Opinion
No. 05-06-00951-CV
Opinion issued December 21, 2007.
On Appeal from the County Court at Law No. 4 Collin County, Texas, Trial Court Cause No. 004-910-06.
Before Justices MORRIS, BRIDGES, and O'NEILL.
Opinion By Justice MORRIS.
MEMORANDUM OPINION
This is an appeal from a trial court order dismissing with prejudice Lozano Associates, Inc.'s bill of review. Lozano contends the trial court abused its discretion in dismissing its bill of review and "appeared" to rely on an inapplicable rule of civil procedure in rendering its decision. After reviewing the record, we conclude the trial court did not abuse its discretion in dismissing Lozano's bill of review. Accordingly, we affirm the trial court's order. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. The facts and procedural history are well known to the parties; we do not relate them in detail here.
We review the grant or denial of a bill of review under an abuse of discretion standard. See Interaction, Inc./State v. State/Interaction, Inc., 17 S.W.3d 775, 778 (Tex.App.-Austin 2000, pet. denied). A trial court abuses its discretion only if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules or principles. Id. A bill of review complainant must file a petition alleging with particularity that the prior judgment was rendered as the result of fraud, accident, or wrongful conduct of the opposite party or official mistake unmixed with its own negligence. See Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979). The complainant must also allege with particularity sworn facts sufficient to constitute a meritorious defense or claim in the underlying action and present prima facie proof to support the contention. Id.
On April 10, 2006, Lozano filed an unverified petition for bill of review asking the trial court to vacate a default judgment rendered against it in a contract action brought by La Experencia. Lozano's sole argument was that La Experencia had purposely refused to give it notice of the trial and default judgment. La Experencia answered, specially excepted, and moved to dismiss the bill of review on the ground that Lozano failed to allege sworn facts sufficient to show a meritorious defense. La Experencia argues that, because Lozano's bill of review was unverified and there were no supporting affidavits, there was no sworn evidence to support the pleading as required under Texas law.
It is not an abuse of discretion to deny a bill of review when the petition is unverified and unsupported by sworn evidence. See McCann v. Ward County, 423 S.W.2d 339, 339-40 (Tex.Civ.App.-El Paso 1967, writ ref'd n.r.e.). Lozano states in its appellate brief that it "supplemented its bill of review with a sworn affidavit to serve as verification of the sworn facts." No such affidavit appears in the record, however. Lozano cites us to the reporter's record in another appeal it filed in this court to show that the supplemental affidavit was filed. Even if we could look to evidence in Lozano's separate appeal as part of the record in this appeal, the reporter's record in that case shows only that Lozano was " going to be presenting to the court the sworn statement . . . to accompany the bill of review to verify all the facts. . . ." (emphasis added). The record in that appeal does not contain any affidavit filed in support of the bill of review.
Lozano attached a copy of the supporting affidavit to its appellate brief. The copy does not indicate that the original was ever filed. Furthermore, the attachment of a document as an exhibit or appendix to a brief is not formal inclusion in the record on appeal and, thus, cannot be considered. See Perry V. Kroger Stores Store No. 119, 741 S.W.2d 533, 534 (Tex.App.-Dallas 1987, no writ).
Based on the forgoing, we conclude the trial court did not err in dismissing Lozano's bill of review because it was unverified and unsupported by sworn evidence. Because of our disposition of this issue, it is unnecessary for us to address Lozano's other arguments. We affirm the trial court's order.