Opinion
No. 05-11-00829-CV
08-09-2012
ANTHONY KNIGHT, Appellant v. LATONYA MINTER, Appellee
AFFIRM; Opinion issued August 9, 2012
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-11-00681-D
MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice FitzGerald
Appellant Anthony Knight appeals the trial court's take-nothing judgment in his declaratory judgment suit against appellee Latonya Minter. The procedural history, pleadings, and evidence are known to the parties, so we do not recite the facts in detail. We issue this memorandum opinion because the law to be applied is well settled. See Tex. R. App. P. 47.4. We affirm the trial court's judgment.
Knight alleges he was approached in 2004 to refinance the home he purchased with his girlfriend, Linda Barnes, almost twenty years earlier (the "Property"). Knight further alleges that he signed a single document-which he believed to be a "new payment coupon"-to accomplish the refinancing. However, soon afterward, Minter presented herself to Knight as the owner of the Property. Minter possessed a notarized warranty deed to the Property, containing the purported signatures of both Knight and Barnes. Knight made payments to Minter between 2005 and 2010. But more than five years after Minter first declared herself the owner of the Property, Knight brought this action seeking a judicial declaration that Minter's deed is a forgery.
The case was tried to the court, and the trial court made findings of fact and conclusions of law. The court found that Knight and Barnes had sold the Property to Minter in 2004, although there was no contract for the sale. The court found there were "[m]any suspicious acts" surrounding the sale of the Property, including the notary's statement that both Knight and Barnes had signed the deed in her presence, when it was undisputed that Barnes had moved to Missouri and was in Missouri at the time of the signing. Nevertheless, the trial court found that Knight had signed the deed and had signed Barnes's name to the deed, utilizing the power of attorney she had given him. Thus, the court concluded the deed was not a forgery; Knight and Barnes had transferred ownership of the Property to Minter.
Knight did not properly file the reporter's record in this appeal. Accordingly, we presume the reporter's record supports the trial court's findings of fact, and we take those findings as true. See Bailey v. Gallagher, 348 S.W.3d 322, 325 (Tex. App.-Dallas 2011, pet. denied).
The court also concluded the payments Knight made to Minter between 2005 and 2010 were properly characterized as rent.
In his single appellate issue, Knight contends the trial court erroneously denied his Motion for New Trial Based on Newly Discovered Evidence (the "Motion"). Knight's newly discovered evidence was attached as two exhibits to the Motion. The first exhibit contains records from a 2009 criminal case in federal court, including a September 1, 2009 indictment of Donna Lois Kneeland for conspiracy to commit wire fraud and bank fraud. Kneeland is the notary who witnessed Minter's warranty deed. The exhibit also includes Kneeland's August 24, 2009 plea agreement in the same case. Knight contends this evidence "demonstrates a propensity and history of Ms. Kneeland's dishonesty, and casts light on the suspiciousness of the circumstances as a whole." Knight's second evidentiary exhibit is the April 7, 2011 affidavit of Kim Vaughn, a mortgage loan underwriter. In the affidavit, Vaughn testifies that-in her expert opinion-"this transaction required a sales contract." Knight argues this evidence is relevant because Minter testified at trial that she did not remember signing a contract for the sale of the Property.
Although we have no reporter's record to confirm that testimony, the trial court found that no contract for sale of the Property was ever signed by Knight, Barnes, and Minter.
A party seeking a new trial on the ground of newly discovered evidence must establish four elements:
(1) the evidence has come to his knowledge since the trial; (2) it was not owing to the want of due diligence that it did not come sooner; (3) it is not cumulative; and (4) it is so material that it would probably produce a different result if a new trial were granted.Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 240 (Tex. App.-Dallas 2000, pet. denied). We review the trial court's decision to grant or deny such a motion for an abuse of discretion. Id.
We focus on the first and second elements of the test, which are dispositive in this case. A movant cannot merely allege that evidence is newly discovered or that he was diligent in seeking out evidence before trial. Rather, he must establish he had no prior knowledge and explain the diligence he exercised prior to trial. Strong v. Strong, 350 S.W.3d 759, 772 (Tex. App.-Dallas 2011, pet. denied). A movant has not exercised due diligence if the same effort used to procure the testimony subsequent to trial would have had the same result if it had been exercised prior to trial. Black v. Wills, 758 S.W.2d 809, 818 (Tex. App.-Dallas 1988, no writ). We conclude Knight's evidence cannot meet this standard.
In this opinion we address Knight's proffered evidence only under the standards of actual knowledge and due diligence. We express no opinion concerning whether the evidence would have been relevant or admissible.
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As to Kneeland's criminal records, Knight admits in the Motion that he and his sister heard rumors surrounding Ms. Kneeland and her possible indictment. They conducted research on the matter and informed Knight's counsel on the day of trial, after they had confirmed the information. Thus, there was clearly prior knowledge of Kneeland's criminal history. Knight has made no showing that he tried to offer the evidence at trial or asked for a continuance if the evidence needed to be placed in admissible form. Knight had actual knowledge of Kneeland's criminal history at the time of trial; that history cannot qualify legally as newly discovered evidence. Thus, the trial court correctly denied the Motion on this ground. See Strong, 350 S.W.3d at 772 (movant must establish he had no prior knowledge of the evidence).
As to the Vaughn affidavit, Knight has presented no explanation for why he could not have procured such expert testimony before trial. Knight appears to argue that he did not know the existence of a contract would be an issue at trial. But a party's failure to recognize an issue's significance is not an exception to the requirement of diligent preparation. Knight has failed to show that he could not have procured this expert testimony concerning requirements for a valid sale of the Property before trial, using the same diligence by which he procured it after the trial. Thus, the trial court did not abuse its discretion in denying the motion on this ground either. See Black, 758 S.W.2d at 818.
Knight has failed to establish that (1) he lacked actual knowledge of Kneeland's criminal history, and (2) he exercised appropriate diligence before trial in relation to the expert testimony he obtained after trial. We need not discuss the remaining elements of the test for a new trial based on newly discovered evidence. We overrule Knight's single issue, and we affirm the trial court's judgment.
KERRY P. FITZGERALD
JUSTICE
110829F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANTHONY KNIGHT, Appellant
V.
LATONYA MINTER, Appellee
No. 05-11-00829-CV
Appeal from the County Court at Law No. 4 of Dallas County, Texas. (Tr.Ct.No. CC-11- 00681-D).
Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Latonya Minter recover her costs of this appeal from appellant Anthony Knight.
Judgment entered August 9, 2012.
KERRY P. FITZGERALD
JUSTICE