                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 NICHOLAS J. BONACCI,                           §
                                                                No. 08-11-00255-CV
                              Appellant,        §
                                                                  Appeal from the
 v.                                             §
                                                                388th District Court
                                                §
 MYRIAM BARRAGAN BONACCI,                                     of El Paso County, Texas
                                                §
                              Appellee.                         (TC# 2010CM3807)
                                                §

                                           OPINION

       On June 7, 2010, Appellee, Myriam Barragan Bonacci, filed a petition for divorce seeking

to dissolve her marriage to Appellant, Nicholas J. Bonacci. On June 8, 2011, the parties signed

and entered into a binding mediated settlement agreement regarding the dissolution of their

marriage under Texas Family Code section 6.602. TEX. FAM. CODE ANN. § 6.602 (West 2006).

The trial court thereafter entered a final decree of divorce on August 2, 2011. Appellant presents

five issues for our consideration.


                                          BACKGROUND

       After Appellee filed her original petition for divorce in El Paso County, Appellant filed a

plea in abatement in which he asserted that he had previously filed a petition for divorce in

Montgomery County, Texas on May 19, 2010.
       On August 3, 2010, Appellant filed a counter-petition for divorce in the 388th District

Court of El Paso County. The parties executed a Rule-11 agreement that was filed with the clerk

of the court on September 9, 2010, which expressly states that “Venue will remain in El Paso

County for the finalization of the divorce.”          In his “Motion to Enter Agreement & Final

Determination of Venue Order,” Appellant sought the entry of a formal order regarding the

Rule-11 agreement.

       On April 15, 2011, the trial court held a dismissal hearing at which Appellee’s counsel, Mr.

Pine, informed the trial court that Appellant did not want to abandon his suit in Montgomery

County and Appellee did not want her suit in El Paso dismissed. The trial court explained that it

wanted the option of reading the file and stated that if it determined it was without jurisdiction over

the suit, it would issue an order of dismissal in ten days. The trial court did not issue a dismissal

order. On April 28, 2011, Appellant filed a pro se “Respondent’s Brief Summary for Dismissal”

asserting that he had appeared before the 418th District Court of Montgomery County on April 25,

2011, to request a continuance of those proceedings, and complained that Appellee’s attorney had

failed to prepare an order and “enter” the Rule-11 venue agreement.

       Thereafter, Appellant executed a binding, mediated settlement agreement that was signed

by the parties, their attorneys, and the mediator, and filed with the 388th District Court in El Paso.

The mediated settlement agreement expressly sets forth in bold, underlined, and capitalized text

that the agreement is binding and not subject to revocation, and that either party is entitled to

judgment on the agreement.

        On June 15, 2011, the court held a docket call at which Appellant appeared without

counsel. Appellant informed the trial court that he was “pro se today,” and that his counsel was

“aware of the fact that I’m here, but I’m still shown as attorney of record on file. . . . I’m shown as


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pro se currently now.”      In response to the trial court’s request for clarification, Appellant

explained, “Ms. Strathman represented me the other day, last week in a mediation, and I’m

currently here today because she’s on vacation. . . . [O]nce we get to the matter of how to go to a

final hearing, I’m going to address some of the outstanding issues. . . . I entered another motion

which . . . concerns activities that take place post-mediation . . . .” Mr. Pine noted that he did not

believe Ms. Strathmann knew that any pending issues needed to be mediated and that the court’s

file should contain a mediated summary, and further explained that he was present for the purpose

of obtaining a setting for “an uncontested final” hearing. The trial court noted the importance of

having Ms. Strathmann and Appellee present and set the case for a status hearing to be held July

12, 2011.

       On June 30, 2011, an “uncontested hearing” was conducted. Appellee, Mr. Pine, and Ms.

Strathmann were present but Appellant was not. Mr. Pine explained to the trial court that the only

matter that needed to be placed on the record was jurisdictional testimony from Appellee, and that

he had submitted a proposed decree to Ms. Strathmann to review with Appellant. Ms. Strathmann

advised the trial court that neither she nor Appellant were aware that a hearing had been set and

noted that Appellant would react adversely to a hearing occurring without him having notice of it.

Mr. Pine reminded the court of the prior hearing at which Appellant, in Ms. Strathmann’s absence,

had filed a pro se motion and had at that time been provided notice of the instant proceeding. Ms.

Strathmann requested two weeks to review the decree with Appellant and agreed that a full

settlement had been reached. The trial court was informed that a settlement agreement signed by

both parties and their counsel was on file.        The trial court proceeded to hear Appellee’s

jurisdiction testimony and set July 11, 2011, as the date for submission of the case on the mediated

settlement agreement.


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       At the hearing on July 11, 2011, Appellant complained that he was not notified of the

earlier uncontested hearing conducted on June 30, 2011, at which Appellee testified regarding the

marriage. The trial court vacated the June 30, 2011, hearing and asked Appellant if he would like

the trial court to rehear the jurisdictional elements of the divorce proceedings, to which Appellant

answered, “That really makes no difference to me[, but] if it please this Court, we can do that.”

Appellee then testified to the jurisdictional elements, that she had been a domiciliary of Texas for a

six-month period and had been a resident of El Paso County for a ninety-day period prior to the

time she filed for divorce. Appellant, who acted in a pro se capacity at the hearing, did not

address or contest jurisdiction in his counter-petition for divorce, asked Appellee no questions

regarding jurisdiction, registered no objection with the trial court regarding jurisdiction or

Appellee’s testimony, did not assert that the trial court lacked jurisdiction, and presented no

evidence demonstrating that the El Paso trial court was without jurisdiction or that any other court

had dominant jurisdiction.

       On July 29, 2011, Appellant filed a motion to dismiss the divorce proceedings “in favor of

the pending suit in the 418th District Court [of] Montgomery County[,]” and prayed that the trial

court “yield dominant jurisdiction to the 418th District Court[.]” On August 2, 2011, the trial

court entered a final decree of divorce and expressly found that it was vested with jurisdiction of

the case and the parties.

                                           DISCUSSION

                                              Appendix

       We note that Appellant has appended to his brief documents that are not a part of the record

on appeal. Because they have not been formally included in the record on appeal, we cannot and

do not consider Appellant’s appended documents. See $5,420.00 U.S. Currency v. State, 311


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S.W.3d 582, 583 (Tex.App. – El Paso 2010, no pet.); Burke v. Ins. Auto. Auctions, 169 S.W.3d

771, 775 (Tex.App. – Dallas 2005, pet. denied); Green v. Kaposta, 152 S.W.3d 839, 841

(Tex.App. – Dallas 2005, no pet.); see Adams v. Reynolds Tile and Flooring, Inc., 120 S.W.3d 417,

423 (Tex.App. – Houston [14th Dist.] 2003, no pet.) (the attachment of documents as appendices

to briefs does not constitute formal inclusion of those documents in the record on appeal); see also

Omohundro v. Ramirez-Justus, 392 S.W.3d 218, 221 (Tex.App. – El Paso 2012, pet. denied);

Jackson v. Citibank (South Dakota), N.A., 345 S.W.3d 214, 214 (Tex.App. – Dallas 2011, no pet.)

(citation to a brief’s appendix fails to satisfy the rules requiring citation to the record on appeal as

required by Rule 38.1 of the Rules of Appellate Procedure).

                                       Dominant Jurisdiction

       In Issue Two, Appellant contends the trial court was without jurisdiction to enter the final

divorce decree on Appellee’s petition for divorce filed in El Paso County because Appellant had

first filed for divorce in Montgomery County. “As a rule, when cases involving the same subject

matter are brought in different courts, the court with the first-filed case has dominant jurisdiction

and should proceed, and the other cases should abate.” Perry v. Del Rio, 66 S.W.3d 239, 252

(Tex. 2001); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974) (“The general common law rule in

Texas is that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of

other coordinate courts.”), citing Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926).

However, “the mere physical filing of the petition is insufficient to deprive a court in which the

same suit is subsequently filed of active jurisdiction.” See Clawson v. Millard, 934 S.W.2d 899,

900 (Tex.App. – Houston [1st Dist.] 1996, no writ). The concept of dominant jurisdiction is only

applicable if venue is proper in the county in which the suit was first filed. Gonzalez v. Reliant

Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005).


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        The dominant jurisdiction rule is subject to three exceptions and the abatement

requirement is inapplicable when: (1) a party’s conduct estops him or her from asserting prior

active jurisdiction; (2) persons to be joined if feasible or the power to bring them before the court is

lacking; or (3) intent to prosecute the first lawsuit is lacking. See White v. Rupard, 788 S.W.2d

175, 178-79 (Tex.App. – Houston [14th Dist.] 1990, writ denied). Upon hearing a plea in

abatement, if the second court determines that an exception to dominant jurisdiction applies, it is

permitted to assume dominant jurisdiction. See Clawson, 934 S.W.2d at 901.

        In his plea in abatement, Appellant asserted that he first filed for divorce in Montgomery

County and sought abatement of Appellee’s suit for divorce “until the prior filed suit is heard and

any controversies concerning residency and jurisdiction are resolved.” Appellant contends on

appeal that a plea-in-abatement hearing was held on August 3, 2010, wherein an “Associate Court

made no specific finding, but [first stated that] ‘both’ courts had jurisdiction and later [indicated]

that perhaps neither [court] had [jurisdiction].” Although the court’s docket sheet reflects that a

“Plea & Abatement” hearing was set for August 3, 2010, no record of such proceeding has been

made a part of the record on appeal. We observe that the record on appeal contains no evidence

that Appellee was timely served or ever served with citation in the Montgomery County action.

        On appeal, Appellant asserts that Appellee mistakenly filed suit in the 388th District Court

of El Paso County under the mistaken belief that Appellant was not entitled to file suit under the

domiciliary requirements set forth in the Texas Family Code. We find no evidence of this in the

record, and Appellant fails to direct us to any portion of the record showing that he presented to the

trial court any evidence supporting this argument.

        Appellant’s conduct throughout the trial proceedings is contrary to the complaints he now

raises on appeal.      Despite filing a plea in abatement, Appellant subsequently filed his


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counter-petition for divorce in the 388th District Court. Appellant also executed a Rule-11

agreement agreeing that venue for the divorce would be in El Paso County, participated in

mediation, and executed a binding, irrevocable mediated settlement agreement that was filed with

the 388th District Court. Moreover, by filing his cross-petition for divorce, wherein he prayed

that the 388th District Court would grant him a divorce and other relief, Appellant submitted

himself to the El Paso trial court’s jurisdiction. See Cavallaro v. Cavallaro, 241 S.W.2d 247, 249

(Tex.Civ.App. – Galveston 1951, no writ) (where husband who first filed for divorce in one county

subsequently filed a cross action for divorce on his behalf and against his wife in second county

where she had instituted a divorce action, and husband appeared and contested the same in the

second court, husband fully submitted himself to the jurisdiction of the second court and could not

be heard to complain), citing Harris v. Harris, 190 S.W.2d 489, 489-90 (Tex.Civ.App. –

Galveston 1945, no writ). Appellant expressly noted to the trial court that he had filed his petition

for divorce in Montgomery County but had agreed to assist Appellee by “coming to this Court.”

Here, because Appellant’s conduct estops him from asserting prior active jurisdiction, the

dominant jurisdiction rule does not afford Appellant the relief he seeks. See White, 788 S.W.2d at

178-79. We conclude the 388th District Court of El Paso County had jurisdiction over Appellee’s

divorce action and Appellant’s cross-action. Id. Issue Two is overruled.

        In Issue One, Appellant contends the trial court reversibly erred by failing to “prove up”

the divorce. 1     Appellee provided testimony on the jurisdictional elements and Appellant

registered no objection with the trial court regarding Appellee’s testimony, and presented no

contrary evidence. TEX. R. APP. P. 33.1 (to preserve error for appellate review, a party must

timely register a complaint with the court and obtain the trial court’s ruling or object to the trial


1
  “Prove up” is a term commonly used to refer to a proceeding in which jurisdictional testimony is presented to
finalize an uncontested divorce.
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court’s refusal to rule thereon). Appellant also complains that the trial court erroneously denied

him a pre-decree contested hearing regarding Appellee’s non-compliance with the mediated

settlement agreement. Appellant acknowledges, however, that the trial court explained to him

that she was without authority to enforce the terms of the mediated settlement agreement until after

the entry of a decree of divorce, which had not yet occurred, and Appellant fails to direct us to any

authority demonstrating that the trial court was required to grant him a contested hearing regarding

Appellee’s failure to comply with the mediated settlement agreement in advance of the trial court’s

entry of the divorce decree. Issue One is overruled.

        In Issue Three, Appellant asserts his trial counsel was incompetent and facilitated a gross

miscarriage of justice, and that the trial court clearly abused its discretion by denying Appellant his

right to counsel. Appellant contends that he was “sold out” and that the 388th District Court

became aware of “the conflict” and “wittingly denied [Appellant] access to legal counsel” after

permitting Ms. Strathmann to withdraw. Appellant’s complaints arise in regard to the earlier

“uncontested hearing” conducted on June 30, 2011, from which Appellant was absent and which

the trial court later vacated.

        At the final July 11, 2011, hearing the trial court noted Appellant’s attorney’s absence.

Appellant unequivocally stated that he had been a pro se litigant “since the beginning of [the]

suit,” and that Ms. Strathmann was “merely assisting” him in the mediation.                 Appellant

maintained that he was continuing to represent himself in a pro se capacity and asked the court to

permit him to proceed during the hearing without counsel.

        Ms. Strathmann arrived shortly thereafter, and the trial court granted her leave to file an

oral motion to withdraw as counsel and required that she file a written motion the following day.

Appellant stated under oath that he did not object to Ms. Strathmann’s motion to withdraw, which


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the trial court granted. Appellant voiced complaints about Appellee’s counsel and informed the

trial court that he was “considering other counsel.” However, Appellant never filed an objection

with the trial court asserting that he was being denied counsel and never pressed the trial court to

rule on any objection regarding a purported denial of counsel. Accordingly, because Appellant

failed to preserve error regarding his denial-of-counsel complaint, Issue Three is overruled. See

TEX. R. APP. P. 33.1.

       Appellant’s fourth issue is multifarious. Appellant complains that the trial court clearly

and prejudicially misapplied the law when it failed to act on his motions and carry out its

ministerial duties, thereby inflicting great harm to his due process rights, and that its failure to

gather and maintain a record imperiled his rights, and calls into question the legitimacy of the

proceedings below. Appellant neither specifies the motions on which the trial court failed to act

nor provides citation to the record demonstrating that he presented the motion to the court and

sought a ruling and objected to the ruling or to the court’s failure to rule thereon. See TEX. R. APP.

P. 33.1.

       Appellant complains that he was not notified of the June 30, 2011, hearing and that he was

not provided a record thereof. The record of the June 30, 2011, hearing is part of the record on

appeal. As we previously noted, the court vacated the June 30, 2011, proceeding conducted in

Appellant’s absence. Appellant also complains that no record was made of a pre-trial hearing in

January 2011, but presents nothing in the record or in a bill of review for our consideration

regarding this complaint. See TEX. R. APP. P. 33.1.

       Appellant again raises in the midst of his fourth issue complaints regarding jurisdiction as

well as an assertion that the trial court failed to abide by Canon 3B(8) of the Judicial Canon of

Ethics. We have determined that Appellant, by his conduct, availed himself of the 388th District


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Court’s jurisdiction and note that the June 30, 2011, hearing of which he complains was vacated.

Issue Four is overruled.

       In Issue Five, Appellant complains that the El Paso County Commission effectively denied

him due process because of its “unreasonable and capricious dismissal of two-thirds of the justices

in the 388th District Court[.]” As this complaint was not before the trial court, Issue Five is

overruled.

       In his reply brief, Appellant presents an “Ad hoc Reply Germane to Appellee’s Request for

Attorney’s Fees,” and argues that Appellee is not entitled to attorney fees for failure of

presentment. We do not find in our review of Appellee’s brief any argument or prayer regarding

attorney’s fees. TEX. R. APP. P. 38.3 (appellant may file a reply brief addressing any matter in the

appellee’s brief). To the contrary, Appellee has prayed that we affirm the trial court’s judgment

in its entirety and that all costs associated with this appeal be taxed against Appellant. We

therefore do not address Appellant’s contention regarding attorney’s fees.

                                         CONCLUSION

       The trial court’s judgment is affirmed.



                                              GUADALUPE RIVERA, Justice

December 27, 2013

Before Rivera, J., Antcliff, J., and Chew, C.J. (Senior Judge)
Antcliff, J., not participating
Chew, C.J. (Senior Judge), sitting by assignment




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