Jose Corro and Concepcion Corro v. Andres Perez, Perez & Malik, PLLC and Adriana Medrano of Perez & Malik ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00688-CV
Jose CORRO and Concepcion Corro,
Appellants
v.
Andres PEREZ, Perez & Malik, PLLC and Adriana Medrano of Perez & Malik,
Appellees
From the 38th Judicial District Court, Medina County, Texas
Trial Court No. 16-06-23689-CV
Honorable H. Paul Canales, Judge Presiding 1
Opinion by: Irene Rios, Justice
Sitting: Karen Angelini, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: December 19, 2018
AFFIRMED
This is an appeal from the granting of a motion for no-evidence summary judgment
disposing of claims asserted by a pro se litigant on behalf of himself and his mother. Appellants
assert that the trial court abused its discretion by striking summary judgment evidence and by
denying their motions for a continuance, to subpoena certain prison records, and to appoint counsel
for Concepcion Corro. They further assert that the trial court erred in granting summary judgment.
We affirm.
1
The Honorable H. Paul Canales presided over the underlying case by assignment.
04-17-00688-CV
Facts
Appellant Jose Corro is incarcerated. In October 2014, he wrote to appellee Andres Perez,
of the law firm Perez & Malik, P.L.L.C., inquiring whether Perez handled parole matters in
addition to his immigration practice. If so, Corro stated that he needed Perez’s help because he had
been repeatedly denied parole and believed one reason was because of his immigration status. 2
Corro wrote to Perez again in January 2015, stating that he was trying to retain Perez to represent
him in his parole and immigration matters. Corro expressly stated that he chose Perez because
Perez could represent him in both matters and Corro could not afford to retain two separate
attorneys.
Because of Corro’s incarceration, Perez met instead with Corro’s mother, appellant
Concepcion Corro. Corro alleges that Perez told his mother that he would represent Corro in the
parole matter as well as the immigration matter. Perez denies that he ever agreed to represent Corro
in the parole matter. In February 2015, Concepcion signed a fee agreement providing that Perez
would represent Corro for “GENL: N600 (certif. of citizensh.)” for the fee of $2000. The fee
agreement makes no mention of parole.
In March 2015, Corro wrote to appellee Adriana Medrano, Perez’s paralegal. Medrano had
informed Corro that she would be assisting with his “case,” and Corro wanted to know whether
that meant she was assisting with his parole case or his immigration case or both. He explained
that he had retained Perez based on the law firm’s assurance to his mother that it handled parole
hearings.
In April 2015, Corro again wrote to Medrano, asking for clarification of Perez’s
representation. He reiterated that he hired Perez because Perez could represent him in both the
2
Corro also candidly admitted that another reason for his parole denials was “of course my criminal history.”
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parole matter and the immigration matter, and that Corro could not afford to hire two separate
attorneys. He then noted that the law firm had informed his brother that Perez would not represent
him in the parole matter. Corro requested, if the firm was not going to represent him in the parole
matter, that it refund the money he had paid so that he could hire another attorney to represent him
at his parole hearing.
The record does not contain any written responses to Corro’s letters and appellees do not
contend that they sent Corro any such responses. Perez asserts that he verbally informed Corro’s
mother and brother that he represented Corro only on the immigration matter, not the parole matter.
Corro was not represented by an attorney at his parole hearing and was ultimately denied parole.
Corro subsequently filed a lawsuit against Andres Perez, Adriana Medrano, and Perez &
Malik, P.L.L.C. (collectively, “Perez”), on behalf of himself and his mother. He asserted claims
for violation of the DTPA, conversion, money had and received, and breach of fiduciary duty. He
later amended his pleading to drop the claims for conversion and money had and received, and to
add claims for fraud and breach of contract. After the close of discovery, Perez filed a motion for
no-evidence summary judgment, challenging various elements of each of Corro’s claims. In
response, Corro abandoned all of his claims except for violation of the DTPA. Concerning that
claim, Perez alleged in his summary judgment motion that there is no evidence (1) of a false,
misleading or deceptive act, (2) of reliance on any such act, and (3) that any such act was a
producing cause of the alleged damages.
Corro filed a response to the summary judgment motion, supported by numerous exhibits.3
These exhibits were not sworn, certified, or accompanied by an affidavit authenticating them as
summary judgment evidence. See Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex. App.—San
3
It appears that Corro filed these exhibits with the trial court but did not provide copies to opposing counsel. He
explained that, because he is incarcerated, he does not have access to a copier.
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Antonio 1997, pet. denied) (unauthenticated or unsworn documents are not summary judgment
evidence); TEX. R. CIV. P. 166a(f) (summary judgment documents must be sworn or certified).
Perez moved to strike many of the exhibits as inadmissible hearsay and for lack of verification or
authentication. He moved to strike another exhibit on the ground that it consisted of unsworn
statements purporting to be affidavits.
The summary judgment motion came on for hearing on August 14, 2017. The trial court
informed Corro at that time that he was required to file a sworn affidavit in response to the
summary judgment motion. The court declined to rule on the summary judgment motion and reset
the hearing to give Corro an opportunity to file a proper affidavit.
Prior to the reset hearing, Corro filed a supplemental response to the summary judgment
motion and to Perez’s objections to the summary judgment evidence. That supplemental response
was accompanied by an unsworn declaration entitled “Affidavit In Support of Opposition To
Defendants No-Evidence Summary Judgment.” See TEX. CIV. PRAC. & REM. CODE ANN. § 132.001
(providing for unsworn declaration in lieu of affidavit by an inmate). In that document, Corro
stated that he personally wrote many of the objected-to exhibits, including various letters written
to Perez and the Perez & Malik law firm, as well as medical requests and complaints addressed to
prison officials. Corro also stated that many of the exhibits were verified by appellees in discovery.
After hearing argument from both sides, and reviewing the pleadings and proffered
evidence, the trial court sustained Perez’s objections and granted the motion to strike Corro’s
summary judgment evidence. It further granted the motion for summary judgment and ordered that
Corro and Concepcion take nothing on their claims against Perez.
Discussion
On appeal, Corro challenges the trial court’s rulings (1) excluding summary judgment
evidence; (2) denying a motion for continuance, motion to subpoena evidence, and motion to
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appoint counsel; (3) granting summary judgment against Concepcion based on Corro’s inability
to represent her in the case; and (4) granting summary judgment based on a lack of evidence.
In our review of this case, we are mindful that pro se pleadings and briefs are to be liberally
construed. Shull v. United Parcel Serv., 4 S.W.3d 46, 53 (Tex. App.—San Antonio 1999, pet.
denied). Even so, “[a] pro se litigant is held to the same standards as licensed attorneys and must
comply with applicable laws and rules of procedure.” Id. at 52-53.
Pro se representation
We first address the issue of pro se representation, as it is dispositive of Concepcion
Corro’s claims.
“[A] pro se party cannot represent another party in litigation or on appeal.” In re Kennedy,
No. 04-16-00001-CV, 2016 WL 147147, at *1 n.2 (Tex. App.—San Antonio Jan. 13, 2016, no
pet.); see TEX. R. CIV. P. 7. Concepcion did not file a response to Perez’s motion for no-evidence
summary judgment, nor did she sign the response filed by Corro. Instead, Corro purported to act
on Concepcion’s behalf by including her in his summary judgment response. But it is undisputed
that Corro is not a licensed attorney. As a pro se litigant, he had no power to represent Concepcion
in the court below. See In re Kennedy, 2016 WL 147147, at *1 n.2.
If a nonmovant fails to file a timely response to a motion for no-evidence summary
judgment, the trial court must grant the motion. BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485,
509 (Tex. App.—San Antonio 2013, pet. denied); see Landers v. State Farm Lloyds, 257 S.W.3d
740, 746 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Concepcion did not file any response to
Perez’s motion. The trial court correctly granted summary judgment against her.
We note that Concepcion also did not sign a notice of appeal from the trial court’s order.
Again, Corro purported to act on her behalf. And again, he was without power to do so. See In re
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Kennedy, 2016 WL 147147, at *1 n.2. Thus, Concepcion Corro is not a party to this appeal and
the order that she take nothing on her claims is final.
Motions for continuance, subpoena of records, and appointment of counsel
Chapter 552 of the Texas Government Code governs access to public information. It
provides:
A governmental body is not required to accept or comply with a request for
information from: (1) an individual who is imprisoned or confined in a correctional
facility; or (2) an agent of that individual, other than that individual’s attorney when
the attorney is requesting information that is subject to disclosure under this
chapter.
TEX. GOV’T CODE ANN. § 552.028(a). Corro contends that he could not adequately respond to
Perez’s summary judgment motion without obtaining certain prison telephone records, an affidavit
authenticating prison medical records, and an affidavit establishing that certain letters were mailed
from the prison to Perez. He recognizes that, because he is incarcerated, the prison had no duty to
provide those documents to him. See id.
In a series of filings, Corro asked the trial court to continue the summary judgment
proceedings and to assist him in obtaining the requested prison records. He also asked the court to
appoint counsel “for Concepcion Corro only.” (Emphasis in original.) He believed that appointing
counsel for Concepcion “would automatically help [Corro] in the problem he is having in obtaining
evidence because of Govt. Code 552.028.”
As noted above, a pro se litigant cannot represent another party. In re Kennedy, 2016 WL
147147, at *1 n.2. Concepcion did not file a motion on her own behalf requesting appointment of
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counsel and Corro had no power to request such an appointment for her. See id. The trial court did
not abuse its discretion by refusing to appoint counsel for Concepcion. 4
As to the request for a continuance, the trial court’s denial of such a request is reviewed for
a “clear abuse of discretion on a case-by-case basis.” Joe v. Two Thirty Nine Joint Venture, 145
S.W.3d 150, 161 (Tex. 2004). “A trial court only abuses its discretion when it reaches a decision
so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id.The record does not reflect that Corro obtained a ruling on his request for a continuance,
or even that he brought it to the trial court’s attention. Corro proceeded with the reset summary
judgment hearing without any mention of his request for a continuance or any objection to the
hearing going forward without that request first being addressed. Corro’s complaint on appeal is
waived. See Gonerway v. Corr. Corp. of Am., 442 S.W.3d 443, 446 (Tex. App.—Dallas 2013, no
pet.); TEX. R. APP. P. 33.1(a).
In any event, Corro admits in his brief that “[t]ime is not the dispute” because prison
officials were never going to provide him with the prison records he sought. Thus, Corro urges
that “the abuse of discretion is not for a continuance but [the trial court’s] refusal to subpoena
evidence from the prison officials . . . .” But again, the record does not reflect that Corro brought
his subpoena request to the court’s attention and obtained a ruling. That complaint is waived. See
Gonerway, 442 S.W.3d at 446; TEX. R. APP. P. 33.1(a). And even if the complaint were preserved
for review, Corro has not cited any authority establishing that the trial court had any duty or
authority to order prison officials to release to Corro the records he requested. The trial court did
4
We note that, even if Concepcion had made a proper request on her own behalf, this case does not present the
exceptional circumstances required to warrant appointment of counsel in a civil case. See Gibson v. Tolbert, 102
S.W.3d 710, 712-13 (Tex. 2003).
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not abuse its discretion by refusing to grant a continuance to perform an act which it had no duty
to perform.
Excluding summary judgment evidence
Perez objected to a number of Corro’s exhibits on the grounds of hearsay and lack of
verification or authentication. He objected to another exhibit as being an unsworn statement
purporting to be an affidavit. The trial court sustained Perez’s objections and ordered the exhibits
struck. This exclusion of summary judgment evidence is reviewed for abuse of discretion. See
PNP Petroleum I, LP v. Taylor, 438 S.W.3d 723, 732 (Tex. App.—San Antonio 2014, pet. denied).
For reasons discussed below, our analysis of the order granting summary judgment is
narrowed to the issue of reliance. This, in turn, narrows our consideration of the exclusion of
evidence to only exhibits C, F, G, and I, and statements made in a September 14, 2017 unsworn
declaration.
Exhibit C is a letter written by Corro to Perez stating, “my mother has informed me that
you will take my case.” Exhibit F is a letter written by Corro to Medrano stating, “I retained Mr.
Perez on the information your office provided . . . to my mother.” Exhibit G is a letter written by
Corro to Medrano stating, “now My [sic] brother was told that your office will not represent me
on parole.” In the September 14, 2017 unsworn declaration, Corro refers to “knowledge that my
mother informed me,” “another phone call between mother & Perez,” and that “my mother was
informed that Perez & Malik would help me in my parole matter as well as my immigration case.”
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 12 (Tex. App.—San Antonio 2004, pet.
denied); TEX. R. EVID. 801(d). It is not admissible unless the proponent demonstrates that it fits
within an established hearsay exception. Dodeka, L.L.C. v. Campos, 377 S.W.3d 726, 731 (Tex.
App.—San Antonio 2012, no pet.). The statements in Corro’s letters (exhibits C, F, and G) and
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unsworn declaration relating what his mother or brother told him concerning what Perez told them
is clearly hearsay. Corro offered these conversations to prove the truth of their content—that Perez
told his mother that he represented Corro in the parole matter, and later told his brother that he did
not.
Corro did not demonstrate in the court below that this evidence falls within any exception
to the hearsay rule. On appeal, he makes reference to evidence rule “803(6)(B), (C),” but makes
no application of that rule. In any event, rule 803(6) provides an exception to the hearsay rule for
“records of regularly conducted activity,” i.e., business records. TEX. R. EVID. 803(6). The rule
includes four requirements, labeled subsections (A) through (D). 5 Id. Corro cites to only two of
those requirements—“the record was kept in the course of a regularly conducted business activity,”
and “making the record was a regular practice of that activity.” See id. at 803(6)(B), (C).
There is no evidence that Corro’s letters were written in the course of any regularly
conducted business activity. Further, Corro made no attempt to establish the remaining
requirements. See id. at 803(6)(A) (record made at or near the time by someone with knowledge),
803(6)(D) (conditions shown by testimony of custodian of records or affidavit or unsworn
declaration in compliance with rule 902(10)). The trial court did not abuse its discretion by
excluding exhibits C, F, and G, and hearsay statements contained in the September 14, 2017
unsworn declaration.
The last exhibit we must address is exhibit I, which contains two unsworn statements. In
one, Corro’s brother relates conversations he had with Corro and with Perez. In the second, Corro’s
mother relates conversations she had with Corro and with Perez. Both statements suffer the same
5
A fifth requirement is that the opponent fails to demonstrate a lack of trustworthiness. TEX. R. EVID. 803(6)(E). This
requirement does not place a burden on Corro and thus need not have been addressed in response to Perez’s hearsay
objections.
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hearsay defect as the exhibits discussed above. But Perez did not object to exhibit I on the ground
of hearsay. Rather, he objected that it contained unsworn statements purporting to be affidavits.
A summary judgment affidavit must “positively and unqualifiedly represent” that the facts
stated therein are true and within the affiant’s personal knowledge. Brownlee v. Brownlee, 665
S.W.2d 111, 112 (Tex. 1984). In addition, “the record must contain some evidence that the
purported affidavit was sworn to by [the affiant] before an authorized officer.” Mansions in the
Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012). Exhibit I does not fulfill either
requirement.
The statements of Corro’s mother and brother are each signed, and each states that it was
executed before a notary. But neither contains any affirmation of the truth of the facts stated or
any indication that the statement was sworn to. In addition, Corro does not identify anything else
in the summary judgment record establishing that these statements were sworn to before an
authorized officer. See Mansions, 365 S.W.3d at 317. Because of these defects, the statements are
not competent summary judgment evidence. See id.; Brownlee, 665 S.W.2d at 112. The trial court
did not abuse its discretion by excluding exhibit I.
We turn, then, to the trial court’s granting of a no-evidence summary judgment, in light of
the exclusion of exhibits C, F, G, and I, and hearsay statements contained in the September 14,
2017 unsworn declaration.
Granting summary judgment
An order granting summary judgment is reviewed de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). This court will affirm a no-evidence summary judgment “only
if the respondent fails to produce summary judgment evidence raising a genuine issue of material
fact on each challenged element.” Trevino v. Trevino, 64 S.W.3d 166, 171 (Tex. App.—San
Antonio 2001, no pet.); see TEX. R. CIV. P. 166a(i). Thus, as to each challenged element, the
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respondent must produce evidence that “rises to a level that would enable reasonable and fair-
minded people to differ in their conclusions.” Trevino, 64 S.W.3d at 171 (citing Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).
Corro alleged (as identified by a liberal reading of his pleadings) that Perez (1) engaged in
unconscionable conduct toward his mother, Concepcion, (2) misrepresented to Concepcion the
scope of his representation, and (3) failed to disclose to either Corro or his mother that he would
not represent Corro in the parole matter. See TEX. BUS. & COM. CODE ANN. §§ 17.46(b)(5), (24),
17.50(a)(3), (2). We have held above that Concepcion is not a party to this appeal. Therefore, we
need not address Corro’s assertion that Perez engaged in unconscionable conduct toward his
mother, made a misrepresentation to her, or failed to disclose information to her. The only DTPA
violation before us is the alleged failure to disclose to Corro the scope of Perez’s engagement. See
TEX. BUS. & COM. CODE ANN. § 17.46(b)(24).
Reliance is an essential element of Corro’s claim under the DTPA. TEX. BUS. & COM. CODE
ANN. § 17.50(a) (consumer may maintain action on laundry list violation “relied on by a consumer
to the consumer’s detriment”); Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 (Tex. 2002)
(reliance is essential element of DTPA laundry list violation). Perez’s motion for no-evidence
summary judgment asserts that there is no evidence to support this essential element. We agree.
Corro filed an August 27, 2017 unsworn declaration in response to Perez’s evidentiary
objections. In it, he references telephone conversations between himself and his mother in which
his mother told him that Perez said he would represent Corro in the parole matter. Corro then states
that “[a]ll Reliance came from these phone conversations which form the very substance of
the entire Suit.” (Emphasis in original.) The only evidence of the content of the telephone
conversations is contained in exhibits C, F, G, and I, and Corro’s September 14, 2017 unsworn
declaration. For reasons stated above, we have affirmed the trial court’s exclusion of that evidence.
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There is, therefore, no summary judgment evidence of the telephone conversations that Corro
states were the basis of his reliance.
In addition, by insisting that “[a]ll Reliance came from these phone conversations,” Corro
essentially admits that he relied on what Perez did say (albeit to Corro’s mother) and not on what
Perez did not say. Corro expressly states that he hired Perez in reliance on statements by his mother
that Perez said he would represent Corro in the parole matter. There is no evidence that Corro
relied on Perez’s subsequent silence on the subject.
Corro failed to sustain his burden of producing evidence to support a finding that he relied
to his detriment on Perez’s failure to disclose information concerning the scope of his engagement.
The trial court did not err by granting Perez’s motion for no-evidence summary judgment and
ordering that Corro take nothing on his claim under the DTPA.
Conclusion
The trial court did not abuse its discretion by denying Corro’s motions for continuance,
subpoena, and appointment of counsel or by excluding summary judgment evidence. Further, it
did not err by (1) granting a no-evidence summary judgment against Concepcion Corro for failure
to file a summary judgment response, and (2) granting a no-evidence summary judgment against
Jose Corro for failure to produce evidence of the essential element of reliance.
The order of the trial court is affirmed.
Irene Rios, Justice
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