
NO. 07-07-0294-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 4, 2008
______________________________
Â 
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
Â Â Â Â Â Â Â Â Â Â 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
Â Â Â Â Â Â Â Â Â Â 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.  
Â Â Â Â Â Â Â Â Â Â 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.  Loriâ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 Thomasâs actions
prevented her from asserting claims against him for fraud on the community, fraud on a
spouseâs separate property, breach of fiduciary duty, duress, and overreaching.  
Â Â Â Â Â Â Â Â Â Â 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 attorneyâs fees. 
Thereafter, Thomas filed a motion for summary judgment on the issue of attorneyâs fees. 
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
Â Â Â Â Â Â Â Â Â Â 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-movantâs cause of action or must conclusively prove each element of an affirmative
defense.  Randallâ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
Â Â Â Â Â Â Â Â Â Â 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
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.).
Â Â Â Â Â Â Â Â Â Â 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
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
Â Â Â Â Â Â Â Â Â Â 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 Thomasâs alleged abusive conduct during the marriage. 
Finally, Lori argues that the disproportionate property division can not be allowed to stand. 
Â Â Â Â Â Â Â Â Â Â Â Assuming, arguendo, that Loriâ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, Loriâs attorney made the following
statement,
She expressed concern to me that although she was not sure about the
extent and magnitude of the partiesâ estate, that she was of the opinion that
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.
Â 
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.   
Â Â Â Â Â Â Â Â Â Â Lori also contends that she lacked capacity to sign the 2003 divorce decree. 
However, her attorneyâs representations to the court are contrary to that position.  In the
same statement to the court quoted above, Loriâ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 courtâs question whether Lori was asking the trial court to approve the
instruments, trial counsel answered, âThatâs my understanding.  She asked me to go ahead
and sign off.â  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, Loriâs affidavit clearly demonstrates that she was present in the courtroom at the time
the hearing was conducted.  In reviewing Loriâ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 attorneyâ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 someoneâs free will or
remove their capacity to consent nor have we found any authority to support this
proposition. 
Â Â Â Â Â Â Â Â Â Â Lori also contends that Thomasâ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 Loriâ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 Loriâs free will was overcome by Thomasâs alleged duress and coercion. 
Finally, with Loriâs declaration that the pivotal abusive incident occurred not a day or two
before the final decree, Loriâs attorney participating in the final hearing, and Loriâs own
presence in the courtroom, we are strained to conclude that Lori was not aware of all that
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.  Â Â Â Â Â Â Â Â Â Â Â Â  
Attorneyâs Fees
Â Â Â Â Â Â Â Â Â Â As the issue of attorneyâs fees was dependent on our reversal of the granting of the
summary judgment, we affirm the trial courtâs award of attorneyâs fees.
Conclusion
Â Â Â Â Â Â Â Â Â Â Having overruled all of Loriâs issues, we affirm the judgment of the trial court.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mackey K. Hancock
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

________________
Â 
FROM THE 108TH DISTRICT COURT
OF POTTER COUNTY;
Â 
NO. 96,370-E; HONORABLE
DOUGLAS WOODBURN, PRESIDING
_____________________________
Â 
Opinion
_____________________________
Â 
Â 
Before QUINN, C.J.,
and HANCOCK and PIRTLE, JJ.
       Brock
Lovett, D.C. (Lovett), appeals from a judgment entered against him for personal
injuries suffered by
Aaron Felton (Felton), which injuries were allegedly caused by chiropractic
manipulation.Â  Lovett poses five issues for our review.Â  We need only address that which involves
whether he had a duty to inform Felton of the chance of suffering a dissected
vertebral artery from a cervical spine manipulation.Â  We reverse and render judgment. 
Â Â Â Â Â Â Â Â Â Â Â  Background
Â Â Â Â Â Â Â Â Â Â Â  Felton, a twenty-nine-year-old carpet
layer, experienced neck pain and headaches radiating into his eye after heavy
lifting at work.Â  He consulted Lovett on
February 21, 22, and 23, 2006.Â  In the
first two sessions, Lovett performed a manipulation of FeltonÂs neck without
providing relief.Â  In the third session,
Lovett performed a more forceful manipulation resulting in a release of the
joint, but Felton immediately began experiencing blurred vision, nausea,
dizziness, and a headache.Â  Lovett called
for an ambulance and had Felton transported to the hospital.Â  Felton suffered a stroke as a result of a dissection
of a vertebral artery.Â  He remained in
the hospital for ten days and did not work for two years.Â  He still suffers from headaches and double
vision.Â  
Â Â Â Â Â Â Â Â Â Â Â  Â 
A dissection of the artery results in a tear of the lining of the blood
vessel.Â  Many dissections are
asymptomatic and resolve on their own.Â 
However, on rare occasions, the artery can swell and narrow the opening
or a blood clot forms at the location of the tear, either of which interrupts
the blood supply to the brain causing a stroke.Â 
Felton sued Lovett based on three theories of negligence:Â  1) Lovett was too forceful in his third
manipulation, thereby causing the artery dissection which resulted in a stroke,
2) Felton was already suffering a dissection when he came to see Lovett and
Lovett should have recognized it and not performed any manipulations which then
resulted in the stroke, and 3) Lovett failed to inform Felton of the risks and
dangers of chiropractic treatment.Â  The
jury rejected the first two contentions and found for him on the third.
Â Â Â Â Â Â Â Â Â Â Â  
Â 
Informed Consent
Â Â Â Â Â Â Â Â Â Â Â  Causes of action for informed
consent are medical malpractice cases governed by Â§74.101 of the Civil Practice
and Remedies Code.Â  Schaub
v. Sanchez, 229 S.W.3d
322, 323 (Tex. 2007).Â Â  That statute provides:
In a suit against a physician or health care provider
involving a health care liability claim that is based on the failure of the
physician or health care provider to disclose or adequately disclose the risks
and hazards involved in the medical care or surgical procedure rendered by the
physician or health care provider, the only theory on which recovery may be
obtained is that of negligence in failing to disclose the risks or hazards that
could have influenced a reasonable person in making a decision to give or
withhold consent.[1]

Â 
Tex. Civ. Prac. & Rem. Code Ann. Â§74.101 (Vernon 2005).Â  A chiropractor is a health care provider
under the statute.Â  Id.
Â§74.001(a)(12)(A)(v).Â  And,
whether the chiropractor at bar violated Â§74.101 depends upon whether he failed
to disclose that which he had a duty to mention.Â Â  
Â Â Â Â Â Â Â Â Â Â Â  The Texas Medical Disclosure Panel,
an entity created by the Texas Legislature, is charged with developing a list of
risks and hazards which must be disclosed to patients.Â  Id. Â§74.102(a) (Vernon Supp. 2010).Â 
However, its list is not all encompassing.Â  There may be instances of medical and
surgical procedures which the panel has not addressed.Â  Should such an instance arise, like it did
here, the provider or physician is not free to remain silent.Â  Rather, he still must comply with the duties
to disclose imposed upon him by laws other than Â Â§74.101
et
seq.Â  Id. Â§74.106(b) (Vernon 2005).Â 
One such duty is to inform the patient of risks ÂinherentÂ in the
medical procedure to be performed.Â  Binur
v. Jacobo, 135 S.W.3d
646, 654 (Tex. 2004); Barclay v. Campbell, 704 S.W.2d 8, 9 (Tex. 1986).Â 

Â Â Â Â Â Â Â Â Â Â Â  To be inherent, the risk must be one
that exists in and is inseparable from the procedure itself. Â Barclay
v. Campbell, 704 S.W.2d at 10. Â Â For instance, in Barclay, the Supreme Court had to decide
whether the failure to disclose that tardive dyskinesia was a risk of ingesting
certain drugs fell short of complying with the duty to disclose.Â  It explained that for the dyskinesia to be an
inherent risk in taking the drug, the condition must arise from using the drug
and not from any defect in the drug or from negligent human intervention.Â  Id.Â  In other words, the drug or procedure must
alone present the risk for the latter to be inherent in the former; it is not
enough if some additional factor, independent of the procedure, exists or occurs
for the risk to arise.Â  Â Â 
Â Â Â Â Â Â Â Â Â Â Â  The procedure at bar involved a
manipulation of the cervical spine, while the risk consisted of a ruptured or
dissected vertebral artery as a result of the manipulation.Â  That Lovett did not inform Felton of the risk
is undisputed.Â  Whether he had to is not.
Â Â Â Â Â Â Â Â Â Â Â  LovettÂs expert testified that
Âthere is a risk from doing . . . manipulations to the cervical spine because if
there is a problem with the vertebral artery, a . . . manipulation . . . could exacerbate that or
increase the symptoms or cause more damage.Â Â (Emphasis added). Â He also opined that Âany type of manipulation,
if
thereÂs a problem with that [vertebral] artery or if the adjustment is
delivered improperly, that
area can be compromised with the consequences being very severe.ÂÂ  (Emphasis added).Â  When asked if he had an opinion Âas to
whether or not a chiropractor, if he performs a neck adjustment correctly, can
injure a healthy artery,Â the expert replied Â. . . a properly administered . . . adjustment cannot harm a healthy vertebral
artery.ÂÂ  (Emphasis added).Â  The latter statement comports with testimony
to the effect that Â[c]urrent medical literature indicates that it is highly
unlikely, if not impossible, for a cervical spine manipulation to injure a
healthy vertebral artery.ÂÂ  He also
stated that for the manipulation to have caused the dissection suffered by
Felton, one of two other circumstances would have had to exist or occur.Â  First, FeltonÂs vertebral artery would have to
have been unhealthy or, second, the manipulation would have to have been
applied improperly.Â  From this, we see
that the potential for a dissection of the vertebral artery arose only when
some other factor or condition was present.Â 
If neither of those additional indicia was present, the manipulation
would not have resulted in an arterial dissection.Â  So, the potential for the latter to occur did
not exist in the procedure itself; nor was it inseparable from the
procedure.Â  
Â Â Â Â Â Â Â Â Â Â Â  Simply put, the injury suffered by
Felton was not an inherent risk of which Lovett had a duty to disclose at the
time.Â  To the extent that the jury found
otherwise, it erred as a matter of law.Â  See
Powers v. Floyd, 904 S.W.2d 713, 715 (Tex. App.ÂWaco
1995, writ denied) (stating that whether the physician had a duty to disclose
particular information is a legal question).Â 
Moreover, the error was harmful for it was the basis upon which judgment
was entered.Â  Thus, we sustain LovettÂs
contention that he had no duty to inform Felton of the potential for arterial
dissection before administering the spinal manipulation, reverse the trial
courtÂs judgment, and render judgment denying Felton recovery against Lovett.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Brian
Quinn 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Chief
Justice
Â Â Â Â Â Â Â Â Â Â Â  Â Â Â Â 




[1]Medical
care is defined to mean Âany act defined as practicing medicine . . . by one
licensed to practice medicine in this state . . . .ÂÂ  Tex.
Civ. Prac. & Rem. Code Ann. Â§74.001(a)(19)
(Vernon 2005).Â  Lovett argued in his
motion for new trial that he is not licensed to practice and does not practice
medicine so he does not fall within the provisions of the statute.Â  However, he did not raise this theory prior
to trial.Â Â  


