*1 decisions, justice other peals of court entry proceedings, the AMANDA, Relator,
forcible and detainer Appeals Antonio Court of has held that San give jurisdictional the failure to notice MONTGOMERY, D. The Honorable John judgment. only prevents a default Moli Respondent. (Tex.Civ. Negley, na v. writ). no Antonio Cor — San No. 01-94-00322-CV. pus Appeals has also held Christi Court of Texas, Appeals appeal that in an of a district court decision (1st Dist.). court, Houston failure of the intermediate give appellee appellant to notice of the filing appellant’s appeal bond was not
jurisdictional. Dev. Ass’n v. Nolana Jeffer Ass’n, Loan son Sav. & writ). 1981,no
(Tex.Civ.App. Corpus Christi — support
To its contention that failure
notify filing adverse jurisdictional, Armstrong
appeal cites bond Brannum,
Simmons (Tex.Civ.App. — Austin point, on and is forcible
"WhileSimmons is case,
entry the rules and detainer we feel and Nolana Devel
announced Molina
opment cases contain the better Association holdings application to the facts
reasoned case, Armstrong particularly because acknowledged had actual knowl
edge appeal show of Mitchell’s damaged prejudiced by
that it been give failure
Mitchell’s notice. Mitchell’s second third sustain ruling on
points of error. Because our error, unnecessary it is points
these points of error.
rule Mitchell’s county judgment of the
We reverse the to that law and remand the case a trial on the merits. *2 signed David This document was
vorce.” that David and and Amanda and recited ... [Paul].” Amanda “are day exe- On the same David and Amanda *3 signed agreement, judge cuted the Hudson, Casey, Hous- Sanehia G. Shawn The decree states divorce decree. ton, appellant. for parents of ... Amanda and David “are the Joy Soloway, Hous- Gagnon, M. Stewart pay David The decree ordered to [Paul].” ton, appellee. for per support in for Amanda month child $300 Paul. O’CONNOR, DUGGAN and Before
HEDGES, JJ. years In August, more than ten after modify, to Amanda filed motion
OPINION seeking in the an increase amount of December, 1993, payments. In support child O’CONNOR, Justice. petition David filed a for bill of review under (1) original proceeding, we In this consider style cause number and the same for of review must be whether modify. petition, motion In his David to new, lawsuit, brought independent as a and provisions “those of the Decree attacked (2) complainant may whether a bill conservatorship, to pertain Divorce ... discovery fully comply- proceed with before al- possession, support and [Paul].” requirements for ing preliminary with the leged that he is not Paul’s in bringing place. the first Resolv- action fraudulently “precluded and Amanda relator, we ing questions these favor pursu- denying paternity [Paul] [him] from grant mandamus relief on both issues. Family ant 12.06 of the Texas section Code.” The Facts 14, 1994,
Amanda,1 David, relator, January filed motion married On David later, interest, April, paternity testing. days In Aman- party in for Six real June, gave to Paul. In filed answer to David’s for bill Amanda birth da an answer, for September, Amanda sued David In her she asserted of review. January, judicial estoppel, filed a divorce. David res affirmative defenses of his counter- judicata, counterclaim to divorce. limitations. and claim, are two made statements to sever Amanda also filed motion proceeding: important to this from the motion petition for bill payments, and support the child III. quash motion for motion to adul- Counter-Respondent has committed testing. the trial court denied On March
tery. 14, the to sever. March the motion On pa- quash motion denied the and ordered IV. Amanda, David, ternity testing and Paul. for April testing for set Counter-Respondent and Counterclaimant following child of for Amanda filed her “Motion April On jurisdiction marriage who is not under Leave File Petition for Writ of Prohibition any court: to File Alternatively Leave Motion Male [Paul] Name: Sex: grant- of Mandamus.” Petition for Writ stayed paternity test- 10, 1988, her ed motion February David and On ing to di- order. “agreement into incident entered an 11.19(d), Tex.Fam.Code § We do so in this case. names. 1. Under authority identify parties by fictitious n.r.e., 1976), Standard of Review Worth — Fort ref'd Langford S.W.2d 168 also A appeals court of will issue a writ of Douglas, if mandamus the trial court its abuses discre 1962, writ) (motion reinstate, —Beaumont adequate remedy tion has no relator review, a bill of could be considered law, appeal. such as a normal Walker v. suit). belong did not Packer, (Tex.1992). A trial court abuses its discretion if reaches a bring did not arbitrary so decision and unreasonable as to separate, independent prejudicial amount to a clear and error of lawsuit, and did file it under a new cause law. style. peti number filed his tion same Aman under the cause number as *4 Severance modify. da’s pending motion to Because this argues Amanda that “the trial court contrary procedure, is to our the trial court abused its discretion in denying relator’s re- abused its it discretion when refused to order quest [David’s] be severance. pending severed from relator’s motion to Amanda was entitled to support.” agree. child We proceed separately Texas Rule Civil Procedure 41 sup from her action to increase own child “[a]ny against party may states that claim a port. is Amanda entitled to mandamus relief proceeded separately.” severed with on this issue.2 grants trial “This rule the court broad discre severance_” tion in the matter of Guar Paternity Testing anty Fed. Sav. Bank v. Operating Horseshoe Amanda contends that the trial court Co., (Tex.1990). 652, 793 S.W.2d 658 A trial ordering abused parties its discretion the decision regarding court’s a severance will paternity testing to submit to before David not be disturbed the unless court abused that eq- preliminary requirements fulfilled the discretion. See id. agree. uitable bill of review relief. A bill of an “independent” review is equitable action challenges validity begin proceed the a To bill of review ing, action. State v. complainant 1985 Chevro the petition. must first file a Truck, (Tex. Pickup Baker, let 463, 464 582 The S.W.2d must 1989); Goldsmith, 404, Baker v. allege specific facts that ear the demonstrate 329b(f). 406 judgment Tex.R.Civ.P. lier was rendered as the result of reason, procedure For always Texas has oppo accident or act of the mistake, that a mandated bill of review be site official unmixed with a new lawsuit filed under a complainant’s negligence. different cause the own The number judgment complainant particularity, case whose allege, must with complainant attacking. is sworn facts sufficient to constitute a merito (Tex. Logue, 932, Harris v. complainant rious Id.3 defense. The must i.e., sever, prohibition 2. Amanda has asked for relief "or tion to of an act the trial has Thus, alternatively” already performed. appropriate mandamus relief. Mandamus re vehi- lief, opposed as a issuance of writ of cle for is relief mandamus. prohibition, proper very is here. ”[T]here is a Where, here, granted by prohi complainant thin line between relief writ as the bill granted by bition and that judgment writ of mandamus.” attacks a he which was satisfied (Tex. Lykos, agreed entry, v. Shelvin to at the time of the burden is proceed orig. strictly speaking [1st Dist.] show “defense" to — Houston distinction, however, ing). important judgment. has it is to show that "he nullify grounds A greater this case. writ of mandamus is used for different and relief than him,” already performed. previously given equivalent an act that trial court has a burden defense, prohibition showing Id. at A prop 181-82. is used to but meritorious prevent committing erly complainant’s a trial court from an act in takes into account the rela Here, complains tionship attacking. Id. at 182. Fort he future. Reid, City Ry. of the trial court’s erroneous of her mo- Worth denial & Denver Co. then, matter, At the present prima Tex.Gen.Laws Id.; signed the decree proof time the court divorce of the meritorious defense. accord, Beck, (February and Amanda Beck between David (Tex.1989).4 1983), right pre-trial hearing have a under autho Baker, only inquiry deny paternity. Section relevant section 12.06 rized February complainant presented pri- did not even exist whether the 12.06 proof ma facie of the meritorious defense.
Beck, 771 at 142. brief, acknowledged he requirement A meets deny paternity at time of his could not proof
presenting prima facie
of a meritorious
divorce:
proves
complain
defense when
statutory
September
Texas
law
Until
ant’s defense is not barred as matter
law,
prohibited presumed
one who was
complainant
will be entitled
living
at the
married to and
with his wife
if no
on retrial
evidence to
born,
Baker,
the child was
contrary
time
offered.
paternity, unless
could
non-
establish
408-409.
makes
Once the
wife,
impotence.5
access to the
showing, the
then
prima facie
trial
at the time of
Accordingly,
remaining
trial on
elements.
conducts a
*5
prohibited
denying
Beck,
Baker,
from
that
142;
[David]
law
771
582
S.W.2d
child’s true father.
he was the
409.
If the trial court determines the
at
prima
showing
make
of
party
not
a
facie
This
(Emphasis
original.)
is a correct
defense,
may
a meritorious
the court
dismiss
the law. Not until section 12.06
statement of
Beck,
142; Baker,
the case.
771 S.W.2d at
a
was mar
could husband who
was enacted
409.
582 S.W.2d at
rebut the marital
living
ried and
with his wife
presumption
paternity of her children.
did not meet the initial re
of
J.W.T.,
189, 192-93
quirement
bringing
pro
a
for
re
(Tex.
Clark,
ceeding;
allege
797
adequately
in his
643
he did not
Clark
S.W.2d
writ).
no
prior
that
was ren
Worth
— Fort
fraud,
or
dered as the result of
accident
right to
David did not have the
Because
wrongful
opposite party
of the
or
act
official
of his
deny paternity at the time
allegations
of acci
mistake.
made no
“precluded [David]
Amanda could not have
dent or official mistake.
pursuant to
denying paternity of [Paul]
from
Instead, David
that Amanda
asserted
Family
Code.”
section 12.06 of
Texas
fraudulently “precluded
[him]
Amanda, by
impossible for
fraud
oth-
12.06
paternity
pursuant
of
to section
[Paul]
erwise,
exercising a
“preclude”
David from
face,
Family
its
of the
Code.” On
Texas
right he did not have.
fatally
allegation
defective.
result,
Code,
Family
As a
bill
of
entitled
Section 12.06
did not
part,
defective. David
Paternity,” provides, in
that
of review is
“Denial of
prior judgment
sufficiently allege
deny
a
that
paternity
of
a husband is entitled
as the result
.accident
during the was rendered
child who was born or conceived
(Vernon
12.06(a)
opposite
§
act of the
marriage. Tex.Fam.Code
the bill of review
adopted by
official mistake. Where
Supp.1993).
12.06 was
Section
allegations
legally insuffi
September
complainant’s
Legislature effective
1983.
review,
30, 1983,
R.S.,
extraordi-
Leg.,
to warrant
bill
68th
ch.
cient
Act of
supports
defense to the cause of action
Worth
no
ous
1159
- Fort
assailing.
complainant
that the
Baker,
142;
Beck,
at
S.W.2d
at
judicial
requirement
valuable
4. This
ensures that
conducting
by
wasted
will not be
resources
non-access, impotence,
blown,”
and steril-
5. The issues of
spurious,
examination of merits
“full
this case.
ity
been raised in
have not
does not have meritori-
when the
nary
City
appropriate.
nity
prima
relief is
until
Tice v.
facie
has
case
after
Pasadena,
(Tex.1989).6
been established.
at
require-
Nor has David met the second
proceed
David was not entitled to
proceeding
ment for
with his bill of review.
with his
review action for two reasons.
not,
matter,
presented
has
First,
sufficiently plead for
David did not
prima
proof
that his
defense is
relief,
satisfy
of review
and thus did not
law, i.e.,
barred as matter of
that he has
requirement
going
first
from Baker for
for
Beck,
meritorious defense.
at
Spears,
his
at
ward with
action.
Baker,
142;
at 408.
For
Second,
from the face of the record
reason, too, David is
entitled to
an order
(David’s
allegations
counterclaim
adul
paternity testing.
tery),
at
David knew of
circumstances
time of
divorce which should have caused
Haas,
Spears
case
(because
paternity.
him to contest
(Tex.App. Corpus
1986, orig.
Christi
—
years
vasectomy
former husband had a
two
proceeding), is
In Spears,
similar.
rela
children,
the birth
should
before
tor
former
were
wife
divorced
contested
the time
1984. The divorce decree stated that
divorce). Thus, the trial court
its
abused
parties
were the
of three children.
paternity testing.
ordering
discretion
peti
Id. at
the relator filed a
review, seeking
tion for
to overturn
remedy
adequate
portion
decree
found him
production
law. The
discov
of unauthorized
parent
ery,
ordered,
of two of the children. The
once
cannot be undone. See
(erroneous
relator,
Walker,
alleged
who
whether in a bill of review only writ of if he do so. mandamus fails to proceeding must prima establish his FEPCO, Coussons, Ltda. v. 835 S.W.2d granting case for the of a bill of review [1st Dist.] — Houston may discovery proceed before he with in orig. proceeding). portion the of the suit to set the aside judgment former which has final. become HEDGES, J., concurring. believe, rule, general discovery [W]e HEDGES, Justice, concurring. appropriate at hearing petitioner prove which the must prima join majority I opinion the on of the issue However, facie case bill of review. we agree majority I severance. also the general do not believe that the rule encom- paternity testing that the order for be should passes serology vacated, to testing pater- determine and that David’s of Tice, Supreme complainant, In the proceeding, Court of Texas issued a in its bill of review mandamus, prohibition, relitigate attempting writ of writ not a of was issues that al- complainant's allega- supreme where ready by in a been decided case, legally previous proceeding tions were of insufficient warrant a bill and the of review court, review. 705. The would thus “interfere” with court's however, prohibition partly issued relief because in that case. Id. at 705. intrinsic, extrinsic, separate- rather fatally defective. I write Fraud however, pertain peti- acts to an issue
ly, I that the when “the fraudulent because believe action, for a not ad- in tion defective reason involved where were, by majority. constituting dressed the fraud or could acts been, Montgomery, litigated therein.” equitable powers order invoke the Baird, (quoting at 313 Mills v. 669 S.W.2d court, thing first a bill of review (Tex.Civ.App. — Austin petition. must do is file a Baker ref'd)). words, intrinsic Goldsmith, 404, 408 (Tex.1979). v. 582 S.W.2d a matter “considered and fraud relates to allege factually “This must and with Montgom proceeding. determined” particularity prior may ery, at 313. Intrinsic fraud accident or rendered the result by use in perpetrated be of fraudulent opposite party act or official struments, testimony, any “or mat perjured complainant’s] [the mistake unmixed with actually presented and con ter which was negligence.” own Id. rendering by trial court in sidered allege or official David does accident may also judgment assailed.” petition. mistake he relies by misleading committed the adverse opposite party, fraud committed party’s attorney, acquiescence into or that in his that: Amanda. David asserts unjust an condi approval settlement precluded [David] [Amanda] Bankston, tion. See Bankston v. Specifically, [Paul].... (Tex.Civ.App. — Dallas fraudulently wrongfully con- [Amanda] identity knowledge her cealed who is not [Paul]’s Only commission of extrinsic fraud will [Davidjs Thus, deny failure [David]. complainant. relief to a bill of review afford any negli- paternity was not the result Alexander, 312; Montgomery, at [David], gence or fault of 1002; Mills, 147 at it is “collateral 316. Fraud is extrinsic when purposes pro For the something the matter tried and ceeding, are two kinds of fraud: extrin there actually potentially was in issue Montgomery Kennedy, sic and intrinsic. Davis, [original] trial.” 309, 312 Davis *7 (Tex.Civ. Winningham, 483 allegations of in- David’s assertions n.r.e.); writ ref'd — Amarillo alleged that Amanda con- trinsic fraud. Hagedorn, 148 Tex. Alexander identity knowledge of Paul’s cealed her (1950). Extrinsic 1001-1002 alleged fraudu- real father. This fraud fraud committed the other pertains paternity, an issue in- lent act that: Paternity in the action. was volved losing party 1. from either prevents whether or an issue (a) right knowing about a or defense he is actually fact that contested. The issue was (b) assert, having a fair entitled that David the divorce decree declares right opportunity present such a paternity is a mat- father means that Paul’s trial; defense at that was “considered and determined” ter trial; 2. committed outside of the proceeding. the divorce directly losing upon the 3. is committed attorney, or one of his agent, alleged fraud not be classi- Amanda’s could witnesses; and It is not “collateral” fied extrinsic. it relates matter that was tried. the matter collateral to was subject directly paternity, that was actu- i.e., tried, subject it does not relate to cannot, ally proceeding. actually potentially an an issue was even therefore, fraud. be extrinsic in the trial.1 issue in, Montgomery, among requirements); requirements three 1. These are found (fourth Alexander, (first cases, requirement). I believe David’s alleged only
defective because intrinsic type of fraud that does not entitle my holding
him to reason relief. Because petition fatally defective differs majority’s, join I majority do not
opinion issue, on this but rather concur. SASSEN, Appellant,
Barbara
The TANGLEGROVE TOWNHOUSE
CONDOMINIUM ASSOCIATION and Inc., Management, Appellees.
KRJ
No. 06-93-00089-CV. Appeals Texas,
Texarkana.
Submitted March May
Decided
Rehearing Denied