Court of Appeals of Texas, Second District, Fort Worth
Appeal from the County Court Hood County, Texas Trial Court
Pittman, Bassel, and Womack, JJ.
T. Pittman, Justice.
issues, Appellant Priscilla Wyatt (Priscilla) challenges the
trial court's no-answer default judgment against her in
favor of Appellee Anissa Delaine Deal, as Independent
Executor of the Estate of Sydney B. Wyatt (Anissa). In her
first issue, Priscilla asserts that the trial court erred in
granting the default judgment due to lack of a proper service
return. In her second issue, Priscilla asserts that the
default judgment should be reversed due to lack of evidence
supporting the damages and attorney's fee award. For the
reasons set forth below, we need only address the first issue
and reverse the judgment below and remand to the trial court
for further proceedings.
Anissa Files a Probate Application for Her
Father's Will and Sues Priscilla in the Same
B. Wyatt died in September 2017. On November 2, 2017, his
daughter, Anissa, applied in the County Court of Hood County,
Texas to probate a will for Mr. Wyatt dated April 2012. The
county court admitted the will to probate under Cause Number
January 2018, Anissa, now independent executor of her
father's estate, moved to transfer the proceeding to a
statutory probate court judge because she was "preparing
to file suit against the Decedent's spouse for breach of
fiduciary duty" and other claims. The case was assigned
to Judge Oswin Chrisman.
February 12, 2018, Anissa filed an original petition against
Priscilla, Mr. Wyatt's wife at the time of his death,
asserting claims of breach of fiduciary duty, money had and
received, and declaratory judgment. Anissa's petition was
also filed in Cause Number P-08376.
February 15, 2018, Anissa filed a service return for her
original petition. The return indicated that service had been
made on Priscilla that morning. An individual named Gary
Cooper signed the return in the section titled
"Sheriff's Return." Above the signature line
appeared the text "Constable, County Sheriff[, ] or
Authorized [P]erson," with the words
"Constable" and "County Sheriff" crossed
out. The identifier "Deputy" was typed underneath
the signature line but had also been crossed out.
February 26, 2018, Anissa filed a second service return, also
by an individual named Gary Cooper. The section labeled
"Officer's Return" had the words "Sheriff,
Constable[, ] or Authorized Person" with the words
"Sheriff" and "Constable" crossed
Priscilla Files Her Own Probate Application in a New
March 2018, Priscilla applied to probate a will for Mr. Wyatt
dated March 2013. She filed the application in the County
Court of Hood County, Texas, and the proceeding was assigned
Cause Number P-08448. It was also assigned to Judge Chrisman.
In response, Anissa filed a contest to this will.
Importantly, Cause Number P-08376 and Cause Number P-08448
were never consolidated, and Priscilla never filed an answer
in Cause Number P-08376.
The Trial Court Denies Priscilla's Probate Application
and Grants Default Judgment on Anissa's Claims Against
8, 2018, Judge Chrisman held a hearing in Cause Number
P-08448 at which he considered Priscilla's probate
application. After the testimony of Priscilla, Anissa, and a
handwriting expert testifying for Anissa, Judge Chrisman
orally ruled that Priscilla failed to prove up the validity
of Mr. Wyatt's March 2013 will and that he was dismissing
her application. The judge then stated, "We are
dismissed. Now, do we need to hear anything else?"
Priscilla's attorney stated,
Just one last thing. There is still the probate matter in
P-08376. We filed a probate. Subsequently, there was a
petition filed in that under that cause number. We would ask
the Court for leave to file a response in that case. These
are separate issues.
[Priscilla is] here today and no answer has been filed in the
ancillary case. I'd like to make a default-request a
default judgment in cause number P-08376 regarding the breach
of fiduciary duty and the declaratory judgment avoiding the
deeds that were filed in multiple counties and requesting
Chrisman noted that there was an ongoing administration of
Mr. Wyatt's estate (under Mr. Wyatt's April 2012 will
submitted by Anissa in Cause Number P-08376) and that while
Priscilla could later apply to submit a different will to
probate if she wanted, "[t]he Court is not inclined to
grant a leave of ...