Burki v. Dansby

1

BILAL BURKI, Appellant v. JANETTE D. DANSBY, Appellee

Nos. 01-22-00044-CV, 01-22-00046-CV

Court of Appeals of Texas, First District

May 4, 2023

On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case Nos. 19-DCV-265591 & 21-DCV-289522.

Panel consists of Chief Justice Adams and Justices Countiss and Rivas-Molloy.

MEMORANDUM OPINION

Julie Countiss, Justice.

This case involves two related appeals. In the first appeal appellant, Bilal Burki, challenges the trial court's order denying his petition for bill of review to set aside the summary judgment rendered by the trial court in favor of appellee, Janette D. Dansby, in her suit against Burki for breach of contract fraud, conversion, money had and received, unjust enrichment breach of implied warranty, and violations of the Texas Deceptive Trade Practices Act ("DTPA")^[1] (the "underlying summary-judgment case").^[2] In the second appeal, Burki challenges the trial court's rendition of summary judgment in favor of Dansby in the underlying summary-judgment case.^[3] In three issues, Burki contends that the trial court erred in denying his petition for bill of review.

We affirm the trial court's order denying Burki's petition for bill of review. We dismiss for lack of jurisdiction Burki's appeal from the trial court's July 8, 2020 order granting Dansby summary judgment.

Background

In his amended original petition for bill of review, Burki alleged that he and his wife, Sheila Burki ("Sheila") (collectively, "the Burkis"), were named as defendants in the underlying summary-judgment case brought by Dansby in August 2019, in which Dansby asserted claims against them for breach of contract, fraud, conversion, money had and received, unjust enrichment, breach of implied warranty, and violations of the DTPA. The Burkis, proceeding pro se, filed handwritten answers in response to Dansby's petition in the underlying summary-judgment case using a form provided by the trial court clerk.

According to Burki, Dansby then filed a summary-judgment motion against the Burkis on June 5, 2020 (the "June 5th summary-judgment motion") and a notice that a hearing on the motion was set for July 2, 2020. After Dansby agreed to settle her claims against Sheila in the underlying summary-judgment case, she filed a second summary-judgment motion against Burki only on June 26, 2020 (the "June 26th summary-judgment motion"). Burki alleged that Dansby "did not file or serve a notice of hearing" as to the June 26th summary-judgment motion. On June 29, 2020, Dansby and Sheila filed a rule 11 agreement^[4] about their settlement in the underlying summary-judgment case, and on July 8, 2020, Dansby nonsuited her claims against Sheila in that case.^[5]

Burki further alleged that also on July 8, 2020, the trial court, in the underlying summary-judgment case, signed an order granting Dansby summary judgment against Burki. According to Burki, Dansby "misrepresented to the [trial court] that [Burki] had notice" of the summary-judgment hearing and "erroneously led" the trial court to believe that she had complied with the notice requirements of Texas Rule of Civil Procedure 166a, even though Dansby "never requested a hearing or notified [Burki]" of a hearing setting for the June 26th summary-judgment motion. As a result, Burki asserted, he "did not have actual, or even constructive, notice of a hearing or submission date" for the June 26th summary-judgment motion. Burki also asserted that he did not receive notice of the trial court's July 8, 2020 order granting Dansby summary judgment as required by Texas Rule of Civil Procedure 309A and was not aware of the July 8, 2020 order until he looked at the trial court's records in "late 2020 or early 2021."^[6]

Burki argued that he was entitled to a bill of review because he had a meritorious defense to Dansby's claims against him in the underlying summary-judgment case, he was prevented from making that defense by Dansby's "fraud, accident or wrongful act," and that those elements were "unmixed with any fault or negligence" of his own. Burki also asserted that setting aside the judgment in favor of Dansby in the underlying summary-judgment case would not cause unfair injury because Dansby had already received $10,000 in compensation from her settlement of her claims against Sheila.

Dansby answered, generally denying the allegations in Burki's petition for bill of review and asserting that she had served the Burkis with discovery requests in the underlying summary-judgment case in October 2019, but they did not respond to those requests. Dansby then filed a motion to compel the Burkis' responses to her discovery requests and served them with a notice of hearing on the motion. Yet the Burkis did not respond to Dansby's motion to compel and did not attend the hearing. The trial court signed an order granting Dansby's motion to compel and ordering the Burkis to respond to Dansby's discovery requests by April 1, 2020 and reimburse Dansby $1,500.00 in attorney's fees. Neither of the Burkis complied with the trial court's order.

On June 5, 2020, Dansby electronically filed and served on the Burkis her June 5th summary-judgment motion as well as a notice setting her motion for a hearing on July 2, 2020. According to Dansby, she served Burki with the June 5th summary-judgment motion through the electronic filing service provider for the State of Texas, which used the same email address that Burki had provided in his original answer and used to serve Dansby with his answer. While Dansby's June 5th summary-judgment motion was pending, Dansby and Sheila settled Dansby's claims against Sheila.^[7] On June 26, 2020, Dansby filed an "agreed judgment" as to her claims against Sheila and an "amended" summary-judgment motion "removing" the grounds asserted against Sheila but otherwise asserting the same grounds and legal arguments against Burki that she had raised in the June 5th summary-judgment motion and relying on the same exhibits that were filed with that motion. (Internal quotations omitted.) Dansby asserted that she "filed the amendment as a courtesy to the [trial court] to clean up the issues for its final review."

According to Dansby, the deadline for Burki to file a response to her June 5th summary-judgment motion was seven days before the July 2, 2020 summary-judgment hearing, i.e., June 25, 2020-a deadline that had passed before Dansby filed the June 26th summary-judgment motion. As to Burki, the grounds, arguments, and exhibits in Dansby's June 26th summary-judgment motion were the same as those set forth in her June 5th summary-judgment motion. Thus, Dansby asserted that Burki was not entitled "to another 21 days to respond" after service of the June 26th summary-judgment motion.

Dansby further noted that the record reflected that the trial court clerk sent Burki notice of the trial court's July 8, 2020 order granting Dansby summary judgment against Burki by both email and certified mail to his last known address. And she asserted that the record also made clear that Burki's "failure to participate in litigation, failure to respond to and appear for the hearing on [her summary-judgment] motion, and his failure to timely file a motion for new trial or appeal [were] all a result of his own fault and/or negligence."

Finally, Dansby requested that the trial court sanction Burki for his false accusations against Dansby and her counsel and order Burki or his counsel to pay her "costs on her answer/response to his petition for bill of review and motions."

At the hearing on Burki's petition for bill of review, Dansby testified about the Burkis' lack of participation in the underlying summary-judgment case. Specifically, Dansby recalled serving discovery requests on the Burkis, the trial court's hearing on her motion to compel the Burkis to respond to her discovery requests, and the trial court's order compelling the Burkis to respond to Dansby's discovery requests and awarding her attorney's fees. Dansby also remembered that she used the email addresses that the Burkis had provided in their answers to her petition to correspond with them in the underlying summary-judgment case. And Dansby confirmed that the exhibits attached to her response to Burki's petition for bill of review consisted of all the documents filed in the underlying summary-judgment case. No other testimony was presented at the hearing.

Following the hearing, the trial court denied Burki's petition for bill of review. The trial court also denied Dansby's request for sanctions and attorney's fees.

Appellate Jurisdiction

We first address Dansby's assertion that we lack jurisdiction over Burki's appeal from the trial court's July 8, 2020 order granting Dansby summary judgment against Burki in the underlying summary-judgment case, which is pending in appellate cause number 01-22-00046-CV.

"[C]ourts always have jurisdiction to determine their own jurisdiction," and "[a]ppellate jurisdiction is never presumed." Heckman v. Williamson Cnty. 369 S.W.3d 137, 146 n.14 (Tex. 2012) (internal quotations omitted); Florance v. State, 352 S.W.3d 867, 871 (Tex. App.-Dallas 2011, no pet.); see also Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (jurisdiction fundamental in nature and cannot be ignored). Whether we have jurisdiction is a question of law, which we review de novo. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). If we lack jurisdiction over this appeal, it must be dismissed. See Ragsdale, 273 S.W.3d at 763; Alaniz v. O'Quinn Law Firm, No. 01-14-00027-CV, 2015 WL 6755614, at *3 (Tex. App.-Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem. op.).

On January 24, 2022, Burki timely...