                                  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.
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                                                         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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                                                                                                  04-17-00688-CV


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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                                                                                       04-17-00688-CV


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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                                                                                               04-17-00688-CV


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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                                                                                     04-17-00688-CV


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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