the Estate of Leah Rita Tillotson

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