Date: 08-13-2022

Case Style:

APRIL SMALL, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, E. C. V. MARIO GARCIA, Appellee

Case Number: 01-20-00640-CV

Judge: 14 Amparo Guerra

Court:

Court of Appeals For The First District of Texas

On appeal from The 157th District Court Harris County, Texas

Plaintiff's Attorney:

Houston, TX - Best Personal Injury Lawyer Directory

Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.

Re: MoreLaw National Jury Verdict and Settlement

Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.

MoreLaw will publish litigation reports submitted by you free of charge

Info@MoreLaw.com - 855-853-4800

Defendant's Attorney: Britton Byron Harris
Brett J. Sileo

Description:

Houston, TX – Personal Injury lawyer represented Appellant with appeals the judgment for dog bite decision.

In the original cause number, 2017-03838, Small, individually and on behalf
of her minor child, E.C., sued various defendants, including Garcia, for dog bite
injuries sustained by her child. Garcia did not timely answer Small’s petition. On
May 11, 2017, the trial court entered an interlocutory default judgment on liability
in Small’s favor. On the same date, Garcia learned about Small’s lawsuit and
immediately filed an answer and moved to set aside the default judgment. The next
day, the trial court overruled Garcia’s motion and signed a default judgment
awarding $930,000 in damages and post-judgment interest to Small.
Garcia filed a bill of review in cause number 2018–22535, alleging that he
had neither received notice of the underlying suit nor been served with process.
Garcia moved for traditional and no-evidence summary judgment in the
bill-of-review proceeding, arguing that the default judgment against him was void
because he was not served with process. On August 3, 2018, the trial court found
Garcia was not served with process and granted Garcia’s summary judgment
motions. The trial court also set aside the default judgment in the underlying case
and ordered that all issues be tried in the original cause number 2017-03838. See
3
Small v. Garcia, No. 01-18-00710-CV, 2019 WL 3293694, at *1 (Tex. App.—
Houston [1st Dist.] July 23, 2019, no pet.) (mem. op.) (setting forth above facts and
dismissing Small’s original appeal from trial court’s rendition of summary judgment
in favor of Garcia in bill-of-review proceeding for lack of jurisdiction because order
was not final and appealable where underlying merits of case had not yet been
disposed of).
On March 13, 2020, Garcia moved for summary judgment on the liability
issues in the underlying dog bite case, cause number 2017-03838. The trial court
granted summary judgment in favor of Garcia on all of Small’s liability claims on
April 8, 2020. The trial court signed an order of severance on August 19, 2020 to
separate Small’s claims against Garcia from the claims against the other defendants
and to allow the summary judgment in favor of Garcia to become a final, appealable
judgment. This appeal is taken from the severed case under cause number 2017-
03838A. In her notice of appeal, Small purported to appeal from the trial court’s
August 3, 2018 order granting summary judgment in favor of Garcia on his bill of
review. Thus, in this appeal, Small challenges the trial court’s summary judgment in
favor of Garcia in the bill-of-review proceeding, not the summary judgment on
liability.
4
Bill 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.” Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). Bill-of-review
plaintiffs must ordinarily plead and prove (1) a meritorious defense to the underlying
cause of action, (2) which the plaintiffs were prevented from making by the fraud,
accident, or wrongful act of the opposing party or official mistake, (3) unmixed with
any fault or negligence on their own part. Id. at 96.
If the bill-of-review plaintiff’s proof establishes a lack of service,
constitutional due process eliminates the need to make any additional showing. Id.
at 96–97. An individual who is not served cannot be at fault or negligent in allowing
a default judgment to be taken against him. Id. at 97.
When a trial court grants summary judgment on a bill of review, the summary
judgment standard of review applies. See Boaz v. Boaz, 221 S.W.3d 126, 130 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (reviewing no-evidence summary
judgment filed by defendant on plaintiff’s bill of review); Brown v. Vann, No.
05-06-01424-CV, 2008 WL 484125, at *2–4 (Tex. App.—Dallas Feb. 25, 2008, no
pet.) (mem. op.) (reviewing summary judgment on bill of review). To prevail on a
traditional motion for summary judgment, a movant has the burden of proving that
it is entitled to judgment as a matter of law and that there is no genuine issue of
5
material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.
1995). When a defendant moves for a traditional summary judgment, it must either
(1) disprove at least one element of the plaintiff’s cause of action or (2) plead and
conclusively establish each element of its affirmative defense. Cathey, 900 S.W.2d
at 341. When deciding whether a disputed, material fact issue precludes summary
judgment, we take as true evidence favorable to the non-movant, indulge every
reasonable inference in favor of the nonmovant, and resolve any doubts in the
nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.
1985).
In addition, after adequate time for discovery, a party may move for summary
judgment on the ground that no evidence exists to support one or more essential
elements of a claim or defense on which the opposing party has the burden of proof.
TEX. R. CIV. P. 166a(i). The trial court must grant the no-evidence motion unless the
nonmovant produces summary judgment evidence raising a genuine issue of
material fact. Id. A genuine issue exists if the evidence “would allow reasonable and
fair-minded people to differ in their conclusions.” Forbes Inc. v. Granada Bioscis.,
Inc., 124 S.W.3d 167, 172 (Tex. 2003).
The Record on Appeal
On appeal, Small argues that the trial court erred in granting Garcia’s motion
for summary judgment on his bill of review because the evidence presented by Small
6
in response to Garcia’s summary judgment motion demonstrated that Garcia was
served with process. Garcia responds that the trial court’s judgment must be affirmed
because Small did not provide this Court with a complete record on appeal, including
the summary judgment motion, response, and evidence in the bill of review, and
therefore we must presume the omitted documents support the trial court’s order
granting summary judgment. For the reasons detailed below, we agree with Garcia.
On October 20, 2020, the clerk’s record was filed with this Court and
contained the following documents:
1. Small’s original petition;
2. Garcia’s original answer;
3. Garcia’s motion for summary judgment on liability;
4. Orders granting Garcia’s motion for summary on liability;
5. August 19, 2020 order severing Small’s claims against Garcia into a
separate cause number (2017-03838A) and making the summary
judgment order on liability a final judgment;
6. Trial court’s inquiry screen;
7. Trial court’s docket sheet;
8. Small’s notice of appeal;
9. Certificate indicating that the clerk’s record was prepared on September
15, 2020; and
10. Bill of costs.
7
None of the documents from Garcia’s bill-of-review proceeding, including the
summary judgment motion, response, evidence, and order appealed from, were
included in the clerk’s record.
On November 9, 2020, Small filed a request to supplement the clerk’s record
with the district court clerk and provided a copy of that request to this Court. In that
request, Small asked the district court clerk to supplement the clerk’s record with
documents ordered to be included in the severed cause number, 2017-03838A, as
directed by order dated September 16, 2020, entered in the original cause number,
2017-03838. Small did not specifically identify the documents to be included in the
supplemental clerk’s record beyond noting that they are listed in the trial court’s
September 16th order. No supplemental clerk’s record was filed.
A month later, on December 16, 2020, Small filed her appellant’s brief in this
appeal, and cited to and attached several documents in an appendix to her brief,
including relevant documents from the bill-of-review proceeding, such as the
summary judgment motion, response, evidence supporting both, and the order
granting summary judgment for Garcia. The documents included in the appendix
and relied on by Small in support of her arguments on appeal were not included in
the clerk’s record. Small did not state in her brief that she had requested a
supplemental clerk’s record or note that a supplemental clerk’s record was
forthcoming.
8
Thus, in response, Garcia argued in his appellee’s brief that because Small
failed to include the relevant documents in the appellate record, this Court should
presume the omitted portions support the trial court’s judgment and affirm. Despite
notice of Garcia’s arguments related to the state of the record, Small did not file a
reply brief or ensure the filing of a supplemental clerk’s record.
On February 4, 2022, this Court notified the parties that the appeal would be
submitted on the briefs on March 7, 2022. While working on the case in anticipation
of the submission date, this Court discovered that the clerk’s record did not contain
the necessary documents and that no supplemental clerk’s record had been filed,
though it had been requested by Small. Accordingly, we issued an order directing
the district court clerk to prepare and file a supplemental clerk’s record containing
the documents requested by Small.
The district clerk filed a “second supplemental”
1
clerk’s record on March 25,
which contained:
1. Garcia’s original petition for bill of review;
2. Small’s answer to Garcia’s bill of review;
3. Garcia’s original and amended motions for summary judgment on his
bill of review;
1 A first supplemental clerk’s record was filed on March 7, 2022. However, the
purported supplemental clerk’s record consisted only of the original clerk’s record
that was prepared in September 2020 and filed with this court in October 2020.
9
4. Small’s response to Garcia’s motion for summary judgment on his bill
of review;
5. Garcia’s objection and reply to Small’s response;
6. Small’s reply to Garcia’s response to Small’s motion to reconsider
order granting summary judgment; and
7. Our order ordering a supplemental clerk’s record.
However, this supplemental clerk’s record did not contain the summary judgment
evidence supporting either Garcia’s motion or Small’s response, nor did it contain
the August 3rd summary judgment order.
We issued a second order, on April 5, 2022, noting that we cannot consider
documents attached in an appendix but not included in the appellate record, and that
it was Small’s burden as the appellant to bring forth a sufficient record to
demonstrate the trial court’s alleged error and,specifically in the context of an appeal
from an order granting summary judgment, “to ensure that all documents needed for
this [C]ourt to fully review the correctness of the summary judgment are in the
record.” Mallios v. Standard Ins. Co., 237 S.W.3d 778, 782 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied). Accordingly, we ordered Small to file written
confirmation with this Court that the clerk’s record either did or did not contain all
documents relied on by Small in her appellant’s brief or necessary to the appeal, and
if it did not contain all necessary documents, to arrange for the filing of a
supplemental clerk’s record containing those documents.
10
In response, Small confirmed with this Court that the clerk’s record did not
contain all necessary documents and that she had requested another supplemental
clerk’s record. A third supplemental clerk’s record was filed on April 13, 2022,
containing additional documents, including the evidence cited by Small in support
of her summary judgment response and the trial court’s order granting summary
judgment for Garcia. Still absent from this record, however, was the evidence
attached to Garcia’s motion for summary judgment.
B. Analysis
Despite being provided ample opportunities to supplement the clerk’s record
with all documents necessary to the resolution of her appeal, Small has failed to
provide this Court with a complete appellate record. We conclude, therefore, because
Small brought forth an incomplete and inadequate record in that it did not include
the evidence attached to Garcia’s motion for summary judgment, she cannot prevail
on appeal because we must presume the omitted documents, specifically Garcia’s
summary judgment evidence, support the trial court’s grant of summary judgment
for Garcia. This outcome is mandated by the Texas Supreme Court’s decision in
Enterprise Leasing Co. v. Barrios, 156 S.W.3d 547 (Tex. 2004) (per curiam). There,
the Court affirmed a partial summary judgment on liability in favor of Enterprise in
part because Barrios failed to provide the appellate court with a complete record to
review. Id. at 549–50. The Court explained that, “[a]lthough Enterprise bears the
11
burden to prove its summary judgment as a matter of law, on appeal Barrios bears
the burden to bring forward the record of the summary judgment evidence to provide
appellate courts with a basis to review his claim of harmful error.” Id. at 549 (citing
DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex. 1990), and Escontrias v.
Apodaca, 629 S.W.2d 697, 699 (Tex. 1982)). The Court then instructed that “[i]f the
pertinent summary judgment evidence considered by the trial court is not included
in the appellate record, an appellate court must presume that the omitted evidence
supports the trial court's judgment.” Id. at 550 (citing DeSantis, 793 S.W.2d at 689).
Applying this instruction, the Court thus presumed Barrios’s answers to requests for
admissions, which Enterprise relied on in part to support its motion, but which
Barrios did not include in the appellate record, supported the trial court’s partial
summary judgment in favor of Enterprise. Id.; see also Mallios, 237 S.W.3d at 782–
83 (concluding that, per Enterprise, “if a party wishes to successfully appeal a grant
of summary judgment, . . . he must include all ‘pertinent’ documents the trial court
considered in granting the motion . . . . Otherwise, on appeal, the appellant would be
unable to demonstrate that a genuine issue of material fact existed that precluded
summary judgment in favor of the movant.”).
Although Garcia bears the burden to prove his entitlement to summary
judgment as a matter of law, Small bears the burden on appeal to bring forward the
record of the summary judgment evidence to provide this Court with a basis to
12
review her claim of harmful error. See Enter. Leasing, 156 S.W.3d at 549–50;
Mallios, 237 S.W.3d at 782–83. This is not a case where Small mistakenly failed to
designate a document or did not immediately realize an important document was
missing from the record. Rather, Small knew when she filed her appellant’s brief
that the pertinent summary judgment documents, including Garcia’s summary
judgment evidence, were not included in the clerk’s record and that a supplemental
clerk’s record had not been filed. Furthermore, despite being alerted by this Court
on two separate occasions of the record deficiencies and being provided a specific
opportunity to identify any remaining documents missing from the record, Small
failed to provide the record necessary to consider her issues on appeal.
Without Garcia’s evidence supporting his motion for summary judgment, we
cannot determine whether a genuine issue of material fact precluded summary
judgment in his favor. Per Enterprise Leasing, if the pertinent summary judgment
evidence considered by the trial court is not included in the appellate record, an
appellate court must presume that the omitted evidence supports the trial court’s
judgment. 156 S.W.3d at 550. Therefore, we presume the evidence submitted by
Garcia in support of his motion supports the trial court’s summary judgment on his
bill of review.2 See id.
2 We note that Garcia filed both a no-evidence and a traditional motion for summary
judgment and the trial court, in its August 3rd order, granted both “[m]otions.” In
his no-evidence motion, Garcia argued that he had “shown that he was not
13
For these reasons, we overrule Small’s sole issue on appeal

Outcome: We affirm the trial court’s judgment granting summary judgment in favor of
Garcia on his bill of review.

Plaintiff's Experts:

Defendant's Experts:

Comments: