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Click here for the full text of this decision FACTS:Two business owners married in 1993. After the husband, Miller, informed the wife, Ludeman, that he wished to live six months of the year in a spiritual community in India, the couple amicably agreed to divorce. They used the same attorney. On September 15, 1998, the couple, without the guidance of legal counsel, drafted a document that outlined a proposed agreed division of their marital property. The document purported to be the “split of property and assets” contingent upon the couple divorcing by the end of 1998. On September 21, 1998, the couple drafted a second document, intended to supersede the first, which again divided the couple’s property. The second document did not contain the same contingency language regarding divorce. In November, Miller contacted Ludeman, told her that he was not satisfied with the property division they had made in the September 21 agreement, and informed Ludeman that he wanted to renegotiate. Ludeman refused. Miller then stated that he would allow the court to decide the property division. After this discussion, Ludeman called Miller and told him that she had discussed their property with their lawyer, Whittington, and he had advised her regarding definitions of the types of property that comprised community property. Ludeman represented that she had applied these definitions to the couple’s property. Subsequently, Ludeman sent Miller a letter and a chart indicating how likely she believed it was, in light of the definitions, that a court would classify particular items of their property as community property versus separate property. Ludeman made several equivocal statements in the letter and accompanying property chart as to the accuracy of her determinations. The chart itself is divided into columns, each headed by a percentage likelihood that a court would award Ludeman the property in that column. Ludeman ended the correspondence by stating, “I have done my very best to use Harry’s definitions of what would be considered community property.” Following this exchange, Miller and Ludeman drafted a final agreement incident to divorce that incorporated, with few differences, the September 21 agreement. The couple finalized their divorce in December 1998. Whittington, the attorney, denies ever speaking with either party about property division or even about community property definitions in the abstract. The property chart that Ludeman drafted characterized several parcels of the couple’s property as her separate property that, according to general family law principles, would actually have been presumptively considered community property. Under the divorce decree, Miller was to pay Ludeman $52,000 within three years. When he did not pay, Ludeman brought an enforcement action against him. In response, he brought an equitable bill of review asserting that the divorce decree was the product of extrinsic fraud perpetrated by Ludeman. He claimed that she misrepresented that her categorizations of their property had been based on Whittington’s legal advice, and that these actions constituted extrinsic fraud that had prevented him from going to court and receiving his fair share of the marital estate. Miller asserted that the divorce decree should be overturned in its entirety. Thus, he argued, he did not owe Ludeman the $52,000 and, according to community property law, he was entitled to between one and two million dollars from Ludeman. The district court granted a traditional summary judgment in favor of Ludeman, denying Miller’s bill of review. Miller appealed. HOLDING:Affirming grant of summary judgment by district court in favor of Ludeman. A bill of review is an independent, equitable action to set aside a judgment that is no longer appealable or subject to a motion for new trial. In general, for a party to successfully invoke a bill of review, he must allege and prove that 1. he had a meritorious defense to the cause of action alleged to support the judgment; 2. which he was prevented from making because of fraud, accident, or wrongful act of the opposite party; 3. that was untainted by any fault or negligence of his own. All three elements must be met before a bill of review can be granted. With regard to the third element, the Texas Supreme Court has stated: “It must further distinctly and clearly appear that this result was not caused by any inattention or negligence on the part of the person aggrieved, and he must, among other matters, show a clear case of diligence and of merit to obtain the interference of a court of equity in his behalf at such a stage of the case.” Johnson v. Templeton, 60 Tex. 238, 239 (1883). Because of the critical importance of finality in judgments, bills of review “are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted.” Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950) (quoting Harding v. W.L. Pearson & Co., 48 S.W.2d 964, 965-66 (Tex. Comm’n App. 1932, holding approved)). The court finds that the third issue disposes of Miller’s claim: “Because we are reviewing a summary judgment that disposed of a bill of review, we must determine whether there is no genuine issue of material fact that Miller was not negligent � in other words, whether Miller was negligent as a matter of law in not asserting his claims for community property in court.” The court compares the case to Crispin v. Crispin, 529 S.W.2d 310 (Tex. App. � Austin 1975, no writ), in which the wife brought a bill of review asserting that her husband had failed to disclose his financial condition before she agreed to the divorce. The husband retained counsel but the wife did not. The wife had been through an earlier divorce, was intelligent, had ample resources, and had ready access to the information that her husband did not disclose. The court concluded that because she had made “no effort to ascertain the extent of property settled in the agreement . . . [her] failure to seek the information she now contends was withheld from her constitutes a bar to the relief she seeks in this action in bill of review.” Here, the court notes that Miller is a sophisticated party with ample financial resources who easily could have verified the accuracy of his soon-to-be ex-wife’s representations. Unlike the wife in Crispin, Miller had access to an attorney whom he could have easily contacted. Also, Miller had been married and divorced previously and knew about the legal process and ramifications of divorce. The court acknowledges that evidence exists that Ludeman affirmatively represented to Miller that she had discussed community property issues with their joint lawyer and that her determinations of the character of their property were based on that conversation. Even if Miller’s reliance on the representations of an adverse party alone did not constitute negligence, Miller was negligent in relying upon such equivocal statements of law as Ludeman made, which she prefaced with statements such as “I believe it is most likely” and “some of this might be arguable.” The court finds that the equivocal statements themselves and the ease with which Miller could have investigated Ludeman’s representations mean that Miller cannot show that his failure to bring his legal claims was “untainted by any fault or negligence of [his] own.” Hagedorn, 226 S.W.2d at 998. The court notes that, even if Ludeman owed Miller a fiduciary duty of truthfulness after the couple filed for divorce, it did not obviate his lack of diligence in investigating the validity of the equivocal assertions of law and failing to assert his rights. OPINION:Pemberton, J.; Kidd, Smith and Pemberton, JJ.

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