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Mitchell v. City of Dallas

Court of Appeals of Texas, Fifth District, Dallas

November 20, 2019

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

          Before Chief Justice Burns, Justice Molberg, and Justice Reichek

          MEMORANDUM OPINION

          AMANDA L. REICHEK JUSTICE.

         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 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.

         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 ...


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