in Re: Stephanie Williams A/K/A Stephanie Scholler and Tim Williams

• Court: Court of Appeals of Texas
• Decided: April 30, 2007
• Docket: 12-06-00361-CV
• Status: Published

Opinion

MARY'S OPINION HEADING

                                                NO. 12-06-00361-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: STEPHANIE WILLIAMS   §                     

a/k/a STEPHANIE SCHOLLER      §                      ORIGINAL PROCEEDING

AND TIM WILLIAMS          §                     

MEMORANDUM OPINION

            Relators, Stephanie Williams (also known as Stephanie Scholler) and Tim Williams, petition for a writ of mandamus ordering the trial court “to enforce the subpoena duces tecum served by the relators prior to the hearing on their motion for new trial and to command either production of the subpoenaed records or an in-camera inspection of those records so they may be included in the record on appeal.”¹  We deny the petition. 

Background

            Relators filed a motion for new trial in the underlying lawsuit contending that the real parties in interest, William Colthurst and Yoko Colthurst (“Real Parties”), committed intrinsic fraud by presenting false testimony regarding their attorneys’ fees in the underlying suit.  Before the hearing on the motion for new trial, Relators served Real Parties’ counsel and his firm’s records custodian with a subpoena duces tecum seeking relevant billing information regarding Real Parties’ attorneys’ fees.  Real Parties moved for a protective order and to quash the subpoenas contending the material sought was protected by the attorney-client privilege and that Relators’ discovery request was too broad.  The respondent trial court granted Real Parties’ motion to quash the subpoena duces tecum and their motion for protective order.  Relators presented no evidence of intrinsic fraud at the hearing on their motion for new trial, and the respondent denied their motion for new trial.²

Availability of Mandamus

            Mandamus is appropriate if the trial court has abused its discretion and the relator has no adequate remedy by appeal.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  A trial court abuses its discretion when it acts without reference to any guiding rules or principles or, stated another way, when it acts in an arbitrary and unreasonable manner.  City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003).  It is well established that the burden is on the relator to prove affirmatively all facts necessary for entitlement to the writ.  Comm’r of Gen. Land Office v. Smith, 5 Tex. 471, 483-84 (1849).

Discussion

            Relators introduced no evidence of intrinsic fraud in conjunction with their motion for new trial on that ground, but sought to discover new evidence that might support their motion.  Relators previously attempted to introduce at trial evidence of the same character as that sought in conjunction with their motion for new trial.  Relators, however, did not seek discovery of the evidence during the discovery period set out in the trial court’s discovery order, nor did the evidence appear on their witness or exhibit lists.  The trial court excluded the evidence at trial.  Relators contend that the disclosure of the plaintiff’s billing records was the only means available to obtain evidence supporting the ground alleged in their motion for new trial and that the respondent abused his discretion in quashing the subpoena for production of the records and in denying their motion for new trial.  They maintain that under Texas Rule Civil Procedure 166 (b)(2), evidence is presumed discoverable, and they insist that the truth of their accusations of intrinsic fraud contained in their motion for new trial should be assumed by this court.  They ask that we further assume the evidence subpoenaed by Relators would have confirmed the falsity of the testimony on which the jury relied in awarding attorneys’ fees.

            Real Parties counter that, even if the evidence sought by Relators is not privileged, its discovery is barred under the trial court’s order governing discovery in this case.  They point out that the trial court denied Relators’ attempt to elicit such evidence at trial, because Relators had not listed the proposed witness and exhibit on their witness and exhibit lists as required under the court’s discovery order.  Real Parties argue further that Relators cannot move for a new trial based on evidence excluded at trial, but only on the basis of newly discovered evidence.  In seeking a new trial on the basis of newly discovered evidence, the movant has the burden of establishing the following elements:

1.             Admissible, competent evidence must be introduced on the hearing of the motion for new trial showing the existence of the newly discovered evidence relied upon[;]

2.             The moving party must show he or she had no notice of the existence of such evidence prior to the time of trial[;]

3.             The moving party must show that due diligence had been used to procure the evidence prior to trial[;]

4.             The moving party must show that the evidence is not merely cumulative to that already given and does not tend only to impeach the testimony of the adversary[; and]

5.             The moving party must show that the evidence would probably produce a different result if a new trial were granted.

Dankowski v. Dankowski, 922 S.W.2d 298, 305 (Tex. App.–Fort Worth 1996, writ denied).

            Relators respond that they did not seek a new trial on the basis of newly discovered evidence but on the ground of intrinsic fraud and that the trial court’s order quashing to the subpoenas and granting a protective order foreclosed their obtaining evidence that might have supported their contentions.  Relators insist that their lack of diligence in seeking evidence relating to Real Parties’ attorneys’ fees is excused under the rationale set out in  Steed v. Winder, 130 S.W.2d 403 (Tex. Civ. App.–Galveston 1939, no writ), and Dixie Gas & Fuel Co. v. Jacobs, 47 S.W.2d 457 (Tex. Civ. App.–Beaumont 1932, writ dism’d w.o.j.). 

            In Steed, the court rejected the appellee’s contention that the new evidence accompanying the motion for new trial was cumulative and that the appellant had not exercised diligence in obtaining it.  The court reasoned that

[w]hile the newly discovered evidence may be regarded as cumulative, and while it may be that the proper diligence was not exercised to produce it upon the trial, we think that in a case like this, where a verdict is shown to rest alone upon the false testimony of a party at interest, the rules in regard to cumulative testimony, and the failure to exercise due diligence to procure it, should not be applied against a party who has been deprived of property to which he had absolute title of which he could not be divested but for testimony of the adverse party, which was show to be absolutely untrue.

Steed, 130 S.W.2d at 405.  Failure to exercise due diligence, however, cannot be excused on the ground of false testimony where there is, in fact, no showing of fraudulent misrepresentation or concealment by the adverse party.  Wilkins v. Royal Indem. Co., 592 S.W.2d 64, 69 (Tex. Civ. App.–Tyler 1979, no writ).

            Relators seek to avoid satisfying the five elements necessary to obtain a new trial based on newly discovered evidence by contending they sought a new trial on the basis of intrinsic fraud and not on the ground of newly discovered evidence.  An allegation of intrinsic fraud, however, must still be supported by evidence.  In the two cases relied on by Relators, Dixie Gas & Fuel Co. v. Jacobs and Steed v. Winder, the appellate courts held that, despite the appellants’ failure to show diligence, the trial court erred in not granting a new trial based upon the appellants’ showing that the jury’s verdict was based upon perjured testimony.  Dixie Gas & Fuel, 47 S.W.2d at 461; Steed, 130 S.W.2d at 405.  In each of those cases, however, the appellants presented with their motion for new trial affidavits from competent witnesses available to testify who swore to facts that demonstrated almost beyond doubt that the verdicts rested on perjured testimony.  Dixie Gas & Fuel, 47 S.W.2d at 457-61; Steed, 130 S.W.2d at 404.  In one of the cases, it was shown that the plaintiff appellee was under indictment for perjury alleged to have been committed in the same case.  See Dixie Gas & Fuel, 47 S.W.2d at 462.  While the two cases hold that the diligence requirement is relaxed in such situations, they do not relax the requirement that “admissible, competent evidence be introduced showing the existence of the new evidence relied upon to support the motion for new trial.  Wilkins, 592 S.W.2d at 68. 

            Relators in this case made no such showing in their motion for new trial, but brought only unsupported allegations of perjury that they hoped to substantiate through further discovery.  Relators knew of the evidence they now seek during the court ordered discovery period, but failed to obtain it.  Accordingly, we conclude that the trial court did not abuse its discretion in denying discovery beyond the limits set out in its discovery order.  Nor did it abuse its discretion in denying Relators’ motion for new trial based on unsupported allegations of perjury.  Moreover, we have found no case in which a denial of postjudgment discovery was reviewed by mandamus except in the case of discovery proceedings in aid of judgment.

Disposition

            Relators’ petition for writ of mandamus is denied.  All pending motions are overruled as moot.

                                                                                                    BILL BASS    

                                                                                                            Justice

Opinion delivered April 30, 2007.

Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(PUBLISH)

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¹ The underlying appeal was filed in this court on March 13, 2006 and docketed as our cause number 12-06-00088-CV.  Pursuant to a docket equalization order issued by the Texas Supreme Court, the appeal was transferred to the Eleventh District Court of Appeals in Eastland on April 20, 2006.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). 

² The respondent is the Honorable John R. Adamson, sitting by assignment in the 321st Judicial District Court, Smith County, Texas.