Roy D. Mitchell v. City of Dallas ( 2019 )

AFFIRMED and Opinion Filed November 20, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01208-CV
ROY D. MITCHELL, Appellant
V.
CITY OF DALLAS, Appellee
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-09853
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Reichek
Opinion by Justice Reichek
Roy D. Mitchell appeals the trial court’s denial of his petition for bill of review seeking to
set aside a default judgment against him. In three issues, appellant contends the trial court erred
by excluding a document examiner’s letter, denying his motion for continuance, and denying the
bill of review when he allegedly showed that he was not properly served with process. After
considering appellant’s arguments and the record, we conclude his issues are without merit.
Accordingly, we affirm the trial court’s judgment.
FACTUAL BACKGROUND
The City of Dallas sued Judy Mitchell Hammond and Ronnie Kenneth Johnigan in Cause
No. DC-16-01661 for unpaid utilities on commercial property that Hammond leased to Johnigan.
Hammond answered the suit, cross-claimed against Johnigan, and filed a third-party claim against
appellant. The third-party claim against appellant concerned a 2014 eviction suit involving the
same property in which Hammond received a judgment against Johnigan. Specifically, the third-
party claim alleged that appellant was a surety for Johnigan’s appeal bond in that suit. The return
of service on appellant was filed with the trial court seventeen days later. It showed that appellant
was personally served by Maurice Burton, Sr., a private process server, at 7:00 p.m. on March 23,
2016 at 3815 N. Westmoreland, Dallas, Texas, 75212, which was the same address listed for
appellant on the November 2014 appeal bond.
When appellant did not answer the lawsuit, the trial court granted an interlocutory default
judgment against him on March 27, 2017. The judgment was made final three days later. The
judgment held appellant liable for actual damages of $10,000, $500 in attorney’s fees, costs, and
post-judgment interest. One week later, Hammond assigned the judgment she obtained against
appellant to the City of Dallas.
On August 11, 2017, appellant filed a petition for bill of review, which he subsequently
amended, seeking to set aside the judgment against him. In his amended petition, appellant
asserted that he learned of the judgment in June 2017 but was never properly served with the
lawsuit. He alleged that he has never lived at 3815 N. Westmoreland and was never personally
served. He further alleged the property was occupied by Alfredo Guzman, who had lived at the
address since 2008. Appellant also alleged that his signature on the appeal bond was forged.
Prior to trial, the parties stipulated to the truth of many of the underlying facts of the case,
including that appellant had owned 3815 N. Westmoreland St., Dallas, Texas, 75212 from “August
10, 2006 through the present date” and was sued by Hammond. The parties further stipulated to
several exhibits, including the return of service on appellant, a certified copy of a warranty deed
conveying 3815 N. Westmoreland to appellant in August 2006, a certified copy of the default
judgment and the assignment of the judgment against appellant to the City, and a “contract for
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deed” attached to appellant’s amended petition for bill of review showing the conveyance of the
Westmoreland property to Alfredo Guzman on February 20, 2008. The stipulations were signed
by appellant and the attorney for the City of Dallas.
The bill of review proceeded to trial on October 8, 2018. Appellant represented himself.
Before any evidence was taken, the City moved to exclude (1) two affidavits from appellant’s co-
workers that appellant believed would show that he could not have been served at the date and
time stated on the return of service and (2) a letter from a handwriting analyst regarding the
signature on the surety bond. The affiants and handwriting expert were not present at trial. The
City objected that the affidavits were hearsay, covered time periods not relevant to the date set out
in the return of service, and were facially defective because they did not state they were true and
based on personal knowledge of the facts and did not contain a jurat showing they were sworn to
by an authorized officer. As for the handwriting document, the City argued that appellant had not
timely disclosed the name of the expert or the document in answer to an interrogatory and the
document was hearsay. The trial court sustained the objections and excluded the evidence.
Appellant then moved for a continuance, which the trial court denied.
Appellant then testified he was not served, had never lived at 3815 North Westmoreland in
Dallas, and sold the property on a contract for deed to Alfredo Guzman.1 Contrary to his previous
stipulation, appellant said the location had “never been” his property and that he was never there.
The contract for deed that had been stipulated as an exhibit was admitted into evidence. The City
offered the remaining exhibits listed in the agreed stipulations, and the trial court admitted them.
At the conclusion of the evidence, the trial court granted a take-nothing judgment in the City’s
favor and determined the judgment in the underlying suit was valid. This appeal followed.
1
Although the record does not show that appellant was sworn in as a witness, the City did not object. See Banda v. Garcia, 955 S.W.2d 270,
272 (Tex. 1997) (per curiam) (explaining that opponent of testimony can waive oath requirement by failing to object when opponent knows or
should know objection is necessary).
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DENIAL OF CONTINUANCE
In his first issue, appellant contends the trial court abused its discretion in denying his oral
motion for continuance after excluding his evidence. As legal support, he provides a general
citation to Texas Rule of Civil Procedure 193.6(c)
Under rule 193.6(c), a trial court has discretion to grant a continuance or temporary
postponement of trial to allow additional discovery, even in those circumstances where the
proponent fails to meet its burden of establishing good cause, lack of unfair surprise, or unfair
prejudice. See TEX. R. CIV. P. 193.6(c). The trial court’s ruling under rule 193.6 should not be
disturbed absent an abuse of discretion. Id. In making this determination, we consider the length
of time the case has been on file, the materiality and purpose of the discovery sought, and whether
the party seeking the continuance has exercised due diligence to obtain the discovery sought.
Carlton v. Stewart, No. 05-05-00888-CV, 2006 WL 894879, at *3 (Tex. App.—Dallas Apr. 7,
2006, pet. denied) (mem. op.).
Here, appellant has not analyzed any of these factors within the context of this case. Rather,
appellant generally asserts he was entitled to a continuance because he is not a practicing attorney
and was unfamiliar with the rules. But, as the trial judge explained when she denied his
continuance, the requirements of the rules of civil procedure apply with equal force to attorneys
and self-represented litigants. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (stating
that “pro se litigants are not exempt from the rules of procedure” and warning that “[h]aving two
sets of rules––a strict set for attorneys and a lenient set for pro se parties––might encourage
litigants to discard their valuable right to the advice and assistance of counsel”). Moreover, the
case had been on file for almost fourteen months at the time of trial. It was previously continued
for four months by agreement of the parties, who also agreed to a new scheduling order setting out
the various discovery deadlines. Nevertheless, appellant failed to respond to the City’s request for
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disclosure nor did he procure the attendance of his witnesses for trial. Under these circumstances,
we conclude the trial court did not abuse its discretion in denying appellant’s motion for
continuance. We overrule the first issue.
DENIAL OF BILL OF REVIEW
In his second issue, appellant contends the trial court erred in denying his bill of review
because he was not properly served.
A bill of review is an independent, equitable action to set aside a judgment that is no longer
appealable or subject to a motion for new trial. Caldwell v. Barnes (Caldwell II), 154 S.W.3d 93,
96 (Tex. 2004) (per curiam). We review the denial of a bill of review for an abuse of discretion.
Ramsey v. Davis, 261 S.W.3d 81, 815 (Tex. App.—Dallas 2008, no pet.).
Generally, a party seeking a bill of review must allege and prove that (1) he had a
meritorious defense to the underlying cause of action, (2) which he was prevented from making
because of fraud, accident, or a wrongful act by the opposite party, (3) that was untainted by any
fault or negligence of his own. Caldwell II, 154 S.W.3d at 96. When a bill of review is based
solely on a claim of non-service, however, the bill of review plaintiff is only required to prove the
third element. Id. at 96–97. An individual who is not served with process cannot be at fault or
negligent in allowing a default judgment to be rendered; therefore, the third element is conclusively
established if the bill of review plaintiff proves non-service. Id. at 97 (citing Caldwell v. Barnes
(Caldwell I), 975 S.W.2d 535, 537 (Tex. 1998)). The burden is on the bill of review plaintiff to
show by a preponderance of the evidence that he was not served. Id. at 98.
An officer’s return is prima facie evidence of the facts of service, regardless of whether
those facts are recited in a form or filled in by the officer. Primate Constr., Inc. v. Silver, 884
S.W.2d 151, 152–53 (Tex. 1994). “The recitations in the return of service carry so much weight
that they cannot be rebutted by the uncorroborated proof of the moving party.” Id. at 152
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(citing Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972)). Accordingly, “the testimony of a bill of
review plaintiff alone, without corroborating evidence, is insufficient to overcome the presumption
that the plaintiff was served.” Caldwell II, 154 S.W.3d at 97 n.3.
Here, the evidence showed that, in cause number DC-16-01661, appellant was personally
served with citation and Hammond’s answer, counterclaims, and third-party claim by a certified
process server at 3815 N. Westmoreland at 7 p.m. on March 23, 2016. The officer’s return is
prima facie evidence of the facts of service. Although appellant testified he was not served at that
address, there was no other evidence to corroborate that statement. Although he admitted an
unrecorded contract for deed showing a conveyance of the Westmoreland property to Alfredo
Guzman in 2008, this document does not corroborate his testimony that he was not served at the
location. Moreover, appellant stipulated that he has owned 3815 N. Westmoreland since August
10, 2006, and in the November 3, 2014 appeal bond, appellant listed his address as 3815 N.
Westmoreland. Having reviewed the evidence, we cannot conclude the trial court abused its
discretion by impliedly finding that appellant was properly served with the underlying suit. We
overrule the second issue.
EXCLUSION OF DOCUMENT EXAMINER LETTER
In his third issue, appellant complains the trial court erred in excluding the letter by his
handwriting expert, arguing he did not sign the surety bond that “ties him to this case.” Within his
issue, however, appellant has not briefed the two grounds upon which the trial court excluded this
evidence. Rather, appellant focuses on the denial of his oral motion for continuance, an issue we
have already found against him. Having failed to challenge either basis upon which the evidence
was excluded, appellant has not shown reversible error. See Malone v. Foster, 956 S.W.2d 573,
579 (Tex. App.—Dallas 1997) (explaining that appellant waives error by not challenging all
possible grounds for trial court’s ruling to exclude evidence), aff’d on other grounds, 977 S.W.2d
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562 (1998). Even if he had preserved his issue, the letter was an out-of-court statement offered
for the truth of the matter asserted, i.e., that someone other than appellant signed his name on the
appeal bond. As such, the letter was properly excluded as hearsay. See TEX. R. EVID. 801(d).
We overrule the third issue.
We affirm the trial court’s judgment.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
181208F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROY D. MITCHELL, Appellant On Appeal from the 116th Judicial District
Court, Dallas County, Texas
No. 05-18-01208-CV V. Trial Court Cause No. DC-17-09853.
Opinion delivered by Justice Reichek;
CITY OF DALLAS, Appellee Chief Justice Burns and Justice Molberg
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee CITY OF DALLAS recover its costs of this appeal from
appellant ROY D. MITCHELL.
Judgment entered November 20, 2019.
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