Tice v. City of Pasadena

• Decision Date: 29 March 1989
• Docket Number: Nos. C-8170,C-8195,s. C-8170
• Citation: Tice v. City of Pasadena, 767 S.W.2d 700 (Tex. 1989)
• Parties: Lester S. TICE and Marilyn Garcia, Relators, v. CITY OF PASADENA, Texas and the Honorable David West, Respondents. Lois M. FREEMAN et al., Relators, v. CITY OF PASADENA, Texas and the Honorable David West, Respondents.
• Writing for the Court: MAUZY
• Court: Texas Supreme Court

Page 700

767 S.W.2d 700

Lester S. TICE and Marilyn Garcia, Relators, v. CITY OF PASADENA, Texas and the Honorable David West, Respondents.

Lois M. FREEMAN et al., Relators, v. CITY OF PASADENA, Texas and the Honorable David West, Respondents.

Nos. C-8170, C-8195.

Supreme Court of Texas.

March 29, 1989.

Phillip A. Pfeifer, Houston, Russell H. McMains, McMains & Constant, Corpus Christi, William A. Odom, Stafford, for relators.

Lee Clark, City Atty., Pasadena, Don Weitinger, Ernest, Cannon & Associates, Houston, for respondents.

ORIGINAL MANDAMUS/PROHIBITION PROCEEDING

MAUZY, Justice.

Relators have filed an application for a writ of prohibition to prohibit the City of Pasadena and the Honorable David West, Judge of the 269th Judicial District, Harris County, Texas, from further interfering with the enforcement of the mandate of this court, issued on March 25, 1988, in Cause No. C-6571, Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex.1988).

The issue in this original proceeding is whether allegations contending that litigants in the original action engaged in a conspiracy to suborn perjury and conceal witnesses may form the basis of a meritorious bill of review.

In May 1983 Jimmy Jordan drove his car into a drainage ditch in Pasadena. He was killed, as was passenger David Tice. Passengers Jeff Jordan and Eric Creel were injured. The boys' families brought suit against the City of Pasadena for wrongful death and personal injury. The surviving passengers testified at trial that the driver had no familiarity with the street which dead ends into the drainage ditch, and had no intention to try to "jump" the ditch as a prank.

The jury found the City of Pasadena 90 percent negligent in failing to erect a barricade in front of the ditch. The jury also found Jimmy Jordan 10 percent negligent in driving at a greater rate of speed than a person using ordinary care would have driven. The trial court rendered judgment for the plaintiffs. The court of appeals modified the judgment to delete bystander damages for parents who were not near the scene of the accident. Pasadena v Freeman, 731 S.W.2d 590 (Tex.App.--Houston [14th Dist.] 1987).

This court affirmed the court of appeals' deletion of bystander damages. Freeman v. Pasadena, 744 S.W.2d 923 (Tex.1988). This court's mandate issued on March 25, 1988. On June 22, 1988, relators, plaintiffs in the trial court, filed a mandamus petition in the trial court, requesting that Judge West order the City of Pasadena to raise the money to pay the judgment. A hearing on this mandamus petition was scheduled for August 29, 1988. On that date Judge West refused to hear the petition, because by that time the City of Pasadena had filed a bill of review proceeding on the case. Judge West denied the plaintiffs' motion for summary judgment and granted the preliminary hearing on the bill of review. Judge West declined to hear the mandamus petition because of the pendency of the bill of review.

Pasadena's bill of review alleged that the parents of the deceased and injured boys engaged in a conspiracy to defraud Pasadena. The petition alleges that the conspiracy was an agreement among the adults to suborn perjury of the minors who testified. Pasadena alleges the conspiracy was accomplished by the suppression of evidence and concealment of the identity of witnesses, which deprived Pasadena of a fair opportunity to present its rights and defenses at trial. Pasadena's petition is accompanied by eight affidavits of individuals who state either that Jimmy Jordan, the driver, was familiar with the street which dead ends into the drainage ditch, or that he intended to jump the ditch as a prank.

A bill of review is an independent action of an equitable nature brought by a party to the former action and seeking to set aside a judgment therein which is not void on the face of the record and which has become final by the expiration of the periods allowed for motions for new trial or appeal. Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975). A bill of review is proper in instances where a party has exercised due diligence to avail himself of all adequate legal remedies against a former judgment, and at the time he files the bill of review there remains no such adequate legal remedy still available because, through no fault of his own, he has been prevented by fraud, accident, or mistake from making a meritorious claim or defense. Baker v. Goldsmith, 582 S.W.2d 404 (Tex.1979).

Fraud in its relation to attacks on final judgments is either extrinsic or intrinsic. Only extrinsic fraud will support a bill of review. "Extrinsic fraud" is fraud which denied a party the opportunity to fully litigate upon the trial all the rights or defenses he was entitled to assert. "Intrinsic fraud," by contrast, relates to the merits of the issues which were presented and presumably were or should have been settled in the former action. Within that term are included such matters as fraudulent instruments, perjured testimony, or any matter which was actually presented to and considered by the trial court in rendering the judgment assailed. Such fraud will not support a bill of review, for each party must guard against adverse findings upon issues directly presented. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950).

Pasadena's bill of review alleges a conspiracy to suborn perjury, which we hold to be an allegation of intrinsic fraud. See Old National Life Ins. Co. v. Patillo, 195 S.W.2d 690 (Tex.Civ.App.--Texarkana 1946, writ ref'd n.r.e.). As only extrinsic fraud can be the basis of a meritorious bill of review, the instant petition is insufficient. Where the movant's allegations are legally insufficient to warrant a bill of review, a writ of prohibition will issue. See Elder v. Byrd-Frost, Inc., 110 S.W.2d 172 (Tex.Civ.App.--Texarkana 1937, no writ); Yount-Lee Oil Co. v. Federal Crude Oil Co., 92 S.W.2d 493 (Tex.Civ.App.--Beaumont, ori. proceeding), cert. denied, 299 U.S. 554, 57 S.Ct. 16, 81 L.Ed. 408 (1936).

In Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94 (1940), this court stated that the issue of whether plaintiff swore falsely is not a ground for setting aside the judgment The rule is universally recognized that alleged perjury of a witness upon a trial of a contested issue, to which the opposing party had the opportunity to refute, will not furnish a basis for setting aside the judgment on bill of review. Yount-Lee Oil Co. v. Federal Crude Oil Co., Tex.Civ.App., 92 S.W.2d 493; United States v. Throckmorton, 98 U.S. [8 Otto.] 61, 68, 25 L.Ed. 93; Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95; Houston E. & W.T. Ry. Co. v. Chambers, Tex.Civ.App., 284 S.W. 1063; Reed v. Bryant, Tex.Civ.App., 291 S.W. 605; 15 R.C.L. 770; 34 C.J. 280; Freeman on Judgments, 5th Ed., Vol. 3, § 1241. It is the policy of the law to give finality to the judgment of the courts. To do otherwise would add much uncertainty and confusion. The reason for this rule is quite obvious. The Supreme Court of the United States, in the case of United States v. Throckmorton, supra, tersely stated the reason for the rule in the following language: "That the mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.

Pasadena's petition falls far short of meeting the requirements for a bill of review. Paragraph VI of Pasadena's bill of review contains the allegations of conspiracy, suppression of evidence, and the subornation of perjury. Pasadena alleges:

The conspiracy was accomplished by the suppression of evidence and concealment of the identity of witnesses, which effectively deprived the plaintiff [Pasadena] of a fair opportunity to present its rights and defenses at trial, and deprived the court from holding a trial on...