Corona v. Pilgrim's Pride Corp., 06-07-00015-CV.

• Decision Date: 18 January 2008
• Docket Number: No. 06-07-00015-CV.,06-07-00015-CV.
• Citation: 245 S.W.3d 75
• Parties: Javier D. CORONA, Appellant, v. PILGRIM'S PRIDE CORPORATION, Appellee.
• Court: Texas Court of Appeals

245 S.W.3d 75

Javier D. CORONA, Appellant, v. PILGRIM'S PRIDE CORPORATION, Appellee.

No. 06-07-00015-CV.

Court of Appeals of Texas, Texarkana.

Submitted September 10, 2007.

Decided January 18, 2008.

Javier D. Corona, Austin, pro se.

Lawrence M. Doss, Chad L. Farrar, Mullin Hoard Brown, LLP, Dallas, TX, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

When Javier D. Corona personally guaranteed payment to Pilgrim's Pride Corporation of the accounts of his newly formed Centex Foods Corporation,¹ he expected Centex to be successful in distributing meat products in Austin and its environs. Business did not go as Corona expected, and Centex accumulated a debt to Pilgrim's Pride of $25,538.37, representing thirteen past due invoices.

Pilgrim's Pride filed a suit on a sworn account against Centex and Corona.² The trial court granted the motion for summary judgment filed by Pilgrim's Pride and dismissed Corona's counterclaims. Corona appeals pro se.³

We affirm the judgment of the trial court because we hold: (1) the trial court properly dismissed Corona's counterclaims, (2) the trial court properly excluded Corona's summary judgment affidavit as hearsay, (3) Corona failed to raise any fact issue on Pilgrim's Pride's claim for debt, (4) the trial court was not required to allow Corona to appear by telephone, (5) Corona's complaint about discovery was not preserved for appellate review, and (6) Corona's complaint about venue was not preserved for appellate review.

(1) The Trial Court Properly Dismissed Corona's Counterclaims

Corona claims the trial court erred by dismissing his counterclaims. In response to Pilgrim's Pride's lawsuit, Corona asserted counterclaims for breach of contract, negligence, fraud, conspiracy to commit fraud, conversion, and malicious prosecution against Pilgrim's Pride. Corona claims that Pilgrim's Pride employees allowed products to be ordered without authorization by Centex and redirected deliveries to unauthorized locations. Corona also claims the suit brought by Pilgrim's Pride was meritless.

With the exception of the malicious prosecution claim, all of the counterclaims alleged by Corona belong to Centex. The claims are all based on the allegation that Pilgrim's Pride employees delivered products to unauthorized locations and the products were charged to Centex's account. Corona sought damages for injuries allegedly caused to Centex, a corporation of which Corona is a shareholder. The Texas Supreme Court has repeatedly held a corporate shareholder cannot personally recover damages for wrongdoing against the corporation. Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex.1990); Commonwealth of Mass. v. Davis, 140 Tex. 398, 168 S.W.2d 216, 221 (1942) (corporation and its shareholders are distinct legal entities). Further, Texas courts have consistently held that a nonattorney may not appear pro se on behalf of a corporation. See, e.g., Kunstoplast of Am., Inc. v. Formosa Plastics Corp., USA, 937 S.W.2d 455, 456 (Tex.1996) (per curiam); Moore By and Through Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324, 327 (Tex. App.-El Paso 1994, writ denied); cf. Am. Home Assur. Co. v. Unauthorized Practice of Law Comm., 121 S.W.3d 831, 839 (Tex. App.-Eastland 2003, pet. granted). Corona could not bring these counterclaims either personally or on behalf of the corporation.⁴

Corona failed to allege facts sufficient to plead a case of malicious prosecution. Corona claimed Pilgrim's Pride committed malicious prosecution by bringing suit against Corona on a meritless claim.

To prevail in a suit alleging malicious prosecution of a civil claim, the plaintiff must establish: (1) the institution or continuation of civil proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in plaintiff's favor; and (6) special damages.

Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex.1996). Corona's counterclaim for malicious prosecution fails to allege any facts sufficient to establish the above elements. Corona failed to allege any facts sufficient to constitute malice, lack of probable cause, or termination of the proceedings in Corona's favor. The trial court did not err in dismissing Corona's counterclaims.

(2) The Trial Court Properly Excluded Corona's Summary Judgment Affidavit as Hearsay

Corona submitted two affidavits as summary judgment evidence, one signed by Corona and one signed by Jorge Suchomlinow. The trial court overruled Pilgrim's Pride's objections to Suchomlinow's affidavit, but sustained the objections to Corona's affidavit. Corona argues the trial court erred in not considering his summary judgment affidavit. In the affidavit, Corona states:

I was informed by a previous employee of my corporation that some of my employees have been receiving merchandise deliveries billed to Centex Foods Corporation. I was told by witnesses that Pilgrim's Pride delivery drivers have been consistently delivering merchandise invoiced to my company to unauthorized locations.

At the summary judgment hearing, Corona stated the prior employee was not a legal resident and was afraid to sign an affidavit.

We review a trial court's rulings in admitting or excluding evidence under an abuse of discretion standard. Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex.2000). Under an abuse of discretion standard, we cannot overrule the trial court's decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978). The affidavit in question consists entirely of hearsay. The trial court did not abuse its discretion in excluding Corona's affidavit. See Tex.R. Civ. P. 166a(f); Tex.R. Evid. 802; Einhorn v. LaChance, 823 S.W.2d 405, 410 (Tex.App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.) (op. on reh'g) (affidavits based solely on hearsay inadmissible as summary judgment evidence).

(3) Corona Failed to Raise Any Fact Issue on Pilgrim's Claim for Debt

Corona argues the trial court erred in granting summary judgment in favor of Pilgrim's Pride because there are genuine issues of material fact. Corona alleged negligence, fraud, breach of contract, and conversion as affirmative defenses. The factual basis of the above defenses can be summarized as alleging Pilgrim's Pride employees conspired with Centex employees to order goods without authorization and to deliver said goods to unauthorized locations. In addition, Corona alleged the defense of partial satisfaction.

The standards of review for both a traditional motion for summary judgment and a no-evidence motion for summary judgment are well established. When reviewing a traditional summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002). Summary judgment is proper when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979). A nonmovant will defeat a no-evidence summary judgment motion if the nonmovant presents more than a scintilla of probative evidence on each element of his or her claim. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex.App.-Austin 1998, no pet.). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). In a summary judgment hearing, the trial court's decision is based on written pleadings and written evidence rather than live testimony. See TEX.R. CIV. P. 166a(c).

To obtain summary judgment on a guaranty agreement, a party must conclusively prove: (1) the existence and ownership of the guaranty contract, (2) the performance of the terms of the contract by plaintiff, (3) the occurrence of the condition on which liability is based, and (4) guarantor's failure or refusal to perform the promise. Barclay v. Waxahachie Bank & Trust Co., 568 S.W.2d 721, 723 (Tex.Civ. App.-Waco 1978, no writ). Pilgrim's Pride introduced summary judgment evidence in the form of business records with the necessary business-records affidavit. Pilgrim's Pride's summary-judgment evidence conclusively established that Corona signed the guaranty agreement for payment of Centex obligations to Pilgrim's Pride, that Centex owed Pilgrim's Pride a balance of $25,538.37, that Pilgrim's Pride had demanded Corona pay the indebtedness of that debt, and that Corona failed to do so.

In response, Corona presented the trial court with two affidavits as summary judgment evidence. As referenced above, the trial court sustained Pilgrim's Pride's objections to Corona's affidavit because it was entirely hearsay. Corona's remaining summary judgment evidence consisted of the affidavit of Suchomlinow. Suchomlinow's affidavit provides in pertinent part:

I witnessed PILGRIM'S PRIDE CORPORATION's delivery trucks unload many cases of meat products at my place of business parking lot (El Dorado Meat Market, 5001 Airport Blvd[.], Austin, TX 78746). I witnessed the merchandise being personally handed to then CENTEX's employee Ismael Deleon. It was until [sic] on or about May 20th, 2005 that I approached the delivery drivers and emphatically prohibited them of making any further deliveries at my place of business since I finally realized there was some suspicious activity going on between PILGRIM's delivery drivers and ...