Opinion
NO. 01-16-00408-CV
01-24-2017
SHAMSHER MEDIH CHISTI, Appellant v. SANA CHISTI AKA KIRAN WILWERDING, Appellee
On Appeal from the 257th District Court Harris County, Texas
Trial Court Case No. 2013-12431
MEMORANDUM OPINION
Shamsher Chisti sought to collaterally attack his decree of divorce by filing a petition for a bill of review in the trial court. The trial court denied Chisti's bill of review. On appeal, Chisti challenges that ruling as an abuse of the trial court's discretion. We affirm.
Background
In April 2016, the trial court heard Chisti's petition for a bill of review, in which he sought to set aside his divorce from Sana Chisti, who is now known as Kiran Wilwerding. In his petition, Chisti alleged that the decree was invalid due to Wilwerding's bigamy and deception. At the hearing, Chisti did not proffer evidence to support these allegations:
THE COURT: Ok. Sir [Shamsher Chisti], this is your motion, so you may proceed. Call your first witness.
MR. CHISTI: Yes, sir—yes, Your Honor. This is a Bill of Review brought by me for Kiran having filed the divorce because of state by—it contains fraud, Judge.
THE COURT: Call your first witness. Sir, you need to put on your evidence. Whatever evidence you have, go ahead.
MR. CHISTI: Yes, Your Honor. I have—I have a marriage license from Las Vegas, Nevada, dated 12th May, 2006. It was four days before the—apparently, it was signed.
THE COURT: Sir, do you have any evidence you wish to put on, sir?
MR. CHISTI: Yes. She committed bigamy last year [sic] in Nevada and she committed fraud by not informing the Court—about her marriage.
THE COURT: Anything further, sir?
MR. CHISTI: I have a meritorious defense because, Your Honor, and by committing wrongful act the opposing party by deception and false pretenses.
THE COURT: Anything further, sir?
MR. CHISTI: That's it, Your Honor.
The trial court denied Chisti's application.
Discussion
A. Standard of Review and Applicable Law
A bill of review "is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal." Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). Because of the importance our legal system places on the finality of judgments, bills of review are permitted only in exceptional circumstances. See Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex. App.—Houston [1st Dist.] 2006, no pet.). To prevail, the petitioner must plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that he was prevented from making by the fraud, accident, or wrongful act of his opponent, (3) unmixed with any fault or negligence of his own. See Caldwell, 154 S.W.3d at 96; Nelson, 193 S.W.3d at 165. Only "extrinsic fraud" will support a bill of review. See Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989); Nelson, 193 S.W.3d at 165. Extrinsic fraud is fraud that is collateral to the matter being tried and prevents a litigant from having a fair opportunity to assert his rights at trial. See Tice, 767 S.W.2d at 702; Nelson, 193 S.W.3d at 165. Conversely, "intrinsic fraud" relates to matters that could have been litigated in the initial action, including fraudulent instruments and perjured testimony. See Tice, 767 S.W.2d at 702; Nelson, 193 S.W.3d at 165. A petitioner by bill of review must allege, with particularity, sworn facts sufficient to constitute a meritorious defense and must present prima facie proof to support the contention at a pretrial hearing. See Caldwell, 154 S.W.3d at 96; Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979); Amanda v. Montgomery, 877 S.W.2d 482, 486 (Tex. App.—Houston [1st Dist.] 1994, no pet.). Successfully establishing a prima facie meritorious defense, together with the other requisites of a bill of review, entitles the petitioner to a new trial of the underlying cause of action. See Caldwell, 154 S.W.3d at 97.
We review a trial court's ruling on a bill of review for an abuse of discretion, indulging every presumption in favor of the court's ruling. See Lee v. Lemons, 01-15-00208-CV, 2016 WL 398605, at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 2, 2016, pet. denied); Davis v. Smith, 227 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, 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. See Lee, 2016 WL 398605, at *1-2; Davis, 227 S.W.3d at 302.
The record on appeal consists of the reporter's record and the clerk's record. See TEX. R. APP. P. 34.1 (providing that, "The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record."). Documents that are attached as exhibits or appendices to briefs but that are not included in the record from the trial court are ordinarily not part of the record for appeal; we do not consider matters outside of the record in our review. See Maher v. Maher, 01-14-00106-CV, 2016 WL 4536283, at *5 (Tex. App.—Houston [1st Dist.] Aug. 30, 2016, no pet.); Robb v. Horizon Communities Improvement Ass'n, 417 S.W.3d 585, 589 (Tex. App.—El Paso 2013, no pet.); Becon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210-11 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
B. Analysis
Chisti alleged that Wilwerding committed fraud in connection with the underlying divorce adjudication by not informing the trial court about her marriage in Nevada, and by engaging in "deception and false pretenses." But Chisti proffered no evidence in the trial court to support these contentions. The trial court thus properly determined that Chisti failed to meet his burden of demonstrating a meritorious defense in the underlying divorce suit that he was excluded from making due to extrinsic fraud. See Tice, 767 S.W.2d at 702 (holding that extrinsic fraud required to support bill of review); Nelson, 193 S.W.3d at 165 (same). Accordingly, we hold that the trial court did not abuse its discretion in denying the petition for a bill of review.
Chisti alleges conduct in his brief that does not have evidentiary support in the record, and he attached materials to the brief that are outside the record. We do not consider these materials. See TEX. R. APP. P. 34.1; Maher, 2016 WL 4536283, at *5.
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland.