Opinion
04-23-00067-CV
06-12-2024
ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC. D/B/A EISG, Inc., BarryEsene and Ruthie Esene, Appellants v. HOLT TEXAS LTD., Appellee
From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2021-CI-13443 Honorable Tina Torres, Judge Presiding
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice.
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
Appellants Environmental Industrial Services Group Inc. d/b/a EISG, Inc ("EISG"), Barry Esene, and Ruthie Esene filed a bill of review challenging the validity of a consent judgment (the "Judgment") rendered in a prior proceeding. Holt Texas LTD. ("Holt") filed a no-evidence motion for summary judgment and motion for sanctions, and appellants did not respond. The trial court granted the motions. On appeal, appellants do not dispute they did not respond to Holt's no-evidence motion, nor do they challenge the trial court's sanctions order. We affirm.
Background
On October 21, 2020, the trial court signed the Judgment ordering Holt to recover $147,326.82 from appellants plus attorney's fees and prejudgment interest. The Judgment contingently awarded Holt an additional $10,000 if a bill of review was filed and Holt prevailed. The Judgment was signed and approved as to form by counsel for Holt and then-counsel for appellants-Keith Donati. Holt subsequently began proceedings to execute the Judgment.
In July 2021, appellants filed a bill of review alleging Donati did not have the authority to enter into the Judgment on their behalf and that they were not provided notice of the Judgment prior to Holt's attempts to execute. Appellants additionally sought injunctive relief. Attached to appellants' bill was an affidavit from Barry. Barry testified a meritorious defense existed because he "had hired [Donati]" but Donati did not represent him to his satisfaction. Barry opined that he had no knowledge of the Judgment before Holt's execution efforts.
Originally, EISG was the only party to the bill of review; however, the pleadings were subsequently amended to add Barry and Ruthie as plaintiffs.
After Holt answered, appellants filed a motion for summary judgment, attaching supporting affidavits from Barry, Ken Essene, and Michele Norris. Ken and Barry testified Donati falsely represented to Holt that appellants gave him the authority to enter into the Judgment. Norris, the custodian of records for EISG, testified there was a meritorious defense to support appellants' bill because EISG had discovered accounting offsets, which showed EISG owed less to Holt than the amount rendered in the Judgment.
Holt responded to appellants' summary judgment motion and objected to Barry, Ken, and Norris's supporting affidavits. Holt additionally requested sanctions against appellants for allegedly false assertions in Barry and Ken's affidavits. Attached to Holt's response was a supporting affidavit from Donati. Donati directly contradicted and renounced the allegations in Barry and Ken's affidavits. Donati testified that: he discussed the Judgment with Ken and Barry numerous times before its entry; he explained the financial cost of a trial as opposed to a consent judgment; Barry conceded that he owed Holt the amount rendered in the Judgment; no one ever discussed potential offsets with him; he sent Barry post-judgment discovery propounded by Holt in April 2021 and discussed the discovery with Barry. Holt requested the trial court deny appellants' summary judgment motion and sanction appellants for filing Barry and Ken's affidavits in bad faith.
The Judgment receiver also filed a response to appellants' summary judgment motion stating appellants had not apprised him any offsets existed.
Holt subsequently sought the depositions of Ken and Norris, to which EISG objected. The trial court overruled the appellants' objections and ordered the depositions to take place on September 23, 2022. On September 21, 2022, appellants moved to withdraw Ken's summary judgment affidavit from the record. In support of its motion, appellants cited Texas Rule of Professional Responsibility 3.03, comment 7. See Tex. Disciplinary Rules of Prof'l Conduct R. 3.03 cmt. 7 (explaining a lawyer's duty upon learning the falsity of evidence to "first seek to persuade the client to correct the false testimony or to withdraw the false evidence.").
On September 28, 2022, Holt filed a motion for sanctions, contempt, and show cause. Holt alleged: (1) the signature on Ken's affidavit was a forgery; (2) appellants attempted to conceal the forgery by quashing the depositions of Ken and the affidavit's notary; (3) after the trial court denied appellants' motion and ordered the depositions to take place, Ken stated he would not show up to the deposition without being subpoenaed; and (4) despite being subpoenaed, neither Ken nor his counsel appeared for the court-ordered deposition. Holt requested the trial court strike appellants' pleadings with prejudice, dismiss the lawsuit, that Barry and Ken be held in contempt of court, and award Holt monetary sanctions and attorney's fees. Additionally, Holt filed a no-evidence motion for summary judgment asserting appellants could not produce any evidence raising a genuine issue of material fact in their bill of review or their claim for injunctive relief. Appellants did not file a response to Holt's no-evidence motion for summary judgment.
On October 25, 2022, the trial court signed an order granting Holt's no-evidence motion for summary judgment and its motion for sanctions, motion for contempt, and show cause. In addition to summary judgment, the trial court struck all appellants' pleadings with prejudice. The trial court awarded Holt $10,000 in attorney's fees pursuant to the Judgment and an additional $10,000 in attorney's fees as sanctions.
Appellants filed a motion for new trial, arguing-for the first time-that the Judgment was void because Donati did not have the authority to enter into the Judgment on Ruthie's behalf and because Ruthie was not provided notice prior to the entry of the Judgment. Attached to the motion was a supporting affidavit from Ruthie disputing the validity of the Judgment. Appellants' new trial motion did not address the failure to respond to Holt's no-evidence motion for summary judgment, nor did it address the trial court's sanctions.
On appeal, appellants do not dispute that they did not file a response to Holt's no evidence motion for summary judgment, nor do they attack the trial court's levy of sanctions. Instead, appellants argue the Judgment is void; therefore, their bill of review is a proper collateral attack on the Judgment. In response, Holt contends we must affirm the trial court's order because appellants failed to refute the multiple grounds on which the trial court granted final relief.
Discussion
Standard of Review and Applicable Law
"A bill of review is an equitable proceeding, brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for a new trial or direct appeal." Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 812 (Tex. 2012) (per curiam). "A bill-of- review plaintiff must generally plead and prove three elements: (1) a meritorious defense in the underlying litigation, (2) which the plaintiff was prevented from making by the fraud, accident, or wrongful act of the opposing party or by official mistake, (3) unmixed with any fault or negligence by plaintiff." Patidar v. Bank of Am., N.A., 442 S.W.3d 789, 792 (Tex. App.-Houston [14th Dist.] 2014, no pet.). "Courts narrowly construe the grounds on which a plaintiff may obtain a bill of review due to Texas's fundamental public policy favoring the finality of judgments." Mabon, 369 S.W.3d at 812. "When a bill-of-review plaintiff claims and proves it had no service or notice, it is relieved of proving the first two elements for a bill of review and must only establish a lack of fault or negligence" Patidar, 442 S.W.3d at 792.
We review summary judgments de novo. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). "[A] properly filed no-evidence motion shifts the burden to the nonmovant to present evidence raising a genuine issue of material fact supporting each element contested in the motion." Wal-Mart Stores, Inc. v. Xerox State & Local Sols., Inc., 663 S.W.3d 569, 576 (Tex. 2023); Tex.R.Civ.P. 166a(i). "If the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact, summary judgment is improper." Id. A genuine issue of material fact has been raised if reasonable and fair-minded jurors could differ in their conclusions considering all the summary judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). In deciding whether a genuine issue precludes summary judgment, we must treat all evidence favorable to the nonmovant as true, indulge every reasonable inference, and resolve all doubts in its favor. Id. at 757.
For a no-evidence motion to be sufficient under Texas Rule of Civil Procedure 166a(i), the motion must specifically state the element or the elements of the nonmovant's claims for which there is no evidence. Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 695 (Tex. 2017); Tex.R.Civ.P. 166a(i). "If a nonmovant wishes to assert that, based on the evidence in the record, a fact issue exists to defeat a no-evidence motion for summary judgment, the nonmovant must timely file a response to the motion raising this issue before the trial court." Imkie v. Methodist Hosp., 326 S.W.3d 339, 343 (Tex. App.-Houston [1st Dist.] 2010, no pet.). "Absent a timely response, a trial court must grant a no-evidence motion for summary judgment that meets the requirements of Rule 166a(i)." Id. (emphasis added). Generally, the failure to respond to a no-evidence summary judgment motion is "fatal to the nonmovant's ability to assert on appeal that the trial court erred in granting the motion." Patidar, 442 S.W.3d at 793.
Analysis
Holt's no-evidence summary judgment motion specifically identified the elements relevant to appellants' bill of review and request for injunctive relief. The motion was, therefore, sufficient to shift the burden to appellants. The clerk's record in this appeal does not contain a response by appellants, if any, to Holt's no-evidence motion for summary judgment. Therefore, we do not know what arguments appellants made and what evidence, if any, appellants submitted to demonstrate that Holt was not entitled to summary judgment. Appellants' failure to include their summary judgment response, if one was filed, requires us to presume that pleading would support the trial court's ruling. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex. 1990) (affirming summary judgment when affidavit filed in support of same was not included in appellate record); Sung Sik Choi v. Juggernaut Transp., Inc., No. 05-16-01386-CV, 2017 WL 2729907, at *2 (Tex. App.-Dallas June 26, 2017, no pet.) (mem. op.) (presuming omitted response to no-evidence motion for summary judgment supported trial court's judgment where appellants appealed from the trial court's order granting a no-evidence motion for summary judgment but did not include their response to the motion for summary judgment in the clerk's record); Habanero, Inc. v. Schweitzer, No. 14-11-00339-CV, 2012 WL 19671, at *1 (Tex.-App. Houston [14th Dist.] Jan. 5, 2012, no pet.) (mem. op.) (presuming summary judgment motions supported trial court's judgment where appellant failed to include his response to the summary judgment motions in the clerk's record).
Because Holt's no-evidence motion met the requirements of Rule 166a(i) and appellants did not file a response, the trial court was required to grant a no-evidence summary judgment in favor of Holt. See Imkie, 326 S.W.3d at 343; Tex.R.Civ.P. 166a(i) ("The court must grant the [no-evidence] motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact."). We, therefore, hold the trial court properly rendered summary judgment in favor of Holt.
As for that portion of the trial court's order granting sanctions against appellants, including granting relief against Ruthie and striking appellants' pleadings with prejudice, we note the inadequacy of appellants' brief. An appellants' brief must concisely state all issues presented for review and must contain a clear, concise argument for the contentions made, with appropriate citations to authorities and to the record. See Tex. R. App. P. 38.1(i). We hold appellants' brief is inadequate as to any complaint regarding this portion of the judgment; therefore, presenting nothing for our review.
Conclusion
We affirm the judgment of the trial court.