                                  NO. 07-07-0294-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                 AUGUST 4, 2008
                         ______________________________

                    IN THE MATTER OF THE MARRIAGE OF
          LORI LEIGH MAYLES NOONAN AND THOMAS A. NOONAN, JR.
                     _________________________________

         FROM THE 198TH DISTRICT COURT OF MCCULLOCH COUNTY;

              NO. 2006130; HONORABLE EMIL KARL PROHL, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                       OPINION


      Appellant, Lori Leigh Mayles Noonan (Lori), appeals the granting of a summary

judgment in favor of Thomas A. Noonan, Jr. (Thomas). We affirm.


                          Factual and Procedural Background


      Lori and Thomas were married in 1973. In 2001, the parties executed a post-nuptial

agreement. In January 2003, Thomas filed a petition for divorce. A final hearing on the

divorce was scheduled for Monday, March 17, 2003. The Friday before the final hearing,

Lori filed an answer through a retained attorney. At the final hearing, an agreed divorce

decree, which included an agreement incident to divorce, was entered. No motion for new
trial was filed and no appeal was attempted. On November 26, 2003, Lori filed her first

petition for bill of review. The first bill of review was subsequently non-suited by Lori on

January 27, 2004.      On July 30, 2004, Lori and Thomas filed an informal marriage

registration. In June 2005, Lori filed a petition for divorce from Thomas. Subsequently, on

February 7, 2006, the trial court for the second divorce entered a partial summary judgment

against Lori on certain matters regarding the property of the parties. Lori then filed the bill

of review that was dismissed by summary judgment on September 12, 2006. Lori appeals

from this summary judgment.


       Through her second bill of review, Lori is attacking the divorce decree entered on

March 17, 2003. Specifically, Lori requested the trial court set aside the agreement

incident to divorce and that portion of the judgment of divorce that incorporated the

agreement. Further, Lori requested the trial court make a new division of the property

divided in the original divorce decree. Lori’s request for relief, through the bill of review

process, is founded upon the allegations that Thomas committed fraud. According to the

petition, the fraud was in the nature of fraudulent representations regarding what the

relationship of the parties would be after the divorce. Lori posits that Thomas’s actions

prevented her from asserting claims against him for fraud on the community, fraud on a

spouse’s separate property, breach of fiduciary duty, duress, and overreaching.


       Thomas filed a traditional motion for summary judgment alleging that, as a matter

of law, Lori could not establish a prima facie case in support of her bill of review. The trial

court granted a partial summary judgment, reserving the issue of attorney’s fees.

Thereafter, Thomas filed a motion for summary judgment on the issue of attorney’s fees.

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The trial court granted this summary judgment and entered a final judgment. This appeal

resulted from the entry of this final judgment.


                                   Standard of Review


       A party may prevail on a summary judgment motion by conclusively establishing the

absence of any genuine issue of a material fact and that the party is entitled to judgment

as a matter of law. TEX . R. CIV. P. 166a(c). If the summary judgment movant is a

defendant, the movant must conclusively negate at least one of the elements of the non-

movant’s cause of action or must conclusively prove each element of an affirmative

defense. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). We

review the granting of a traditional summary judgment motion de novo, applying the

standards set out in Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985):


       1. The movant for summary judgment has the burden of showing that there
       is no genuine issue of material fact and that it is entitled to judgment as a
       matter of law.
       2. In determining whether there is a disputed issue of material fact
       precluding summary judgment, evidence favorable to the non-movant will be
       taken as true.
       3. Every reasonable inference must be indulged in favor of the non-movant
       and any doubts resolved in its favor.


                                          Bill of Review


       A bill of review is an equitable action brought by a party to a previous suit seeking

to set aside a judgment which is no longer appealable or subject to a motion for new trial.

See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A bill of review is


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proper where a party has exercised due diligence to prosecute all adequate legal

remedies against a former judgment and, at the time the bill of review is filed, there

remains no adequate legal remedy available through no fault of the proponent. Baker v.

Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979). Ordinarily, one with an available appellate

remedy who fails to pursue that remedy is not entitled to seek relief by way of a bill of

review. Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980). Because of the fundamental

importance of the finality of judgments, bills of review are examined closely and the

grounds upon which a bill of review can be obtained are narrow and restricted. Alexander

v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). To successfully challenge a

judgment by bill of review, the petitioner must prove: (1) a meritorious defense to the

cause of action; (2) that petitioner was prevented from making the defense by the fraud,

accident, or wrongful act of the opposite party; and (3) that the failure to make the defense

was unmixed with any fault or negligence of the petitioner. King Ranch, Inc., 118 S.W.3d

at 751 (citing Alexander, 226 S.W.2d at 998.).


       Fraud in relation to a bill of review attack on a final judgment is either extrinsic or

intrinsic. Id. at 752. Only extrinsic fraud will support a bill of review. Id. (citing Tice v. City

of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989)). Extrinsic fraud is fraud that denied a

party the opportunity to fully litigate at trial all the rights or defenses that could have been

asserted. Id. Intrinsic fraud, by contrast, relates to the merits of the issues that were

presented and presumably were or should have been settled in the former action. Id.

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


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the judgment assailed. Id. Such fraud will not support a bill of review because each party

must guard against adverse findings on issues directly presented. Id. (citing Tice, 767

S.W.2d at 702 and Alexander, 226 S.W.2d at 998). Issues underlying the judgment

attacked by a bill of review are intrinsic and thus have no probative value on the fraud

necessary to a bill of review. Id.


                                          Analysis


       Lori contends that Thomas committed fraud because he was only able to get her

to sign the post-nuptial agreement by overcoming her free will and this post-nuptial

agreement became the agreement incident to divorce that was embodied in the final

decree of divorce. Further, she contends that, at the time of the divorce she did not know

the extent or value of the marital estate. To support these allegations, Lori sets forth a

myriad of factual allegations of Thomas’s alleged abusive conduct during the marriage.

Finally, Lori argues that the disproportionate property division can not be allowed to stand.


       Assuming, arguendo, that Lori’s contention regarding the original post-nuptial

agreement is correct, it does not demonstrate extrinsic fraud as to the 2003 divorce decree.

The record reflects that Lori employed an attorney to represent her in the divorce

proceeding. The record further reflects that the attorney filed an answer and appeared at

the final hearing on the divorce. During that hearing, Lori’s attorney made the following

statement,


      She expressed concern to me that although she was not sure about the
      extent and magnitude of the parties’ estate, that she was of the opinion that


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       she was only going to receive approximately 20 percent of the total estate in
       terms of the proposed agreement.
       ****
       She came back later Friday afternoon and delivered me a handwritten copy
       of that postnuptial agreement....Had a phone conversation with Ms. Noonan
       yesterday afternoon and explained to her that in my opinion she had at least
       a reasonable chance of setting the postnuptial agreement aside because she
       alleged she had not signed it voluntarily, and she, based on representations
       made to me, appeared that it might be [un]conscionable and that she did not
       have full disclosure of the assets of the parties at the time she executed it.


This statement clearly shows that, at the time the decree complained of was entered, Lori

had knowledge of a possible defense to the entry of the agreement incident to divorce

based on the post-nuptial agreement. As such, this was an issue that could have been

presented to the trial court and, therefore, cannot serve as the basis for a bill of review.

Id.


       Lori also contends that she lacked capacity to sign the 2003 divorce decree.

However, her attorney’s representations to the court are contrary to that position. In the

same statement to the court quoted above, Lori’s attorney further explained that she had

come to his office on the morning of the hearing and asked to sign off on the agreement.

Lori explained that she did feel pressured and unable to stand up to going through the

proceedings. Lori then asked that he appear for her and sign off on the agreement. In

response to the trial court’s question whether Lori was asking the trial court to approve the

instruments, trial counsel answered, “That’s my understanding. She asked me to go ahead

and sign off.” Again, all these statements show that Lori, for whatever reason, understood

what was about to take place and did not choose to personally go through the process.

Yet, Lori’s affidavit clearly demonstrates that she was present in the courtroom at the time

                                             6
the hearing was conducted. In reviewing Lori’s evidence of coercion and duress that

overcame her free will or demonstrated a lack of capacity, we find that nearly all of the

alleged coercion was during the marriage and dealt with the execution of the original post-

nuptial agreement. As stated above, Lori was aware of this and, in fact, her attorney

discussed these matters with her. Therefore, it was, at best, intrinsic fraud and would not

support a bill of review. Id. As to the evidence that Thomas threatened her by stating that

if Lori fought the divorce she would get less because he would spend it all on attorney’s

fees, we note that Lori has provided the Court with no cases supporting the proposition that

a threat to litigate is the type of coercion that would overcome someone’s free will or

remove their capacity to consent nor have we found any authority to support this

proposition.


       Lori also contends that Thomas’s reaction to her consulting with an attorney and

filing an answer was so violent that it overcame her own free will. To this end, Lori has

provided the affidavit of a witness, Claudia Davis. Yet, an examination of Lori’s affidavit

reveals that the incident in question occurred before Thomas filed for divorce. After the

alleged incident, Lori met with an attorney, discussed the proposed decree, and, indeed,

the attorney filed an answer and appeared for Lori. Therefore, the very issue Lori said the

outburst was designed to prevent, Lori seeking legal assistance, occurred. Accordingly,

we cannot say Lori’s free will was overcome by Thomas’s alleged duress and coercion.

Finally, with Lori’s declaration that the pivotal abusive incident occurred not a day or two

before the final decree, Lori’s attorney participating in the final hearing, and Lori’s own

presence in the courtroom, we are strained to conclude that Lori was not aware of all that


                                             7
was going on and was unable to meaningfully participate in the trial. Rather, all of these

matters were known to Lori and her attorney and would, at best, be classified as intrinsic

fraud that would not support her bill of review. Id. Finally, her failure to pursue an appeal

when she was aware of the issues and the possible merits of an appeal demonstrate a lack

of diligence and, therefore, are negligence attributable to Lori. As such, this also defeats

her claim for relief via a bill of review. Rizk, 603 S.W.2d at 775. At the end of the day, it

appears to this Court that what is presented is nothing more than allegations that the

decree of divorce provided an inequitable and unfair division of the marital estate. An

injustice in a final order will not support relief for a party by a bill of review. See Crouch v.

McGaw, 134 Tex. 633, 138 S.W.2d 94, 96 (1940). Accordingly, we find that the trial court

did not err in granting the summary judgment.


                                       Attorney’s Fees


       As the issue of attorney’s fees was dependent on our reversal of the granting of the

summary judgment, we affirm the trial court’s award of attorney’s fees.


                                          Conclusion


       Having overruled all of Lori’s issues, we affirm the judgment of the trial court.




                                                    Mackey K. Hancock
                                                         Justice




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