Opinion
No. 04-09-00477-CV
Delivered and Filed: June 2, 2010.
Appelaled from the 224th Judicial District Court, Bexar County, Texas, Trial Court No. 2007-CI-09251, Honorable Barbara Hanson Nellermoe, Judge Presiding.
Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
AFFIRMED.
Maria Sanchez appeals from the trial court's denial of her petition for bill of review. We affirm.
BACKGROUND
Maria and Mario Sanchez formed several music companies during the course of their marriage, including Planeta Latino Music Publishing ("Planeta Latino") and Albersan Music Publishing ("Albersan"). In May 2002, Maria filed an original petition for divorce on the ground that her marriage to Mario had become insupportable. Maria was represented by counsel during the underlying divorce proceeding and employed a business appraiser to assist her with the divorce.
The trial court signed a final decree of divorce in September 2006. Maria was awarded ownership of Planeta Latino pursuant to the terms of the divorce decree, while Mario was awarded ownership of Albersan. After the divorce became final, however, Maria discovered Mario had fraudulently transferred valuable song catalogues from Planeta Latino to Albersan on November 6, 2003. Maria claims Mario's fraud had an adverse impact on the value of Planeta Latino, and that she would not have entered into the divorce agreement had Mario disclosed this fact. Thus, on June 20, 2007, Maria initiated the instant bill of review proceeding, seeking to set aside the final divorce decree because of her ex-husband's fraud.
Mario forged Maria's signature to an instrument authorizing the transfer of assets from Planeta Latino to Albersan
The trial court held a hearing on Maria's petition for bill of review on November 28, 2007. The court determined Maria's petition for bill of review concerned a matter of intrinsic fraud and denied her petition. Maria appeals, claiming the trial court abused its discretion by denying her petition for bill of review.
STANDARD OF REVIEW
We review the grant or denial of a bill of review under an abuse of discretion standard. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.-Houston 2002, no pet.). When reviewing the grant or denial of a bill of review, we indulge every presumption in favor of the trial court's ruling. Narvaez v. Maldonado, 127 S.W.3d 313, 319 (Tex. App.-Austin 2004, no pet.). We will not disturb the trial court's ruling unless the court acts in an unreasonable or arbitrary manner or without reference to any guiding rules and principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).
DISCUSSION
"A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal." Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998). "Generally, bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies against a former judgment and, through no fault of its own, has been prevented from making a meritorious claim or defense by the fraud, accident, or wrongful act of the opposing party." Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). "The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point." Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987). "Although it is an equitable proceeding, the fact that an injustice has occurred is not sufficient to justify relief by bill of review." Herrera, 11 S.W.3d at 927.
"Fraud in relation to attacks on final judgments is either extrinsic or intrinsic. Only extrinsic fraud will support a bill of review." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003). The Texas Supreme Court has stated, "[e]xtrinsic 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. Extrinsic fraud includes "wrongful conduct practiced outside of the adversary trial — such as keeping a party away from court or making false promises of compromise — that affects the manner in which the judgment is procured." Rhamey v. Fielder, 203 S.W.3d 24, 29 (Tex. App.-San Antonio 2006, no pet.). "Extrinsic fraud is `collateral' fraud in the sense that it must be collateral to the matter actually tried and not something which was actually or potentially in issue in the trial." Montgomery v. Kennedy, 669 S.W.2d 309, 312-13 (Tex. 1984).
By contrast, intrinsic fraud "relates to the merits of the issues that were presented and presumably were or should have been settled in the former action." King Ranch, 118 S.W.3d at 752. Intrinsic fraud includes 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. 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.
Maria contends Mario's fraud concealed the true value of Planeta Latino and prevented her from asserting her right to a proportionate share of their assets. It is well settled, however, that the "misrepresentation of the value of known community assets, without more, does not constitute extrinsic fraud." Lee v. Johnson, 858 S.W.2d 58, 60 (Tex. App.-Houston [14th Dist.] 1993, no writ). Maria, aided by her lawyer and appraiser, should have known about the financial conditions of Planeta Latino and Albersan because she was afforded the opportunity to conduct an independent investigation of the assets and their values prior to the entry of the final divorce decree. Every relevant piece of information regarding the true value of the businesses was available to Maria during the original divorce proceeding through normal discovery procedures. See Kennell v. Kennell, 743 S.W.2d 299, 301 (Tex. App.-Houston [14th Dist.] 1987, no writ) (holding divorced wife's summary judgment evidence on bill of review concerning her former husband's misrepresentations did not show extrinsic fraud because information regarding true value of company was available during original divorce proceeding through normal discovery procedures). Because Mario's fraud was intrinsic in nature and not the proper subject for a bill of review, we cannot say the trial court abused its discretion by denying Maria's petition for bill of review. Maria's sole issue on appeal is overruled.
The record shows Maria had adequate reason to inquire into the financial conditions of the businesses when she stopped receiving royalty checks for songs under Planeta Latino in 2003. Maria suspected Mario was receiving theroyalties from the songs under Planeta Latino, but never approached him about the matter.
CONCLUSION
Based on the foregoing, the judgment of the trial court is affirmed.