Jones v. Jones , 888 S.W.2d 849 ( 1994 )

HUTSON-DUNN, Justice,

concurring and dissenting.

I agree with the majority in its analysis and result in point of error one. I disagree with the majority’s determination in point of error two, and thus dissent in that regard.

It is necessary to set out a careful analysis of the facts in this record in order to address the second point of error. The appellant filed three lawsuits in the probate court and one lawsuit in the Bexar County district court. The lawsuits, filed by the appellant in the Harris County Probate Court Number One, were causes No. 195,819-003, -401, and -402 (cause no. 402 1st.) The appellant also filed a lawsuit in the Bexar County Court, No. 90-CI-11271.

Appellant’s lawsuit No. -003 contested the will and alleged:

(1) that undue influence was exerted over the deceased;

(2) that the deceased lacked testamentary capacity;

(3) that the will was in fraud of her community estate and her inheritance rights leaving her, his common law wife, and Ms minor cMld -without support (the period of the common law marriage asserted was following the divorce in 1973 to the death of the deceased);

(4) that she should have her one half share of the property acquired during the term of “their three marriages”; and

(5) that the will was secured by fraud on the deceased, or by forgery, i.e. that he did not know that he was signing a will, or that certain misrepresentations were made to the deceased when he signed the will. Appellant requested a constructive trust.

She asked that the will be set aside and that she be awarded her one half of the commumty estate plus one-third of his separate property as inheritance rights. Alternatively, she prayed that her share of Ms estate be placed in a constructive trust and an accounting ordered.

Appellant’s lawsuit No. 195,819-401 alleged:

(1)a claim against the estate for child support pursuant to the 1973 judgment of divorce in the amount of $9,050.

This suit was settled and judgment signed in September of 1985.

Appellant’s lawsuit No. 195,819^402 (1st) alleged:

(1) conspiracy by the defendants in this cause, and not the decedent, to perform an illegal act by concealing and misrepresenting the existence of property accumulated by she and the deceased, belonging to the commumty estate arising from her common law marriage to decedent following her 1973 divorce;

(2) that the deceased fraudulently concealed property owned by him during two periods of time, i.e. the 1973 divorce and the common law marriage wMch they entered into after the 1973 divorce;

(3) that the deceased made misrepresentation about the property he owned during two periods of time, i.e. the 1973 divorce and during the common law marriage entered into following the 1973 divorce to her detriment; and

(4) that she would not have agreed to the 1973 divorce or the common law marriage afterwards without a division of the concealed property if she had known about the fraudulent concealment.

She sought actual and pumtive damages against the defendants jointly and severally as well as a constructive trust.

Appellees filed their first summary judgment in cause no. 402 (1st). (TMs is the summary judgment on wMch the majority relies in finding that res judicata precludes tMs suit as to fraudulent concealment in the 1973 divorce.) Appellees asserted as grounds for the motion for summary judgment the following:

(1) judicial estoppel from asserting that she entered into a common law marriage with the decedent because in the earlier suit, 401, she maintained that she was divorced from decedent;

(2) equitable estoppel from asserting her common law marriage to decedent after her assertions in suit 401, that she was divorced from decedent; and

(3) collateral estoppel from relitigating the issue of her common law marriage to decedent after it was previously determined in suit 401 by her assertion that she was divorced.

As you may note, there is no ground for summary judgment based on fraudulent concealment. Appellees asserted that appellant was not an “interested person” in the estate and did not have standing to bring the suit. Again, these were the only grounds asserted by the appellees to support tMs motion for summary judgment.

Based on the above motion, the court rendered its order on October 15, 1990, and awarded appellee a summary judgment in cause no. 402 (1st). In this final judgment the court made the following findings:

(1) appellant agreed to dismiss all causes of action in suit 003 and

(2) appellant is estopped from asserting that she entered into a common law marriage with decedent and is therefore not an interested person in the estate.

Appellant filed a bill of review in Bexar County, cause No 90-CI-11272. The record does not reveal at what point in time tMs bill was filed. I note, however, that appellees’ motion for summary judgment following the transfer of the bill of review out of Bexar County asserts that it was filed on August 7, 1990.

The bill of review filed in the Bexar County court was a direct attack on the 1973 Bexar County judgment of divorce between appellant and the deceased. In the bill of review appellant alleged:

(1) that she had a meritorious defense to the division of property as set forth in the 1973 divorce decree;

(2) that she did not make a defense at the time the divorce decree was entered because of her husband’s fraudulent concealment of his ownership in the business Star Cooling Towers, Inc. at the time of the divorce; and

(3) that the concealed property was sold and the proceeds were invested into another business, Jones Cooling Tower, Inc.

Appellant prayed that the court redivide the community property in the 1973 divorce because of the fraudulent concealment.

On March 20, 1992, this bill of review was transferred by the Bexar County Court to the Harris County Probate Court and assigned the same number 402 as the cause contesting the decedent’s will which we have called cause no. 402 (1st). Therefore, we will refer to the Bexar County bill of review as cause no. 402 (2nd).

After the transfer of the bill of review, appellees filed motion for summary judgment in the bill of review cause no. 402 (2nd). They alleged as grounds for their motion for summary judgment, the following:

(1) res judicata, arguing that the final judgments in 003 and cause no. 402 (1st) preclude any recovery by appellant in cause no. 402 (2nd) because appellant alleged fraudulent concealment in 003 and cause no. 402 (1st) and those cases had already come to judgment;

(2) appellant has no interest in the property that she asserts was concealed from her because the property did not exist at the tíme of her divorce in 1973; and

(3) the statute of limitations on the bill of review, cause no. 402 (2nd) had expired.

The court entered a summary judgment for appellee on November 24,1992, in the bill or review cause no. 402 (2nd) and ordered that appellant take nothing in her suit on bill of review. This is the summary judgment from which appellant appeals. We must address whether or not any of the above grounds for summary judgment support the trial court’s ruling.

The majority concludes that the doctrine of res judicata applies to appellant’s bill of review because appellant’s claim of fraudulent concealment had already been resolved against her on the merits in cause no. 402 (1st). I disagree. I would hold that res judicata is not applicable to the bill of review in cause no. 402 (2nd) for two reasons. First, the Harris County Probate Court did not acquire jurisdiction to hear the issue of fraudulent concealment in the bill of review cause no. 402 (2nd) until after the transfer from Bexar County. Second, there was no ground asserted in the motion for summary judgment in cause no. 402 (1st) regarding fraudulent concealment and the motion was granted because appellant was not an “interested person” in the estate.

As to the first reason set out above, I rely on the following authority. A bill of review is a direct attack on a judgment. Magan v. Hughes Television Network, 727 S.W.2d 104, 105 (Tex.App.—San Antonio 1987, no writ). A direct attack upon a judgment must be brought in the same court that entered that judgment. Outlaw v. Noland, 506 S.W.2d 734, 735 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref'd n.r.e.). An equitable bill of review must be brought in the same court that rendered the judgment it is attacking. Jackson v. Thompson, 610 S.W.2d 519, 522 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ); State v. 1985 Chevrolet Pick-Up Truck, 768 S.W.2d 484, 485 (Tex.App.-Beaumont 1988), rev’d on other grounds, 772, S.W.2d 447 (Tex.1989) (per curiam), opinion withdrawn and opinion substituted, 778 S.W.2d 463 (Tex.1989). The bill of review, claiming fraudulent concealment of property, filed in Bexar County, attacks the validity of the divorce decree and must be brought in the court which entered the decree. McCombs v. Forney, 607 S.W.2d 591, 592 (Tex.Civ.App.—Houston [1st Dist.] 1980, no writ).

In this ease, even assuming that the majority is correct in their assertion that 402 1st involves issues of fraud during the 1973 divorce, the Harris County Probate Court did not have jurisdiction to determine this issue. The issues of fraud surrounding the 1973 divorce were a direct attack on the judgment of the Bexar County court that rendered the 1973 divorce decree and must be filed in the court rendering the decree. McCombs, 607 S.W.2d at 592. Therefore, only the Bexar County court had jurisdiction over the issues of fraud surrounding the 1973 divorce which directly attacked the divorce decree. Id; Outlaw, 506 S.W.2d at 735; Jackson, 610 S.W.2d at 522.

After a bill of review has been filed in the proper court so that jurisdiction attaches, the cause may be transferred to another court for trial. Outlaw, 506 S.W.2d at 735; Jackson, 610 S.W.2d at 522. The Harris County Probate Court did not have jurisdiction over the issues of fraud in the 1973 divorce until after the Bexar County court transferred the bill of review to Harris County Probate Court. Outlaw, 506 S.W.2d at 735; Jackson, 610 S.W.2d at 522. The bill of review was not transferred to the Harris County Probate Court until after the Harris County court entered the summary judgment in 402 (1st). Therefore, it was impossible for the Harris County court to resolve the bill or review issues of fraudulent concealment during the 1973 divorce in the summary judgment in cause no. 402 (1st). I would hold that as a matter of law the trial court could not have based the 402 (2nd) summary judgment on res judicata.

As to the second reason that the summary judgment could not be based on res judicata, although I agree with the majority’s recitation of the law of res judicata, I believe its’ analysis overlooks one of the elements. “Issues that are not actually tried and determined in the first action will not be precluded from relitigation, unless those issues were essential to the judgment of the prior suit.” K.F. ex rel Faour v. Faour, 762 S.W.2d 361, 362 (Tex.App.—Houston [1st Dist.] 1988, writ denied).

The original lawsuit 402 (1st) was a will contest. The summary judgment stated that appellant’s claims in that suit were denied because she was not a person “interested in the estate.” Only persons interested in the estate may bring a will contest proceeding. Tex.PROB.Code Ann. § 10 (Vernon 1980). “Persons interested means heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered-” Tex.PROB.Code Ann. § 3(r) (Vernon Supp.1994).

The bill of review which was transferred to the probate court was not a will contest. It was a suit to set aside the trial court’s division of property made in the 1973 divorce decree due to fraudulent concealment. For this type of suit, there is no requirement that a party be a person interested in the estate in order to bring their cause of action. Appellant’s issues of fraud alleged in the bill or review attacking the Bexar County court judgment filed against her former husband, the deceased, were not tried in the original lawsuit, cause no 402(lst). See Faour, 762 S.W.2d at 362. The court precluded appellant from trying any issues regarding fraud because it found she was not a person interested in the estate. The issues regarding fraud were not essential to the judgment in that case as appellant did not litigate them in that suit. See id.

In conclusion, I would hold that appellant’s bill of review should not have been precluded by res judicata. Therefore, I would address the other grounds asserted in appellees’ motion for summary judgment.