### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00310- CV

Lin da M. F ischer, Appellant

v. Joel H. Kle in; Joel H. Klein & Associat es; Wyat t Wright; Wayne Wr ight LL P ; Billy Wells, and Ch icago Title Insurance Co., Appellees

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 433 RD JUDICI AL DISTRICT NO. C2007 -11 24D, H ONO RAB LE DIB WALDRIP , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

L inda Fische r appea ls the trial court’s deter minatio n t h at it lacke d subject-matter jurisdiction t o h ea r her claims ag ainst appellee s J oel H. Klein, J oel H. Klein & Associates, Wy att Wright, Way

ne Wright L L P, Billy Wells, and Chicag o Title I nsuranc e Comp an y . For the following rea sons, we af

firm. 1

BACK GR OUND Appellee Billy Wells, repr esente d by appellee attorney Wy att Wright, preva i l ed in

a brea ch-of

-contra ct action in Be x ar County and obtained a monetary judgme nt ag ainst

The parties are familiar with the fac ts, proce dural history , an d ap p l icable standards of 1 revie w. Acc ording ly , we will not rec ite them here except as necessar y to advise the pa

rties of the Court’s decision and the basic re asons for it. See Tex. R. App. P . 47.4.Edwar d Fische r, J r., who is appellant L inda Fischer’ s husband. See Fischer v. W ells , No. 04-06- 2 00131-CV, 2 0 0 7 Tex. App. L EXI S 645, at *4 (Tex. App.—San Antonio J an. 31, 2007, no pet.) (mem. op.). L inda did not file a plea in intervention i n t h e Be x ar County suit. See Tex. R. Civ.
P. 60. After the Four th Court of Appea ls aff

ir me d th e ju d g me n

t a g a in s t E d

w a r d, the Fische rs listed proper

ty , a vaca nt lot loca t ed in Comal County , for sale. The Fische rs jointly owned the
proper ty as well as an adjac ent lot, and t h ei r h o m e was on the adjac ent lot. Among Wells’s enfor ceme nt eff

orts in th e Be x ar C o unty suit, he filed a motion seeking a turnover order and the appointment of a rec eiver to take possession of Edwar d’s nonexempt interest in any proce eds from the sale of the proper

ty

. See Tex. C i v . P rac. & Rem. Code § 31.002 (addr essing collection of j udg ment throug h court proce eding s). The Be x ar County trial court g rante d Wells’s mo t i o n an d
enter ed an or der a

ppointing appe llee Joel H. Klein as the re ceive r. On April 17, 2007, the Fische rs attended the closing on the sale of the proper ty

. The
HUD- 1 settlement statement, which the Fische rs signe d, ref lected that a portion of the sale proce eds

wer e allocate d to satisfy the Wells judgme nt. I n the addendum to the HUD- 1 settlement statement, the Fi s ch er s authorized the closing or escr ow ag ent “to make expenditures and disbursements as shown above” and “appr ove[d] same for pay ment.” The Fische rs also signe d an aff idavit as to debts and liens, which listed the p ay off amount to satisfy the Wells judgme nt with the descr iption “AJ pay off to B illy

Wells.”

Be ca u se appellant and her husband share the same last name, we ref er to them b y t h ei r 2 g iven names. 2The following day , W el l s , Edwar d, and Klein filed an ag ree d motion to close

t h e re ce i v ership and disburse funds in the Be x ar County suit. See Fischer v. W ells , No. 04-07-00328- CV, 2008 Tex. App. L EXI S 4934, at *6 (Tex. A pp.—San Antonio July 2, 2008,

no pet.) (mem. op.). The motion notified the trial court that the proper ty had been sold and reque sted that the court order the title company to “‘disburse [t he] funds as re q u es t ed ’” and close the

rec eiver ship. Id

. The trial court g rante d the motion and signe d an “Ag ree d Or d er t o C lose
Rece ivership and Disburse Funds,” which was signe d by Wright, Klein, and Edwar d’s attorney

. I n the agr eed order, the trial court or dere d the receive rship closed and the s ale procee ds disbursed t o specified pay ees as reque sted by the parties, which included the disbursement to Wright, as the attorney for Wells, for the amount of the Wells judgme nt balanc e. Chicag o Title disbursed the sale
proce eds in ac corda

nce w ith the order.
L inda and Edwar d filed a motion for new trial in the Be x ar County suit, whic h was

overr uled by opera tion of law, and then appea led the ag ree d order to the Four th Court of Appea ls. See id. at *1–6. I ssues in the s uit and raised on appea l i n cl uded whether the proper ty was subject
to a homestead exemption. See id

. at *9. The Fourth C ourt of Appe als aff irmed t he agr eed order

as to Edwar d beca

use he had ag ree d to it, id. at *7–10, and held that L inda lacke d standing to appea l beca use she “ was not a pa

rty to the underlying pr ocee ding,” id. at *7.
W h i l e t h at second appea l in the Four th Court of Appea ls was pending , L inda an d Edwar d filed this suit in Comal County

. Edwar d later nonsuited his claims, but L inda continued the

3suit ag ainst appellee s. She alleg ed that appellee s improperly obtained the “ ag ree d” disburseme nt 3
order from the trial court. Acc ording to L inda, the sale proce eds should have been deposited in the
Be x ar County court’s reg istry and, beca use of appellee s’ misconduct, her homestead interest in the sale procee ds was “wrong fully seize[d] .” She soug ht to rec over as ac t u al damage s the amount of the sale proce eds that was disbursed to Wright. Appellee s, except Chicag o Title, filed pleas to the jurisdiction, asser

ting that L inda’s suit was an impermissible collater al attack on the Be x ar County
ag ree d order

. The dist rict court gra n t ed t h e pleas and dismiss ed all claims ag ainst all appellee s. 4 This appea l followed.

DISCUSSIO N

L inda asser

ts, in a single issue, that the trial court “er red in dismiss ing all [her] claims
ag ainst all Def

endants for want of jurisdiction.” L inda asser ts that her claims are not an impermissible collater al attack and that she is not fore closed from bring i n g h er claims seeking damag es i n Comal County beca use she se eks re lief fr om non-parties to the B exar County suit and beca use appellee s committed extrinsi c fra ud by assuring her that her interest in the proper ty would
not be affec ted i n t h e Be x ar C o u nty suit. Acc ording to L inda, wit h the ex ception of the “ag ree d” disbursement order , the Be x ar County order s specifie d that only Edwar d’s interests would be used to satisfy the Wells judgment.

L inda’s claims include abuse of pro cess, rec eiving rec eiver ship proper ty , conver sion, 3 brea ch of fiduciar

y duty , theft under the Texas Theft L iability Act, neg lige nt misrepre sentation, and fra ud in a re al estate transac tion. Although Chicag o Title d i d n o t fi l e a plea to the jurisdiction, a court may consider its 4 jurisdiction on its own initiative. See W aco Indep. Sch. Dist. v. Gibson , 22 S.W .3d 849, 851 (Tex. 2000); Texas W

orker’ s Comp. Comm’n v. Garc ia , 893 S.W .2d 504, 517 n.15 (Tex. 1995). 4To support her arg uments, L inda focuse s on alleg ed inconsistent positions by Wells

and Wrig ht in the Be x ar County suit, whic h she contends denied her a “day in c ourt” and “the due
proce ss pr otections and rig ht to be fre e of unlawful seizures aff orded by ” the Family Code and the
Texas and United States Constit utions. See Tex. Fa m. Code § 3.203 (addr essing order s i n which marital proper

ty is subject to execution). L inda further arg ues that as “a nonparty and a strang er to 5
the [Bexar County ] suit,” she was entitled t o s eek relief in Comal County , “no matter how inconsistent” it might be with the Be x ar County ag ree d order

. She urg es that had appellee s wanted her to be bound by

the ag ree d order , they

wer e re quired to join her a s a par ty

.

“ Co ll a te r a l a tta cks on final judgme nts are g ener ally disallowed beca use it is th e p o li c y of the law to give finality to the j udg ments of t he cour ts.” Browning v. Prostok , 165 S.W .3d 336,
345 (Tex. 2005). “A collater al attack is an attempt to avoid the binding forc e o f a judgme nt in a
proce eding not instit uted for the purpose of corr ecting , modify ing, or vacating the judgme nt, but in order to obtain some specific relief which the judgme nt curr ently stands as a bar ag ainst.” Id. at 346. “Only a void judg ment may

be collate rally

attacke d.” Id. 6

Due Process g uara

ntees g ener ally provide protec tion only ag ainst state action. See Tulsa 5 P r o f

. Collection Servs., Inc. v. Pope , 485 U.S. 478, 485 (1988); Blum v. Y aretsky , 457 U. S

. 9 9 1 , 1002 (1982); Jack

son v. Me tropolit an Edison Co. , 419 U.S. 345, 349 (1974). To direc tly

attack a voidable orde r that is no long er a ppeala ble, a pe rson with an intere st 6 prejudice d by the order may bring a bill of revie w in the court rende ring the order

. See King Ranch, Inc. v. Chapman , 118 S.W .3d 742, 751 (Tex. 200 3 ) (d es cribing bill of review procee dings) ; In re Gene ral Motors Corp ., 296 S.W .3d 813, 821 (Tex. App.—Austin 2009, orig . proce eding ) (noting that voidable orde r is not subje ct to c ollatera l a ttack but ma

y be corr ecte d throug h bill of revie w); Tarrant Restoration v. Texas Arlington Oaks Apts., Ltd. , 225 S.W .3d 721 , 725 n.1 (Tex. App.—Dallas 2007, pet. dismiss ed w.o.j.) (“To have standing , the party bring ing the bill of revie w must have been a party to the underly ing judgme nt or have had a th en -existi ng rig ht or interest prejudice d by

the judg ment.”). 5“[A] suit based on fra ud ‘extrinsic’ to a judgme nt is not considere d a collater al attack
ag ainst the prior judgme nt.” Cocke v. Elliott , No. 03-12-00667- CV, 2013 Tex. App. L EXI S 10736, at *13 (Te x . App.—Austin Aug . 27, 2013, pet. denied) (mem. op.) ( citing Prostok , 165 S.W .3d at 347); see Hende rson v. Chambers , 208 S.W

. 3 d 5 4 6 , 550–52 (Tex. App.—Austin 2006, no pet.) (discussing Prostok and ex amining frau d al l egations t o deter mine whether intrinsic or ex trinsic). “Extrinsi c fra

ud is fra ud that denies a losing party the opportunity to fully litigate at trial all the rig hts

or defe nses that could have been asser ted.” Elliott , 2013 Tex. App. L EXI S 10 7 3 6 , at * 1 3 (citi ng Prostok , 165 S.W .3d at 347); see King Ranc h, Inc. v. Chapman , 118 S.W .3d 742, 752 (Tex. 2003) (discussing extrinsi c and intrinsic fra ud in context of bill of rev i ew p ro ce eding ); Tice v. City of Pasadena , 767 S.W .2d 700, 702 (Tex. 1989) (same ).

Ex trinsic fra

ud “g ener ally inclu d es wrong ful conduct occur ring outside of the adver sarial proce eding s and must be collater al to the matter tried and not something that was actua lly

or potentially in issue.” Elliott , 2013 Tex. App. L EXI S 10736, at *13 (citing Prostok , 165 S.W .3d at 347). “I t is the converse of intrinsic fra ud, which ‘relates to the m erits of the i ssues [t hat] wer e
p re s en t ed an d presumably wer e or should have been settled in the former action.’” Id. at *13–1 4 (citing Prostok , 165 S.W .3d at 347–48 (quoting Tice , 767 S.W .2d at 702)). “I ntrinsic fra ud includes fra udulent in s t ru m en t s , perjure d testimony , or any matter which was actua lly prese nted to and considere d by the trial court in rende ring judgme nt.” Id. (citing P r o s t o k , 1 6 5 S.W .3d at 348). A party may not attack a final judgme nt, otherwise constituting a collater al attack, on g rounds that the judgme nt was obtained throug h fra udulent conduct intrinsic to the judgme nt. See id

. I n other words,

6a court lacks jurisdiction to consider a collater al attack on a final judgme nt that is based on intrinsic

fra ud. Id .; see also Prostok , 165 S.W .3d at 345–46.

“The essential point in the analy sis is if the conduc t at issue in the current sui t was
at issue or could have been at issue in t h e p re v i o u s s u it, the claims are intrinsic to the prior judgme nt.” Elliott , 2013 Tex. App. L EXI S 10736, at *14 (quoting Hende rson , 208 S.W .3d at 552). “Consequently , ‘[a]ny at t em p t t o relitig ate the claims in a new lawsuit, even if based on new information, constitutes a collater al attack on the prior judgme nt.’” Id

. “Similarly , ‘the question of whether alleg ations of fra ud are intrinsic or extrinsi c to a prior judgme nt does not hinge exclusively

on who the parties wer e to the prio r j u d g ment,’ but instead ‘is a question of whether the conduct being complained of was known or could have been known, or was a t issue or potentially at i ssue in the prior lawsuit.’” Id

. (quoting Hende rson , 208 S.W .3d at 553 (c iting Prostok , 165 S.W .3d at 347–48)). “I n these respe cts, the distinction trac ks the ‘transa ctional approa ch’ to claim prec lusion that has bee n adopted by

the Texas Supreme Court.” Id .; see also Barr v. Resolution Trust Corp ., 837 S.W .2d 627, 630 (Tex. 1992) (“A subsequent s u i t wi l l b e barr ed if it arises out of the same subject matter of a previous suit a nd which throug h the exercise of due diligenc e, could have been litigated in a

prior suit.”). Appellee s arg ue that L inda’s suit is an impermissible collater al attack on the ag ree d order from the Be x ar County suit be cause she seeks to a void the binding e ffe ct of that orde r based

on alleg ations of intrinsic, not extrinsi c, fra ud. We ag ree . The essenc e of L inda’s claims is alleg ed 7

I n addition to urg ing that L inda’s suit seeks to avoid the binding eff ect of the Be x ar County 7 ag ree d order based on alleg ations of i ntrinsic, not extrinsi c, fraud, appellees arg ue that she was in privity or virtually repr esente d by Edwar d in the Be x ar County suit and there fore bound by the order

. 7misco n d u ct in the Be x ar County suit, primarily misrepre sentations to her and to the trial court,

resulting in the trial cou rt en tering the “ag ree d” final disbursement order that order ed the disbursement of the Wells judg ment amount direc tly to Wrig ht, a nd not to the court’s reg istry

. I n 8
her pleading s, L inda seeks to rec over as actua l damag es the portion of the sale proce eds that Chicag o Title disbursed to Wright, and her claims challeng e this disb u rsement, a matter that was actua lly
prese nted to and considere d by the Be x ar County court in rende ring the ag ree d order

. See Prostok , 165 S.W .3d at 348. Thus, her claims nece ssarily challeng e the integ rity of the Be x ar County ag ree d order and attempt to avoid i t s fo rc e. S ee id. at 346–49 (conc luding that challeng e to integ rity of judgme nt to obtain monetary damag es constituted impermissible collatera l attack)

. Fur ther, L inda was aw ar e and participa ted in the Be x ar County suit, and the proper

ty ’s status as a homestead was addre ssed in that su i t

. See Fischer , 2008 Tex. App. L EXI S 4934, at *1–6. Although L inda did not seek to intervene , she could have, and the Fi s ch ers filed a motion for new trial from the ag ree d order and appea led the order to the
Four th Court of Appea ls. See id. ; Lerma v. Forbes , 166 S.W .3d 889, 893 (Tex. App.—El Paso 2005,
p et

. d en ied) (conc luding that trial court did not abuse discretion by allowing party to interv en e
pos t -j udg ment to protec t interests); Breazeale v. Casteel , 4 S.W .3d 434, 436 (Tex. App.—Austin 1999, pet. denied) (“We can see no rea son to prohibit post-judgme nt intervention wher e, as here , the

We limit our analy sis to wh et h er L inda’s claims ag ainst appellee s constitute extrinsi c or intrinsic fra ud beca use our c onclusion on that g round is dispositi ve. See Tex. R. App. P . 47.1. For example, in her amende d reply brief, L inda claims that “the intent to misuse the ‘ag ree d 8 order ’ to dispose of [her] interest without t h e d ue proce ss and partition suit Wells and Wright promised to the trial court was mi s r ep r es en t ed to the trial court

. And, the misuse of the entire proce ss was conce aled from the trial cour t.” 8intervenor mere ly seeks to protec t his interest in proper ty that is the subject of a turnover motion.”); Ranger Ins. Co. v. Rogers , 530 S.W .2d 162, 167–68 (Tex. Civ. App.—Austin 1975, writ ref ’d n.r.e.) (dete rmining that non-par ty “wa s not a strang er to consent judgme nt” and prohibiting collater al attack)

. The ag ree d order also order ed the disbursement of the sale proce eds in acc ordanc e with the Fische rs’ written and sworn authorizations at the closing on the proper ty , including their authorization to disburse the judgme nt amount to W rig ht.

Considering L inda’s pleading s and the evidenc e rele vant to the jurisdictional issue,

we conclude that L inda was not a strang er to the ag ree d orde r and that her claims are of intrinsic fra ud and impermissible collater al attacks on that order

. See Prostok , 165 S.W .3d at 348; Rogers , 530 S.W .2d at 167–68; see also Texas Dep’ t of Parks & W ildl i f e v. Mi r a n da , 133 S.W .3d 217,
226–2 7 (T ex . 2004); Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 555 (Tex. 2000). Thus, the trial court c orre ctly

conclude d that it did not have jurisdiction to consider L inda’s cla ims.

CONCLUSION
F o r the se rea sons, we overr ule L inda’s issue and aff

irm the trial court’s order g rant in g the pleas to the jurisdiction and dismissing L inda’s cla ims for want of jur isdiction. 9

Wells, W rig ht, and Wright’s firm reque st that this C ourt impose sanctions ag ainst L inda 9 and her attorney

. We decline to exercise our discretion to do so. See Tex. R. App. P. 45 (allowing damag es for

frivolous appe als in civil cases)

. 9____________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Oc tober 23, 2014

10