Cindy J. Stiggers v. Washington Mutual Bank--Appeal from 407th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00575-CV

Cindy J. STIGGERS,

Appellant

v.

WASHINGTON MUTUAL BANK,

Appellee

From the 407th Judicial District Court, Bexar County, Texas

Trial Court No. 2006-CI-02180

Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

Delivered and Filed: February 7, 2007

AFFIRMED

Cindy Stiggers appeals the trial court's grant of summary judgment in favor of Washington Mutual Bank. She claims that extrinsic fraud existed to adequately support her bill of review and thus toll the statute of limitations. We affirm.

Factual and Procedural Background

Stiggers originally filed a lawsuit asserting claims for wrongful foreclosure against Fleet Corporation, now Washington Mutual Bank ("WMB"). WMB responded by filing a motion for summary judgment, which was granted by Judge Henry Schuble on October 13, 2000. Stiggers appealed to this court and we issued an opinion affirming the summary judgment. She subsequently filed a series of appeals, all of which were denied. Her appeals included a motion for rehearing in this court, a petition for review and motion for rehearing in the Texas Supreme Court, and a petition for writ of certiorari and motion for rehearing in the United States Supreme Court.

Stiggers filed a bill of review on February 9, 2006, and WMB filed a motion for summary judgment several months later. The trial court granted WMB's motion on June 2, 2006 without specifying the grounds for which it granted relief. Stiggers subsequently filed a motion for new trial which was denied. She subsequently filed her appeal claiming that the trial court erred in granting WMB's motion for summary judgment because there existed material issues of fact to demonstrate and prove extrinsic fraud allowing her to toll the statute of limitations. She also argues that the trial court erred in granting the summary judgment motion as to WMB's arguments of res judicata, collateral estoppel, and issue and claim preclusion because these arguments are allowed by Restatement (2d.) of Judgments. Finally, Stiggers objects to WMB's filing of a supplemental affidavit fifteen minutes prior to the summary judgment hearing on October 13, 2000 and to WMB's sale and transfer of Stigger's property prior to her exhaustion of all appellate remedies.

Standard of Review

We review orders granting summary judgments de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). To prevail on a motion for summary judgment, the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2004) citing Tex. R. Civ. P. 166a(c)). When a defendant moves for summary judgment, it must either (1) disprove at least one element of the plaintiff's cause of action, or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff's cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

A defendant moving for summary judgment on the affirmative defense of statute of limitations has the burden to conclusively establish that defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). Therefore, the defendant must conclusively prove when the cause of action accrued and negate the discovery rule, if it applies and has been pleaded or otherwise raised by the plaintiff. Id. If the movant establishes that the statute of limitations bars the action, the non-movant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id.

When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Two Thirty Nine Joint Venture, 145 S.W.3d at 157. Additionally, when a summary judgment order does not state the grounds on which the trial court relied, the non-movant must negate any grounds on which the trial court could have relied, and we will affirm the summary judgment if any of the grounds presented in the motion is meritorious. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995); Knott, 128 S.W.3d at 217.

Discussion

In her second issue, Stiggers argues that the trial court erred in granting WMB's summary judgment motion based on the affirmative defense of limitations. She states that because WMB engaged in extrinsic fraud, the statute of limitations was tolled. In response, WMB asserts that any fraud that might have occurred was intrinsic and therefore there was no extrinsic fraud to prevent the statute of limitations from running.

A petition for a bill of review must be filed within the residual four-year statute of limitations. Tex. Civ. Prac. & Rem. Code Ann. 16.051 (Vernon 1997); Cadwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998). The only exception to the four-year limitation is when the petitioner proves extrinsic fraud. Defee v. Defee, 966 S.W.2d 719, 722 (Tex. App.-San Antonio 1998, no pet.). Extrinsic fraud is fraud that denies a losing party the opportunity to fully litigate all the rights or defenses that he could have asserted at trial. Browing v. Prostock, 165 S.W.3d 336, 347 (Tex. 2005). Extrinsic fraud generally includes wrongful conduct occurring outside of the adversarial proceedings and must be collateral to the matter tried and not something that was actually or potentially in issue. Id.

In 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." Id. at 347-48. Intrinsic fraud includes fraudulent instruments, perjured testimony, or any matter which was actually presented to and considered by the trial court in rendering judgment. Id. at 348. The Texas Supreme Court has noted that "when the fraudulent acts themselves are in issue, or could have been in issue, in the prior proceeding, the fraud is intrinsic." Id.; see Henderson v. Chambers, No. 03-04-00599-CV, 2006 WL 821297 (Tex. App.-Austin March 31, 2006, no pet.). The Court further elaborated its rationale:

[A]n attack upon a judgment based on intrinsic fraud is not allowed because the fraudulent conduct may be properly exposed and rectified within the context of the underlying adversarial process itself. In contrast, a collateral attack on a judgment on the basis of extrinsic fraud is allowed because such fraud distorts the judicial process to such an extent that confidence in the ability to discover the fraudulent conduct for the regular adversarial process is undermined.

Prostok, 165 S.W.3d at 348.

Here, the original summary judgment ordered against Stiggers was rendered on October 13, 2000. The record shows that Stiggers did not file her bill of review until February 9, 2006, over four years after the original summary judgment was entered. However, Stiggers argues that because there was extrinsic fraud, the statute of limitations should have been tolled. Stiggers alleges that WMB fraudulently persuaded two judges to enter conflicting temporary restraining orders and claims that WMB later evicted her from her home in violation of one of the restraining orders before she was able to exhaust all legal remedies. Stiggers also alleges that the trial judge improperly considered Stiggers' eviction at the hearing of the original motion for summary judgment. Finally, Stiggers contends that in the original summary judgment proceeding, WMB fraudulently filed an affidavit fifteen minutes prior to a hearing without leave of the court.

Because the record reflects that the conduct at issue in this case was known and at issue at the original summary judgment hearing which was held on October 13, 2000, the alleged fraud of which she complains would be intrinsic, not extrinsic fraud. The conflicting temporary restraining orders were signed by both judges on August 11, 2000, Stiggers was evicted from her home on August 16, 2000, and the affidavit was filed on October 13, 2000. (1) Therefore, Stiggers points to no extrinsic fraud in the record showing that WMB prevented her from participating in the lawsuit and raising the above issues at the original summary judgment hearing.

Although a bill of review is an equitable proceeding, the fact that an injustice may have occurred is not enough to justify relief by a bill of review. Wembely Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). Because Stigger's bill of review was not filed within the four-year limitations period and because she did not raise a genuine issue of fact regarding extrinsic fraud, we hold that the trial court did not err in granting WMB's summary judgment motion on the basis of limitations and lack of extrinsic fraud. We overrule Stiggers' second issue.

Conclusion

Having held that the trial court did not err in granting WMB's summary judgment motion on the grounds of limitations, we decline to consider her other issues. We affirm the judgment of the trial court. (2)

Catherine Stone, Justice

1. Stiggers claims that even though the affidavit was filed on October 13, 2000, she did not learn of the affidavit until this year on June 2, 2006. However, she admits that her counsel was aware of the affidavit when it was filed and made an argument during the hearing concerning its late filing. Because knowledge acquired by an attorney is imputed to his client, we hold that Stiggers did in fact have knowledge of the affidavit prior to the original summary judgment hearing on October 13, 2000. American Flood Research, Inc. v. Jones, 192 S.W.3d 581, 584 (Tex. 2006).

2. We note that WMB argues that Stiggers should be sanctioned for a frivolous appeal. We decline to do so.See McMahan v. Greenwood, 108 S.W.3d 467, 500 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (for the proposition that granting sanctions for frivolous appeals is a matter in the discretion of appellate courts that should be exercised with prudence and caution and only after careful deliberation and in truly egregious circumstances).