Byron Walker v. Sheryl Walker ( 2015 )

32591 .
Filedl 10»'5/2015 12:01;07 PM
Young County - Disin'ci C|erk Jamie Freeze Land
' Distfici Cierk
Yoiing Coiinty, Texas
Teresa Ki|patn`ck
CAUSE NO. 32591
IN THE MATTER OF
THE MARRIAGE OF
IN THE DISTRICT COURT
BYRON WALKER '
AND _ 90TH JUDICIAL DISTRIC'I`
SHERYL WALKER
AND IN 'I`HE INTEREST OF
C.L.W., A CHILD_
QMW>W°OMCMWW¢O¢GM
Y()UNG COUNTY, TEXAS
BYRON WALKER’S MOTION FOR NEW TRIAL
Byron Walker (“Byron”) files this Motion for New Trial. In Support of this Motion,
Byron shows the following:
I. PRoCEi)URAL HisTORY
l. Bryon filed his Bill of Review on March lO, 2015, alleging that he lacked legal
remedy due to Sheryl Walker’s (“Sheryl”) improper withholding of discovery documents and
her, and her family’s, threats to Byron.
2. Sheryl Walker filed her Original Answer on April 14, 20]5. On April 28, 2015,
Sheryl filed her First Amended Answer simultaneously With her Motion for Summary Judgment.
3. On May 12, 2015, Byron served Sheryl With Requests for Disclosure, Reqiiests
for Production, Requests for Admission, and lnterrogatories. On May 20, 2015, Byron filed a
l\/lotion for Continuance for the hearing `on Sheryl’s Moti`on for Summary Judgment because he
needed the discovery responses to adequately respond to the Motion for Sumrnary Judgment.
Thereafter, Bryon filed his Response to Sheryl’s l\/lotion for Summary Judgrnent and Objections
to Sheryl’s Surnrna.ry Judgrnent Evidence.
4. On May 29, 2015, the Court heard Byron’s Motion for Continuance, Object`ions
to Sheryl’s Sumrnaxy Judgrnerit Evidence and Sheryl’s Motiori for Sun'irnary Judgment. The '
BYRON WALKER’S MoTioiv FOR Ni-:w TRIAL PAGE l or 6
Court ordered that Sheryl did not need to respond to any written discovery until thirty (30) days
after a ruling on her Motion for Summary ludgment. On September 9, 2015, the Court granted
Sheryl‘s Motion for Summary Judgment and denied Byron’s Motion for a Continuance.
Additiorially, the Court signed an order denying all of Byron’s objections to Sheryl’s Surnmary
Judgment Evidence. n
Il. MoTioN FoR Ni~;w TRiAL ii
5. A Court may grant a new trial and set the judgment as§ide for good cause. TEX. R,
Civ. P. 32i). Byron has good cause to seek a new trial because the: Court erred-in denying his
Motion for Coritinuance and granting Sheryl’s Summary Judgment. i
A. The Court Erred in Denying Byron’s Motion for Continuance
6. When a party files a motion for summary judgn"i:ent shortly after the filing
instituting the proceeding, the trial court should grant a motion for ccintinuance if requested See,
e.g., Levinthal v. Kelsey-Seybold Ci'i'nic, P.A.,' 902 S.W.Zd 508, 51;2 (Tex. App.~Houston [lSt
Dist.] 1994, no writ) (trial court abused its discretion by not granting a continuance when motion
for summary judgment was filed within three months of Plaintiff" instituting lawsuit and before
Defendant responded to discovery); Verkz'n v. Southwest Ctr. One, Li‘d._. 784 S.W.Zd 92, 96 ('l`ex.
App._Houston [lst Dist. 1989, writ denied) (Defendant’s motion for continuance should have
been granted because Plairitiff filed for summary judgment 50 days after filing lawsuit and
before Defendant responded to discovery)4
7. Sheryl filed her Motion for Summary Judgment on _'April 28, 2015-just over a
month after Bryon initiated the proceeding Byron served Sheryl with written discovery on May
12, 2015 and filed his Motiori for Continuance on May 20, 2015. Tliis Court’s ruling on Byron’s
Motion for a Continuance was an abuse of discretion because it prevented Byrori from
BYRON WALKER’S MoTio:v FoR NEW TRI,`L PAGE 2 OF 6
adequately responding to Sheryl’s Motion for Summary Judgmerit. It prevented him from
securing evidence of his claims Theref`ore, the Court should gran:t Byron’s Motion for New
Trial and vacate the summary judgmentl
B. The Court Erred in Overruling Byron’s Objections to Sheryl’s Summary Judgment
Evidenee
8. Bryon made several objections to Sheryl’s Summary Judgment evidence, which
the Court overruled The objections and the Court’s order on them are attached hereto as Exhibit
A. The Court erred in overruling these objections and should not have considered this evidence
in granting summary judgment Therefore, the Court should vacate the summary judgment and
grant a new trial.
C. The Court Erred in Granting Sheryi’s Motion for Summary Judgment
9. Under the traditional summary judgment Standard, the movant has the burden to
show that no genuine issues of material fact exist and she is entitled to judgment as a matter of
law. TEX. R. Clv. P. loda(c); Nixon v_. Mr. Prop. Mgmt. Co., 690 S.W.Zd 546, 548 (Tex. 1985).
The non-movant in a traditional summary judgment proceeding is not required to produce
summary judgment evidence until after the movant establishes she is entitled to summary
judgment as a matter of law. Casso v. Bland, 776 S.W.Zd 551, 556 (Tex. 1989). In deciding
whether there is a disputed issue of material fact that precludes summary judgment, the Court
presumes all evidence favorable to the non-movant is true. Limestorie Prods. Di`strr`b., Inc. v.
McNamara, 7l S.W.Bd 308, 3ll (Tex. 2002). The Court must view all evidence in the light
most favorable to the non-movant and must indulge every reasonable inference and resolve all
doubts in favor of him. Id.
l{). Sheryl failed to meet her burden to prove that as a matter of law Byron is
precluded from succeeding on his Bill of Review by not filing an untimely, amended motion for
Rvnnni Wnl.mrn’§ MnTrnN wm Nr_w Tm.\i PAr:ir__'\nFG
new trial. To file a bill of review, a petitioner is required to exhaust all adequate legal remedies
See Ti`ce v. Ci`ty of Pasadena, 767 S.W.Zd 700, 702 (Tex. 1989). An amended motion for new
trial is only timely, and may be filed without leave of court, before any preceding motion for new
trial is overruled and within thirty days after the court signs the judgment TEX. R. Civ. P.
329b(b). l-Iowever, Byron did not discover the missing discovery documents until past the
deadline to file a motion for new trial. Thus, his failure to file an untimely motion for new trial
is not a failure to exhaust adequate legal remedies, and the Court should have denied summary
judgment on this ground Therefore, the Court should vacate the summary judgment and grant
this Motion for New Trial.
ll. Sheryl failed to meet her burden to prove that the fraud alleged in Byron’s Bill of
Review was intrinsic, rather than extrinsic naud. _A party’s misrepresentation coupled with
threats “does, in fact, constitute extrinsic fraud.” See Hester v. Prickett, No. 03-11*00677-€\/,
2012 WL 3252721 at *4 (Tex. App,_Corpus Christi Aug. 9, 2012, pet. denied) (mem. op.). See
also Rathmell v. Morri`son, 732 S.W.2d 6 (Tex. App._l-loustori [llfl‘h Dist.] 1987, no writ.);
Marti'n v. Marti`n, 840 S.W.2d 586 (Tex. App._Tyler 1992, writ denied). Here, Sheryl made
several misrepresentations regarding the existence of the cattle, and she withheld documents that
were responsive to discovery requests that showed the cattle existed Additionally, Sheryl and
her family members improperly threatened Bryon with financial ruin. All of these factors taken
together amount to extrinsic fraud, and the Court should have denied summary judgment on this
ground Therefore, the Court should vacate the summary judgment and grant this i\/lotion for
New Trial.
l2. Sheryl failed to meet her burden to prove that Byron accepted benefits under the
divorce decree that would estop his Bill of Review. First, a party’s acceptance of a judgment’s
BYRON WALKER’s MOTioN ron Naw TniAL PAGE 4 or 6
community property disposition does not bar him, as a matter of law, from a review of that
disposition if that party alleges and offers proof that the judgment was procured by fraud and
threats of the other without his own fault or negligence Kessler v. Kessler, 693 S.W.Zd 522, 525
(Tex.App.-Corpus Christi 1985, writ refd n.r.e.). Further, economic necessity is an exception
that applies to the acceptance of benefits doctrine when the acceptance occurs only due to
financial duress or other economic circumstances See Waz'te, 150 S.W.3d at 803-04. Because
thejudgment was procured by fraud and threats, and Byron only accepted part of the judgment to
avoid a formal foreclosure, summary judgment should have been denied on this point, and the
Court should grant Byron’s l\/lotion for New Trial.
13. Sheryl argued that Bryon’s Bill of Review should be barred by laches. However,
laches should not bar an action within the limitations period unless allowing the action “would
work a grave injustice.” fn re Marriage of Stroud, 376 S.W.Bd 346, 357 (Tex. App. 2012)
(quoting Culver v. Pz`ckeris, 142 Tex. 87, 176 S.W.2d 167, 170 (1943)). Sheryl did not produce
any evidence to establish that preventing Byron from moving forward With his Bill of Review
would create a grave injustice; therefore, summary judgment should not have been granted on
this point. The Court should vacate the summary judgment and grant Byron’s Motion for New
Trial.
14. Sheryl failed to prove that Byron’s claim is barred by res judicata because the Bill
of Review involves Sheryl’s underlying fraud, a new matter not raised in the original divorce
_proceeding, and the previously late filed motion for new trial does not adjudicate the merits such
that res judicata is proper. Therefore, summary judgment should not have been granted on this
point, and the Court should vacate the summary judgment and grant Byron’s Motion for New
Trial.
BvRo.\' WALKEn’s MoTioN FOR NEW 'I`RIAL PAGE 5 oF 6
III. CoNcLUsioN Ai\'i) PRA\/sn
Bryon prays that the Court grant this Motion for New Trial, set aside the judgment, and
for whatever other relief to which he may be entitled in law or in equity.
Respectfully submitted,
LovELACE KILLEN, PLLC
/s/ W. Cade Lovelace
W. Cade Lovelace
State Bar No. 24050956
clovelace@lovelacel