Sheshtawy v. Sheshtawy, (Tex.App.- Houston [14th Dist.] Nov. 18, 2008)(Hudson by
assignment)  (
divorce, property, postjudgment proceedings, motion for new trial based on claim of new
evidence fails, diligence, cumulative evidence)
AFFIRMED: Opinion by
Senior Justice Harvey Hudson sitting by assignment
Before Chief Justice Hedges, Justices Hudson and Brown
14-07-00227-CV  Amal Sheshtawy v. Adel Sheshtawy, Drill Bit Industries, Inc. and Tri-Max Industries, Inc.--
Appeal from 309th District Court of Harris County
Trial Court Judge: Judge Frank Barlow Rynd    

M E M O R A N D U M   O P I N I O N

Although Amal and Adel Sheshtawy's marriage was terminated six years ago, they continue to
litigate the division of their marital property.  In this latest appeal, Amal challenges the trial court's
factual determination that the community estate does not include a drilling-tool patent for which Adel
applied during the marriage.  Amal insists that she has uncovered new evidence showing that the
patent belongs to the community estate.  The trial court denied her motion for new trial, and Amal
has appealed.  We affirm.
                                                           
BACKGROUND

Adel (“Husband") and Amal (“Wife") were married in 1996.  By 2000, Husband had filed for divorce,
and requested a division of the couple's marital property.  A key issue in the subsequent
proceedings related to whether that marital property included a United States patent for a “Drilling
Tool with Extendable Elements."[1]  Wife contended that, because Husband applied for this patent
during their marriage, the patent belonged to the community estate.  However, Husband insisted
that, before the marriage, he had already sold the patent rights to appellee Drill Bit Industries, Inc.
d/b/a Tri-Max Industries, Inc. (collectively, “Drill Bit").  Husband and Drill Bit argued that the patent
therefore belonged to Drill Bit, and could not be considered as part of the community estate.

The trial court found that the drilling patent belonged to the community estate, and Husband
appealed.  The Fourth Court of Appeals affirmed the divorce decree but reversed, for factual
insufficiency, the portion of the decree that adjudged the patent to be community property.  See
Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 780 (Tex. App.- San Antonio 2004, pet. denied), cert.
denied, 546 U.S. 823 (2005).  The case was remanded for the trial court's determination of
ownership of the drilling patent.  See id. at 781.

During the bench trial on remand, Drill Bit attempted to introduce into evidence a “Product
Development Agreement" that presumably demonstrated Husband's pre-marital assignment of the
patent rights to Drill Bit.  However, Wife objected that the agreement had not been produced in
discovery.  The trial court sustained her objection, and refused to admit or consider the agreement.  
After hearing testimony, the trial court nevertheless found that the patent belonged to Drill Bit, and not
to the community estate.

Wife moved for a new trial on the basis of newly-discovered evidence which, she contended,
demonstrated Husband's (and, consequently, the community estate's) ownership of the drilling
patent.  The trial court denied the motion for new trial, prompting this appeal.  Generally, Wife
contends the trial court abused its discretion in denying her motion for new trial.  In a second issue,
Wife continues to protest the inadmissibility and legal effect of the Product Development Agreement
that was neither admitted into evidence nor considered by the fact finder.  

We hold that Wife has not demonstrated her entitlement to a new trial on the basis of newly-
discovered evidence.  We therefore affirm the trial court's judgment.
                                                 
STANDARD OF REVIEW

The decision whether to grant a new trial because of newly-discovered evidence is within the trial
court's sound discretion, and will not be disturbed absent an abuse of that discretion.  First Heights
Bank, FSB v. Marom, 934 S.W.2d 843, 846 n.2 (Tex. App.- Houston [14th Dist.] 1996, no writ).  A
trial court abuses its discretion if it acts without reference to guiding rules and principles.  Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  In reviewing the trial court's
ruling for an abuse of discretion, we indulge every reasonable presumption in favor of the refusal to
grant a new trial.  Patriacca v. Frost, 98 S.W.3d 303, 307 (Tex. App.- Houston [1st Dist.] 2003, no
pet.).
                                                                
ANALYSIS

Wife claims to have uncovered new evidence showing that, during their marriage, Husband applied
for three patents.  She argues that this evidence conclusively establishes that the patents are
community property, and that a new trial is warranted.  We disagree.

A trial court properly grants a new trial on the basis of newly-discovered evidence if the movant
demonstrates that (1) she first became aware of the evidence after trial; (2) her failure to discover
the evidence sooner was not caused by her lack of due diligence; (3) the evidence is not cumulative;
and (4) the evidence is so material that, were a new trial granted, the evidence would produce a
different result.  Rankin v. Atwood Vacuum Mach. Co., 831 S.W.2d 463, 467 (Tex. App.- Houston
[14th Dist.]), writ denied, 841 S.W.2d 856 (Tex. 1992) (per curiam).  In arguing the first two elements,
Wife sullies her opponents, their truthfulness, and their perceived discovery abuses.  However, she
must prove all four elements to be entitled to a new trial.  See id.  We hold that she has not proven
the third and fourth elements, that is, that the newly-discovered evidence is non-cumulative and
would produce a different result in a new trial.

A.        The Newly-Discovered Evidence

The “new" evidence consists of (1) a few pages that accompany the U.S. patent application, and (2)
two similar applications for patents for the same product in Canada and the United Kingdom.  
Having known of the U.S. patent before the 2002 divorce trial, she waited until after the trial on
remand before sending a courier to examine the U.S. Patent and Trademark Office records, in
which she discovered that Husband is listed as the patent “applicant."  The record does not explain
the circumstances behind her discovery of the two foreign patent applications.

B.        Failure to Discover Evidence through Due Diligence

Generally, Wife blames her opponents' lack of discovery candor for her inability, even through due
diligence, to discover this evidence sooner than she did.  We note that she was in possession of the
U.S. patent application no later than September 13, 2002, and that some of the newly-discovered
evidence was available in the Patent and Trademark Office public records.  See Little v. Smith, 943
S.W.2d 414, 425 (Tex. 1997) (“A person is charged with constructive notice of the actual knowledge
that could have been acquired by examining public records.") (citation omitted).  As to the foreign
patent applications, appellees contend that the Canada and United Kingdom patent applications are
matters of public record in their respective countries, and that Wife failed to exercise due diligence
in searching foreign public records.
        
We need not decide whether the duty of due diligence in fact requires a party to scour public records
across the world, however, because we hold that Wife has not satisfied the third and fourth elements
for a new trial.  The entirety of her attempt to satisfy these requirements is encapsulated in the
following conclusory paragraph:

With respect to the third element, clearly the patent information is not cumulative, as [Husband]
produced no evidence at trial concerning any ownership of patents.  The three patents would with out
[sic] question produce a different result if a new trial were granted. [Wife] would have an interest in
three patents that were not considered during the trial, which would increase her community property
award significantly.

We are not convinced, however, that the newly-discovered evidence is non-cumulative, or that it
would have produced a different result in a new trial.

C.        The Foreign Patents are Cumulative.

To be entitled to a new trial for newly-discovered evidence, Wife must demonstrate that the new
evidence is not merely cumulative of other evidence introduced at trial.  See Rankin, 831 S.W.3d at
467.  “Cumulative" evidence, simply, is additional evidence to the same point, that is, evidence that
merely repeats the substance and effect of other evidence.  Etter v. State, 629 S.W.2d 839, 842
(Tex. App.- Houston [14th Dist.] 1982) (Murphy, J., dissenting), aff'd, 679 S.W.2d 511 (Tex. Crim.
App. 1984); Vick v. Schaff, 260 S.W. 916, 921 (Tex. Civ. App.- Waco 1924, writ dism'd w.o.j.).

The foreign patent applications add nothing new to the evidence that the trial court considered in
finding that Drill Bit, and not the community estate, owns the patent in question.  A careful
comparison of the U.S. patent application, which was introduced at trial, with its newly-discovered
foreign counterparts demonstrates that all three applications pertain to the same device.  In each
application, the drilling tool device is described in similar, if not identical, terms.  Although the foreign
patent applications identify Husband as the device inventor and patent applicant, that evidence had
already been presented to the trial court.  That is, the trial court heard evidence that Husband
invented the device that is described in the patent application, and that Husband was involved in the
patent application process.  As is discussed below, the trial court found that Husband's status as the
device inventor or patent applicant did not render him the patent owner.

Because the newly-discovered evidence merely repeats the substance and effect of other evidence
that was considered by the trial court, it is cumulative.  See Etter, 629 S.W.2d at 842; Vick, 260 S.
W. at 921.  Therefore, Wife does not satisfy the third requisite element to be entitled to a new trial.  
See Rankin, 831 S.W.3d at 467.

D.        The Newly-Discovered Evidence Would Not Produce a Different Outcome.

Wife must also demonstrate that, were a new trial granted, the newly-discovered evidence would
produce a different outcome.  See id.  She purports to satisfy this element by arguing that this
evidence demonstrates Husband's ownership of the three patents.  It does not.

The trial court heard evidence that in 1994, before his marriage to Wife, Husband conceived of the
patented device.  He sold the concept to Drill Bit, which paid him $12,000 to develop the patent and
prepare the patent application drawings.  He did not receive any additional money from Drill Bit
during his marriage.  With his assistance, Drill Bit's lawyers filed the patent application.  Drill Bit paid
all of the expenses for preparation and filing of the patent application.  Specifically, in addition to the
$12,000 paid to Husband and the patent attorneys' fees, Drill Bit paid for the development and
manufacture of the tools that were used to develop the patent.  Although Husband's name was
included in the patent application, testimony demonstrated that the use of the inventor's name on an
application does not necessarily bestow patent ownership upon the inventor.  Rather, the trial court
heard evidence that it can be common practice within the oil and gas industry for a company, like
Drill Bit, to own a patent that was invented or developed by an individual associated with that
company.  Husband further testified that he claims no ownership interest in the patent, and there was
evidence that Drill Bit considers the patent to be a company asset.

Given all of the foregoing, we cannot say that a different outcome would result were a new trial
granted for the trial court, as fact finder, to consider the additional evidence.  That Husband is listed
as the device inventor and patent applicant in cumulative foreign patent applications, by itself, simply
does not prove that he is the owner of the patent.  Accordingly, Wife has not demonstrated that the
trial court abused its discretion in denying her motion for new trial.  See id.

We overrule Wife's first issue.  Because we hold that no new trial is owing, we need not address
Wife's second issue relating to the inadmissibility of the Product Development Agreement that,
pursuant to her objection, was neither admitted into evidence nor considered by the fact
finder.                                                                          

CONCLUSION

We find no error in the appellate record or the trial court's order denying appellant's motion for new
trial.  Accordingly, we affirm the judgment of the trial court.

/s/      J. Harvey Hudson

Senior Justice


Judgment Rendered, and Memorandum Opinion filed November 13, 2008.

Panel consists of Chief Justice Hedges, Justice Brown, and Senior Justice Hudson.*

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        [1]  The dispute took on particular significance because the eventual divorce decree, which
was entered in 2002, awarded to Wife a sixty-percent interest in any patent that was found to have
been the couple's marital property.

        *  Senior Justice J. Harvey Hudson sitting by assignment.