dissenting.
Nelson presented summary judgment evidence that brought her squarely under the following cases which would entitle her to reversal and remand of this appeal:
1. Rathmell v. Morrison, 732 S.W.2d 6 (Tex.App.-Houston [14th Dist.] 1987, no writ);
2. DeCluitt v. DeCluitt, 613 S.W.2d 777 (Tex.Civ.App.-Waco 1981, writ dism’d w.o.j.); and
3. Dudley v. Lawler, 468 S.W.2d 160 (Tex.Civ.App.-Waco 1971, no writ).
Application of the rule-of-law expressed in any of these cases would result in a reversal of this summary judgment on the bill of review. If this case had not been transferred to us under a docket equalization order, Rathmell would be binding precedent on the issue. I cannot imagine a case being any more on point than Rathmell. And I believe that when a case is transferred to us under a docket equalization order we should apply the law as stated by the court from where it came. See Jaubert v. State, 65 S.W.3d 73, 91 n. 1 (Tex.App.-Waco 2000) (Gray, J., dissenting), rev’d on other grounds, 74 S.W.3d 1 (Tex.Crim.App.2002).
In this case, even if we applied our own precedent, we would still reverse it. The majority has chosen to ignore our precedent and otherwise dispose of this appeal by depriving Nelson of the jury trial on a controverted issue of fact, her negligence when faced with threats to render the community estate worthless. I would sustain the first issue and remand this cause for a trial on the bill of review.
Nelson complains in her second issue that she was improperly denied discovery relevant to the presentation of her case. I agree. To establish that she is entitled to a bill of review, she must show a viable defense. See Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex.1979). In the context of a property division, this means she must show that the property she would have received under a just and right division of the marital estate would have been different than what she actually received. Elliott v. Elliott, 21 S.W.3d 913, 919 (Tex.App.-Fort Worth 2000, pet. denied). To do this, Nelson needs to be able to show the actual value of the community property estate. She has been prevented from making this showing by being prohibited from obtaining discovery. I would sustain Nelson’s second issue and hold that on remand, she is entitled to full discovery on this issue.
Because a proper division of the community estate may override issues regarding valuation as raised in the issue, and could be addressed in the trial on the bill of review, I find it unnecessary to reach the third issue at this juncture.
Therefore, I would reverse the summary judgment and remand this cause to the trial court for further proceedings consistent with this opinion. Because the majority does not, I respectfully dissent.