

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
Karl Clauss
Appellant
Vs.                   No.
11-02-00236-CV B Appeal from Collin County
Marianne McEwin, Independent Executrix of 
the Estate of Doris Emdia
Bixby, Deceased
Appellee
 
This case
involves a collateral attack on a judgment in an attempt to avoid the effect of
the compulsory counterclaim rule.  Karl
Clauss sued Marianne McEwin as the Independent Executrix of the Estate of Doris
Emdia Bixby, Deceased, for damages sustained by Clauss resulting from an
automobile accident involving Clauss and Doris Emdia Bixby.  The trial court granted McEwin=s motion for summary judgment holding that
McEwin was a party in an earlier suit between Clauss and McEwin involving the
same accident; and, because Clauss did not file a compulsory counterclaim in
the earlier suit before it was settled and dismissed, Clauss was barred from
bringing the present suit.  Clauss
appeals.  We affirm.
On
September 8, 1999, in Cause No. 380-1581-98 in the 380th District Court of
Collin County, the court entered a dismissal with prejudice in a suit involving
the same accident made the basis of the present suit.  The judgment provided in part:
                      AGREED ORDER OF
DISMISSAL WITH PREJUDICE
 




On this
day came on to be heard the above numbered and styled cause, and came the
Plaintiffs...and Intervenors...Marianne McEwin, Individually and in her
capacity as Independent Executrix of the Estate of Doris Emdia Bixby, Deceased,
by and through their attorney of record and came the Defendant, Karl Clauss by
and through his attorney of record, and it was announced in open Court that all
matters in controversy and dispute had been compromised and settled between
Plaintiffs and Intervenors and Defendant, that Plaintiffs...and
Intervenors...Marianne McEwin, Individually and in her capacity as Independent
Executrix of the Estate of Doris Emdia Bixby, Deceased should recover nothing
from Defendant Karl Clauss herein, that Plaintiffs...and Intervenors...Marianne
McEwin, Individually and in her capacity as Independent Executrix of the Estate
of Doris Emdia Bixby, Deceased claims against Defendant Karl Clauss should be
dismissed with prejudice to the refiling of the same.
 
It is
therefore ORDERED, ADJUDGED and DECREED that
Plaintiffs...Intervenors...Marianne McEwin, Individually and in her capacity as
Independent Executrix of the Estate of Doris Emdia Bixby, Deceased have and
recover nothing from Defendant, Karl Clauss, and that Plaintiffs=...and Intervenors=...Marianne McEwin, Individually and in her
capacity as Independent Executrix of the Estate of Doris Emdia Bixby, Deceased
claims against Defendant Karl Clauss are hereby dismissed with prejudice to the
refiling of the same.
 
All relief
not expressly granted herein is expressly denied.  
 
The
judgment provided that the claims of McEwin, Individually and in her capacity
as Independent Executrix of the Estate of Doris Emdia Bixby, Deceased, against
Clauss were dismissed with prejudice.
Clauss
filed the present suit, Cause No. 296-587-00 in the 296th District Court of
Collin County, on April 12, 2000. 
Clauss sued McEwin, as the Independent Executrix of the Estate of Doris
Emdia Bixby, Deceased, for damages Clauss sustained in the automobile accident
with Bixby.
Based on
the motion for summary judgment, response of Clauss, and briefs of the parties,
the controlling issue is whether or not McEwin, in her representative capacity
as the Independent Executrix of the Estate of Doris Emdia Bixby, Deceased, was
a Aparty@ to the suit that was settled on September 8, 1999, involving the
automobile accident between Clauss and Bixby.




Clauss
concedes in his brief that his claim against McEwin would have been a
compulsory counterclaim if McEwin was a party in the earlier suit in her
representative capacity as the AIndependent Executrix of the Estate of Doris Emdia Bixby, Deceased.@[1] 
Clauss contends that McEwin intervened in the earlier suit only as an Aindividual@ and not in her representative capacity.  Clauss=s
attorney in the present case filed an affidavit in response to McEwin=s motion for summary judgment, stating that
he had reviewed the court file in Cause No. 380-1581-98 (the earlier case) and
that McEwin filed an intervention in that cause on May 13, 1999, but that the
intervention Aspecifically named Marianne McEwin as an
individual.@  The
affidavit states that A[t]he
Estate of Doris Emdia Bixby was not made a Aparty@ in Cause No. 380-1581-98 prior to the
judgment entered on September 8, 1999.
We
conclude that the supreme court in Akers v. Simpson, 445 S.W.2d 957 (Tex.1969),
a case involving a collateral attack on a prior judgment, has rejected the
argument urged by Clauss.  There,
Simpson sued Akers and Akers=s employer, Hayden, for personal injuries sustained by Simpson in an
automobile accident when Akers was driving a vehicle owned by his employer.
Thereafter, Akers sued Simpson in a separate lawsuit for injuries Akers
received in the collision.  While Akers=s suit against Simpson was pending, an agreed
judgment was entered in Simpson=s suit against Akers and Akers=s employer.  The judgment stated
that the case had been settled, and it was ordered and decreed that Simpson Atake nothing@ and that judgment was rendered in favor of Akers and Akers=s employer. 
A summary judgment was later entered in favor of Simpson in Akers=s suit against Simpson based on TEX.R.CIV.P.
97(a).  On appeal, Akers argued that he
was not served with citation in the prior suit filed by Simpson.  The court observed:
It was further established that the answer
filed in the Simpson suit on behalf of Hayden and in the name of Akers was
filed by an attorney who represented either Hayden or his insurer and that
Akers did not know of and did not authorize the filing of the answer in his
name.
 
Regarding the collateral
attack of the earlier judgment entered in the Simpson suit, the court stated:




The judgment in the Simpson suit, above
quoted, recited that Akers was a party defendant and appeared through an
attorney of record.  It is the firmly
established rule in Texas that a defendant who is not served and who does not
appear may not, as a matter of public policy, attack the verity of a judgment
in a collateral proceeding; the jurisdictional recitals import absolute verity.  Crawford v. McDonald, 88 Tex. 626, 33 S.W.
325 (1895), Levy v. Roper, 113 Tex. 356, 256 S.W. 251 (1923), and State
Mortgage Corporation v. Traylor, 120 Tex. 148, 36 S.W.2d 440 (1931); see
Hodges, Collateral Attacks on Judgments, 41 Tex.L.Rev. 162-198, 499-544 (1962).  A collateral attack on a judgment is an
attempt to avoid its binding force in a proceeding not instituted for such
purpose, Crawford v. McDonald, supra, and such is the case here.  Akers chose not to institute a direct attack
on the Simpson judgment by means of which he could have avoided the compulsory
counterclaim effect of the judgment in the suit of Akers against Simpson.  Not having done so, the jurisdictional
recitals of the judgment in the Simpson suit bring Akers under the decisions
which hold that Rule 97(a) bars a subsequent suit growing out of the same
accident when a prior suit between the same parties is concluded by a judgment
pursuant to a compromise settlement agreement. 
 
See
Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 299 (Tex.App. - San Antonio
1999, pet=n den=d), where the court, citing Akers v. Simpson, supra, held: AThe deficiency judgment recited that Lowe was
a party defendant and appeared through an attorney.  Lowe may not attack that judgment in a collateral proceeding.@
The judgment in Cause No. 380-1581-98 recites that Marianne McEwin
appeared in that case individually and Ain her capacity as Independent Executrix of the Estate of Doris Emdia
Bixby, Deceased.@  The
judgment shows that it was approved by attorneys for AMarianne McEwin, Individually and as
Independent Executrix of the Estate of Doris Emdia Bixby.@  The
affidavit of Clauss=s
attorney, in this collateral attack, does not create an issue of fact.  Dispensa v. University State Bank, 987
S.W.2d 923, 928 (Tex.App. - Houston [14th Dist.] 1999, no pet=n).  
TEX.R.CIV.P. 97(a) was amended in 1971, and the following proviso was
added:
[P]rovided, however, that
a judgment based upon a settlement or compromise of a claim of one party to the
transaction or occurrence prior to a disposition on the merits shall not
operate as a bar to the continuation or assertion of the claims of any other
party to the transaction or occurrence unless the latter has consented in
writing that said judgment shall operate as a bar.
 
Clauss
did not urge the proviso copied above. 
The authors in 2 ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON, TEXAS
CIVIL PRACTICE ' 9.79 (2d ed. 2003) give the reason for the
1971 amendment:




Several cases involving
settlement raised problems under the rule as originally enacted.  Each grew out of an automobile
accident.  Driver A sued Driver B.  The latter=s liability insurer then took over the defense and would settle the
plaintiff=s claim, sometimes without the knowledge or
consent of B or his personal attorney. 
Based on such settlement, the actions were dismissed, usually with
prejudice.  When Driver B later sued
Driver A for damages sustained in the same collision, B=s action would be held barred by the
compulsory counterclaim rule.  By
amendment a proviso was added to Rule 97(a) designed to ameliorate such
problems.  That proviso states Athat a judgment based upon a settlement or
compromise of a claim of one party to the transaction or occurrence prior to a
disposition on the merits shall not operate as a bar to the continuation or
assertion of the claims of any other party to the transaction or occurrence
unless the latter has consented in writing that said judgment shall operate as
a bar.@
 
See
Haliburton v. Riley, 589 S.W.2d 821, 822 (Tex.Civ.App. - Waco 1979, no
writ).  It is apparent that the proviso
was added to eliminate the effect of several of the cases cited by McEwin.[2]  
The rule announced in Akers v. Simpson, supra, regarding the
prohibition against attacking Athe verity of a judgment in a collateral proceeding@ is not affected by the proviso added to Rule
97(a) in 1971.  A party attempting to
show the applicability of the proviso would not be collaterally attacking a
prior judgment, but only Aascertaining its scope.@ Stubbs v. Patterson Dental Laboratories, 573 S.W.2d 274 (Tex.Civ.App.
- Eastland 1978, no writ).  The record
in the present case indicates that the earlier suit was settled by Clauss=s Ainsurance company...with Ms. Bixby=s family against [appellant=s] wishes.@  The attorney representing Clauss in the
present suit was not the attorney who represented Clauss in the earlier
suit.  The record does not reflect that
Clauss  consented in writing that the
compromise settlement agreement would operate as a bar to his suit for
damages.  The scope of the judgment in
the earlier suit indicates that, because of the proviso, Clauss=s suit would not be barred by Rule
97(a).  However, Clauss=s only point of error in this case is that
the trial court erred in finding that Marianne McEwin, Independent Executrix of
the Estate of Doris Emdia Bixby, Deceased, was a party to the previous suit,
making this suit a compulsory counterclaim to the previous suit.  The proviso added to Rule 97(a) in 1971 is
not discussed by Clauss in his response or in his brief.  We cannot reverse a summary judgment on a
ground not properly before us. 
Prudential Insurance Company of America v. J.R. Franclen, Inc., 710
S.W.2d 568, 569 (Tex.1986).  Clauss=s point of error is overruled.
The judgment of the trial court is affirmed.
 
AUSTIN McCLOUD
SENIOR JUSTICE
March
20, 2003
Panel consists of: Arnot,
C.J., and
Wright, J., and McCloud,
S.J.[3]




[1]TEX.R.CIV.P. 97(a) provides in part:
 
A pleading shall state as a counterclaim any claim within the
jurisdiction of the court, not the subject of a pending action, which at the
time of filing the pleading the pleader has against any opposing party, if it
arises out of the transaction or occurrence that is the subject matter of the
opposing party=s claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire jurisdiction.


[2]See 2 ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON,
TEXAS CIVIL PRACTICE ' 9.79, p. 683 n.9 
(2d ed. 2003); Akers v. Simpson, supra; Harris v. Jones, 404 S.W.2d 349
(Tex.Civ.App. - Eastland 1966, writ ref=d);
Stringer v. Munnell, 390 S.W.2d 484 (Tex.Civ.App. - Houston 1965, writ ref=d); Beach v. Runnels, 379 S.W.2d 684 (Tex.Civ.App. -
Dallas 1964, writ ref=d).


[3]Austin McCloud, Retired Chief Justice, Court of
Appeals, 11th District of Texas at Eastland sitting by assignment.


