NANCY ELAINE ROVNER,FROM A DISTRICT COURT APPELLANT, v. IVAN DAVID ROVNER, APPELLEE

 
 
 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00692-CV
 
 
NANCY ELAINE ROVNER,FROM A DISTRICT COURT
 
        APPELLANT,
 
 
v.
 
 
IVAN DAVID ROVNER,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, LAGARDE AND WHITTINGTON
OPINION BY JUSTICE HOWELL
JULY 19, 1989
 
        In this partial summary judgment case, Nancy Rovner (Wife) asserts that the trial court erred in finding that her claims of fraudulent inducement to enter into a settlement agreement were barred by res judicata and constituted a collateral attack on a final judgment. In addition, Wife complains that summary judgment was granted prematurely, before special exceptions were filed and before Wife was allowed to replead. Lastly, Wife asserts that the trial court erred in transferring this cause from the district court to a family law court. Finding no merit in Wife's contentions, we affirm.
        Wife petitioned Ivan David Rovner (Husband) for divorce, and the agreed judgment of divorce was entered January 10, 1986. Wife asserts that certain statements Husband made during negotiation of the property settlement fraudulently induced her to enter into the agreed judgment. Consequently, she filed the instant lawsuit in the 162nd district court of Dallas County. Husband moved to transfer the suit to the 256th district court pursuant to Dallas Civil District Court Rule 1.1(f)(2)(1c). FN:1 The 256th district court originally entered the agreed judgment of divorce. The 162nd district court granted Husband's transfer motion. Husband then filed a motion for partial summary judgment, which was also granted.
RES JUDICATA and COLLATERAL ATTACK
        As we have noted, Husband and Wife agreed to the divorce decree entered by the trial court in 1986. Once the parties' agreement has been approved by the court and made a part of the judgment, the agreement is no longer merely a contract between private individuals but is the judgment of the court. Ex parte Gorena, 595 S.W.2d 841, 844 (Tex. 1979). A final judgment cannot be collaterally attacked in a subsequent lawsuit unless it is void--that is, when it is shown that the court had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985); see also Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987) (op. on reh'g). Errors other than lack of jurisdiction render the judgment merely voidable, and such errors must be attacked on appeal within prescribed time limits. Cook, 733 S.W.2d at 140. When time for direct attack by appeal has elapsed, a bill of review in the court rendering the initial judgment is the exclusive remedy to attack the judgment. Browning, 698 S.W.2d at 363. These rules apply to judgments in divorce cases. See, e.g., Cook, 733 S.W.2d at 140; Peddicord v. Peddicord, 522 S.W.2d 266, 267 (Tex. Civ. App.--Beaumont 1975, writ ref'd n.r.e.).
        Collateral attack stems from the doctrine of res judicata. Res judicata precludes a second suit by the same parties on matters actually litigated and on causes of action or defenses arising out of the same subject matter that might have been litigated in the first suit. Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984). Res judicata also bars relitigation of any issues that, through the exercise of reasonable diligence, could have been litigated in the initial suit. City of Lucas v. North Texas Mun. Water Dist., 724 S.W.2d 811, 819 (Tex. App.--Dallas 1986, writ ref'd n.r.e.).
        This Court faced an analogous situation to the instant case in Vartanian Family Trust No. 1 v. Galstian Family Trust, 724 S.W.2d 126 (Tex. App.--Dallas 1987, no writ). In Vartanian, two families entered into a settlement agreement dividing various joint venture properties. The trial court entered a final judgment. Subsequently, the Vartanians discovered that one of the properties had a termite infestation, and the Vartanians sued the Galstians claiming they had been fraudulently induced to enter into the settlement agreement. This Court held that the final judgment was conclusive, not only on matters actually litigated, "but also on every other matter which the parties might have litigated and had decided as an incident to or essentially connected with the subject matter of the litigation." Id. at 128. The fraud discovered after the judgment does not vitiate its res judicata effect; the judgment cannot be attacked except by the exclusive remedy of bill of review. Id. In sum, therefore, Texas law provides that issues which could have been discovered and litigated prior to final judgment are barred by res judicata, and problems discovered after a final judgment and appeal must be attacked by a bill of review.
        In the case at bar, we conclude that the alleged misrepresentations, which Wife claims fraudulently induced her to enter into the settlement agreement, were all issues that she might have litigated in the first suit through the exercise of diligence, or they were essentially connected with the subject matter of the initial litigation. First, Wife claims that Husband misrepresented the tax consequences of certain real estate assigned to her. At this point, we note that during the divorce, Wife was represented by counsel while Husband was not. Thus, any doubt as to tax consequences could have been investigated by Wife's lawyer prior to the decree. Moreover, the real estate, as part of the community estate, was property incident to the divorce; as such, any claims relating to it should have been tried in the first suit.
        Wife next presents various allegedly misleading statements regarding: (1) cash flow from a certain company; (2) Husband's intention to create a trust fund for their child; and (3) that a sale was pending against certain real estate awarded to Wife. These statements, through the exercise of diligence, could have been probed by Wife and her attorney and litigated before she signed the decree. Further, this property was incident to the divorce.
        Wife also asserts that Husband concealed a bank account from her and falsely advised her about which life insurance policy she should take in the property settlement. Again, Wife or her attorney could have questioned Husband, requested bank records, and litigated these issues in advance of the decree. Lastly, Wife maintains that Husband misrepresented that his salary was $24,000 a month FN:2 and that he had no other income. Simple reference to income tax returns would have revealed the truth or falsity of this statement prior to entry of the decree. In conclusion, each of Wife's claims could have been litigated before the decree was entered, or they were essentially connected with the subject matter of the first lawsuit--divorce and property settlement. Therefore, they were barred by res judicata from relitigation in a subsequent lawsuit.
        Further we acknowledge, for argument's sake, that even if these misrepresentations were not discoverable or litigable prior to the agreed judgment, Wife's only means of attacking the judgment after the time for appeal had expired is a bill of review. Wife, bound by the res judicata effect of the final divorce decree, cannot now claim in a new and independent lawsuit that she was fraudulently induced to enter the settlement agreement. Such a lawsuit affects the integrity of the agreed judgment and, as such, constitutes an impermissible collateral attack. See, e.g., Hogan v. City of Tyler, 602 S.W.2d 555, 558 (Tex. Civ. App.--Tyler 1980, writ ref'd n.r.e.); Reeves v. Fuqua, 277 S.W. 418, 423 (Tex. Civ. App.--Amarillo 1925, writ dism'd). Consequently, Wife's remedy for Husband's alleged fraud is a direct attack by bill of review. See Vartanian, 724 S.W.2d at 128. We overrule point of error one.
SPECIAL EXCEPTIONS
        By point two, Wife asserts that the court erred in granting summary judgment before special exceptions were filed and sustained and before Wife had an opportunity to replead. Citing Massey v. Armco Steel Co., 652 S.W.2d 932 (Tex. 1983); Texas Dep't of Corrections v. Herring, 513 S.W.2d 6 (Tex. 1974). We disagree. The Texas Supreme Court in Herring stated, "It is recognized that a party may plead himself out of court; e.g., the plaintiff may plead facts which affirmatively negate his cause of action." Herring, 513 S.W.2d at 9. In such a situation, the court properly grants defendant's summary judgment motion. Id. Such is the case here. Wife pleaded in her original petition:
                On or about January 10, 1986, the 256th Judicial District Court of Dallas County, Texas entered an Agreed Decree of Divorce, setting forth certain property rights and certain obligations between the parties. . . .
 
                Ivan David Rovner fraudulently induced Nancy Rovner into causing the Agreed Decree of Divorce to be entered, . . .
Thus, Wife admitted that the agreed judgment had been previously entered in January 1986 and essentially stated that Husband's fraud caused her to agree to sign the decree. Plainly, in view of the date alleged, FN:3 these statements set up a collateral attack on a final judgment involving the same parties and issues. These statements, therefore, do not allege a valid claim; moreover, amendment of this pleading could not create a cause of action. As we have held, this lawsuit was barred by the res judicata effect of the prior agreed judgment. Consequently, the trial court did not err in entering summary judgment before Wife amended her pleadings. We overrule point two.
TRANSFER TO FAMILY LAW COURT
        In her final point, Wife urges that the trial court erred in transferring this lawsuit from a civil district court to the family law court in which the original divorce decree was entered. However, our review of the appellate record reveals no objection by Wife, written or otherwise, to Husband's motion to transfer. Pursuant to rule 52(a) of the Texas Rules of Appellate Procedure, Wife has failed to preserve any error by her failure to object to the transfer in either of the courts below. As such, any error is waived. TEX. R. APP. P. 52(a). We overrule point three.
        We affirm the trial court's judgment.
                                                  
                                                  CHARLES BEN HOWELL
                                                  JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00692.F
 
FN:1 Dallas Civil District Court Rule 1.1 provides in pertinent part:
 
f. Transfer of Cases.
. . . .
     (2) Whenever any pending case is so related to another case previously filed in or disposed of by another District Court of Dallas County that a transfer of the later case to such other court would facilitate orderly and efficient disposition of the litigation, the Judge of the court in which the earlier case is or was pending may, upon notice and hearing, transfer the later case to such court.
     The following type of case shall be subject to transfer under this rule:
. . . .
     (1c) Any case involving a plea that a judgment in the earlier case is conclusive of any of the issues of the later case by way of res judicata or estoppel by judgment, or any pleading that requires a construction of the earlier judgment or a determination of its effect.
FN:2 Husband was a physician.
FN:3 The date of the divorce decree (January 1986) and the date of Wife's petition (October 1987) indicate that the time for direct attack by appeal had long since lapsed.
 
File Date[01-02-89]
File Name[880692]