Bankston v. Bankston

• Decision Date: 25 July 1952
• Docket Number: No. 14533,14533
• Citation: 251 S.W.2d 768
• Parties: BANKSTON v. BANKSTON.
• Court: Texas Court of Appeals

Page 768

251 S.W.2d 768

BANKSTON v. BANKSTON.

No. 14533.

Court of Civil Appeals of Texas, Dallas.

July 25, 1952.

Rehearing Denied Oct. 3, 1952.

John R. Carrell, Leachman, Mattews & Gardere, Charles O. Galvin and Henry D. Akin, all of Dallas, for appellant.

Johnson & Abney, Thompson, Knight, Wright & Simmons and Pinkney Grissom, all of Dallas, for appellee.

YOUNG, Justice.

The amended petition of appellant-plaintiff, filed October 11, 1951, sought to vacate and set aside a divorce decree between the parties of April, 1950 in so far as the property settlement was concerned; and upon hearing of defendant's motion for summary judgment, Rule 166-A, Texas Rules of Civil Procedure, the same was sustained, with entry of final order that petitioner take nothing and ensuing appeal.

Embodied in the prior judgment of divorce was an instrument of property settlement containing in part the following recitals: '* * * that the agreements herein reached, including the division of the community property, are based upon the facts and details regarding the items, values and conditions of the property contained in a written report prepared by Billups, Wood & Champlin through the resident partner, Bryan Arnn, which report purports to contain all the assets and liabilities as of March 6, 1950, of the community estate of William O. Bankston and Fay Swain Bankston, and which report is duly verified by said William O. Bankston, and in the certificate attached to said report the said William O. Bankston represents and unconditionally guarantees that all the properties, rights, titles and interest in which he has, as a part of the community estate of the said Fay Bankston and himself, or personally and as part of his separate estate, any interest whatsoever, including real property, personal property or any other property of any kind or character, are fully set forth in said report, and that no person, firm or corporation holds or owns property of any kind or character for him or for his account, except as shown in said report; * * *.'

The auditor's report as above referred to is made the basis of plaintiff's bill of review under detailed allegations of fraud and misrepresentation; in substance, that property values therein had been represented to her by defendant as actual cash market values rather than book or cost values as she later discovered. It is with reference to such report (styled plaintiff's Exhibit A) that allegations of fraud are made, summarized by appellant in brief as follows: '(a) Defendant herein made representations that the values as shown in 'Exhibit A' were market values of the various properties. (b) That the question of value was a material fact when making said property settlement. (c) That such representations by defendant that said values were market values were false at the time they were made, and that such representations were made by defendant with the intent and design to induce plaintiff to enter into said property settlement with defendant. (d) That such representations as to value as were made by the defendant were relied upon by this plaintiff and she was induced by said representations to enter the property settlement complained of herein. (e) That as a result of said representations by defendant as to value, this plaintiff suffered damages in that she did not receive in said settlement, that to which she was entitled.' Plaintiff further alleged that over and above family living expenses, defendant had squandered during the years 1942 through 1950 a sum in excess of $220,000 in fraud of her community rights; praying in conclusion, 'That said purported settlement agreement executed by and between the parties herein and that portion of this court's judgment in cause No. 41460 B/J Fay Swain Bankston vs. W. O. Bankston adopting and approving said settlement be adjudged and decreed by this Honorable Court to be void and of no force and effect, and that an accounting be had of all property accumulated by plaintiff and defendant during their marriage and said property be divided on a fifty-fifty basis, and that from her portion of such division there be deducted the sum of $53,900.00, the amount she received under said purported settlement, and in this connection plaintiff says she is ready and willing and she hereby offers to do whatever equity requires in the premises.'

Documents submitted by defendant as Exhibits in motion for summary judgment included plaintiff's petition for divorce in cause No. 41460, the proceeding by which the Bankstons were divorced. In that pleading plaintiff charged that she and defendant had been separated for some four years; that throughout their married life he had refused to discuss business affairs and 'what constituted their personal or community estates or their financial problems or business in any manner' with her; insisting that she 'must be satisfied, in lieu of such frank and full discussion, with a statement by him as to how much he could or could not afford to give her in such partition'; that 'by reason of the defendant's refusal to permit her to know any of the facts concerning the financial affairs of the community estate, as above alleged, and by reason of the defendant's attempt to force her to accept his word as to what would be a proper settlement and partition of the community estate, and further by reason of the fact that defendant's ownership in various enterprises is closely connected with the ownership by members of his family,' plaintiff was entitled to a preliminary injunction. Defendant's exhibit 'B' on the hearing was the prior judgment of divorce in which it was recited that the court found, upon testimony of the parties that the property settlement in question was fair and just. The testimony taken in said divorce proceedings included the following sworn statements of plaintiff as elicited by the respective attorneys:

'Q. Now, Mrs. Bankston, you have been over that report? A. Yes.

'Q. And, based upon the facts set forth in that report have you reached an agreement of property settlement of the community estate-- A. Yes.

'Q. (Continuing)-between yourself and Mr. Bankston? A. Yes. * * *

'Q. And the only evidence which you have as to the property belonging to the community estate is contained in this report, is it not? A. That's all I know. * * *

'Q. Mrs. Bankston, you and your attorney, of course, have gone over this report? A. Yes.

'Q. Fully? A. Yes.

'Q. And gone into the value of the properties as you deemed advisable and necessary, and this settlement agreement is made upon your knowledge of the properties as contained in this, plus the representations therein contained? A. That is true.'

Such statement of facts further disclosed the examination of defendant Bankston by opposing counsel relative to the settlement agreement and the auditor's report upon which it was based. In her present bill, plaintiff expressly refers to Bankston-Hall Motors, Inc., a local Ford Agency, alleging that it had a cash market or 'going concern' value substantially greater than book values less depreciation; the auditor's report showing that capital value of the corporation (par stock and surplus, paid in and earned) was $249,368.61, 45% of which, or $112,215.87, was owned by the community estate.

Through various points, appellant argues that triable issues of material facts were presented in her sworn pleading, thus precluding a disposition thereof by way of summary judgment; complaining in particular of the trial court's error in sustaining motion for summary judgment 'on the grounds urged by appellee (1) That even if appellee's representations to appellant and her attorney were false and fraudulent, the fraud thus practiced on appellant was intrinsic, rather than extrinsic, fraud and, therefore, could not provide the basis for overturning the prior judgment; (2) that the financial statement upon which appellant relied was a mere expression of opinion and not representations as to facts; (3) that, even if appellee's representations to appellant were false and fraudulent, appellant and her attorney did not rely on such representations; (4) that, even if appellee's representations to appellant were false and fraudulent, appellant and her attorney were negligent in relying on such representations.'

'The rule is well established in this state that to obtain a new trial after the expiration of the term something more than that injustice has been done must be shown. It must appear: (1) That the former judgment was not caused by any negligence on him who seeks to set it aside, but that diligence was used to prevent it; (2) that he had a good defense to the action, which he was...