                                    NO. 07-07-0199-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                    JULY 23, 2008
                           ______________________________

                 KENDRICK J. FULTON, 1995 CHEVROLET BLAZER VIN:
                1GNDT13W1S2180389 TEXAS TAG: 5GNS11, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

               FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 94,782-D; HONORABLE DON EMERSON, JUDGE
                         _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


          Appellant, Kendrick Jermaine Fulton, appeals the trial court’s grant of summary

judgment in favor of appellee, the State of Texas, denying Fulton’s Bill of Review. We

affirm.
                                        Background


       On October 3, 2002, Fulton’s 1995 Chevrolet Blazer was seized as contraband by

the Amarillo Police Department. At the time of the seizure, Fulton was under federal

indictment on drug conspiracy charges.


       The State filed an Original Notice of Seizure and Intended Forfeiture, under Texas

Code of Criminal Procedure chapter 59, on October 31, 2002. Fulton filed an Answer

denominated Notice to Challenge Seizure on October 7, 2003. On December 11, 2003,

the State filed a Motion for Summary Judgment based on deemed admissions. Notice of

the hearing on the State’s summary judgment motion was sent to Fulton at the Lubbock

County Jail, but he had been transferred to the federal prison system prior to when notice

of the hearing was sent. On January 23, 2004, the trial court granted summary judgment

in favor of the State finding that the vehicle was contraband and forfeiting it to the State.


       Notice of the trial court’s judgment was sent to Fulton, who had, by January 23,

2004, notified the clerk of his change of address. Fulton filed a Notice of Appeal of the

judgment with this Court on March 12, 2004. In a per curium opinion, this Court dismissed

Fulton’s appeal for want of jurisdiction based on the untimely filing of his Notice of Appeal.

See 1995 Chevrolet Blazer v. State, No. 07-04-0101-CV, 2005 Tex.App. LEXIS 7404, at

*5 (Tex.App.–Amarillo September 7, 2005, no pet.). We issued mandate in that cause on

December 1, 2005.


       On August 21, 2006, Fulton filed a Bill of Review with the trial court alleging that the

State had violated Fulton’s due process rights by failing to give him proper notice of the

                                              2
summary judgment hearing in the prior forfeiture proceeding. Attached to this Bill of

Review, Fulton included documents purporting to establish that he could not have actually

received notice of the summary judgment hearing in the prior proceeding. The State filed

a Motion for Summary Judgment alleging that Fulton is barred from challenging the prior

final judgment by way of bill of review. The trial court granted summary judgment in favor

of the State on April 25, 2007. From this judgment, Fulton timely appealed.


       By his appeal, Fulton contends that (1) there was legally or factually insufficient

evidence in the prior cause to prove that his vehicle was contraband and (2) the trial court

erred in denying his Bill of Review. As Fulton must first set aside the prior final judgment

before we can consider the sufficiency of the evidence to support that judgment, we will

address Fulton’s second issue first.


                                 Availability of Bill of Review


       Before a litigant can set aside a final judgment by way of a bill of review, he must

allege and prove (1) a meritorious defense to the cause alleged to support the judgment;

(2) which he was prevented from making by fraud, accident, or wrongful act of the

opposing party; (3) unmixed with any fault or negligence on his own part. French v. Brown,

424 S.W.2d 893, 895 (Tex. 1967). 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) (citing French, 424 S.W.2d at 895). However,

a claim of extrinsic fraud, fraud that denied the party the opportunity to fully litigate all of

the rights or defenses that could have been asserted at trial, will support a bill of review.


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King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003). By contrast, intrinsic

fraud, fraud that relates to the merits of the issues that were or should have been settled

in the former action, will not support a bill of review. Id. This is so because a bill of review

is available only if a party has exercised due diligence in pursuing all available legal

remedies against a former judgment. Wimberly Inv. Co. v. Herrera, 11 S.W.3d 924, 927

(Tex. 1999).


       In the present action, Fulton contends that the State violated his due process rights

in the prior cause by failing to provide him with proper notice of the summary judgment

hearing. Fulton was or, in the exercise of due diligence, should have been aware of the

State’s failure to provide actual notice of the summary judgment in the prior cause before

the deadline to file his notice of appeal. However, Fulton permitted the prior judgment to

become final by his failure to timely invoke his right of appeal. Fulton provides no

legitimate explanation for his failure to avail himself of his appellate remedy;1 makes no

assertion that he was prevented from appealing the prior judgment by fraud, accident, or

wrongful act of the State; and identifies no extrinsic fraud that could not, with the exercise

of due diligence, have been resolved in the prior cause. See French, 424 S.W.2d at 895.




       1
        While Fulton argues against one of the bases for this Court’s determination that
Fulton did not invoke our jurisdiction by his appeal, we note that Fulton did not file a motion
for rehearing with this Court in the prior cause, did not seek an appeal of our judgment to
the Texas Supreme Court, and does not otherwise challenge this Court’s judgment by his
current suit.

                                               4
      For the foregoing reasons, we conclude that the trial court did not err in denying

Fulton’s Bill of Review in the present case. As such, we may not address Fulton’s

challenges to the merits of the prior judgment.


                                       Conclusion


      We affirm the trial court’s summary judgment denying Fulton’s Bill of Review.




                                                  Mackey K. Hancock
                                                       Justice




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