in the Estate of Martin Van Curtis Jr.

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00242-CV
____________________
IN THE ESTATE OF MARTIN VAN CURTIS JR.
_______________________________________________________________________
On Appeal from the 1A District Court
Jasper County, Texas
Trial Cause No. 31975
________________________________________________________________________
MEMORANDUM OPINION
The trial court signed a final order denying a bill of review on January 10,
2014. The appellant, Jewel Agness Curtis (Jewel), filed an appeal. We affirm.
UNDERLYING FACTS
Jewel was married to Martin Van Curtis Jr. (Martin) from 1966 until 2010.
On August 10, 2010, the trial court signed a judgment that awarded Martin a
default judgment and divorce. Martin died in 2011. According to Jewel’s appellate
brief, Jewel and Martin’s son sought to probate Martin’s will that Martin executed
in 1999. Jewel alleges that Mary Ann Williams (Williams), “a woman who had a
relationship with Martin Van Curtis, Jr. of an undetermined nature prior to his
1
death,” also filed an application to probate a will executed in 2008, wherein Martin
names Williams as his heir. On appeal, Jewel contends that both wills are contested
by the opposing parties and the probate suit pertaining to Martin’s estate is still
pending and awaiting a jury trial.
On November 23, 2011, after Martin’s death, Jewel filed a Petition for Bill
of Review seeking to have the trial court set aside the default judgment and divorce
decree between Martin and Jewel. In Jewel’s Petition for Bill of Review, she
alleged (1) that she had a meritorious defense that the property division set out in
the final divorce decree was “grossly unequal” and “not a just and right division[;]”
(2) that she was unable to make this defense because Martin misled her into
believing he was not divorcing her, secretly obtained a default judgment, and
prevented her from receiving the notice of the entry of the final divorce decree by
locking the mailbox and intercepting and hiding the notice; and (3) that her failure
to present this defense was not due to any intentional act of fault or result of
negligence.
The Petition for Bill of Review was consolidated into the probate action.
According to Jewel’s appellate brief, “[i]f the default divorce and [2008] will are
allowed to control, Appellant is faced with losing her one half community property
interest in all of the parties’ community assets awarded to Decedent, and the loss of
2
her right to continue living in the marital residence home at 1495 S. Bowie, Jasper,
Texas, as such home was decreed to be the separate property of Decedent in the
final [divorce] decree.”
The trial court held a Bill of Review proceeding on the Petition for Bill of
Review. At the time of the Bill of Review proceeding, the case had been
consolidated with two probate applications. According to the reporter’s record, at
the time of the Bill of Review proceeding, Jewel's son [Rodney Paul Curtis] had
been appointed the “temporary administrator of the estate,” and he appeared at the
hearing. Jewel also appeared at the hearing along with her attorney, and Williams
appeared with an attorney.
Jewel testified at the Bill of Review hearing that she and Martin lived
together from the date of their marriage until Martin moved into an assisted living
facility shortly before his death in 2011. According to Jewel, at the time Martin
hired an attorney to represent him in the divorce, Jewel and Martin lived at the
home located at 1495 South Bowie, Jasper, Texas, and their house was built on
land Martin had inherited. Jewel testified that Martin also had inherited another
tract of land on South Main Street with a FEMA trailer located on that tract, and
Martin was “in and out” of the FEMA trailer prior to his death. She also testified
3
that Martin had inherited some property in the Rock Hill community which she
stated is south of Jasper.
Jewel explained that she was surprised when she was served with the
petition for divorce on January 23, 2010, and she agreed that she had been
personally served with the divorce petition. Jewel testified that she and Martin
continued to live together, although in separate bedrooms, even after the divorce
petition was filed.
At the hearing, Jewel attempted to testify about what Martin told her or
represented to her about the divorce. Williams’ attorney objected to Jewel’s
testimony about what Martin told Jewel or what he represented to her, arguing the
testimony was hearsay and barred by the Dead Man’s Statute. See Tex. R. Evid.
601(b). Jewel’s attorney argued that there was “no way for my client to prove the
fraudulent statements and fraudulent acts which prohibited her from, you know,
filing an answer in this case because, Your Honor, the evidence is going to show
he told her he was dismissing the suit.” The trial court sustained the objections.
The trial court also entered a conclusion of law that “[e]vidence concerning
conversations between Martin V. Curtis, Jr. and Jewel Curtis were inadmissible
under the Texas Rules of Evidence 601(b).” Jewel’s attorney asked to make a bill
regarding the excluded testimony and Jewel testified that based upon what Martin
4
told her she did not believe he was going to go through with the divorce because
she and Martin talked about the situation, and he told her “he was not going to go
through with the divorce.” She stated she believed, based on her conversation with
Martin, that they would not get a divorce and that she did not need to hire an
attorney to represent her. According to Jewel, Martin never again mentioned
proceeding with the divorce.
Jewel admitted during her testimony that she was a teacher and she had
attended college. She acknowledged that she had read the citation attached to the
divorce petition that advised her that a default judgment would be taken against her
if she did not file a written answer on or before twenty days after the expiration of
the date of service. Jewel claimed she really did not understand that a default
judgment could be taken against her. She admitted that she had the opportunity to
seek out an attorney to advise her concerning the papers, but she chose not to hire
an attorney to represent her.
Jewel testified that she was not aware of the default judgment hearing held
on April 16, 2010, and she was not aware that Martin intended to proceed with the
divorce at the time of that hearing. Jewel denied the allegation in the petition for
divorce that she and Martin ceased living together in 2003. According to Jewel, she
was unaware that the judge had signed the divorce decree on August 10, 2010, and
5
she testified that on the date of the entry of the divorce she and Martin were living
together at 1495 South Bowie as husband and wife, and they shared income and
assets.
Jewel explained that on August 10, 2010, there was a mailbox at 1495 South
Bowie, Jasper, Texas, which was the address listed on the Certificate of Last
Known Address for the postcard notification of the final decree of divorce. Jewel
stated that she did not have access to the mailbox because Martin “had the key and
he kept it.” She testified that the lock had been on the mailbox for “[a]t least a year
or longer[,]” and that, although she would get her mail there, she had to wait until
Martin retrieved the mail and she had never attempted to remove the lock. Jewel
testified that she was never provided with a postcard notifying her that the final
decree of divorce had been entered. According to Jewel, it was probably in 2011,
when Martin moved out and when he moved into the FEMA trailer. Jewel
explained that, at some point after the final divorce was granted, Martin arrived at
their house with a copy of the divorce decree and with the police to get his
personal belongings out of their house.
Jewel admitted that after the final divorce decree had been entered she spoke
with a lawyer about the divorce decree, but she did not hire the lawyer. According
to Jewel, the attorney she met with told her that it was too late to do anything about
6
the divorce. Jewel testified that she did not believe the final divorce decree
awarded a fair and equitable division of the marital estate as she was not awarded
any furniture, that the bank accounts she was awarded did not have the balances
represented at the time of the final divorce decree, and that she never received any
of those balances. Jewel stated that she would not have agreed to the division of
the property as stated in the final divorce decree if she had been given the
opportunity to have representation in the divorce, and she stated she was asking the
trial court to grant the bill of review to allow her to obtain a fair ownership of the
marital assets. The trial court denied the bill of review by order dated January 10,
2014.
On April 3, 2014, the trial court severed the bill of review proceeding from
the probate proceeding. Jewel filed a Request for Findings of Fact and Conclusions
of Law on April 14, 2014. Findings of Fact and Conclusions of Law were filed by
the trial court on May 2, 2014. Jewel then filed a Request for Additional Findings
of Fact and Conclusions of Law on May 12, 2014. In Jewel’s request, Jewel
expressly requested additional findings and conclusions as to:
1. factual issues and legal conclusions concerning Meritorious
defense;
2. the justification for failure to assert a defense; and
3. whether the default judgment was rendered as a result of movants[’]
own fault or negligence.
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The trial court then entered Amended Findings of Fact and Conclusions of Law on
May 21, 2014. Jewel filed a Notice of Appeal on May 22, 2014, and she filed an
Amended Notice of Appeal on June 4, 2014.
ISSUES PRESENTED
Jewel raises two issues on appeal. First, she contends that the trial court
erred in denying the bill of review because she “put on uncontroverted evidence
regarding: her meritorious defense to the property division in the default judgment;
her husband’s fraud against her which prevented her from filing an answer; her
lack of negligence in failing to file an answer; and her justification for failing to
file an appeal during the normal appeal period.” Second, she argues that the “trial
court’s failure to make findings of fact and conclusions of law on certain
mandatory issues involved in this Bill of Review appeal was harmful error.” We
consider Jewel’s issues together.
APPLICABLE LAW AND STANDARD OF REVIEW
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. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010);
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam). A party seeking
relief in a bill of review proceeding must plead and prove (1) a meritorious defense
8
to the underlying cause of action, (2) which the party was unable to present by
virtue of fraud, accident or wrongful act of the opposing party or official mistake,
(3) unmixed with any negligence of her own. Caldwell, 154 S.W.3d at 96 (citing
Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex. 1979)).1 Prima facie proof of a
meritorious defense to the underlying claim may be comprised of documents,
answers to interrogatories, admissions, and affidavits on file along with such other
evidence that the trial court may receive in its discretion. Martin v. Martin, 840
S.W.2d 586, 591 (Tex. App.—Tyler 1992, writ denied).
Because a bill of review is a direct attack on a judgment, it must be brought
in the court that rendered the original judgment, and only that court has jurisdiction
over the bill. Fernandez, 315 S.W.3d at 504; Martin v. Stein, 649 S.W.2d 342, 346
(Tex. App.—Fort Worth 1983, writ ref’d n.r.e.) (per curiam) (“A bill of review . . .
is not a means of appeal of a judgment of one trial court to another trial court.”). A
bill of review must be filed within four years after the judgment is signed (absent
extrinsic fraud). PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex. 2012).
1
If the petitioner who seeks a bill of review claims she was not properly
served and there has been a due process violation, then she may be relieved from
establishing the first two elements. Mabon Ltd. v. Afri-Carib Enters., Inc., 369
S.W.3d 809, 812 (Tex. 2012). Jewel admits that she was properly served therefore
she bore the burden to establish each element.
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“In reviewing the grant or denial of a bill of review, every presumption is
indulged in favor of the court’s ruling, which will not be disturbed unless it is
affirmatively shown that there was an abuse of judicial discretion.” Saint v.
Bledsoe, 416 S.W.3d 98, 101 (Tex. App.—Texarkana 2013, no pet.). A trial court
abuses its discretion only “if it has acted in an unreasonable or arbitrary manner, or
without reference to any guiding rules and principles.” Id. at 101-02 (citing
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
When the inquiry on a petition for bill of review concerns a question of law, an
appellate court reviews the trial court’s decision de novo. Mosley v. Dallas Cnty.
Child Prot. Servs., 110 S.W.3d 658, 661 (Tex. App.—Dallas 2003, pet. denied);
see also In re L.N.M., 182 S.W.3d at 474.
Jewel asserts that she had a meritorious defense because the property
division in the divorce decree of August 10, 2010, was unequal and not a just and
right division of the marital property. Whether a prima facie meritorious defense is
“made out” is a question of law for the trial court. In re L.N.M., 182 S.W.3d at 474
(citing Baker, 582 S.W.2d at 408-09). A prima facie meritorious defense “‘is made
out when it is determined that the [alleged] defense is not barred as a matter of law
and that [the petitioner] will be entitled to judgment on retrial if no evidence to the
contrary is offered.’” Mosley, 110 S.W.2d at 661 (quoting Baker, 582 S.W.2d at
10
408-09); see also Martin, 840 S.W.2d at 591. “In cases involving bills of review to
set aside divorce decrees regarding [a] division of property, courts have held that a
meritorious claim is presented by proof that the petitioner “‘would obtain a more
favorable property division on retrial.’” Elliott v. Elliott, 21 S.W.3d 913, 919 (Tex.
App.—Fort Worth 2000, pet. denied) (quoting Martin, 840 S.W.2d at 592).
Even if the petitioner establishes a meritorious defense, she must also prove
that she was prevented from asserting her meritorious defense to the underlying
suit because of fraud, accident, or wrongful conduct of the opposing party. See
Caldwell, 154 S.W.3d at 96 (citing Baker, 582 S.W.2d at 406-07). Only extrinsic
fraud will support a bill of review. Tice v. City of Pasadena, 767 S.W.2d 700, 702
(Tex. 1989). Extrinsic fraud is fraud that denied a party the opportunity to fully
litigate at trial all the rights or defenses that could have been asserted. Id. Next, the
petitioner must prove that she exercised due diligence to avail herself of all
adequate legal remedies to set aside the underlying judgment.
Generally, a bill of review is available only when a party has exercised due
diligence to avail herself of all adequate legal remedies against a former judgment.
See, e.g., Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980); see also French v.
Brown, 424 S.W.2d 893, 895 (Tex. 1967) (if a party permits a judgment to become
final by neglecting to file a motion for new trial, appeal, or appeal by writ of error,
11
then that party is precluded from proceeding on a bill of review unless the party
shows a good excuse for the failure to exhaust adequate legal remedies). The party
seeking relief under a bill of review should not have been responsible in any
manner for permitting the judgment to be rendered. Ortmann v. Ortmann, 999
S.W.2d 85, 90 (Tex. App.—Houston [14th Dist.] 1999, pet. denied); Gone v. Gone,
993 S.W.2d 845, 848 (Tex. App.–Houston [14th Dist.] 1999, pet. denied) (trial
court correctly concluded that the husband’s own negligence in failing to file an
answer resulted in the default judgment against him, and the failure to prove his
lack of negligence in appearing to contest the matter defeated his right to a bill of
review.).
ANALYSIS
Jewel argues that the trial court’s findings did not address whether each of
the specific bill of review requirements were met, “forcing appellant to guess at the
reasons for its decision in denying the Petition for Bill of Review.” In regards to
the bill of review requirement that proof of a meritorious defense be made, Jewel
asserts in her brief that, because the trial court’s findings do not address this
requirement, “[a]ppellant is left to guess if the trial court believed this factor had
been met[.]” The trial court’s determination about whether Jewel presented prima
facie proof of a meritorious defense was a question of law. In re L.N.M., 182
12
S.W.3d at 474. Thus, we review the record on this point de novo. Mosley, 110
S.W.3d at 661.
In her bill of review petition Jewel stated the following:
Plaintiff possesses a meritorious defense which Plaintiff was
unable to present to the Court. The property division obtained by
Defendant is grossly unequal and is not a just and right division.
Claims to separate properties of Defendant for reimbursement were
not included in the division. Properties were awarded without value
calculations or with inaccurate statements of value. Plaintiff’s home of
40 plus years was awarded to Defendant, depriving Plaintiff of her
homestead.
At the hearing, Jewel offered her own testimony to support her allegation that the
property division was unequal and not a just and right division of the marital estate.
She also introduced a copy of the Final Decree of Divorce, a copy of Martin’s
contract with his divorce attorney, a copy of the Citation and Return showing
Jewel was served with the divorce petition, and a copy of the Certificate of Last
Known Address filed in the divorce.
In the Final Decree of Divorce the court awarded Martin certain household
items in his possession, a tractor, boat, motor and trailer, sums currently in his
possession and sole control, his retirement accounts with MeadWestvaco and Time
Industries, a Chevrolet pickup truck, and any community interest in a .20 acre tract
of land located on South Bowie Street. The decree awarded Jewel all sums of cash
in her possession and sole control, including funds on deposit, in banks, including
13
but not limited to accounts in her name at Education First Credit Union in
Beaumont, Texas, which were listed in the decree, all of her retirement, described
by Jewel at the hearing as including “27 years of retirement with the Texas
Retirement System,” and a 1998 Ford Expedition. The decree went on to provide
that there was certain separate real property that was owned by Martin was not part
of the marital estate.
In her testimony at the bill of review hearing she testified as follows:
[Trial counsel:] Now, in the Final Decree of Divorce, the decree
awards him all of the furniture in the house and it includes the beds in
the master bedroom and the antique chest in the second bedroom and
the love seat, La-Z-Boy, computer monitor, bookcase, record stereo,
deep freeze, refrigerator, dishwasher, half of the pots and pans,
icebox, all tools, barbecue pit, patio furniture, ironing board. It
awarded him the tractor with all the implements, the boat, the motor,
the trailer, all of the bank accounts in his name, his Temple
retirement, the Chevy 1500 motor vehicle, and all community interest
in the real estate, the houses.
Do you believe that is a fair and equitable division of your
marital estate between the two of you?
[Jewel:] No, it’s not.
[Trial counsel:] Did that leave you with even any furniture owning?
[Jewel:] No.
[Trial counsel:] Okay. And it says it awarded to you bank accounts
containing $25,285, $43,060, and $6,078. Did you have bank accounts
with those balances in it at that time?
[Jewel:] No.
14
[Trial counsel:] And so, did you actually receive any of that[]assets
[sic]?
[Jewel:] No.
It is unclear from this testimony whether or not Jewel is saying she did not
have those specific amounts in each of the listed Education First accounts or
whether she is saying she did not receive any of the amounts in the listed accounts.
Nevertheless, even if we assume she did not have or receive any of the funds in her
Education First accounts, according to the Final Divorce Decree she received other
assets in the divorce. Jewel provided no testimony or evidence about the value of
any of the other assets that Jewel received in the divorce, nor did she provide any
evidence of the value of the assets that Martin received. Accordingly, based on the
evidence in the record, the trial court could have disbelieved her testimony or it
could have reasonably concluded that there was no evidence from which the court
could conclude that Jewel would obtain a more favorable property division on
retrial even if her allegations were true. After reviewing the entire record before us
and considering the testimony by Jewel regarding the basis for her bill of review
proceeding, as well as the property division contained in the divorce decree, we
conclude that Jewel failed to demonstrate that she would obtain a more favorable
property division on retrial and she failed to present a meritorious defense. See
15
Elliott, 21 S.W.3d at 920; Hartsfield v. Wisdom, 843 S.W.2d 221, 224 (Tex.
App.—Amarillo 1992, writ denied); see also Arndt v. Arndt, 714 S.W.2d 86, 88
(Tex. App.—Houston [14th Dist.] 1986, no writ) (holding evidence of
disproportionate property division based on values three years after divorce was
not prima facie proof of meritorious claim); Earp v. Earp, 688 S.W.2d 245, 247-48
(Tex. App.—Fort Worth 1985, no writ) (holding evidence of disproportionate
property division in that husband received 63% of marital estate did not present
prima facie proof of meritorious defense); c.f. Martin, 840 S.W.2d at 590-92
(holding bill of review plaintiff offered prima facie proof of her meritorious claim
where evidence showed company’s financial condition was “entering into a period
of prosperity” and not in a “precarious financial condition” as represented, and had
$6 million in retained community income unknown to plaintiff at time of divorce);
Kessler v. Kessler, 693 S.W.2d 522, 526 (Tex. App.—Corpus Christi 1985, writ
ref’d n.r.e.) (a prima facie meritorious defense was presented where evidence
conclusively showed husband fraudulently concealed community property cash
deposit of $8,310.84). Because our conclusion that Jewel failed to show a prima
facie meritorious defense is dispositive of this appeal, we need not address whether
Jewel met the other bill of review requirements. See, e.g., McDaniel v. Hale, 893
S.W.2d 652, 675 (Tex. App.—Amarillo 1994, writ denied).
16
Nevertheless, even if we assumed Jewel met her burden to demonstrate a
meritorious defense, we conclude that Jewel also failed to establish that her failure
to present her alleged meritorious defense was as a result of the extrinsic fraud,
accident, or wrongful conduct of Martin. See Caldwell, 154 S.W.3d at 96; Tice,
767 S.W.2d at 702. Jewel contends that Martin’s “fraud in hiding the fact that he
intended to pursue the divorce and then hiding the fact that the divorce occurred,
coupled with the inequitable property division, acts as grounds to grant the Bill of
Review in this case.” Jewel argues in her appellate brief that Martin’s oral
statements to Jewel that he decided not to go through with the divorce were not
precluded by the Dead Man’s Statute, and that those statements were admissible
because they were corroborated by other evidence. She also argues that evidence of
Martin’s oral statements to Jewel that he decided not to go through with the
divorce should have been considered by the trial court because they were admitted
without objection during the cross-examination of Jewel.
The relevant version of Texas Rule of Evidence 601, otherwise known as the
“Dead Man’s Rule” or Dead Man’s Statute[,]” provides, in relevant part:
(b) “Dead Man’s Rule” in Civil Actions. In civil actions by
or against executors, administrators, or guardians, in which judgment
may be rendered for or against them as such, neither party shall be
allowed to testify against the others as to any oral statement by the
testator, intestate or ward, unless that testimony to the oral statement
is corroborated or unless the witness is called at the trial to testify
17
thereto by the opposite party; and, the provisions of this article shall
extend to and include all actions by or against the heirs or legal
representatives of a decedent based in whole or in part on such oral
statement. Except for the foregoing, a witness is not precluded from
giving evidence of or concerning any transaction with, any
conversation with, an admissions of, or statement by, a deceased or
insane party or person merely because the witness is a party to the
action or a person interest in the event thereof. . . .
Tex. R. Evid. 601(b) (amended 2015). The rule does not prohibit testimony
concerning statements by the deceased that are properly corroborated. Quitta v.
Fossati, 808, S.W.2d 636, 641 (Corpus Christi 1991, writ denied) (citing Lewis v.
Foster, 621 S.W.2d 400, 404 (Tex. 1981).
The trial court included in its Additional Findings of Fact and Conclusions
of Law that “[e]vidence concerning conversations between Martin V. Curtis, Jr.
and Jewel Curtis were inadmissible under the Texas Rules of Evidence 601(b).”
We first address Jewel’s argument that the application of the Dead Man’s Statute
was waived because Jewel testified without objection during cross-examination to
statements made by Martin to her.2 When the party entitled to the protection of the
rule calls the adverse party to the stand and asks about a transaction with or
statement by the decedent, the rule is waived as to that statement. Seaman v.
Seamon, 425 S.W.2d 339, 342 (Tex. 1968) (applying former Dead Man’s Statute).
2
Jewel does not provide record references for the testimony elicited on
cross-examination that she claims created the waiver.
18
A waiver does not occur, however, when the opposite party merely cross-examines
the witness at trial about matters brought out over his objection on direct
examination. Chandler v. Welborn, 294 S.W.2d 801, 809 (Tex. 1956). Here,
Jewel’s answers regarding Martin’s statements to her were made by her in
response to questions from her own attorney regarding matters brought out over
the opposing party’s objection on direct examination. Therefore, no waiver
occurred. See id.
Jewel asserts that Martin’s oral statements that he had “changed his mind”
and decided not to go through with the divorce were corroborated by: (1) the
testimony that following the discussion, the parties continued to cohabitate as
husband and wife; (2) the testimony of Appellant that she would not have
cohabitated with a man that was divorcing her, or from whom she was divorced;
(3) the testimony of appellant as to the lack of further discussion between her and
Decedent as to the divorce proceeding with the divorce after the initial
conversation; and ( 4) by the fact that following the filing of the suit and service of
the papers, in January of 2010, the divorce was not actually finalized until August
of 2010 (when by law it could have been finalized by a default divorce in March of
2010).
19
Corroborating evidence must tend to support some of the material
allegations or issues that are raised by the pleadings and testified to by the witness
whose evidence is sought to be corroborated. Quitta, 808, S.W.2d at 641 (citing
Lewis, 621 S.W.2d at 404). Corroborating evidence may come from other
competent witnesses or another source, including documentary evidence. Id.
Corroborating evidence need not be sufficient standing alone, but must tend to
confirm and strengthen the testimony of the witness and show the probability of its
truth. Id. For example, it is sufficient if the corroborating evidence shows conduct
by the deceased that is generally consistent with the testimony concerning the
deceased’s statements. Id.
We disagree that the evidence identified by Jewel properly corroborated the
excluded oral statements Martin purportedly made to her. Jewel’s testimony about
what Martin told her or what Martin did would be self-serving and does not
provide testimony “from any other competent witness or legal source.” See id.
(emphasis added). The fact that the divorce was not finalized until August of 2010,
could have been a result of many circumstances, and therefore, does not “tend to
confirm and strengthen” Jewel’s testimony and “show the probability of its truth.
See id. We cannot say that the trial court abused its discretion in determining that
that the complained-of excluded statements were inadmissible. See Owens-Corning
20
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (appellate courts
review the trial court’s evidentiary rulings for an abuse of discretion). Accordingly,
we conclude that Jewel failed to establish that her failure to assert her meritorious
defense was the result of the extrinsic fraud, accident, or wrongful conduct of
Martin.
Issues one and two are overruled. We affirm the trial court’s order denying
appellant’s bill of review.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on December 29, 2014
Opinion Delivered September 24, 2015
Before Kreger, Horton, and Johnson, JJ.
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