Opinion
No. 05-10-01303-CV
Opinion Filed October 27, 2011.
On Appeal from the 302nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 10-01644-U.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
This is an appeal from the denial of a petition for bill of review. Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm the trial court's Order Denying Petitioner's Bill of Review.
Appellant D.F.A.S. ("Mother") filed suit in Dallas County in 2003, seeking divorce from appellee M.A.K. ("Father") and custody of their four children. Father was living in Yemen with the children at the time, and he did not appear. The trial court signed a final decree granting the divorce and naming Mother sole managing conservator and Father possessory conservator; the court did not order child support payments. Mother traveled to Yemen to attempt to take custody of the children, but she was unsuccessful. Mother subsequently remarried and, in 2006, moved back to the United States. In the meantime, in 2004, Father filed a petition for bill of review in Dallas and eventually, in 2007, he succeeded in having the original decree set aside. The trial court signed an order naming Father sole managing conservator and Mother possessory conservator and requiring Mother to pay medical expenses and child support for the children (the "2007 Order").
In February 2010, Mother filed a petition for bill of review, seeking to vacate the 2007 Order. Mother contended that she had been unaware of the first bill-of-review proceeding initiated by Father until 2009. By that time, Mother owed a significant amount in past-due child support payments. Mother sought, through her bill of review, to regain custody of the children and to put an end to her child support obligations.
Discovery disputes developed shortly before trial. Father supplemented his response to Mother's request for disclosure by naming two additional persons with knowledge of relevant facts: (1) Mohamed Al-Hanash, the police chief of Taiz City in 2004, who purportedly served Mother in Yemen; and (2) Sharaf Mohamed Al-Hasani, Mother's Yemen attorney, who purportedly received service on her behalf there. Father also filed business records affidavits from these two men; the affidavits attached 2010 statements from the men explaining their involvement in Mother's 2004 service of process in Yemen. Mother moved to strike the supplemental disclosure responses; she moved to strike the business records affidavits; and she moved to quash the 2004 Yemen service, alleging it was defective. The trial court struck the business records affidavits but did not grant Mother's other requests.
The case was tried to the court, and the sole issue was whether Mother's due process rights had been violated by failing to give her adequate notice of the first bill-of-review proceeding. The trial court concluded Mother received notice of the proceeding both in Yemen in 2004 and in Texas in 2007. The court denied the petition for bill of review and issued findings of fact and conclusions of law. Mother appeals.
Mother does not challenge the 2007 Texas service in this proceeding.
Father has not filed a brief in this case.
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 a challenge by motion for new trial or by appeal. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). A bill-of-review plaintiff claiming she was not served has the burden to prove that "the judgment was rendered unmixed with any fault or negligence of [her] own." Id. at 97. The plaintiff meets this burden if she can prove she was never served with process. Id. It is a heavy burden: the testimony of the plaintiff alone is not sufficient to overcome the presumption that she was served. Id. at 97, n. 3 (citing Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)). We review the trial court's ruling on a bill of review for an abuse of discretion, and we indulge every presumption in favor of that ruling. Interaction, Inc./State v. State/Interaction, Inc., 17 S.W.3d 775, 778 (Tex. App.-Austin 2000, pet. denied).
In her first issue, Mother contends the trial court erred in disregarding her objections to the testimony of a witness who was not disclosed in a timely manner by Father. After Mother rested, Father called his former attorney, Irreka Clark. Mother's counsel objected that Clark was not listed in Father's responses to requests for disclosure. Father's counsel responded that Clark was a rebuttal witness and an officer of the court. The trial court overruled the objection.
The rules of civil procedure provide that "[a] party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified." Tex. R. Civ. P. 193.6(a). The only exceptions to this exclusionary rule require the trial court to find either that there was good cause for the failure to timely supplement the discovery response or that the failure to timely supplement the discovery response will not unfairly surprise or unfairly prejudice the other party. Id. There is no exception for an ordinary rebuttal witness whose use could reasonably have been anticipated by the party. Moore v. Mem'l Hermann Hosp. Sys., Inc., 140 S.W.3d 870, 875 (Tex. App.-Houston [14th Dist.] 2004, no pet.). Because the sole issue to be tried below was whether Mother had been served with process, Father could have anticipated that the attorney who oversaw the service had knowledge of relevant facts.
However, we conclude any error in allowing attorney Clark to testify was harmless. See In re M.H., S.H., and G.H., 319 S.W.3d 137, 148 (Tex. App.-Waco 2010, no pet.) (applying harmless error rule to witness exclusionary rule). Before trial began, the court took judicial notice of the file in the underlying proceeding. The court repeated that it was taking judicial notice of the file and all pleadings and documents therein when Father began presentation of his case. Finally, the court included in its findings of fact the recitation that it had taken judicial notice of the file, its pleadings, and all testimony in the first bill-of-review proceeding. The file contained the original returns of service from that first proceeding. Thus, the documents necessary to establish that Mother was properly served were within the court's file and were unquestionably before the court in this second bill-of-review proceeding. Consequently, if the testimony of Father's attorney concerning those documents was error, the error was harmless. See id. We overrule Mother's first issue.
In her second issue, Mother complains the trial court admitted evidence in violation of the Texas Rules of Evidence. Her first specific complaint is that the trial court erroneously admitted the business record affidavits and attached 2010 statements from the Yemeni police chief and attorney. But our review of the record establishes that these documents were neither offered nor admitted in evidence. Mother's second complaint under this issue concerns the admission of Father's Exhibits 2 and 3, the 2004 return of service from Yemen and the certification to that service. However, even if we assume without deciding that admission of these exhibits was error, we must again conclude the error was harmless. The originals of the documents within these two exhibits were within the trial court's file, which was judicially noticed at trial. See In re C.S., 208 S.W.3d 77, 81 (Tex. App.-Fort Worth 2006, pet. denied) ("It is appropriate for a court to take judicial notice of a file in order to show that the documents in the file are a part of the court's files, that they were filed with the court on a certain date, and that they were before the court at the time of the hearing.). Because these original documents were before the trial court, they did not need to be introduced into evidence again at trial in order to be considered. We overrule Mother's second issue.
Finally, in her third issue, Mother argues the trial court erred in allowing Father to admit the business record affidavits that were quashed at the pre-trial hearing. But, as we pointed out above, those affidavits were neither offered nor admitted in evidence at trial. The exhibits Mother actually describes and complains about in the third issue are the 2004 documents making up the return of service from Yemen. Those documents were never stricken by the trial court. Indeed, as we have discussed, they were contained in the trial court's own file. We overrule Mother's third issue as well.
We have decided each of Mother's issues against her. We affirm the trial court's Order Denying Petitioner's Bill of Review.