses, including attorneys' fees, incurred in connection with the defense of any such contest."
The parties agreed to trial of the will contest before an associate judge. The presiding judge of the probate court signed a July 16, 2013 Order of Referral of the will contest to the associate judge of the probate courts of Dallas County, Texas, with no limitation on the powers or duties of the associate judge. Following a four-day trial of the will contest, the associate judge forwarded his July 25, 2013 "Ruling" to the parties, which provides:
A final judgment, signed by the associate judge on August 9, 2013, provides in part:
See TEX. GOV'T CODE ANN. § 54A.209(a)(17) (West 2013) (except as limited by an order of referral, an associate judge may sign a final order that includes a waiver of the right to a de novo hearing by the referring court). The final judgment further provides that David, as trustee of the Amended Trust, shall recover $198,400 for attorneys' fees and litigation expenses reasonably and necessarily incurred in responding to the contest of the Amended Trust and the Second Amendment and the declaratory judgment action.
On June 26, 2015, Carol filed a statutory bill of review in Probate Court No. 3, Dallas County, Texas. Concluding Carol's bill of review was without merit, the presiding judge of the probate court signed a final judgment on November 16, 2015, denying the bill of review. Carol filed this appeal of the denial of her statutory bill of review. Carol's issues on appeal are framed as follows:
"A bill of review is brought as a direct attack on a judgment that is no longer appealable or subject to a motion for new trial." Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010). In general, there are two types of bills of review: equitable and statutory. See Valdez v. Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015). Equitable bills of review may apply to a variety of forms of action, but statutory bills of review are rarer, and are authorized primarily in probate and guardianship contexts. Id.
Carol filed a statutory bill of review in the probate court pursuant to section 55.251 of the estates code, which provides:
TEX. EST. CODE ANN. § 55.251.
Courts do not look on bills of review with favor, Law v. Law, 792 S.W.2d 150, 153 (Tex. App.-Houston [1st Dist.] 1990, writ denied) (citing Crouch v. McGaw, 138 S.W.2d 94, 96 (Tex. 1940)), and the grounds on which they are granted are narrow and restricted. Bakali v. Bakali, 830 S.W.2d 251, 255 (Tex. App.-Dallas 1992, no writ); see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (grounds upon which bill of review can be obtained are narrow because procedure conflicts with fundamental policy that judgments must become final at some point). The burden on a petitioner seeking a bill of review is heavy because it is fundamentally important that judgments be accorded some finality. See Layton v. Nationsbanc Mortg. Corp., 141 S.W.3d 760, 763 (Tex. App.-Corpus Christi 2004, no pet.) (bills of review are scrutinized by courts with "extreme jealousy, and grounds on which interference will be allowed are narrow and restricted") (quoting Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950)). In a statutory bill of review proceeding, the movant must show a "substantial error" in a prior decision, order, or judgment. Valdez, 465 S.W.3d at 226-27; In re Estate of Jones, 286 S.W.3d 98, 100 (Tex. App.-Dallas 2009, no pet.) (to be entitled to relief by statutory bill of review of probate court's order or judgment, party must specifically allege and prove substantial error by trial court). The substantial error giving rise to a statutory bill of review "need not have appeared on the face of the record and the movant may prove the error at trial by a preponderance of the evidence." Ablon v. Campbell, 457 S.W.3d 604, 609 (Tex. App.-Dallas 2015, pet. denied).
We review the grant or denial of a statutory bill of review under an abuse of discretion standard. Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.-Dallas 2008, pet. denied). We indulge every presumption in favor of the court's ruling. See Xiaodong Li v. DDX Grp. Inv., LLC, 404 S.W.3d 58, 62 (Tex. App.-Houston [1st Dist.] 2013, no pet.). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner, or without reference to guiding rules and principles. Id.
In her statutory bill of review, Carol asserted that "[s]ubstantial testimony and evidence was elicited" during the will contest regarding Robert's "legal mental capacity (or lack thereof)" on the dates he executed the Amended Trust and the Second Amendment, and "the determination that [Robert] possessed Capacity on [the dates he executed the Amended Trust and the Second Amendment] constituted foundational findings which were . . . not supported by the facts, evidence, record and testimony at trial and constituted a critical element upon which [the associate judge] based his ultimate rulings." In her first seven issues on appeal, Carol asserts the associate judge erred in the will-contest proceeding by finding the February Trust was invalid; finding the Amended Trust, the Second Amendment, and other documents Robert executed after the February Trust were valid, Robert possessed legal capacity to execute those documents, and Robert's execution of those documents was not the result of the exercise of undue influence over him; overruling Carol's objection to admission of an incomplete do-not-resuscitate directive into evidence; and finding Carol's will contest was brought in bad faith and awarding David $198,400 in attorney's fees.
On appeal, appellee David, individually, as independent executor of Robert's estate, and as trustee of the Amended Trust, argues Carol cannot carry her burden of establishing the probate court abused its discretion by denying her statutory bill of review because (1) she did not offer any evidence, and the probate court did not admit any evidence, in the bill-of-review proceeding; (2) she did not request the probate court in the bill-of-review proceeding to take judicial notice of any fact relating to the underlying will-contest proceeding and the probate court did not indicate it was taking judicial notice of any fact; (3) she did not object to the probate court failing to admit evidence or take judicial notice of any fact; (4) and she did not "present in any manner" the entire reporter's record of the will contest in the bill of review proceeding. We begin by addressing this argument by David because it is dispositive on the merits of Carol's first seven issues on appeal.
To prevail on her statutory bill of review in the probate court, Carol was required to specifically allege and prove substantial error in the will contest judgment, see Estate of Jones, 286 S.W.3d at 100, and she had the burden to furnish this Court with a record supporting her allegations of error by the probate court in denying her statutory bill of review. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam) (burden is on appellant to present sufficient record to show error requiring reversal); In re Guardianship of Winn, 372 S.W.3d 291, 297 (Tex. App.-Dallas 2012, no pet.).
Carol attached many pages of documents to her statutory bill of review which included relatively small portions of the reporter's record of the four-day trial of the will contest. Of the documents attached to Carol's statutory bill of review, it is unclear which of those items may have been admitted as evidence in the trial of the will contest. During the bill-of-review proceeding, Carol did not offer any evidence; accordingly, she failed to introduce into evidence the documents attached to her statutory bill of review. Even after David's counsel pointed out that Carol had not offered any evidence and no evidence had been admitted by the probate court, Carol did not offer evidence or ask the probate court to take judicial notice of its file in the underlying will-contest case,
Without a reporter's record of the trial of the will-contest proceeding, including the evidence admitted at the trial, we must presume the evidence supports the judgment on the will contest. See In re Guardianship of Winn, 372 S.W.3d at 298; see also Willms v. Ams. Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.-Dallas 2006, pet. denied) (without a reporter's record, appellate court cannot review a trial court's order for an abuse of discretion); Sandoval v. Comm'n for Lawyer Discipline, 25 S.W.3d 720, 722 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (presuming omitted evidence supported trial court's sanction decision when party failed to bring reporter's record of sanction hearing).
In an apparent effort to circumvent her failure to have evidence properly admitted by the trial court in the statutory bill-of-review proceeding, Carol asks this Court in her reply brief to take judicial notice of the "docket and contents of the file" of the underlying will contest case. The appellate record generally consists of the clerk's record and reporter's record. TEX. R. APP. P. 34.1 (appellate record consists of the clerk's record and the reporter's record if the latter is necessary to the appeal).
On this record, we conclude the probate court could reasonably have concluded Carol did not carry her burden to establish substantial error in the will contest judgment. See Valdez, 465 S.W.3d at 226-27. Accordingly, we conclude the probate court did not abuse its discretion by denying Carol's statutory bill of review.
In her eighth and ninth issues on appeal of the denial of her statutory bill of review, Carol asserts the associate judge who presided over the will contest exceeded his "legal and jurisdictional" authority by presiding over and ruling on her motion for new trial, and the presiding judge of the probate court "abdicated" his jurisdictional authority by permitting the associate judge to preside over and rule upon her motion for new trial and alternative motion to modify the judgment in the will-contest case.
The presiding judge of the probate court signed a July 16, 2013 Order of Referral of the trial of the will contest to the associate judge of the probate courts of Dallas County, Texas, with no limitation on the power or duties of the associate judge. See TEX. GOV'T CODE ANN. § 54A.207 (West 2013) (judge of court may refer to associate judge any aspect of suit over which probate court has jurisdiction, including any matter ancillary to suit; unless party files written objection to associate judge hearing trial on merits, judge may refer trial to associate judge; trial on merits is "any final adjudication from which an appeal may be taken to a court of appeals"); id. § 54A.208 (West 2013) (case may be referred to associate judge by order of referral in specific case; order of referral may limit power or duties of associate judge).
Although the complete reporter's record of the will-contest case is not in the appellate record, attached to Carol's statutory bill of review is a portion of the transcript of the first day of trial of the will contest. There, the associate judge informed the parties he was sitting as an associate judge and referenced the parties' agreement to waive their right to a de novo hearing before the elected judge of the court. That partial transcript includes the associate judge's inquiry regarding waiver of a de novo hearing by the presiding judge of the probate court and Carol's counsel's affirmation of waiver of a de novo hearing:
See TEX. GOV'T CODE ANN. § 54A.213 (West 2013) (before start of hearing by associate judge, party may waive right to de novo hearing before referring court in writing or on record).
Carol's motion for new trial is not included in the appellate record. Although the complete reporter's record of the October 16, 2013 hearing on Carol's motion for new trial is not in the appellate record, in the attachments to her statutory bill of review, Carol included a portion of the reporter's record of that hearing before the associate judge. In that proceeding, after the announcements of counsel and the parties they represented, the associate judge stated:
The appellate record reveals no oral or written objection by Carol to the associate judge presiding over her post-judgment motion for new trial or to a witness's motion to quash a deposition heard immediately before Carol's motion for new trial.
Subject matter jurisdiction refers to the power of a court to hear a particular type of suit. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996) (orig. proceeding); In re Marriage of J.B. and H.B., 326 S.W.3d 654, 663 (Tex. App.-Dallas 2010, pet. dism'd). Carol does not contest the probate court's subject matter jurisdiction over the matters decided in her will contest: an application to set aside an order probating a will, a determination of heirship, and removal of an independent executor. The presiding judge of the probate court signed an order of referral of the will contest to an associate judge. See TEX. GOV'T CODE ANN. §§ 54A.207(a) & 54A.208. The referral of the will contest conferred authority on the associate judge to conduct a trial on the merits and make a "final adjudication from which an appeal may be taken to a court of appeals." See id. § 54A.207(b). We conclude the associate judge did not exceed his "legal and jurisdictional" authority by presiding over and ruling on Carol's motion for new trial that was ancillary to the will-contest case referred to him by the probate court. We resolve Carol's eighth issue against her.
Carol also asserts the probate court "abdicated" its jurisdictional authority by permitting the associate judge to preside over and rule upon her motion for new trial and alternative motion to modify the judgment in the will-contest case. The probate court referred the trial on the merits of the will contest to the associate judge pursuant to sections 54A.207 and 54A.208 of the government code, an assignment not objected to by Carol. See TEX. GOV'T CODE ANN. §§ 54A.207(a) & 54A.208. Resolution of Carol's motion for new trial was ancillary to the will contest referred to the associate judge by the probate court, and Carol has provided no authority to support her contention that the associate judge could not hear and determine a part of the case he was assigned. We conclude that the presiding judge's referral of the trial on the merits of the will contest to the associate judge, which included within its scope Carol's ancillary motion for new trial, was not an "abdication" of the probate court's jurisdictional authority. We resolve Carol's ninth issue against her.
Having resolved Carol's issues against her, we affirm the judgment denying her statutory bill of review.
In accordance with this Court's opinion of this date, the judgment of the trial court is
It is
TEX. PROB. CODE ANN. § 31 (West 2012) (recodified at TEX. EST. CODE ANN. §§ 55.251 & 55.252); Valdez, 465 S.W.3d at 226...