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Date: 01-24-2017

Case Style: Shamsher Medih Christi v. Sana Christi a/k/a Kiran Will Werding

Case Number: 01-26-00408-CV

Judge: Jane Bland

Court: Texas Court of Appeals, First District on appeal from the 257th District Court, Harris County

Plaintiff's Attorney: Shamsher Medih Chisti

Defendant's Attorney: Riddhi Desai

Description: Shamsher Chisti sought to collaterally attack his decree of divorce by filing a petition for a bill of review in the trial court. The trial court denied Chisti’s bill of review. On appeal, Chisti challenges that ruling as an abuse of the trial court’s discretion. We affirm.
In April 2016, the trial court heard Chisti’s petition for a bill of review, in
which he sought to set aside his divorce from Sana Chisti, who is now known as
Kiran Wilwerding. In his petition, Chisti alleged that the decree was invalid due to
Wilwerding’s bigamy and deception. At the hearing, Chisti did not proffer
evidence to support these allegations:
THE COURT: Ok. Sir [Shamsher Chisti], this is your motion, so you
may proceed. Call your first witness.
MR. CHISTI: Yes, sir—yes, Your Honor. This is a Bill of Review
brought by me for Kiran having filed the divorce because of state
by—it contains fraud, Judge.
THE COURT: Call your first witness. Sir, you need to put on your
evidence. Whatever evidence you have, go ahead.
MR. CHISTI: Yes, Your Honor. I have—I have a marriage license
from Las Vegas, Nevada, dated 12th May, 2006. It was four days
before the—apparently, it was signed.
THE COURT: Sir, do you have any evidence you wish to put on, sir?
MR. CHISTI: Yes. She committed bigamy last year [sic] in Nevada
and she committed fraud by not informing the Court—about her
THE COURT: Anything further, sir?
MR. CHISTI: I have a meritorious defense because, Your Honor, and
by committing wrongful act the opposing party by deception and false
THE COURT: Anything further, sir?
MR. CHISTI: That’s it, Your Honor.
The trial court denied Chisti’s application.
A. Standard of Review and Applicable Law
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). Because of
the importance our legal system places on the finality of judgments, bills of review
are permitted only in exceptional circumstances. See Nelson v. Chaney, 193
S.W.3d 161, 165 (Tex. App.—Houston [1st Dist.] 2006, no pet.). To prevail, the
petitioner must plead and prove (1) a meritorious defense to the cause of action
alleged to support the judgment, (2) that he was prevented from making by the
fraud, accident, or wrongful act of his opponent, (3) unmixed with any fault or
negligence of his own. See Caldwell, 154 S.W.3d at 96; Nelson, 193 S.W.3d at
165. Only “extrinsic fraud” will support a bill of review. See Tice v. City of
Pasadena, 767 S.W.2d 700, 702 (Tex. 1989); Nelson, 193 S.W.3d at 165.
Extrinsic fraud is fraud that is collateral to the matter being tried and prevents a
litigant from having a fair opportunity to assert his rights at trial. See Tice, 767
S.W.2d at 702; Nelson, 193 S.W.3d at 165. Conversely, “intrinsic fraud” relates to
matters that could have been litigated in the initial action, including fraudulent
instruments and perjured testimony. See Tice, 767 S.W.2d at 702; Nelson, 193
S.W.3d at 165. A petitioner by bill of review must allege, with particularity, sworn
facts sufficient to constitute a meritorious defense and must present prima facie
proof to support the contention at a pretrial hearing. See Caldwell, 154 S.W.3d at
96; Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979); Amanda v.
Montgomery, 877 S.W.2d 482, 486 (Tex. App.—Houston [1st Dist.] 1994, no pet.).
Successfully establishing a prima facie meritorious defense, together with the other
requisites of a bill of review, entitles the petitioner to a new trial of the underlying
cause of action. See Caldwell, 154 S.W.3d at 97.
We review a trial court’s ruling on a bill of review for an abuse of discretion,
indulging every presumption in favor of the court’s ruling. See Lee v. Lemons, 01-
15-00208-CV, 2016 WL 398605, at *1–2 (Tex. App.—Houston [1st Dist.] Feb. 2,
2016, pet. denied); Davis v. Smith, 227 S.W.3d 299, 302 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). A trial court abuses its discretion if it acts in an unreasonable
or arbitrary manner, or without reference to guiding rules and principles. See Lee,
2016 WL 398605, at *1–2; Davis, 227 S.W.3d at 302.
The record on appeal consists of the reporter’s record and the clerk’s record.
See TEX. R. APP. P. 34.1 (providing that, “The appellate record consists of the
clerk’s record and, if necessary to the appeal, the reporter’s record.”). Documents
that are attached as exhibits or appendices to briefs but that are not included in the
record from the trial court are ordinarily not part of the record for appeal; we do
not consider matters outside of the record in our review. See Maher v. Maher, 01-
14-00106-CV, 2016 WL 4536283, at *5 (Tex. App.—Houston [1st Dist.] Aug. 30,
2016, no pet.); Robb v. Horizon Communities Improvement Ass’n, 417 S.W.3d
585, 589 (Tex. App.—El Paso 2013, no pet.); Becon Mgmt. & Gen. Contracting,
Inc. v. Boyer, Inc., 178 S.W.3d 198, 210–11 (Tex. App.—Houston [14th Dist.]
2005, no pet.).
B. Analysis
Chisti alleged that Wilwerding committed fraud in connection with the
underlying divorce adjudication by not informing the trial court about her marriage
in Nevada, and by engaging in “deception and false pretenses.” But Chisti
proffered no evidence in the trial court to support these contentions. The trial court
thus properly determined that Chisti failed to meet his burden of demonstrating a
meritorious defense in the underlying divorce suit that he was excluded from
making due to extrinsic fraud. See Tice, 767 S.W.2d at 702 (holding that extrinsic
fraud required to support bill of review); Nelson, 193 S.W.3d at 165 (same).
Accordingly, we hold that the trial court did not abuse its discretion in denying the
petition for a bill of review.
Chisti alleges conduct in his brief that does not have evidentiary support in
the record, and he attached materials to the brief that are outside the record. We do
not consider these materials. See TEX. R. APP. P. 34.1; Maher, 2016 WL 4536283,
at *5.

Outcome: We affirm the judgment of the trial court.

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