AFFIRMED and Opinion Filed April 16, 2020




                                   S   In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 No. 05-19-00279-CV

                      JETALL COMPANIES, INC., Appellant
                                    V.
            BRYAN P. STEVENS AND HALLETT & PERRIN, P.C., Appellees

                   On Appeal from the 68th Judicial District Court
                               Dallas County, Texas
                        Trial Court Cause No. DC-18-04336

                        MEMORANDUM OPINION
                   Before Justices Molberg, Reichek, and Evans
                             Opinion by Justice Evans
      Jetall Companies, Inc. appeals from the trial court’s adverse summary

judgment in its lawsuit against appellees Bryan P. Stevens and Hallett & Perrin, P.C.

Among other things, Jetall contends the trial court erred by granting appellees

summary judgment on Jetall’s petition for bill of review based on the ground that

appellees conclusively negated an element necessary for Jetall to succeed on its bill

of review. Based on the record before us, we affirm the trial court’s summary

judgment.
                                           BACKGROUND

        The parties’ underlying dispute involves appellees’ legal representation of

Jetall in October 2014 as it related to two commercial properties. Jetall first sued

appellees in 2016 alleging appellees committed legal malpractice, but that suit was

dismissed for want of prosecution by order dated September 13, 2017. In April 2018,

Jetall filed a second lawsuit reasserting the 2014 malpractice allegations and,

alternatively, presenting a petition for bill of review alleging the September 13

dismissal order on the 2016 lawsuit was sent to the wrong address and Jetall did not

learn of the dismissal until almost four months later, on January 4, 2018.

         Appellees filed a traditional motion for summary judgment on all claims

asserted in the second lawsuit. Appellees asserted Jetall’s 2018 malpractice claims

were barred by the two-year limitations. Among other grounds, appellees also

contended that Jetall’s bill of review necessarily failed because the summary

judgment evidence conclusively established Jetall had actual notice of the trial

court’s intent to dismiss the first lawsuit for want of prosecution and did nothing.1

The trial court granted appellees summary judgment without specifying grounds.

This appeal followed.


    1
       Appellees’ motion for summary judgment also raised a ground premised on Jetall’s deemed
admissions. Two days before the summary judgment hearing, Jetall moved to withdraw the deemed
admissions, alleging the paralegal charged with calendaring a response date went on maternity leave the
day the requests were served. Jetall further claimed it first learned of the requests when appellees filed their
motion for summary judgment. The trial court denied Jetall’s motion to withdraw deemed admissions.
Although Jetall challenges this ground for summary judgment on appeal, we need not address the issue in
light of our disposition based on an alternative ground for summary judgment.
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                                            ANALYSIS

        A.      Standard of Review

        We review the trial court’s summary judgment ruling de novo. See Provident

Life & Acc. Ins. Co., v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The issues on

appeal in a traditional motion for summary judgment are whether the movant

satisfied its summary judgment burden by establishing that no genuine issue of

material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV.

P. 166a(c); Provident Life, 128 S.W.3d at 215–16. A defendant is entitled to

summary judgment if it conclusively negates an essential element of the plaintiff’s

case or conclusively establishes all elements of an affirmative defense. Cathey v.

Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). Where, as here, the trial

court’s order does not set forth the specific grounds for its summary judgment, we

are required to affirm the summary judgment if any of the theories presented to the

trial court and preserved for appellate review are meritorious.2 See Provident Life,

128 S.W.3d at 216.

        B.      Bill of Review

        On appeal, Jetall concedes the trial court properly granted summary judgment

on its 2018 malpractice claims based on the expiration of the statute of limitations.

Accordingly, the complaints before us are limited to the propriety of the trial court’s

    2
     An appellate court may, in the interest of judicial economy, also consider other summary judgment
grounds that the movant preserved for review and the trial court did not rule on. See Cincinnati Life Ins.
Co. v. Cates, 927 S.W.2d 623, 627 (Tex. 1996).
                                                  –3–
summary judgment ruling with respect to Jetall’s bill of review. Specifically, Jetall

contends that appellees did not negate conclusively the negligence/fault element of

its bill of review cause of action because Jetall produced summary judgment

evidence that it did not receive notice of the trial court’s notice of intent to dismiss

or the subsequent dismissal order until January 2018.

      “A bill of review is an independent action to set aside a judgment that is no

longer appealable or subject to challenge by motion for new trial.” Mabon Ltd. v.

Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012) (per curiam); see also

Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926–27 (Tex. 1999) (per curiam).

Ordinarily, relief by bill of review is available only when the petitioner has exercised

due diligence to pursue all adequate legal remedies against the prior judgment and,

through no fault of its own, has been prevented from making a meritorious claim or

defense by the fraud, accident, or wrongful act of the adverse party. Id. at 927.

Where a petitioner alleges a due process violation of no notice, it must only show

that the judgment was rendered unmixed with any fault or negligence by the

petitioner. See Mabon, Ltd., 369 S.W.3d 812. However, the failure to receive a sent

notice, both of the hearing and of the dismissal, must have been unmixed with the

negligence of the bill of review plaintiff. Saint v. Bledsoe, 416 S.W.3d 98, 106 (Tex.

App.—Texarkana 2013, no pet.).

      In the case before us, appellees presented summary judgment evidence

indicating that on August 14, 2017 at 10:30 am, Jetall’s withdrawing attorney sent
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an email to “Ali@jetallcompanies.com; Jetall Administration” and a copy of the

email to “lee.k@jetallcompanies.com” explaining the trial court had granted the

attorney’s motion to withdraw, ordered Jetall to hire counsel by September 6, 2017,

and that the case was set for a dismissal on September 11, 2017 at 9:00 a.m. The

email also attached a copy of the trial court’s August 7, 2017 Notice of Intent to

Dismiss, containing the dismissal hearing date and time. This evidence established

that Jetall received notice of the trial court’s intent to dismiss and was aware of the

September 11 hearing.      The trial court’s September 13, 2017 dismissal order

indicates the case was dismissed for the following reasons: “failure to take action

after notice of intent to dismiss for want of prosecution” and “dismiss for want of

prosecution.”

      In the trial court and on appeal, Jetall contends that its responsive summary

judgment evidence created a fact issue with respect to whether Jetall received the

withdrawing attorney’s August 14 email and notice of the trial court’s intent to

dismiss. Specifically, Jetall relies on a three-sentence affidavit by Ali Choudhri

denying receipt of the August 14 email along with the affidavit from Paul Simon, a

Jetall employee and, ultimately, its successor counsel. In his affidavit, Simon

acknowledges he was aware of Jetall’s counsel’s motion to withdraw in August 2017

and knew it would be granted. Although Simon further indicates he filed a “notice

of designation of attorney in charge” on behalf of Jetall, that document has a filing

date of October 11, 2017, almost one month after the date of the trial court’s
                                         –5–
dismissal order. Nevertheless, Simon’s affidavit states he had no knowledge the case

was on the dismissal docket or that the case was dismissed until early January 2018

when he had his paralegal called the court to check on the case status. Based on the

record before us, we conclude Jetall’s summary judgment evidence did not create a

fact issue on whether its alleged failure to receive notice of the court’s intent to

dismiss its 2016 case for want of prosecution was unmixed with any fault or

negligence by Jetall. See Saint, 416 S.W.3d at 106.

      Choudhri’s affidavit does nothing more than simply deny receipt of the

withdrawing attorney’s August 14, 2017 email, providing no explanation as to why

he would not have received an email sent to him. Regardless, there is no evidence

to controvert receipt of the email and notice by the other Jetall email recipients,

namely “Jetall Administration” and “lee.k@jetallcompanies.com.” Finally, to the

extent Jetall relies on Simon’s affidavit to controvert the evidence it had actual

knowledge of the trial court’s notice of intent to dismiss, we note that Simon

admitted he knew as early as August 2017 that Jetall’s counsel’s motion to withdraw

would be granted, yet he did not file his designation of counsel until October 11,

2017 almost one month after the trial court signed the dismissal order and two

months after the withdrawing counsel emailed the notice of intent to dismiss to Jetall.

Based on the evidence before it, the trial court correctly concluded appellees

conclusively established Jetall could not prevail on its bill of review. Jetall’s

summary judgment evidence did not create a fact issue on Jetall’s actual notice nor
                                         –6–
did it create a fact issue as to whether the dismissal order was rendered unmixed with

any fault or negligence by Jetall.

                                     CONCLUSION

      On the record of this case, we affirm the trial court’s summary judgment.




                                           /David Evans/
                                           DAVID EVANS
                                           JUSTICE


190279F.P05




                                         –7–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 JETALL COMPANIES, INC., Appellant                   On Appeal from the 68th Judicial District
                                                     Court, Dallas County, Texas
 No. 05-19-00279-CV          V.                      Trial Court Cause No. DC-18-04336.
                                                     Opinion delivered by Justice Evans,
 BRYAN P. STEVENS AND HALLETT &                      Justices Molberg and Reichek participating.
 PERRIN, P.C., Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellees Bryan P. Stevens and Hallett & Perrin, P.C. recover their
costs of this appeal from appellant Jetall Companies, Inc.


Judgment entered April 16, 2020.




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