Caldwell v. Barnes
In Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004), the parties, at the bill-of-review hearing, contested whether the named defendant in the original law suit was actually served. Caldwell, 154 S.W.3d at 96.
The defendant claimed that he was not, attaching various affidavits to his bill of review that showed he was not at the location the process server claimed on the day he was allegedly served. Id.
Finding a material question of fact as to whether the defendant was actually served, the Supreme Court determined that the contested issue of service should have been submitted to a jury, rather than decided by the trial court in a pretrial proceeding. Id. at 97-98.