In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-21-00073-CV
THE ESTATE OF LEAH RITA TILLOTSON, DECEASED
On Appeal from the County Court at Law No. 2 Hunt County, Texas Trial Court No. 18359
Before Morriss, C.J., Stevens and Carter,* JJ. Opinion by Justice Stevens
___________________ *Jack Carter, Justice, Retired, Sitting by Assignment OPINION
Thomas Tillotson raises complaints about the trial court’s rulings related to the
administration of his wife’s estate. In this appeal, we find that most of Thomas’s complaints
either relate to matters that have already been decided by the Dallas Court of Appeals (the Dallas
Court) in two prior cases, which have become the law of the case, or to final judgments and
orders that were never timely appealed. To attack the final judgments and orders, Thomas filed a
bill of review, but we determine that the trial court did not abuse its discretion in denying it.
Thomas also raises unpreserved complaints for the first time on appeal. We overrule all of
Thomas’s appellate points and affirm the trial court’s order denying his bill of review and order
requiring him to turn over certain assets pursuant to a mandate issued by the Dallas Court.
I. Factual and Procedural Background
Thomas and Leah Rita Tillotson were married for thirty-seven years. On August 31,
2017, Leah died intestate, and her daughter from a previous marriage, Kristi Sherrill Hoyl, was
appointed administratrix of Leah’s estate. Thomas objected to Hoyl’s initial and amended
inventory, appraisement, and list of claims. Thomas’s objections were the subject of an appeal
filed in the Dallas Court, which described his complaints in the following manner:
Thomas objected that Hoyl had included among the estate’s community property inventory Thomas’s Rollover IRA, Roth IRA, and U.S. savings bonds. He argued that any community property interest the estate had in these items was preempted by federal law that established the investments and rendered them his separate property. Thomas also objected to two items listed among the claims owed to the estate: reimbursement to the estate of $25,000 in Leah’s separate property used as down payment to purchase the couple’s home in 1984; and community funds allegedly used to pay mortgage, taxes, and insurance on Thomas’s separate real property. According to Thomas, the $25,000 down payment came from
2 community funds, and the estate actually benefited from rent on his separate real property. The trial court heard and overruled Thomas’s objections.
Estate of Tillotson, No. 05-19-01192-CV, 2020 WL 7767937, at *1 (Tex. App.—Dallas Dec. 30,
2020, no pet.) (mem. op.).
In that appeal, which was the first of two before the Dallas Court, Thomas argued that the
trial court erred (1) “in approving Hoyl’s inventory and appraisement to include his Rollover
IRA and Roth IRA among the estate’s community property interests,” id. at *2, (2) “in approving
Hoyl’s claim for reimbursement of community property expended on Thomas’s separate real
property,” id. at *8, (3) “in approving Hoyl’s community property inventory to include U.S.
savings bonds issued solely in his name,” id. at *3, and (4) “in approving Hoyl’s claim for
reimbursement of Leah’s separate property used for a down payment on the family home in
1984,” id. at *6.
The Dallas Court determined that the trial court did not abuse its discretion “in approving
Hoyl’s inventory as to the Rollover and Roth IRAs,” id. at *3, or “in approving Hoyl’s claim for
reimbursement of community property expended on Thomas’s separate real property,” id. at *8.
Even so, the Dallas Court found that “the trial court abused its discretion in approving Hoyl’s
inventory to include Thomas’s U.S. savings bonds among the estate’s share of community
property and in approving Hoyl’s claim for reimbursement of $25,000 of Leah’s separate
property used for a down payment on the River Oaks House” (River Oaks). Id. at *9. As a
result, the Dallas Court reversed the trial court’s order with respect to the U.S. savings bond and
the $25,000.00 reimbursement claim, affirmed the remaining portions of the trial court’s order,
and remanded the matter to the trial court for further proceedings consistent with its opinion. Id. 3 Hoyl filed a second amended inventory, appraisement, and list of claims (Inventory 2),
which was approved by the trial court in an order entered on October 5, 2019 (Inventory 2
Approval Order). On November 13, 2019, the trial court entered judgment of $16,666.67 against
Thomas in favor of Leah’s estate for reimbursement and granted Hoyl’s claim for an equitable
lien in that amount in favor of the estate against River Oaks. After Hoyl had filed an application
for turnover of property, Thomas agreed to an order of partial distribution of property, leaving
only certain property in dispute. On December 20, 2019, the trial court also entered a separate
judgment against Thomas after finding that Leah’s estate was entitled to reimbursement of
$28,209.00 “for investment in the separate property of Thomas Tillotson” and imposed an
equitable lien on that separate property, called the “Bonnie View” property. These 2019
Judgments1 were not appealed.
Hoyl next filed an application for partition of four items that she contended constituted
community property: (1) a “Fidelity, individual stock account ending in 5749,” (2) a “Fidelity
Rollover, IRA ending in 0935,” (3) a “Fidelity Roth IRA, ending in 8220,” and (4) “255 US
savings bonds, series EE in various denominations,” and prayed for the trial court to issue a
turnover order. After a non-evidentiary hearing, the trial court granted Hoyl’s requested relief in
an order for “Turnover Partition and Distribution of Estate” (Turnover Order) and ordered sums
representing Leah’s estate’s interest in each of the four items to be turned over to Hoyl.
Thereafter, Thomas pursued three avenues in an effort to overturn the trial court’s Turnover
1 We refer to the trial court’s November 13 and December 20 judgments collectively as the “2019 Judgments.” 4 Order: filing a new petition, filing a bill of review, and filing an appeal with the Dallas Court.
We discuss each in turn.
On October 30, 2020, Thomas filed an original petition for declaratory judgment
requesting the trial court to declare (1) that Inventory 2 did not establish title to property, (2) that
the four assets listed in the Turnover Order were non-probate assets owned by him, (3) that the
2019 Judgments that were not appealed were void, (4) that River Oaks was his homestead, and
(5) that the Bonnie View property was his separate property.2 He also filed a bill of review on
the same date requesting the trial court to “find substantial error and set aside as null and void all
orders or judgments that were based upon the fallacy that an Estate inventory establishes title,
including,” the 2019 Judgments, the Turnover Order, and “all other orders or judgments relying
on [Inventory 2] as conclusive proof of title.”
Next, Thomas appealed the Turnover Order to the Dallas Court, arguing that it
“erroneously order[ed] Thomas to turn over to Hoyl sums representing Leah’s one-half
community property interest in Thomas’s Rollover IRA, Roth IRA, U.S. savings bonds, and a
Fidelity individual stock account.”3 Estate of Tillotson, No. 05-20-00258-CV, 2021 WL
1034842, at *1 (Tex. App.—Dallas Mar. 18, 2021, no pet.) (mem. op.). In that second appeal,
Thomas argued the following:
2 The petition requesting declaratory relief was amended in April 2021 but was later nonsuited.
3 Arguing that the Dallas Court, which had not yet ruled on Thomas’s complaints, had jurisdiction to decide Thomas’s issues, Hoyl moved to dismiss Thomas’s petition for declaratory judgment and the bill of review. Hoyl also argued that the 2019 Judgments were not appealed and that the trial court’s general continuing jurisdiction of probate matters did not alter its plenary power over the final judgment. 5 (1) as surviving spouse, only he alone may apply for a partition of the community property, which he did not do; (2) as surviving spouse, he is entitled to retain possession and control of all community property that was legally under his management during the marriage; (3) all of the property he was ordered to turn over was his sole management community property; and (4) even assuming Hoyl had the right to apply for partition of Thomas’s sole management community property, the Turnover Order does not comply with the Estates Code because it fails to address Thomas’s right to statutory deductions.
Id. With respect to the U.S. savings bond, the Dallas Court relied on its earlier opinion to
conclude that the trial court “abused its discretion in approving Hoyl’s inventory to include
Thomas’s U.S. savings bonds among the estate’s share of community property.” Id. at *3. It
then focused its analysis on Thomas’s arguments relating to his Rollover IRA, Roth IRA, and
Fidelity individual stock account. Id.
The Dallas Court found that “Hoyl in her capacity as administratrix could request
partition of the community property[, . . .] that the trial court did not err by granting Hoyl’s
request to partition community property,” and that “Thomas d[id] not specify what debts or
losses or expenses or commission was not properly deducted.” Id. at *3. Even so, it sustained
Thomas’s argument, raised in a reply brief, that “any decree of partition and distribution . . . must
specify that the assets are to be distributed to the decedent Leah[]’s heirs according to their
respective shares of the estate, rather than to [Hoyl].”4 Id. As a result, it reversed the Turnover
Order as to Thomas’s U.S. savings bonds, modified it “to order Thomas to turn over the
designated amounts/values to Leah’s heirs or devisees as identified by Hoyl as Administratrix,”
and affirmed the Turnover Order in all other respects, as modified. Id. at *4. The Dallas Court’s
mandate issued on June 3, 2021. No petition for review was filed.
4 On Hoyl’s sworn application to determine heirship, the trial court had entered judgment declaring Leah’s heirs. 6 Before the mandate issued, and even though the Dallas Court’s judgment had already
modified and affirmed the Turnover Order, the trial court sent a letter stating that it too would
modify the Turnover Order to exclude the U.S. savings bonds in accordance with the Dallas
Court’s opinion. On June 3, the trial court denied the bill of review. On June 16, although not
required due to the Dallas Court’s opinion, judgment, and mandate, the trial court entered a new
turnover order (Amended Turnover Order) that ordered sums representing Leah’s estate’s
interest in the Fidelity individual stock account, Rollover IRA, and Roth IRA to be turned over to
Leah’s three daughters. The Amended Turnover Order further stated that the “255 US savings
bonds . . . [were] removed from the turnover order.” Thomas filed a motion for a new trial,
which was denied by the trial court.
On appeal, Thomas argues that the trial court erred by ordering turnover of the Fidelity
individual account, Rollover IRA, and Roth IRA—issues we find were finally determined by the
Dallas Court. Thomas also argues that the trial court erred by overruling the bill of review
because (a) it considered the Inventory 2 Approval Order as a “title adjudication,” (b) it entered
multiple judgments requiring transfer of property “based upon the false finding and belief that an
order approving an inventory adjudicated title,” and (c) it issued a lien against homestead
property. We find no abuse of discretion in the trial court’s denial of the bill of review. Last,
Thomas argues that the trial court erred by “disregarding the judgment declaring heirship” and
ordering him to turn over property to Leah’s “daughters without due process that included [his]
share of the estate.” We conclude that this last issue is not preserved for our review.
7 II. Thomas’s Complaints About the Fidelity Individual Account, Rollover IRA, and Roth IRA Are Governed by the Law of the Case Doctrine
Utilizing different legal theories, Thomas complains of the inclusion of the Fidelity
individual account, Rollover IRA, and Roth IRA in the Amended Turnover Order. We decline to
address Thomas’s legal theories because the Dallas Court affirmed the Turnover Order with
respect to those items, and its opinion became the law of the case.5 Under the law-of-the-case
doctrine, “a decision rendered in a former appeal . . . is generally binding in a later appeal of the
same case.” Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012)
(citing Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003)). The Texas Supreme
Court has described the doctrine as follows:
The “law of the case” doctrine is defined as that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages. By narrowing the issues in successive stages of the litigation, the law of the case doctrine is intended to achieve uniformity of decision as well as judicial economy and efficiency. The doctrine is based on public policy and is aimed at putting an end to litigation.
Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003) (quoting Hudson v. Wakefield,
711 S.W.2d 628, 630 (Tex. 1986) (citations omitted)). The doctrine may apply even when the
appeal does not reach the court of last resort. See City of Houston v. Precast Structures, Inc., 60
S.W.3d 331, 338 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (holding that, when losing
party accepts remand instead of furthering appeal, court of appeals decision becomes law of the
case); Paradigm Oil, 372 S.W.3d at 182.
5 Thomas did not file a petition for discretionary review from the Dallas Court’s determinations. 8 Thomas’s first appeal to the Dallas Court yielded the result that Hoyl’s inventory
properly included the Rollover IRA and Roth IRA. After Hoyl filed Inventory 2, which listed
the Fidelity individual account, Rollover IRA, and Roth IRA, the trial court entered the
Inventory 2 Approval Order and the Turnover Order. Thomas’s second appeal to the Dallas
Court resulted in the conclusion that those items were properly included in the Turnover Order,
and that portion of the Turnover Order was affirmed by the Dallas Court. As a result, the
propriety of the inclusion in a turnover order of the Fidelity individual account, Rollover IRA,
and Roth IRA was fully adjudicated by the Dallas Court, and we decline to revisit the issue. We
overrule Thomas’s first point of error.6
III. The Bill of Review Was Properly Denied
Next, we address Thomas’s complaint that the trial court erred by denying the bill of
review challenging the 2019 Judgments, the Inventory 2 Approval Order, and “all other orders or
judgments relying on [Inventory 2].” It is undisputed that the 2019 Judgments were final orders
that were never timely appealed. The Inventory 2 Approval Order was also a final, appealable
judgment. See Garner v. Long, 106 S.W.3d 260, 266–67 (Tex. App.—Fort Worth 2003, no pet.)
(finding that trial court’s approval of an inventory, appraisement, and list of claims “conclusively
disposed of that phase of the proceeding” and because Wife never appealed the approved
inventory, “the court’s determination [was] final and binding”) (citing Riggs v. Tech/III, Inc., 836
S.W.2d 302, 304 (Tex. App.—Dallas 1992, no writ) (“holding that purpose of appellate
deadlines is to set a time when a successful litigant will know that judgment is final and no
6 We also overrule what Thomas has labeled as “Issue 3” in his appellate brief, complaining of the inclusion of the Fidelity individual account, Rollover IRA, and Roth IRA as “non-probate assets.” 9 longer subject to further review or modification”); Richards Mfg. Co. v. Aspromonte, 557
S.W.2d 543, 549 (Tex. App.—Houston [1st Dist.] 1977, no writ) (“stating that there is ‘no
essential difference between a case where a judgment has become final by failure to appeal, and
one where the judgment has been affirmed on appeal’”). Although Thomas appealed the
Turnover Order, which relied on Inventory 2, he never appealed the Inventory 2 Approval
Order.7 See Estate of Tillotson, 2021 WL 1034842, at *1.
Even so, “[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.” Valdez v. Hollenbeck, 465 S.W.3d 217, 226
(Tex. 2015) (quoting Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010)). The
Texas Estates Code provides for a statutory bill of review. Under Section 55.251(a), “[a]n
interested person may, by a bill of review filed in the court in which the probate proceedings
were held, have an order or judgment rendered by the court revised and corrected on a showing
of error in the order or judgment, as applicable.” TEX. EST. CODE ANN. § 55.251(a).8
A. Standard of Review
Courts have long recognized bills of review rooted in general principles of equity or as
prescribed by the Legislature, but courts do not readily grant them “[b]ecause it is fundamentally
important in the administration of justice that some finality be accorded to judgments.” Valdez,
465 S.W.3d at 226 (alteration in original) (quoting Alexander v. Hagedorn, 226 S.W.2d 996, 998
7 Because the Inventory 2 Approval Order was final and not timely appealed, we overrule Thomas’s arguments suggesting that a third amended inventory was required.
8 “A bill of review to revise and correct an order or judgment may not be filed more than two years after the date of the order or judgment, as applicable.” TEX. EST. CODE ANN. § 55.251(b). 10 (Tex. 1950)); see Crouch v. McGaw, 138 S.W.2d 94, 96 (Tex. 1940) (“noting that a bill of
review requires ‘something more than injustice’”). As a result, both Section 55.251 and its
predecessor require a showing of “‘substantial error’ in a prior decision, order, or judgment.”
Estate of Kam, No. 05-16-00126-CV, 2016 WL 7473905, at *4 (Tex. App.—Dallas Dec. 29,
2016, pet. denied) (mem. op.) (citing Valdez, 465 S.W.3d at 226–27; 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”)).
“Courts do not look on bills of review with favor.” Id. (citing 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)). “[T]he grounds on which they are granted are narrow and
restricted.” Id. (citing 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.”
Id. (citing 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)))).
11 The denial of a statutory bill of review is reviewed under an abuse-of-discretion standard.
Id. (citing 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.” Id. (citing 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. “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.’” Id. (quoting Ablon v. Campbell, 457 S.W.3d 604, 609 (Tex.
App.—Dallas 2015, pet. denied)).
B. There Was No Abuse of Discretion in Denying the Bill of Review as to all Matters that Were or Could Have Been Raised Before the Dallas Court
Thomas’s bill of review raised complaints about (1) inclusion of the Fidelity individual
stock account, Rollover IRA, and Roth IRA, (2) the alleged “fallacy that an Estate inventory
establishes title,” and (3) the judgment imposing a lien on property Thomas claims is
homestead.9 We find that trial court did not abuse its discretion in denying the bill of review
because Thomas failed to meet his burden to show substantial error.
By the time the trial court denied Thomas’s bill of review, the Dallas Court’s mandate
had issued in both appeals. “A mandate is an appellate court’s formal command requiring the
lower court to comply with the appellate court’s judgment.” Scott Pelley P.C. v. Wynne, 578
S.W.3d 694, 699 (Tex. App.—Dallas 2019, no pet.). “The scope of the mandate is determined
9 Thomas also complains about the inclusion of the U.S. savings bonds in Inventory 2, but we find this complaint moot since the U.S. savings bonds were expressly excluded as estate assets. 12 with reference to both the appellate court’s opinion and the mandate itself.” Id. (quoting Cessna
Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex. App.—Dallas 2011, no pet.)).
“The trial court, however, has no authority to take any action that is inconsistent with or beyond
what is necessary to give full effect to the appellate court’s judgment and mandate.”10 Id.
“[T]he appellate court’s judgment is final, ‘not only in reference to the matters actually litigated,
but as to all other matters that the parties might have litigated and had decided in the cause.’” Id.
(quoting Martin v. Credit Prot. Ass’n, Inc., 824 S.W.2d 254, 257 (Tex. App.—Dallas 1992, writ
dism’d w.o.j.)); see Reagan Nat’l Advert. of Austin, Inc. v. City of Austin, No. 03-18-00617-CV,
2019 WL 3756485, at *2 (Tex. App.—Austin Aug. 9, 2019, no pet.) (mem. op.) (citing Woody
K. Lesikar Special Tr. v. Moon, No. 14-10-00119-CV, 2011 WL 3447491, at *8 (Tex. App.—
Houston [14th Dist.] Aug. 9, 2011, pet. denied) (mem. op.)). “A party cannot try his action in
pieces.” Martin v. Credit Prot. Ass’n, Inc., 824 S.W.2d 254, 257 (Tex. App.—Dallas 1992, writ
dism’d w.o.j.) (quoting Corcanges v. Childress, 280 S.W. 892, 894 (Tex. App.—Fort Worth
1926, no writ)).
Before its denial, the Dallas Court had already decided most of the issues raised in the
bill of review. As a result of both appeals, the Dallas Court had concluded that the Fidelity
individual stock account, Rollover IRA, and Roth IRA were community property assets properly
included in the inventory, had determined that Hoyl’s claim for reimbursement against Bonnie
10 “When an appellate court affirms a trial court’s judgment or renders a judgment which the trial court should have rendered, that judgment becomes the judgment of both courts.” Cook v. Cameron, 733 S.W.2d 137, 139 (Tex. 1987). 13 View was proper,11 and had affirmed the Turnover Over based on Inventory 2 after removing the
U.S. bonds and modifying the order to require distribution to Leah’s heirs. See Estate of
Tillotson, 2021 WL 1034842, at *4; Estate of Tillotson, 2020 WL 7767937, at *3, *8. As a
result, the trial court did not err in overruling the bill of review to the extent that it attacked
matters that were raised or could have been raised in the Dallas Court.12
The Dallas Court’s second opinion affirmed the majority of the Turnover Order, which
relied on Inventory 2, the approval of which was never appealed. Because it could have been
raised, Thomas’s allegation that the trial court erred in entering the Turnover Order because it
possessed an “incorrect and inaccurate belief that [Inventory 2] adjudicated title” was also
properly overruled by the trial court.13 Moreover, we find that this complaint lacks merit since
there was no pending, legitimate dispute as to title of the items included in Inventory 2.14
11 In the first appeal, the Dallas Court had affirmed the trial court’s order approving an inventory filed by Hoyl listing a claim for reimbursement of $28,209.00 for contributions to Bonnie View, Thomas’s separate property. Estate of Tillotson, 2020 WL 7767937, at *8–9.
12 “In interpreting the mandate of an appellate court, the trial court looks not only to the mandate itself but also to the appellate court’s opinion.” Truck Ins. Exch. v. Robertson, 89 S.W.3d 261, 263 (Tex. App.—Fort Worth 2002, no pet.) (citing Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)). “The trial court must observe and carry out the mandate of the court of appeals, and its orders carrying out the mandate are ministerial.” Id. 13 As a result, we overrule what Thomas has labeled as “Issue 2” in his appellate brief. To the extent that Thomas raises complaints about the initial and amended inventory, we find those complaints moot in light of the Inventory 2 Approval Order. We also find complaints alleging that the trial court was required to partition property before entering a Turnover Order were arguments that could have been, but were not, raised in the Dallas Court. 14 Thomas is correct that, “[a]lthough the inventory of the estate filed in the probate court is not conclusive of the title to the property therein listed, it is prima facie evidence of that fact.” McKinley v. McKinley, 496 S.W.2d 540, 542 (Tex. 1973). Even so, it is clear that the trial court did not decide a title dispute and that “[t]he order of the probate court approving an inventory and appraisement is not an adjudication of title to property.” Id.; see White v. Pope, 664 S.W.2d 105, 107–08 (Tex. App.—Corpus Christi 1983, no writ). From our best reading of Thomas’s brief, it appears his argument related to adjudication of title is linked to his complaint about the Fidelity individual stock account, Rollover IRA, and Roth IRA, which he characterizes as “non-probate” assets. 14 C. We Cannot Say that the Trial Court Abused Its Discretion in Denying the Bill of Review Based on an Unasserted Homestead Claim
“Homestead properties are afforded special and unique protections under the Texas
Constitution.” Thomas v. Graham Mortg. Corp., 408 S.W.3d 581, 588 (Tex. App.—Austin
2013, pet. denied). Texas homesteads are generally exempt from “forced sale, for the payments
of all debts,” except for those debts, such as encumbrances for purchase money, specifically
enumerated in the Texas Constitution. TEX. CONST. art. XVI, § 50(a) (Supp.); see TEX. PROP.
CODE ANN. § 41.001(b) (identifying “[e]ncumbrances that may be properly fixed on homestead
property”). “[L]iens or like encumbrances upon a homestead that do not fall within the
exceptions provided in art. 16, § 50 are void.” In re Marriage of Christodolou, 383 S.W.3d 718,
721 (Tex. App.—Amarillo 2012, no pet.). In his next point, Thomas argues that he showed
substantial error because the trial court imposed an equitable lien against property Thomas
claimed was homestead for the first time in the bill of review.
Hoyl filed an application to impose an equitable lien and for turnover of property listed in
Inventory 2, including the imposition of the lien on River Oaks, which was listed as community
property. The record indicated that Thomas had other real property, including Bonnie View, and
Thomas’s response to Hoyl’s motion failed to contain any argument as to why a lien on the River
Oaks property should not be imposed. Although there was a hearing on the bill of review,
We also note that Thomas raises a novel argument on appeal that the affidavit attached to Inventory 2 was substantively defective. Because this argument was not made in the bill of review, we find the issue unpreserved. See TEX. R. APP. P. 33.1. 15 counsel argued, but did not submit evidence proving, that Thomas claimed River Oaks as his
homestead.15
“Whether a property is a homestead is a question of fact.” Zorrilla v. Aypco Constr. II,
LLC, 469 S.W.3d 143, 160 (Tex. 2015). “[T]he word ‘home’ is not necessarily synonymous
with ‘homestead.’” Id. “A claimant is entitled to only a single homestead at once.” Drake
Interiors, L.L.C. v. Thomas, 433 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied) (citing Silvers v. Welch, 91 S.W.2d 686, 687 (Tex. [Comm’n Op.] 1936)). “[T]here is
case law holding that inclusion of real property in the administrator’s inventory is prima facie
evidence that the property is not a homestead.” Caceres v. Graham, 603 S.W.3d 849, 855 (Tex.
App.—Houston [14th Dist.] 2020, no pet.). “The plea of homestead is an affirmative defense,
and the claimant bears the initial burden of proving the existence of the homestead.” Thomas,
433 S.W.3d at 848 (citing Burk Royalty Co. v. Riley, 475 S.W.2d 566, 568 (Tex. 1972); Watson
v. Tipton, 274 S.W.3d 791, 800 (Tex. App.—Fort Worth 2008, pet. denied)); see Qui Phuoc Ho
v. MacArthur Ranch, LLC, No. 05-14-00741-CV, 2015 WL 5093273, at *5 (Tex. App.—Dallas
Aug. 28, 2015, pet. denied) (mem. op.) (“A party claiming that property is homestead bears the
burden of proof.” (citing Denmon v. Atlas Leasing, L.L.C., 285 S.W.3d 591, 595 (Tex. App.—
Dallas 2009, no pet.))). “Once a property is established as a homestead, the burden shifts to the
party challenging a homestead claim to prove termination of homestead status ‘by abandonment,
alienation, or death.’” Zorrilla, 469 S.W.3d at 160 (quoting Wilcox v. Marriott, 103 S.W.3d 469,
472 (Tex. App.—San Antonio 2003, pet. denied)).
The bill of review argued that the trial court’s orders related to River Oaks were void “[i]f the land in controversy 15
was the homestead of [Thomas].” 16 “The court may not assume facts to support a claim of homestead against the validity of
an existing debt or lien.” Id. at 160 (quoting Hilliard v. Home Builders Supply Co., 399 S.W.2d
198, 201 (Tex. App.—Fort Worth 1966, writ ref’d n.r.e.)). “To sustain a homestead claim, there
must be proof of overt acts of homestead usage and intent on the part of the owner to claim the
land as homestead.” Qui Phuoc Ho, 2015 WL 5093273, at *5. “The party asserting homestead
also bears the burden of pleading the defense.” Id. (citing Bennett v. State Nat’l Bank, Odessa,
Tex., 623 S.W.2d 719, 722 (Tex. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.) (“It is a
firmly established principle of law that a plea of homestead is an affirmative defense and the
burden of pleading and proving such defense rests upon the party asserting it.”)). “Failure to
plead the defense results in waiver.” Id. (citing Davis v. Crockett, 398 S.W.2d 302, 306–07
(Tex. App.—Dallas 1965, no writ)); see Zorrilla, 469 S.W.3d at 159; Watson v. Tipton, 274
S.W.3d 791, 800 (Tex. App.—Fort Worth 2008, pet. denied).16
Thomas did not plead or prove the affirmative defense of homestead, which was not
raised until he filed the bill of review. To prevail on the statutory bill of review, Thomas had to
prove substantial error, but failed to introduce evidence from which the trial court could have
determined a homestead claim. See Zorrilla, 469 S.W.3d at 160 (homestead right is not
established in the absence of appropriate facts where there is evidence that a person owned other
residential property); Estate of Kam, 2016 WL 7473905, at *5. Also, Thomas “had the burden to
16 We recognize that, “[o]nce a property is impressed with homestead rights, the law presumes that the property continues as a homestead.” McNally v. McNally, No. 02-18-00142-CV, 2020 WL 5241189, at *6 (Tex. App.— Fort Worth Sept. 3, 2020, pet. denied) (mem. op.) (citing Marincasiu v. Drilling, 441 S.W.3d 551, 559 (Tex. App.— El Paso 2014, pet. denied) (holding that, once property is shown to be a homestead, the constitutional homestead privilege against enumerated liens is presumed to exist unless lienholder proves termination of homestead status through abandonment, alienation, or death). 17 furnish this Court with a record supporting [his] allegations of error by the probate court in
denying [the] statutory bill of review.” Id. Our appellate record, which does not include
hearings in the underlying proceeding conducted before the bill of review was filed, is
insufficient for us to reach any conclusion other than the conclusion that the trial court did not
abuse its discretion by overruling Thomas’s bill of review on this point. See id. at *7.
Having found that the trial court did not abuse its discretion in concluding that Thomas
failed to prove substantial error, we overrule Thomas’s complaints about the denial of his bill of
review.
IV. Thomas Failed to Preserve His Last Point of Error
In his last point of error, Thomas raises a complaint about the trial court’s Amended
Turnover Order. The judgment declaring heirship listed Thomas and Leah’s daughters—Hoyl,
Jennifer Jill Sherrill, and Mary Melissa Sherrill Martin—as Leah’s heirs. In the original
Turnover Order, Thomas was to turn over sums representing the estate’s one-half interest in
certain community property “to the Administratix.” The Dallas Court modified the Turnover
Order to “the designated amounts/values to Leah’s heirs or devisees as identified by Hoyl as
Administratrix.” Estate of Tillotson, 2021 WL 1034842, at *4. The trial court then also
modified the order to require Thomas to turnover assets “to the heirs designated below.” In each
designation, the trial court set forth the same sums included in the first Turnover Order for each
line item but specified that the sums were to be turned over to Hoyl’s daughters only. On appeal,
even though Thomas retained the other one-half interest in the community property, Thomas
argues that the trial court violated his due process rights by ordering him in the Amended
18 Turnover Order to turn over the estate’s one-half interest to Leah’s daughters without accounting
for his share of the estate’s interest as an heir.17
Appellees argue that this issue is not preserved for our review, and we agree. The
Amended Turnover Order was entered June 16, 2021. Although Thomas filed a motion for a
new trial, he failed to raise this issue with the trial court.18 “In order to preserve a complaint for
appellate review, the record must reflect that the ‘complaint was made to the trial court by a
timely request, objection, or motion’ and that the trial court either ‘ruled on the request,
objection, or motion, either expressly or implicitly,’ or ‘refused to rule . . . and the complaining
party objected to the refusal.’” Matter of Marriage of Tyeskie, 558 S.W.3d 719, 725 (Tex.
App.—Texarkana 2018, pet. denied) (quoting TEX. R. APP. P. 33.1(a)) (citing In re Z.L.T., 124
S.W.3d 163, 165 (Tex. 2003)) (finding that preservation is required to raise due process
complaints related to turnover orders). “As an appellate court, we review a trial court’s ruling or
an objection to its refusal to rule.” Id. (citing TEX. R. APP. P. 33.1(a)(2)). “Important prudential
considerations underscore our rules on preservation. Requiring parties to raise complaints at trial
conserves judicial resources by giving trial courts an opportunity to correct an error before an
appeal proceeds.” Id. at 725–26 (quoting In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003)).
“Even constitutional claims are waived by failure to raise the complaint at trial.” Id.
(citing Tex. Dep’t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001)
17 “If the deceased spouse is survived by a child or other descendant who is not also a child or other descendant of the surviving spouse, the deceased spouse’s undivided one-half interest in the community estate passes to the deceased spouse’s children or other descendants.” TEX. EST. CODE ANN. § 201.003(c). For this reason, we find the trial court’s Amended Turnover Order consistent with the Dallas Court’s opinion and mandate. 18 Since the bill of review was filed before the Amended Turnover Order, it did not include this issue. 19 (citing Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993))). “Additionally, to preserve error,
‘[c]omplaints and arguments on appeal must correspond with the complaint made at the trial
court level.’” Id. (quoting Ferrara v. Moore, 318 S.W.3d 487, 496 (Tex. App.—Texarkana
2010, pet. denied)). “If an issue has not been preserved for appeal, we should not address it on
the merits.” Id. (quoting Knoderer v. State Farm Lloyds, 515 S.W.3d 21, 44 (Tex. App.—
Texarkana 2017, pets. denied)). Because Thomas did not raise his complaint below, we find the
issue unpreserved and overrule it.19
V. Conclusion
We affirm the trial court’s denial of Thomas’s bill of review and the Amended Turnover
Order and remand the case to the trial court for further proceedings necessary to the
administration of Leah’s estate.
Scott E. Stevens Justice
Date Submitted: March 22, 2022 Date Decided: May 5, 2022
19 We find our resolution of the issues discussed here dispositive of Thomas’s remaining complaints. We also overrule (1) Thomas’s complaint about the lack of findings of fact and conclusions of law because we find that they were unnecessary to the proper presentation of the case and (2) Thomas’s complaints that the trial judge’s alleged errors were “an Extension of her Hostility” toward him. 20