Affirmed and Memorandum Opinion filed November 6, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00541-CV

AMELIA V. KELLY, Appellant 

V.

MATTHEW D. WIGGINS, JR. AND D. L. HAMMAKER, Appellees 

On Appeal from the 122nd District Court 

Galveston County, Texas 

Trial Court Cause No. 13-CV-1392 

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

This is an appeal from a final judgment entered in favor of appellees Matthew 

D. Wiggins, Jr. and D. L. Hammaker concerning possession of a piece of real 

property, and the denial of the appellant’s alternative motion for factual 

determination. Appellant Amelia Kelly sought declaratory judgment as well as legal 

and equitable claims arising from the entry of a 2012 final judgment and a 2014 postjudgment judicial foreclosure order. In a joint motion in the trial court, the parties 
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sought entry of judgment and Kelly also sought, alternatively, a motion for 

determination of contested issues. Concluding the claims in this case are collateral 

attacks on the validity of a prior adverse judgment, we affirm. 

I. Background 

A. Factual 

The Property 

In 2006, Kelly purchased a large house being operated as a bed and breakfast 

at 701 Bay Avenue in Kemah, Texas. To purchase the property, Kelly executed a 

mortgage note, payable to First Franklin Bank, in the amount of $693,750, which 

was secured by a deed of trust on the property. She did not reside in the property 

and did not designate the property as her homestead. Because the property needed 

updating, Kelly began renovation, tearing out walls, and removing appliances. 

Shortly thereafter, in an attempt to obtain additional financing, Kelly conveyed by 

deed the property to William Kelleher. 

 Three years later, in June 2009, Kelly sought to buy out Kelleher’s interest in 

the property and approached Wiggins for a loan. Wiggins became her partner in the 

bed and breakfast enterprise. Kelly executed a promissory note in the original 

principal amount of $400,000, payable on demand to Wiggins. Kelly executed a 

deed of trust with respect to the property, to secure payment of the note. With funds 

borrowed from Wiggins, Kelly repurchased the property from Kelleher. 

Kelly never paid Wiggins anything. In December 2009, Wiggins gave notice 

of a foreclosure sale for default on the promissory note, to take place on January 5, 

2010. On January 5, 2010, Wiggins’ designee, D. L. Hammaker, conducted a 

nonjudicial foreclosure sale of Kelly’s interest in the property, and sold the property 
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to Wiggins. Wiggins took possession of the property and began paying the monthly 

mortgage to First Franklin Bank. 

 In February 2011, Wiggins refinanced the property through Texas Citizens 

Bank (TCB). Wiggins executed a note for $1,000,000 and a deed of trust on the 

property in favor of TCB. He used approximately $706,000 of the loan amount to 

pay off Kelly’s First Franklin Bank note. 

The Original Case Tried to Jury 

After Wiggins executed the note payable to TCB, in February 2011, Kelly 

sued Wiggins in the 122nd District Court in Galveston County, Cause No. 11-CV325, seeking, inter alia, a court decree voiding the foreclosure. Trial commenced in 

February 2012, and the trial court issued its final judgment on June 22, 2012, 

declaring the January 2010 foreclosure void and decreeing there were no valid 

agreements between Kelly and Wiggins. The trial court awarded title and possession 

to Kelly but granted Wiggins a $660,000 judgment lien on the property in 

recognition of the money Wiggins had spent to purchase, preserve, and improve the 

property. 

Both parties filed a notice of appeal from the 2012 judgment. The appeals, 

which were assigned to this Court, were subsequently dismissed on the motion of 

the respective parties. 

After issuance of this court’s mandate, the trial court entered orders that the 

judgment be carried into execution. Wiggins thereafter sought to enforce the 

judgment issued. Specifically, Wiggins requested entry of an order of judicial 

foreclosure as to the property. After several hearings, briefing, and two petitions 

for mandamus in the court of appeals, on June 23, 2014, the trial court signed an 

order of judicial foreclosure of the lien created in the June 22, 2012 final judgment. 
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In August 2014, Kelly filed a notice of appeal in this Court, contesting the 

trial court’s order of judicial foreclosure of the property. 

On January 12, 2015, a sheriff’s execution sale deed to Wiggins for the 

property was filed in the real property records of Galveston County. 

This Court held on May 15, 2015, that the judicial foreclosure order was a 

post-judgment enforcement order rather than a final appealable order; thus, we 

dismissed the appeal for lack of jurisdiction. 

The Bankruptcy Case

In October 2012, Kelly filed a voluntary petition for relief under chapter 13 

of the Bankruptcy Code, which subsequently was converted to a liquidation under 

chapter 7 in November 2012. Janet Northrup was appointed as the trustee of Kelly’s 

chapter 7 bankruptcy estate. Before the conversion, on October 29, 2012, Wiggins 

moved for, and received, relief from the bankruptcy court automatic stay and 

Wiggins and Kelly were permitted to “exercise their rights and remedies under state 

law” as to the property. Northrup did not object. Subsequently, the bankruptcy court 

entered an order the property was abandoned by the bankruptcy estate. The 

bankruptcy court also noted the existence and validity of the lien on the property 

created by the final judgment in the original case, in Wiggins’ favor. 

Despite the 2012 judgment, Wiggins remained in possession of the property 

and operated it as a bed and breakfast called “Captain’s Quarters.” Wiggins 

maintained the property, paid insurance, and paid the ad valorem taxes on the 

property. 

In January 2013, Northrup filed an adversary proceeding, demanding that 

Wiggins vacate the property and seeking trespass damages against him. After 

conducting a trial in November 2013, the bankruptcy court found that the property 
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was owned by the bankruptcy estate. The court also found that Wiggins was liable 

for trespass from the date he took possession of the property following his purchase 

at the voided foreclosure sale until the present, awarding damages from January 

2010 until February 2014, allowing Wiggins an offset, and reducing the judgment to 

$155,502. 

Wiggins appealed to the district court, which affirmed. Wiggins, in turn, 

appealed to the Fifth Circuit Court of Appeals. On April 12, 2016, the Fifth Circuit 

modified the judgment of the bankruptcy court to award $0 to Northrup as damages 

for trespass. To the extent Wiggins challenged other aspects of the judgment he 

waived those challenges by failing to raise them with the bankruptcy court; thus, in 

all other respects, the judgment of the district court affirming the judgment of the 

bankruptcy court was affirmed. See In re Kelly, 643 Fed. Appx 400, 401–403, 405 

(5th Cir. 2016). 

The Current Case 

On October 31, 2013, Kelly and Northrup filed an original petition and 

application for temporary restraining order, and temporary and permanent 

injunctions in the 405th District Court in Galveston County, Cause No. 13-CV-1392, 

against Wiggins and Hammaker. In their petition, they asserted “Defendants have 

successfully argued in bankruptcy court that jurisdiction lies in the state courts.” 

Wiggins filed a notice of removal to the pending adversary proceeding in bankruptcy 

court. 

 In March 2014, after the bankruptcy estate’s interest in the property was 

abandoned, the case was remanded back to the 405th District Court in Galveston 

County, Cause No. 13-CV-1392, and was transferred to the 122nd District Court in 

Galveston, for further proceedings. In July 2014, Northrup filed in the state trial 

court a motion to dismiss, declaring she no longer desires to prosecute the 
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bankruptcy estate’s claims against Wiggins and Hammaker, and she sought 

dismissal of their counterclaims against the bankruptcy estate. The trial court 

dismissed Northrup in all respects from the litigation on July 31, 2014. 

On June 10, 2015, Wiggins and Hammaker moved to dismiss Kelly’s claims 

for trespass, abuse of process, negligence, waste, nuisance, and declaratory judgment 

quieting title. The record before us does not reflect a hearing was either requested 

or set on the motion to dismiss. 

After two trial settings were passed and several status conferences were held, 

the case was reset for trial on a two-week docket call beginning on June 13, 2016. 

At the pre-trial hearing, the trial court and counsel conferred, and the parties agreed 

to reduce the contested issues to ones of law and to drop all claims other than title 

claims, to prepare the case for an appeal on the main issue of title. Wiggins and 

Hammaker continued to contest that the property was Kelly’s homestead at the time 

the court rendered judgment in the original case in 2012. In February 2017, the trial 

court held another status conference. 

Thereafter, in March 2017, the parties filed a joint motion for entry of final 

judgment after determination on contested issues, if necessary. In the factual 

background of the joint motion, the parties provide: 

Among the issues present in this case are Declaratory Judgment Act, 

legal, and equitable claims arising from the entry of a final judgment in 

Cause No. 11 CV 0325, Amelia V. Kelly v. Matthew D. Wiggins, Jr. and 

D.L. Hammaker, in the 122d Judicial District, Galveston County, Texas 

(the “2012 Final Judgment”), and the entry of a 2014 post-judgment 

Order of Judicial Foreclosure in that same cause (the “Foreclosure 

Order”). This case, the 2012 Final Judgment, and the Foreclosure 

Order all concern the “Property” referenced as 701 Bay in Kemah, 

Texas.”
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In the joint motion, Kelly voluntarily dismissed, without prejudice, her claims for 

abuse of process and/or malicious prosecution, negligence, waste, wrongful eviction, 

and nuisance alleged to arise from Wiggins’ possession of the property (“possession 

claims”). The parties sought a determination as a matter of law on Kelly’s claims 

for wrongful foreclosure, to quiet title, to try title, for permanent injunction, and for 

declaratory judgment (“title claims”). The contested issues in the joint motion 

addressed homestead and purchase money as follows: 

Homestead 

Plaintiff contends that whether the Property was her residence was at 

issue in Cause No. 11CV0325 and that the jury’s verdict and the Final 

Judgment established that the Property was her residence and, although 

homestead was not directly at issue, established the Property as her 

homestead as well. Plaintiff contends that the Court may enter 

judgment as a matter of law in this case that the Property was Plaintiff’s 

protected homestead at the time the Final Judgment was entered.

Defendants contend that the jury’s verdict in Cause No. 11CV0325 

and the Final Judgment establish only that the Property was Plaintiff’s 

residence but not that the Property was her homestead. Nevertheless, 

Defendants contend that any homestead issue is immaterial in this case 

because the Court’s Foreclosure Order in Cause No. 11CV0325 was 

based, in part, on the jury’s verdict that Defendant Wiggins spent 

$660,000 to “purchase, preserve, and improve the [P]roperty.”

Purchase Money 

Plaintiff contends that no part of the $660,000 lien created by the Final 

Judgment was for her purchase of the property and that the homestead 

protections against forced sale prevented the entry of the Foreclosure 

Order in Cause No. 11CV0325, the Sheriff’s foreclosure sale, and the 

delivery and effectiveness of the Sheriff’s Deed. Alternatively, 

Plaintiff contends that any exception to homestead protection would 

only apply to that undetermined part of the $660,000 lien created by the 

Final Judgment that was spent for “purchase” and not for that 

undetermined portion that was spent for “preservation” or 

“improvement.” Plaintiff contends that, if an issue at all, that a factual 

determination must be made of the amount of the $660,000 lien created 
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by the Final Judgment is for “purchase” money and an exception to the 

homestead protection against forced sale. 

Defendants contend that the issue of homestead is immaterial in this 

case. Moreover, Defendants contend that Plaintiff is now precluded by 

claim preclusion and issue preclusion doctrines from obtaining a factual 

determination, redetermination, or allocation of the jury’s findings in 

Cause No. 11CV325 that Defendant Wiggins spent $660,000 to 

“purchase, preserve, and improve the [P]roperty.” Defendants contend 

that this Court may rule as a matter of law that any homestead 

protection would not prevent the entry of the Foreclosure under the 

purchase money exception.

Attached to the joint motion were two stipulated exhibits: 

Exhibit A (stipulated facts) 

Exhibit B (stipulated record) 

 exhibit 1 (jury verdicts in Cause No. 11CV0325), 

 exhibit 2 (final judgment in Cause No. 11CV0325), 

exhibit 3 (Fourteenth Court of Appeals’ dismissal of Kelly’s

appeal from final judgment in Cause No. 11CV325), 

exhibit 4 (Fourteenth Court of Appeals’ dismissal of Wiggins’ 

appeal from final judgment in Cause No. 11CV325), 

exhibit 5 (order of judicial foreclosure in Cause No. 11CV325 

dated June 12, 2014), 

exhibit 6 (trial court’s findings of fact and conclusions of law in 

Cause No. 11CV325), and 

 exhibit 7 (sheriff’s deed to Wiggins dated January 12, 2015). 

Also, in March 2017, Kelly filed an alternative motion for factual determination on 

the remaining title issues. In that motion, Kelly restated the contested issues filed in 

the joint motion for judgment. 

On May 15, 2017, the trial court entered Final Judgment against Kelly and in 

favor of Wiggins and Hammaker, stating as follows: 

(1) The June, 2014 post-judgment Order of Judicial Foreclosure 

was entered by the Court to foreclose the lien on the Property created 
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by the June 22, 2102 Final Judgment in Cause No. 11CV0325, Amelia 

V. Kelly v. Matthew D. Wiggins, Jr. and D.L. Hammaker, in the 122nd 

Judicial District, Galveston County, Texas;

 (2) Since the lien was determined to be for the purchase, 

preservation, and improvement of the Property, no “homestead 

protection” precluded entry of the 2014 post-judgment Order of 

Judicial Foreclosure and the Court need make no determination of fact 

and may rule as a matter of law. 

Additionally, Kelly’s possession claims and Wiggins’ and Hammaker’s 

counterclaims were dismissed without prejudice as per the parties’ stipulations. 

Kelly’s alternative motion for factual determination on the title issues was denied. 

In June 2017, Kelly filed this appeal, challenging the Final Judgment and the 

denial of her alternative motion for factual determination. 

B. Proceedings concerning the property 

 The disputes between the parties have reached several different forums over 

the course of six years, including: 

 Amelia V. Kelly v. Matthew D. Wiggins, Jr. and D.L. Hammaker, Cause No. 

11-CV-0325, in the 122d Judicial District, Galveston (final judgment). 

o Amelia V. Kelly v. Matthew D. Wiggins, Jr. and D.L. Hammaker, Cause 

No. 14-12-00687-CV, 2012 WL 5247354, at *1 (Tex. App.—Houston 

[14th Dist.] Oct. 23, 2012) (appeal dismissed). 

o Matthew D. Wiggins, Jr. and D.L. Hammaker v. Amelia V. Kelly, Cause 

No. 14-12-00710-CV, 2013 WL 85083, at *1 (Tex. App.—Houston 

[14th Dist.] Jan. 8, 2013) (appeal dismissed). 

o In re Amelia V. Kelly, Cause No. 14-14-00789, 2014 WL 5492809, at 

*1 (Tex. App.—Houston [14th Dist.] Oct. 30, 2014, orig. proceeding) 

(relator’s request to compel trial judge to vacate orders pertaining to 

motion by real party in interest to enforce final judgment in underlying 

litigation by foreclosure of relator’s property was denied). 

o In re Amelia V. Kelly, Cause No. 14-14-00944-CV, 2014 WL 7524979, 

at *1 (Tex. App.—Houston [14th Dist.] Nov. 26, 2014, orig. 
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proceeding) (relator’s second petition for mandamus, which challenged 

the same orders as in prior petition, was denied). 

o Amelia V. Kelly v. Matthew D. Wiggins, Jr. and D.L. Hammaker, Cause 

No. 14-14-00605-CV, 466 S.W.3d 324, 327-330 (Tex. App.—Houston 

[14th Dist.] 2015, no pet.) (dismissing appeal for lack of jurisdiction 

because “post-judgment orders made for the purpose of enforcing or 

carrying into effect a prior judgment are not subject to appeal because 

they are not final judgments”). 

 In re Amelia V. Kelly, Cause No. 12-80534, in the United States Bankruptcy 

Court for the Southern District of Texas, Galveston Division. 

o In re Kelly, Cause No. 12-80534-G3-7, 2013 WL 6798894, at **5-6 

(S.D. Tex. Dec. 19, 2013), supplemented by 2014 WL 1330897, at **2-

3 (S.D. Tex. Apr. 1, 2014) (bankruptcy court held Wiggins liable to 

estate for $155,502, which represented reasonable rental total, less 

taxes paid).

o In re Kelly, 643 Fed. Appx. 400, 404-05 (5th Cir. Apr. 12, 2016) 

(affirmed bankruptcy court’s opinion, as modified, to award $0 to 

trustee as damages for trespass and all other aspects affirmed after 

noting Wiggins waived res judicata defense by failing to raise before 

bankruptcy court). 

 Amelia V. Kelly v. Matthew D. Wiggins, Jr. and D.L. Hammaker, Cause No. 

13-cv-1392, in the 122nd Judicial District, Galveston (final judgment entered 

May 15, 2017, in favor of Wiggins and Hammaker and that Kelly take 

nothing). 

o Amelia V. Kelly v. Matthew D. Wiggins, Jr. and D.L. Hammaker, Cause 

No. 14-17-00541-CV (Tex. App.—Houston [14th Dist.] 2017) (current 

pending appeal). 

II. Analysis

A. Appellant’s Issues 

 In her brief, Kelly presents the following eight issues: 

1. Because the new, judicial [sic] created lien was imposed upon 

the property years after Ms. Kelly’s claim to homestead protection 

arose, did the trial court err in granting summary judgment as a matter 

of law in the instant case without allowing Ms. Kelly to present her 
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homestead defense? 

2. Because Wiggins’ deed of trust was expressly voided by the prior 

judgment and replaced by a new, judicially created lien subject to a 

homestead defense, was the trial court’s order granting summary 

judgment as a matter of law error because the judicially created lien did 

not include exempted amounts or, alternatively, because the amounts 

that might qualify under an exemption to the bar on forced sale was not

determined?

3. Because no exception to the Texas Constitution’s bar on the 

forced sale of a homestead was established, did the trial court err in 

ruling as a matter of law that an exemption from the constitutional bar 

applied? 

4. Did the trial court err in granting summary judgment as a matter 

of law because fact issues remained regarding homestead and what 

amount, if any, of the new, judicially created lien was solely attributable 

to “purchase” money and not attributable to “preservation” or 

“improvement”? 

5. Did the trial court err by impermissibly aiding the [sic] Wiggins 

to reach what was exempt property of Ms. Kelly or to reach property 

subject to a claim of exemption without a trial on the merits of the claim 

of exemption?

6. Did the trial court err in allowing the judicial foreclosure to stand 

without requiring Wiggins to remove the $1,000,000 mortgage lien 

Wiggins had caused to burden title to Ms. Kelly’s homestead, which 

would effectively chill any foreclosure sale upon the $660,000.00 

judicially created lien?

7. Did the trial court err in granting judgment as a matter of law in 

favor of Defendants because the stipulated facts and record were legally 

and factually insufficient to support the judgment?

8. Did the trial court deprive Ms. Kelly of her constitutional right 

to a jury trial on contested facts and deprive her of her right to own 

property in violation of her procedural and substantive due process 

rights?
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B. Collateral Attacks 

Kelly’s issues constitute collateral attacks on the 2012 final judgment in 11-

CV-325. “A collateral attack is an attempt to avoid the binding force of a judgment 

in a proceeding not instituted for the purpose of correcting, modifying, or vacating 

the judgment, but in order to obtain some specific relief which the judgment 

currently stands as a bar against.” Browning v. Prostok, 165 S.W.3d 336, 345–46 

(Tex. 2005). A collateral attack is impermissible if it is instituted to interpret a prior 

judgment entered by the same court or another court of coordinate jurisdiction. See, 

e.g., Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 352 (Tex. App.—San Antonio 1999, 

pet. denied) (holding that, in Texas, a litigant may not use a declaratory judgment 

suit to interpret a judgment of the same or another court); see also Cohen v. Cohen, 

632 S.W.2d 172, 173 (Tex. App.—Waco 1982, no writ) (adhering to the Texas rule 

that use of a declaratory judgment suit to interpret a judgment of the same or another 

court is an impermissible collateral attack on the previous judgment). Kelly may not 

challenge the validity of the 2012 final judgment in 11-CV-325 in this proceeding. 

A direct appeal would have been the avenue to challenge the 2012 final judgment in 

11-CV 325, but Kelly chose not to appeal, and the time for appealing that judgment 

has long passed. 

Kelly has attempted to revisit title issues related to the property in multiple 

forums. Kelly cannot raise these same issues by a new suit seeking declaratory 

judgment as to issues in the 2012 final judgment in 11-CV-325. Accordingly, we 

conclude that Kelly’s arguments regarding title to the property in this declaratory 

judgment suit constitute impermissible collateral attacks on the final judgment made 

in 2012 in 11-CV-325. See, e.g., Martin, 2 S.W.3d at 352; see also Cohen, 632 

S.W.2d at 173. Therefore, the trial court properly granted judgment in favor of 
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Wiggins and Hammaker, and properly denied Kelly’s alternative motion for factual 

determination. As such, we overrule Kelly’s issues.

III. Conclusion

 The judgment of the trial court is affirmed. 

 /s/ John Donovan

 Justice 

Panel consists of Chief Justice Frost and Justices Donovan and Brown.