Bryan Maxey v. Ed Parsons ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-90-202-CV





BRYAN MAXEY,

APPELLANT

vs.





ED PARSONS,

APPELLEE

FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT

NO. 12,957, HONORABLE CLAYTON E. EVANS, JUDGE

PER CURIAM

Appellant Bryan Maxey appeals from an order of the district court of Burnet County denying his petition for bill of review. We will affirm the order.

Appellant owns and operates the Channel Oaks Water System that supplies water to residents of a subdivision located in Burnet County. In December 1988, appellant filed the lawsuit underlying the bill of review against appellee Ed Parsons seeking, in pertinent part, an accounting of funds allegedly paid appellee as trustee for appellant. Appellee counterclaimed for malicious prosecution. After a hearing, the district court, on April 28, 1989, entered a summary judgment on the original claim and the counterclaim in favor of appellee and against appellant.

Thereafter, on November 6, 1989, appellant filed his original petition for bill of review seeking to set aside the summary judgment. A bill of review is an equitable proceeding to set aside a judgment that is no longer appealable or subject to a motion for new trial. Ortega v. First RepublicBank Fort Worth, N. A., 792 S.W.2d 452, 453 (Tex. 1990); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). The bases on which a party can obtain a bill of review are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point. Thus, a petitioner must ordinarily 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. Transworld Financial Services Corp. v. Briscoe, 722 S.W.2d 407 (Tex. 1987); Baker, 582 S.W.2d at 408-09; Alexander v. Hagedorn, 226 S.W.2d 996 (Tex. 1950).

In the instant cause, we first note that appellant has attached numerous exhibits to his brief, to the supplement to the brief, and to his response to appellee's brief. The attachment of documents as exhibits or appendices to briefs does not make those documents part of the record on appeal; therefore, this Court cannot consider such documents. Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex. App. 1987, no writ); Zodiac Corp. v. General Electric Credit Corp., 566 S.W.2d 341, 347 (Tex. Civ. App. 1978, no writ). We do, of course, consider any documents that are properly before us as part of the record on appeal.

In his brief, supplement, and response, appellant raises five points of error in which he asserts that he did not receive notice of the filing of appellee's counterclaim, of the motion for summary judgment, or of the setting of the hearing on the motion for summary judgment; and did not receive timely notice of the entry of judgment. As we understand the argument, appellant relies on these contentions to satisfy the second and third elements required to obtain a bill of review. ⁽¹⁾ See also Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex. 1974); Pope v. Moore, 729 S.W.2d 125 (Tex. App. 1987, writ ref'd n.r.e.) (petitioner who also shows meritorious defense and no fault or negligence of own may predicate bill of review on clerk's failure to send notice of judgment).

Appellant, represented by an attorney, filed an original petition naming appellee as defendant in the underlying suit. At the bill of review hearing, appellee's attorney testified that copies of appellee's answer, counterclaim, and special exceptions were served on appellant's attorney of record, by certified mail, but were not sent directly to appellant. The transcript includes a copy of appellee's motion for summary judgment which ends with a signed order setting the hearing on the motion for April 28, 1989. The motion also includes a certificate of service showing service on appellant's attorney by certified mail. Appellee introduced into evidence the transmittal letters, addressed to appellant's attorney, for each of the documents. The letter accompanying the motion for summary judgment states that "a hearing on this motion . . . has been set for hearing by the Court on April 28, 1989 at 9:00 o'clock a.m."

Texas R. Civ. P. Ann. 124 (Supp. 1991) provides, in pertinent part:

When a party asserts a counterclaim ... against another party who has entered an appearance, the claim may be served in any manner prescribed for service of citation or as provided in Rule 21(a).

See generally 2 McDonald, Texas Civil Practice § 7.53--(VII) (rev. ed. 1982 & Supp. 1990). Texas R. Civ. P. Ann. 21(a) (Supp. 1991) provides that a document may be served by delivery to a party or his attorney of record by certified mail to the last known address. Pursuant to Rule 21(a), a certificate of service creates a presumption that the requisite notice was served and, in the absence of evidence to the contrary, has the force of a rule of law. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987); Krchnak v. Fulton, 759 S.W.2d 524, 528 (Tex. 1988, writ denied); Hurt v. Bays, 537 S.W.2d 139 (Tex. Civ. App. 1976, writ ref'd n.r.e.).

Appellant responds that, as to the counterclaim, the attorney was not his attorney of record. At the hearing, however, appellant testified that he had hired the attorney to file the original claim and had not notified appellee, appellee's attorney, or the trial court that the attorney did not represent him in the defense of the counterclaim. Appellant testified further that he did not know whether the attorney received a copy of the counterclaim. The record shows that appellee complied with the applicable rules in providing notice of the counterclaim, the motion for summary judgment, and the setting for the hearing on the motion.

The record does not show, however, whether the district clerk of Burnet County sent notice of judgment, pursuant to Tex. R. Civ. P. Ann. 306a(3) (Supp. 1991). We conclude, assuming that the clerk did not send timely notice, that the failure to send notice was not harmful. Petro-Chemical Transport, 514 S.W.2d at 246; Pope, 729 S.W.2d at 127. Appellee introduced into evidence a transmittal letter for interrogatories in aid of judgment, addressed to appellant and dated June 5, 1989, and a receipt for certified mail signed by a person at appellant's address on June 8th. Appellant testified that he did not sign the certified mail receipt, but that the card did show his address; that he did not recall having seen the interrogatories; and that he was not positive that the trial court had entered a judgment until approximately six months later when he wrote the court. Appellee also introduced a letter, dated July 31, 1989, by which appellant's attorney returned answers to these interrogatories on appellant's behalf.

The evidence suggests that appellant acquired actual knowledge of the judgment on June 8, 1989, when he received the interrogatories in aid of judgment. Pursuant to Tex. R. Civ. P. Ann. 306a(4) and (5), and Tex. R. App. P. Ann. 5(b)(4) and (5), he may have proved in the trial court that he did not receive notice until that day and thereby have extended the time within which to file a motion for new trial or to perfect an appeal. See Pope, 729 S.W.2d at 127.

Because appellant did not allege and prove any fraud, accident, or wrongful act on appellee's part that prevented appellant from presenting a meritorious defense, or the absence of fault or negligence of his own, we overrule his points of error. The order denying petition for bill of review is affirmed.

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed:  March 13, 1991

[Do Not Publish]

1. Appellant does not argue that the lack of notice requires this court to reverse the order denying petition for bill of review. See Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (1988); LDL Oil Co. v. International Power Services, Inc., 777 S.W.2d 390 (Tex. 1989).