Affirmed and Memorandum Opinion filed May 10 , 2022.

In The


## Fourteenth Court of Appeals

NO. 14

- 20

- 00433

- CV

NASSER CHEHAB , Appellant

V.

MAC HAIK CHEVROLET, LTD. , Appellee

On Appeal from the 189th District Court

Harris County, Texas Trial Court Caus e No. 2020

- 10742

MEMORANDUM OPINION

Pro se a ppell ant Nasser Chehab filed suit pro se against appellee Mac Haik

Chevrolet, Ltd. ( “Mac Haik ”) concerning a contract he entered into for the
purchase of a vehicle. The trial court granted Mac Haik ’s motion f o r summary ju d g m ent . Chehab filed a bill of review, but the trial court granted Mac Haik ’s

Rule 91a motion to dismiss. See Tex. R. Civ. P. 91a. In a single issue, Chehab

arg ues that the trial court erred by granting Mac Haik ’s Rule 91a motion to

dismiss. W e affirm.2 I. B ACKG ROUND

On November 20, 2015, C heha b filed suit against Mac Haik and BBVA
Compass Ban c shares for violation of the Deceptive Trade Pract ices Act. 1 In the
petition, Chehab alleged that he and Mac Haik entered into a financin g contract s o

that Che ha b could purchase a vehicle ; however, Mac Haik changed the assigned

lienholder

, from JP Morgan Chase NA to Compass Bank DBA BB VA , without
notifying or obtaining permis sion from Cheha b

. According to Chehab, a s a result

of Mac Haik ’ s an d BBVA ’ s alleged frau d , Che h ab claimed tha t he experienced
mental anguish.

On October 30, 2017, Mac Haik filed a motion for summary judgment

, arguing that Chehab could not demonst rate a ny injury from any alleged fraud , as

the ret a il installment c on tract was freely assignable ; Chehab could not recover for

mental an guish based on a breach of contract claim ; C hehab did not suffer any
actual, economic damages ; and Mac Haik ’ s actions were not extreme or

outrage ous , which is a r equired ele ment of an int en tion infliction of an emot i o nal

distress claim. A hearing on the motion was held on December 15, 2017. The trial

co urt granted Mac Haik ’ s traditional motion for summary judgment at the hearing

. 2

On February 16 , 2020, Chehab filed a bill o f review t o set aside the t rial

court ’ s ord e r ing granting M ac Haik ’ s motion for summary ju dgment

. Chehab
alleged t hat Mac Haik fraudulently m islead Chehab into believing that it would

settle the case but then decided not to settle after the time t o appe al the summary
judgment had passed.

On Apr il 16 , 2020, Mac Haik filed a R ule 91a motion to dismiss. See id.

1 BBVA i s not part of t his app eal because the trial court grant ed BBVA ’ s motion to dismiss and motion to sever.

2 T he court repor ter has informed us that no reporter ’ s record was made in this case

.3

Mac Haik argued that the “bill of review plaintiff must have been a defendant in
the pr ior proce eding against who [sic] a judgme nt wa s entered by default. ”
Accordingly, Mac Haik argued th at the C hehab ’s bill of review had no basis in law

a nd should be dismissed because Chehab was the plaintiff below and the trial court
did not enter a default judgment; instead, Chehab full y p artici pated in the summary
judgment hearing

. On May 11, 2020, the trial c ourt gran te d Mac Haik ’s motion t o

d ismiss. Chehab filed a timely appeal.

II. A NALYSIS

I n a sin gle issue, Chehab a s s erts that the trial court erred by granting Mac

Ha ik ’ s moti on to dismiss

.

A. S TANDA RD OF R EVIEW

Under Texas Rule of Civil Procedure 91a, “ a par ty may move to dismiss a

ca use of action on the grounds that it has no basis in law or fact. ” Tex. R. Civ. P.

91a.1; see Bethel v. Quilling, Selander, Lownds, W ins le tt & Mo ser, P.C.

, 595

S.W.3d 651, 654 (Tex. 2020)

. “A cause of action has no basis in law i f the
allegations, taken as true, togethe r with inferences reasonably drawn from them, do

not entitle the claimant to the relief sought.” Tex. R. Civ. P. 91a.1. “A c ause of

acti on has no basis in fact if no reasonable person could believe the facts pleaded .”

Id. A court “may not con sider evidence

. . . and must decide the motion based
solely on the pleading of the cause of action

. . . . ” Tex. R. Civ. P. 91a.6.

“ We rev iew the merit s of a Rule 91a motion de novo because the availabi lity
of a remedy under the fa cts alleged is a question of law and the rule ’ s factual

plausibility standard is akin to a legal

- sufficien cy review.” Sanchez v. Striever

, 614

S.W.3d 233, 239 (Tex

. App.

— Housto n [1 4th Dist.] 2020, no pet.) (quoting City of

Dall as v. Sanchez , 494 S.W.3d 7 22 , 724 (Tex. 2016) (per curiam) ) ; see Bethel

, 595

S.W.3d at 654 . In conducting our review, we must construe the pleadings liberally4

in favor of the plaintiff, look to the pleade r ’ s intent, and accept as true the factu al
allegati ons in the pleadings to det er mine whether the cause of action has a basis in

law or fact. Sanchez

, 614 S.W.3d at 239

. B. A PPLICABLE L AW

“ A bill of review is a separate, independent suit to set aside a judg men t that
is no longer subject to a motion for new trial or appealable. ” Khola if v. Safi , 636
S.W.3d 313, 317 (Tex. App.

— Hous ton [14th Dist.] 2021, pet. denied) (citing

Woods v. Kenner

, 501 S.W.3d 185, 190 (Tex. App.

— Houston [1st Dist.] 2016, no pet.) ) . Th ere are two types of bills of review : equitable and statutory

. Id. “ Although

a b ill of review is an equitable proceeding, the fact that an injustice may have

occurred is not sufficient t o justify relief by bill of review. ” Vanderv list v. Samar a Portfolio Mgmt., LLC , No. 14

- 16

- 00044

- CV, 2017 WL 3194062, a t *4 (Tex.
App.

— Houston [14th D ist.] July 27, 2017, pet. denied) (mem. op.) (quoting Boaz

v. Boaz , 221 S.W.3d 126, 131 (Tex. App.

— Houston [1st Dist.] 2006, no pet.) )

. Chehab sought an equitable bill of review. T o be entitled to relief on his
equita ble bill of review

, Cheha b “ must gene ra lly plead and prove (1) a merit orious

cl aim or defense to the judgment, (2) which the petiti oner was preve nted from
making by official mistake or by the opposing p arty ’ s fraud, accident, or wrongful

act, (3) unmixed w ith any fault or negligence on the pe ti tioner ’ s own part

. ” Valdez

v. H ollenbeck , 465 S.W.3d 217, 226 (Tex. 2015) ; see Weiss v. Kenneth D. Eichner

, P.C. , 632 S.W.3d 921, 924 (Tex. App.

— Houston [14th Dist .] 20 21, no pet.)

. C

. A PPLICATION

Chehab argues on app eal tha t the Rule 91a motion to dismi ss should not
have been granted b ecause hi s bill of review had a basis in law and fact. According

to Chehab, he had a m eritorious defense to the summary judgment, he was deprived of his ability to appeal the summary jud gment b ecause of Mac Haik ’ s
fraud, an d he was not negligent in allowin g the sum mary judgment to become5

final. Mac Haik argues that Chehab did not allege an y extrinsic fraud

.

“ I n relat ion to attacks on final judgments, fraud is class ified as either

extrinsic or intrinsic. Only extrinsic fraud w ill entitle p etit ioners to bill of review

relie f. ” Montgomery v. Kennedy , 669 S.W.2d 309, 312 (Tex. 1984) ; see Reynolds
v. Reynolds

, No. 14

- 14

- 00 080

- CV , 2015 WL 45 04626, at *3 (Tex. App.

— Houston

[14th Dist.] July 23, 2015, no pet.) (mem. op.)

. “ For purpo se s of a bill o f re view,

extrinsic fraud is committed if a wrongful act o f an opposing party prevents the

lo sing party from knowing of his rights o r defenses, or fro m having a fair
opportunity to presen t them at trial, and the fraud is not actually or pote nt ially an

issu e to the trial but collateral to the matter. ” Ortmann v. Ortmann

, 999 S.W.2d 85,

89 (Tex. App

. — Houston [14th Dist.] 1999, pet. denie d) ; see Weiss , 632 S.W.3d at

925

. By contrast, in trinsi c fraud exists when “the fraudulent acts pertain to an i ssue

involved in the original action, or where the acts constituting the fraud were, or

could have been, l itigated therein. ” Ortmann

, 999 S.W.2d at 89

. Examples of

extrinsic fraud include keepi ng a p arty away from court, making false promises of
compromi se , and denyin g a party knowledge of the suit

. See Boaz , 221 S.W.3d at

131 ; see also Reyno lds

, 2015 WL 45046 26, at *3

.
In the present case, Cheha b alleged in his bill of review petition that the tri al

c ourt judge had mad e it clear that he wanted the parties to reach a settlement

agreement. Chehab further alleged that Mac Haik made it a ppear as though Ma c

Haik was willing to settle, d espite not being interested in actually settl i ng. Chehab

compare d th e pr ese nt c ase to Griffith v. Conard , 536 S.W.2d 658, 660 (T ex. App.

— Corpus Christi 1976, n o writ) . In Griffith , the Co rpus Christi court

concluded that falsely promising to settl e cons tituted extrinsic fraud. See id. Thus

, Chehab argued that Mac Haik ’ s in tent ional ly misle adin g acts regarding its desire to

settle c onstituted extrinsic fraud beca use Mac Haik was simply s talling for time to
prevent Cheh ab from filing a timely appeal

.6

Howe ver, we find Griffith distinguishable because in that case, th e

defenda nts made expli cit and false promises of compromise, such as telling the
plaint iff “ not worr y about the lawsuit in th at everything would be worked ou t
through a settlement

, ” and “ d on ’ t w orry about the judgment, everybody would get
together and settle this m atte r

. ” I d. at 6 6 0

– 6 1

. By contrast, in the present case, eve n when we construe the pleading s liberally in favor of C heh ab

, Chehab does not
allege th at Mac Hai k ever falsely promis ed to settle or that Mac Haik
misrepresented the appellate deadlines or that Mac Haik indicate d in any other way

that Chehab need not wor ry about the appellate deadline s

. At most, Chehab merely
alleges that the trial court ur ged the parties to settle and t hat Ma c Haik pretended to

be interested in settling up until summary judgment was granted

. Thus, e ven taking

Chehab ’ s pleading s as t rue, together with i nferences reasonably drawn from them,

he would not be ent itle d to the relief he sought

. See T ex. R. Civ. P. 91a.1

.
In summary, to prevail in his bill of review, Chehab need ed to dem onst rate

that Mac Hai k ’ s extrinsic fraud prevented hi m from appeal ing the s ummary judgment. B y failing to allege an y extrinsi c fraud committed by Mac Haik,

Cheh ab ’ s bil l of review had no basis in law. See id. Therefore, we conclude that

t he trial did not e rr i n granting Mac Ha ik ’ s motion to dismiss

. See Sa nche z , 61 4

S.W.3d at 239

. We overrule Chehab ’ s sole issue.

III. C ON CLUSION

W e affirm the trial court ’ s judgment

.

/s/ Margaret “ Meg ” Poissant Justice

P a nel c onsi sts of Justice s Jew ell

, Bourliot, and Poissant

.