Opinion
02-23-00196-CV
06-20-2024
John Anthony Castro, Appellant v. American Express National Bank, Appellee
On Appeal from County Court at Law No. 3 Tarrant County, Texas Trial Court No. 2022-000820-3
Before Birdwell, Bassel, and Walker, JJ.
MEMORANDUM OPINION
Wade Birdwell, Justice
In this credit card debt-collection suit, Appellant John Anthony Castro appeals from a summary judgment awarding Appellee American Express National Bank (Amex) $126,458.09 in damages. In four issues, Castro contends that the trial court violated his due process rights as a pro se party by "disregard[ing]" his verbal objection to Amex's summary judgment evidence; that he sufficiently controverted Amex's summary judgment evidence; that Amex failed to prove that he owned the credit card account; and that his postjudgment motion sufficiently preserved for appeal "all of the issues raised therein." We affirm the trial court's judgment.
I. Background
Amex sued Castro for breach of contract and account stated. Amex alleged that it had issued a platinum credit card to Castro and that by receiving and using the card, Castro became obligated to pay for the charges incurred. After incurring $126,458.09 in charges on the card, Castro defaulted on his obligation to make monthly payments on the credit card account, and Amex canceled the card. Amex sued Castro to recover the unpaid $126,458.09 credit card account balance.
Castro generally denied the allegations and filed a combined traditional and no-evidence motion for summary judgment. He argued that Amex failed to prove that a valid contract existed between the parties or that Castro had made or authorized the charges at issue. In support of his motion, Castro filed (1) Amex's discovery responses identifying the contract between the parties, which attached a copy of a cardmember agreement naming "JOHN ANTHO CASTRO" as the cardmember and describing the terms of the agreement, and (2) Amex's pretrial disclosures with a business-records affidavit from a custodian of records for Amex, a demand letter, another cardmember agreement naming Castro, and billing statements for account numbers ending in "2001" and "3009."
Castro twice reported to Amex that his credit card had been lost or stolen, and Amex issued new credit cards with different account numbers each time.
Amex responded to Castro's motion and filed its own traditional motion for summary judgment that attached as evidence a different business-records affidavit,the same cardmember agreements and billing statements that were attached to Castro's motion, and additional billing statements for account number ending in "1003." Amex argued that the parties had a valid contract, that Castro had breached the contract by failing to timely make the required payments toward the credit card account, and that it was entitled to recover from Castro the total amount due on the account.
Before the parties filed their respective motions for summary judgment, Amex had filed an amended business-records affidavit and amended business records. In total, Amex provided three business-records affidavits.
In response to Amex's summary judgment motion, Castro asserted that Amex could not prove that he was the owner of the credit card account, that he had made charges to the account, or that he had made payments on the account. Castro did not contest or object to Amex's summary judgment evidence, nor did he at any time file either a motion to strike or verified objections to Amex's summary judgment evidence.
The trial court heard both parties' motions and rendered summary judgment in favor of Amex. Castro appealed and then filed a "Motion for Reconsideration, Rehearing, or New Trial."
The appellate record does not contain a reporter's record from the summary judgment hearing. A reporter's record of such a hearing is unnecessary for appellate purposes. FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 838 (Tex. 2022).
II. Standard of Review
In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848. We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Once the movant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the nonmovant to come forward with competent controverting evidence that raises a fact issue. Phan Son Van v. Peña, 990 S.W.2d 751, 753 (Tex. 1999).
III. Analysis
Castro asserts that at the summary judgment hearing, he verbally objected to Amex's summary judgment evidence, and the trial court held that his verbal objection was invalid. He argues that the trial court violated his due process rights when it "disregarded" his verbal objection to Amex's summary judgment evidence; that the verbal objection and his assertion that he was not the owner of the account were sufficient to controvert Amex's summary judgment evidence; that summary judgment was not appropriate because uncontroverted facts established only the existence of an account but not ownership of the account; and that his postjudgment motion was sufficient to preserve for appeal "all of the issues raised therein." Castro's argument occupies less than five pages and cites only five cases. Most of the argument is unsupported, and Castro wholly fails to cite to the appellate record.
We note that although we are required to construe appellate briefs liberally, it is the party's responsibility to fully brief an argument and to provide record citations and legal authority to support its position. See Tex. R. App. P. 38.1(i), 38.9; Allegiance Hillview, L.P. v. Range Tex. Prod., LLC, 347 S.W.3d 855, 873 (Tex. App.-Fort Worth 2011, no pet.).
Under the Texas Rules of Civil Procedure, oral testimony is not permitted at summary judgment hearings. Tex.R.Civ.P. 166a(c); FieldTurf USA, 642 S.W.3d at 838. Rather, "[a] motion for summary judgment must be in writing, and '[i]ssues not expressly presented to the trial court by written motion, answer[,] or other response shall not be considered on appeal as grounds for reversal.'" FieldTurf USA, 642 S.W.3d at 838 (quoting Tex.R.Civ.P. 166a(c)). Thus, under Rule 166a(c), "both the reasons for the summary judgment and the objections to it must be in writing and before the trial judge at the hearing." City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979).
A. Standards for Pro Se Litigants
In his first issue, Castro contends that because he was a pro se party, the trial court violated his due process rights, "such as the right to petition the judiciary," when it "willfully ignore[d]" his verbal objection to Amex's summary judgment evidence due to the objection's noncompliance with the Texas Rules of Civil Procedure. Contrary to Castro's entirely unsupported assertion that the "Constitution mandates a more liberal application of court rules" with respect to pro se litigants, it is well settled that pro se litigants are held to the same standards as licensed attorneys:
Although Appellant is proceeding pro se, he must comply with all applicable procedural rules. See Weaver v. E[-]Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.-Texarkana 1997, no [writ]). A pro se litigant is held to the same standard that applies to a licensed attorney. Id.; Brown v. Tex. [Emp.] Comm'n, 801 S.W.2d 5, 8 (Tex. App.-Houston [14th Dist.] 1990, writ denied). No allowance is to be made for the fact
that a [party] is not a lawyer. Weaver, 942 S.W.2d at 169; Bailey v. Rogers, 631 S.W.2d 784, 786 (Tex. App.-Austin 1982, no writ).Maddox v. Hutchens, No. 02-02-00159-CV, 2003 WL 21983260, at *1 (Tex. App.-Fort Worth Aug. 21, 2003, no pet.) (per curiam) (mem. op.); see Smale v. Williams, 590 S.W.3d 633, 639 (Tex. App.-Texarkana 2019, no pet.) ("The law is well settled that '[a] party proceeding pro se must comply with all applicable procedural rules' and is held to the same standards as a licensed attorney." (quoting Paselk v. Rabun, 293 S.W.3d 600, 611 (Tex. App.-Texarkana 2009, pet. denied))).
Castro was not in the trial court, and is not on appeal, exempt from the procedural rules. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005). The trial court could not-and certainly had no "legal obligation" to-specially apply the procedural rules to Castro simply because he was pro se, nor can this court grant Castro any special accommodations on appeal. See id.; Rahman v. Discover Bank, No. 02-19-00182-CV, 2020 WL 2202450, at *2 (Tex. App.-Fort Worth May 7, 2020, no pet.) (per curiam) (mem. op.). Accordingly, we reject Castro's conclusory assertions that the trial court, in adhering to procedural rules and holding him to the same standards as a licensed attorney, violated Castro's due process rights or his "right to petition the[] judiciary."
We overrule Castro's first issue, and with the well-settled standards for pro se litigants in mind, we conduct our review of Castro's remaining issues.
B. Summary Judgment Was Appropriate
In his second and third issues, Castro contends that (1) his verbal objection to Amex's summary judgment evidence as inadmissible hearsay and his verbal assertion that he was not the owner of the credit card account were sufficient to controvert Amex's summary judgment evidence and (2) uncontroverted facts established only the existence but not the ownership of the credit card account, so summary judgment was not appropriate. Liberally construing Castro's arguments, as we must, see Tex. R. App. P. 38.9, we conclude that both issues rely on Castro's contention that his verbal objection and denial of ownership raised a fact issue regarding account ownership.
Form defects in an affidavit must be objected to in writing, or the objection is waived. Tex.R.Civ.P. 166a(f); Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990); City of Houston, 589 S.W.2d at 677; Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 383 (Tex. App.-Houston [1st Dist.] 2012, pets. denied) (op. on reh'g). Castro's hearsay objection is a form objection. McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 762 (Tex. App.-Waco 2009, no pet.); Tri-Steel Structures, Inc. v. Baptist Found. of Tex., 166 S.W.3d 443, 448 (Tex. App.-Fort Worth 2005, pet. denied); see also Castro v. Am. Express Nat'l Bank, No. 02-23-00224-CV, 2023 WL 8467496, at *2 (Tex. App.-Fort Worth Dec. 7, 2023, no pet.) (mem. op.) (reviewing similar appeal between the same parties). Thus, he had to raise the objection in writing. Cf. Balderas v. Saenz, No. 04-11-00873-CV, 2013 WL 346183, at *3 (Tex. App.-San Antonio Jan. 30, 2013, pet. denied) (mem. op.) ("An oral hearsay objection to a summary judgment affidavit is a nullity."). Because Castro's hearsay objection was not in writing, he has waived the objection.
Even if Castro's objection had been in writing, his failure to obtain a ruling from the trial court waived the issue for appeal. Generally, if a party does not obtain a written ruling on an objection to summary judgment evidence, the evidence "remains part of the summary judgment record and should be considered by the court of appeals." FieldTurf USA, 642 S.W.3d at 837; Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164-65 (Tex. 2018). Because Castro failed to obtain a ruling on the objection, he has failed to preserve it for appeal. See Tex. R. App. P. 33.1(a)(2); Tex.R.Civ.P. 166a(f).
Moreover, Castro's general objection to Amex's summary judgment evidence "on hearsay grounds" is too vague to support a reversal. See Tex. R. Civ. P. 166a(f) ("Defects in the form of affidavits . . . will not be grounds for reversal unless specifically pointed out by objection . . . ."); Castro, 2023 WL 8467496, at *2 (similar).
Generously construing Castro's appellate brief as having raised an objection to Amex's affidavits as conclusory, such an objection goes to the substance of the affidavit and can be raised for the first time on appeal. See Seim, 551 S.W.3d at 166; Albright v. Good Samaritan Soc'y-Denton Vill., No. 02-16-00090-CV, 2017 WL 1428724, at *2-3 (Tex. App.-Fort Worth Apr. 20, 2017, no pet.) (mem. op.) (holding an "objection that an affidavit is conclusory asserts a defect of substance and not form" that may be raised for the first time on appeal). While Castro, in his postjudgment motion, attempted to "object[] to the substance of the conclusory [and] factually unsupported" affidavits, on appeal, he fails to identify any objectionable statement in the affidavits or otherwise expand on the issue. Thus, neither his postjudgment objection nor his appellate argument is sufficiently specific for us to determine whether any of the affidavits' statements were inadmissible. See Morales v. Uptown Props., Inc., No. 05-05-00295-CV, 2005 WL 3418603, at *3 (Tex. App.-Dallas Dec. 1, 2005, no pet.) (mem. op.) ("Objections that statements are 'conclusory' may not be 'conclusory' themselves." (quoting Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.-Dallas 2005, no pet.))); see also Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.").
Further, Amex's affidavits are not conclusory. "A conclusory statement is one that does not provide the underlying facts to support the conclusion." See Albright, 2017 WL 1428724, at *3. The affidavits were made by a records custodian and contain statements authenticating the attached records as business records. See Tex. R. Evid. 902(10)(B). This alone is sufficient to show that they are not conclusory. See Core v. Citibank (S.D.), N.A., No. 11-13-00040-CV, 2015 WL 1004344, at *5 (Tex. App.- Eastland Feb. 27, 2015, no pet.) (mem. op.) ("Affidavits that substantially comply with the language of Rule 902(10)(b) are not conclusory in nature.").
The records custodian stated that the factual allegations were based on a personal review of the attached business records. The records include cardmember agreements identifying "JOHN ANTHO CASTRO" as the cardmember and reflecting interest rates, fees, and payment terms. The agreements specifically included "any supplements or amendments" and stated that by "us[ing] the Account (or . . . sign[ing] or keep[ing] the card), [Castro] agree[d] to the terms of the Agreement." The records also include multiple billing statements identifying "JOHN ANTHONY CASTRO" as the cardmember, detailing account charges and payments, and providing notices of past-due amounts and account cancellation. All of the records reflect "3009" (previously "1003" and "2001") as the last four digits of the account number. And the records were all addressed to Castro at the same mailing address. These allegations go beyond the requirements of Rule 902 and are based on the affiant's personal review of the records. See Albright, 2017 WL 1428724, at *3.
On the record before us, we conclude that Amex produced competent summary judgement evidence to establish Castro's ownership of the credit card account at issue, and Castro failed to raise a genuine issue of material fact to preclude summary judgment. Indeed, Castro failed to produce any competent controverting evidence. Both in his own summary judgment motion and in his response to Amex's motion, he provided only conclusory assertions that he was not the owner of the credit card account. Likewise, his verbal denial of ownership at the summary judgment hearing did nothing to controvert Amex's summary judgment evidence. See Tex. R. Civ. P. 166a(c); FieldTurf USA, 642 S.W.3d at 838; City of Houston, 589 S.W.2d at 677.
We overrule Castro's second and third issues.
C. Castro's Postjudgment Motion
Castro contends that his postjudgment motion preserves for appellate review "all issues raised therein." We disagree.
Objections to defects in the form of summary judgment evidence, such as Castro's hearsay objection, must be raised before judgment is rendered. Life Ins. Co. of Va. v. Gar-Dal, Inc., 570 S.W.2d 378, 380-81 (Tex. 1978); Aerobic Maint. & Serv., Inc. v. First United Bank & Tr. Co., No. 02-08-232-CV, 2009 WL 1425179, at *5 (Tex. App.- Fort Worth May 21, 2009, no pet.) (mem. op.). Thus, his attempt to raise the objection in a postjudgment motion failed to preserve the issue for appeal.
Objections to the substance of summary judgment evidence, such as Castro's objection that Amex's affidavits are conclusory, may be raised after judgment is rendered. See Seim, 551 S.W.3d at 166; Albright, 2017 WL 1428724, at *2-3; see, e.g., Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (op. on reh'g) (raising objection after summary judgment, by motion for new trial); Harris Cnty. Appraisal Dist. v. Riverway Holdings, L.P., No. 14-09-00786-CV, 2011 WL 529466, at *2, *6-7 (Tex. App.- Houston [14th Dist.] Feb. 15, 2011, pet. denied) (mem. op.) (similar). But as we have already determined, the affidavits are not conclusory.
Regarding Castro's reference to "insufficient notice," the entirety of his briefing on the purported issue consists of only two sentences: "One of the issues raised in [Castro's postjudgment] motion was insufficient notice. Proper notice to the non-movant is a prerequisite to summary judgment." He does not identify for us any complained-of notice, nor does he cite to the appellate record or provide any analysis. He then cites, without context, Lester v. Capital Industries, Inc., in which the appellant against whom summary judgment was granted claimed that he had not received proper notice of the summary judgment hearing. See 153 S.W.3d 93, 94 (Tex. App.- San Antonio 2004, no pet.). But in Castro's postjudgment motion, he asserted an entirely different complaint-that he had not received notice that his previous counsel's withdrawal motion had been granted. Accordingly, without any guidance from Castro, we are unable to ascertain his complaint due to inadequate briefing. See Tex. R. App. P. 38.1(i) (requiring brief to contain clear and concise argument for contention made, with appropriate citations to authorities and to appellate record); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (observing that error may be waived by inadequate briefing).
We overrule Castro's fourth issue.
IV. Conclusion
Having overruled Castro's issues, we affirm the trial court's judgment.