Montalvo v. Guerra
| Decision Date | 17 December 2020 |
| Docket Number | NUMBER 13-18-00565-CV |
| Parties | MARCOS MONTALVO A/K/A JOSE MARCOS MONTALVO, Appellant, v. MANUEL GUERRA AND ROSITA GUERRA, Appellees. |
| Court | Texas Court of Appeals |
On appeal from the 206th District Court of Hidalgo County, Texas.
Before Chief Justice Contreras and Justices Hinojosa and Perkes
Appellant Marcos Montalvo a/k/a Jose Marcos Montalvo, proceeding pro se, appeals the trial court's summary judgment in favor of appellees Manuel and Rosita Guerra (the Guerras) on their claims for breach of contract, common law fraud, and violations of the Texas Property Code and Texas Deceptive Trade Practices Act (DTPA). See TEX. BUS. & COM. CODE ANN. §§ 17.46, 17.50, 27.01; TEX. PROP. CODE ANN. §§ 5.077(c), 5.085(c). By three issues, which we interpret as two, Montalvo asserts the trial court erred when it: (1) granted the Guerras' motion for summary judgment, and (2) struck his attorney's notice of appearance. We affirm.
On January 12, 2011, Montalvo and the Guerras entered into an agreement for the sale of real property located at 2514 Ridley Street in Donna, Texas (the Ridley property). The total price for the Ridley property was $78,000. The Guerras paid $7,500 as a down payment to Montalvo, and an additional $2,800 for home modifications. The Guerras then financed the remainder of the purchase price, agreeing to pay $577.93 per month for a twenty-five-year term. In the agreement, Montalvo warranted that he had "good and legal title to said property, full authority to sell said property, and that said property [would] be sold by warranty deed free and clear of all liens."
The Guerras timely paid Montalvo their monthly payments until they discovered that Montalvo lost his interest in the Ridley property prior to the sale. The Guerras learned that the Hidalgo County Sheriff's office had sold the Ridley property to a third party, TCPSP Corporation, at a county foreclosure sale in May of 2012. The Guerras alleged that they were then forced to negotiate a second contract for purchase of the Ridley property with TCPSP to remain in their home. According to the Guerras, the new contract did not account for their previous payments to Montalvo, resulting in economic losses.
On July 4, 2012, the Guerras filed a lawsuit in Hidalgo County district court against Montalvo alleging he failed to possess "good and legal title" to the Ridley property whenhe sold it to them. The Guerras' causes of action included breach of contract, fraud, and violations of the property code and DTPA. See TEX. BUS. & COM. CODE ANN. §§ 17.46, 17.50, 27.01; TEX. PROP. CODE ANN. §§ 5.077, 5.085. They sought pecuniary damages, attorney's fees, mental anguish and exemplary damages for fraud, and pre-judgment interest, among other damages.
Montalvo filed for bankruptcy in federal court on February 26, 2016. The underlying district court case was stayed until November 23, 2016, when the bankruptcy court signed an agreed order modifying the stay to permit the underlying case to proceed. When the case became active again, the Guerras served discovery on Montalvo which included requests for admission. These requests for admission were mailed on February 9, 2018, February 26, 2018, and March 5, 2018, by certified mail, return receipt requested, but the mailings were returned as "unclaimed" and "not able to be forwarded" all three times. Finally, on March 16, 2018, the Guerras served the same discovery which was signed for on March 28, 2018. Montalvo failed to respond to requests for admission, though; therefore, said requests were deemed admitted. See TEX. R. CIV. P. 198.2.
The Guerras subsequently filed a no-evidence motion for summary judgment on April 17, 2018. The no-evidence summary judgment motion challenged all of Montalvo's affirmative defenses, such as accord and satisfaction, consent, duress, estoppel, assumption of risk, failure of consideration, release, illegality, and laches. The Guerras also filed a traditional motion for summary judgment on May 8, 2018 wherein they alleged that they were entitled to judgment on their claims for breach of contract, fraud, and violations of the DTPA and property code.
On July 17, 2018, attorney Antonio Martinez, Jr. filed a notice of appearance to represent Montalvo in the district court case. The Guerras responded with a combined motion to strike or motion to show authority. In their motion, the Guerras pointed out that Martinez had not "obtained or even sought bankruptcy court permission to represent [Montalvo] in this case," as required by federal bankruptcy law. The trial court granted the Guerras' motion on July 24, 2018, and Montalvo proceeded pro se.
The trial court granted the Guerras' no-evidence motion for summary judgment on all of Montalvo's affirmative defenses on July 31, 2018. Two days later, on August 2, 2018, the trial court granted the Guerras' traditional motion for summary judgment on all of their claims and awarded damages in the amount of $258,240.64.
Montalvo filed a motion for new trial and an amended motion for new trial. On September 7, 2018, the trial court denied the amended motion for new trial. Montalvo appeals the trial court's granting of the traditional motion for summary judgment.1
We review de novo the trial court's ruling on a summary judgment motion. Trial v. Dragon, 593 S.W.3d 313, 316 (Tex. 2019); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To prevail on a traditional summary judgment motion, the movants must establish that no genuine issues of material fact exist and that they are entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC., 437 S.W.3d 507, 511 (Tex. 2014).
Parties moving for summary judgment on their own claims must conclusively prove all essential elements of the claim. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see also TEX. R. CIV. P. 166a(a) (). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the movant does not satisfy its initial burden, however, the burden does not shift and the non-movant need not respond or present any evidence. See Amedisys, 437 S.W.3d at 511; State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013). This is because "summary judgments must stand or fall on their own merits, and the non-movant's failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant's right." Amedisys, 437 S.W.3d at 511-12.
If the movants meet their burden, the burden then shifts to the nonmovants to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). To determine if the nonmovants have raised a fact issue, we review the evidence in the light most favorable to the nonmovants, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unlessreasonable jurors could not. Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827). We indulge every reasonable inference and resolve any doubts in the nonmovants' favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
By his first issue, Montalvo challenges the trial court's granting of the Guerras' traditional motion for summary judgment. He makes three arguments in support of this contention: (1) the Guerras failed to conclusively establish the elements of their claims; (2) his general answer created a genuine issue of material fact; and (3) he was denied due process when the trial court granted the motion without a hearing.
First, Montalvo contends that "there were significant genuine issues of material fact on the allegations of breach of contract and the value of the alleged breach." Montalvo, however, presents no substantive argument or authority as to whether the Guerras' summary judgment evidence was insufficient to conclusively establish the elements of their claims. Further, he makes only one citation to the record in this part of his brief. "This court does not have a duty to review a voluminous record without guidance from the appellant to determine whether its assertion of reversible error is valid." Keyes Helium Co. v. Regency Gas Servs., L.P., 393 S.W.3d 858, 861 (Tex. App.—Dallas 2012, no pet). Although Montalvo's brief does cite to certain portions of Manuel Guerra's deposition, that deposition is not included in any of the ten volumes of the clerk's record in this case.
"The right to appellate review in Texas extends only to complaints made in accordance with our rules of appellate procedure, which require an appellant to clearlyarticulate the issues we will be asked to decide, to make cogent and specific arguments in support of its position, to cite authorities, and to specify the pages in the record where each alleged error can be found." Armhein v. Bollinger, 593 S.W.3d 398, 401 (Tex. App.—Dallas 2019, pet. denied). While we recognize that Montalvo is acting pro se and we must construe his appellate brief liberally, he must still comply with all applicable briefing rules. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (T...
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