Zavala v. Franco

622 S.W.3d 612

Gloria ZAVALA, f/n/a Gloria Z. Franco, Appellant,

v.Apolinar C. FRANCO, Appellee.

No. 08-20-00163-CV

Court of Appeals of Texas, El Paso.

April 19, 2021

ATTORNEY FOR APPELLANT: Lane A. Haygood, Haygood Law Firm, 522 North Grant Ave., Odessa, TX 79761.

ATTORNEY FOR APPELLEE: Allen R. Stroder, 6010 Highway 191, Suite 230, Odessa, TX 79762.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

JEFF ALLEY, Justice Apolinar C. Franco (Appellee here) filed suit against his former spouse, Gloria Zavala (Appellant here), claiming that she violated the terms of their divorce decree by failing to pay him for his one-half equity interest in their marital homestead upon its sale. He filed a summary judgment motion seeking relief on that claim to which Zavala did not file a response. She now appeals the trial court's order granting summary judgment in Franco's favor. In two issues, Zavala contends that the trial court erred in granting the summary judgment because (1) the statute of limitations barred Franco's recovery, and (2) Franco did not conclusively establish his right to relief on all elements of his claim. Because Zavala failed to properly raise limitations as an affirmative defense to Franco's lawsuit, we conclude that she waived her right to raise that issue on appeal. In addition, we conclude that Franco came forward with sufficient uncontroverted summary judgment evidence to support his claim for relief. Accordingly, we affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Franco's Lawsuit

Franco filed suit on May 2, 2019, alleging that he and Zavala were divorced in 1987, and that the parties' divorce decree awarded Zavala the possession and use of the parties' residential homestead located in Crane, Texas, but awarded him a one-half equity interest in the homestead, up to a maximum of $25,000, as his separate property. The divorce decree, further provided that Franco's equity interest was to be "evidenced by a promissory note providing no interest," and that it would be "payable within thirty (30) days of [Zavala's] sale of said house and receipt of the net proceeds of said house." Franco alleged that Zavala sold the homestead to a third party on or about September 29, 2016, but she "fraudulently concealed the sale" from him, and failed to pay him his share of the net proceeds from the sale. He further alleged that he discovered the sale in May of 2018, approximately one year before filing his lawsuit, and that despite making demands on Zavala, she refused to pay him his share, in violation of the terms of their divorce decree. He sought payment of $25,000 as his equity interest in the proceeds of the sale, together with an award of attorney's fees.

Zavala filed a handwritten document on July 1, 2019, stating that she needed "more time" to hire an attorney to represent her. Shortly thereafter, on July 22, 2019, Zavala filed another handwritten note stating that she was "prepared for hearing" in the case.

B. Franco's Motion for Summary Judgment

Some eight months after Zavala's appearance, Franco filed a motion for summary judgment, arguing that he was entitled to judgment as a matter of law on his lawsuit. In support of his motion, he attached a copy of the divorce decree, setting forth his equity interest in the parties' homestead. In addition, he attached a declaration, with a jurat attached, stating that the divorce decree was genuine and authentic; that he was awarded a one-half equity interest in the homestead pursuant to the divorce decree; that Franco sold the homestead for over $50,000; and that she concealed the sale from him and thereafter refused to pay him once he learned of the sale in May of 2018. He further attached a declaration from his attorney stating that he sent Zavala a set of Requests for Admissions on December 12, 2019, but that she never responded to the requests. In the Request for Admissions, Franco asked Zavala to admit that he was awarded a one-half equity interest in the homestead in an amount up to $25,000, which was due and payable within 30 days of its sale; that Zavala sold the homestead for over $50,000 to a third party in September of 2016; that she failed to inform Franco of the sale or that she otherwise concealed the sale from him; and that she has failed to pay him his share of the sales proceeds. Franco argued in his motion that because Zavala failed to respond to the Request for Admissions, they should be deemed admitted in accordance with Rule 198.2 of the Texas Rules of Civil Procedure.¹

In his declaration, Franco's attorney also stated that he had spent 13.6 hours representing Franco in this matter, and that given his billing rate of $300 an hour, his total bill at that time was $4,080. However, he averred that he anticipated spending an additional four hours to attend a hearing on Franco's summary judgment motion and to prepare an order granting the motion if necessary, adding another $1,200 to his bill.

Zavala did not file a written response to the motion for summary judgment.

C. The Summary Judgment Hearing

The trial court heard Franco's motion on June 18, 2020, which Zavala attended without counsel.² At the hearing, Franco's attorney argued that Franco was entitled to summary judgment on his claim based on the declarations and supporting evidence attached to his motion, as well as Zavala's failure to respond to the Request for Admissions. The trial court took judicial notice of the court's file and Franco's pleadings, and given Zavala's failure to respond to the Request for Admissions, stated that it would treat them as deemed admissions.

The trial court then advised Zavala that it would "hear from [her]." Although Zavala was not sworn in as a witness, Franco's attorney objected to allowing her to give "oral testimony," noting that such testimony was not permissible at a summary judgment hearing. The trial court responded that it would give Zavala "some leeway" and would allow her to speak, but cautioned Zavala that she would be held to the same standard as an attorney in representing herself. Zavala then argued, among other things, that she did not believe she was obligated to pay anything to Franco from the proceeds of the homestead's sale, but even if she were obligated, Franco's equity interest in the proceeds would be less than $25,000, as she claimed the homestead sold for $35,000, and that the net proceeds were $33,819.70, making his share in the proceeds at most $16,909.85.³

At the close of the hearing, the trial court granted Franco's motion for summary judgment and awarded him the requested amount of $25,000, together with prejudgment interest in the amount of $5,342.34, for a total monetary award of $30,342.34, together with an award of $5,280 in attorney's fees.⁴ This appeal followed.

II. ISSUES ON APPEAL

In two issues, Zavala, who is now represented by counsel, argues that the trial court erred in granting summary judgment in Franco's favor. First, Zavala contends that Franco's claims for a monetary award and an award of attorney's fees were both barred by the statute of limitations. Second, Zavala contends that Franco failed to meet his burden of conclusively establishing all elements of his claim, arguing that (1) he did not conclusively establish that she was obligated to pay him any portion of the proceeds from the homestead's sale, as he did not come forward with a promissory note evidencing the obligation, and (2) he did not conclusively establish that the sales price of the house was over $50,000, and that there is at least a question of fact on what amount, if any, he was entitled to receive from the proceeds of the sale to satisfy his one-half interest.

III. STANDARDS FOR PRO SE LITIGANTS

Before addressing the merits of Zavala's arguments, we note as a preliminary matter that although we liberally construe a pro se litigant's pleadings, a pro se litigant is held to the same standards as a licensed attorney when representing herself, and she must therefore comply with all applicable laws and rules of procedure in doing so. See Serrano v. Pellicano Park, L.L.C. , 441 S.W.3d 517, 520 (Tex.App.--El Paso 2014, pet. dism'd w.o.j.), citing Valadez v. Avitia , 238 S.W.3d 843, 845 (Tex.App.--El Paso 2007, no pet.) ; see also Kalil v. Gen. Motors Corp. , No. 08-00-00263-CV, 2002 WL 265818, at *2 (Tex.App.--El Paso Feb. 26, 2002, no pet.) (not designated for publication) ("While it is true that pro se pleadings and briefs are to be liberally construed, this does not mean that a pro se litigant is not required to comply with the law and rules of procedure."); see also Wheeler v. Green , 157 S.W.3d 439, 444 (Tex. 2005) (recognizing that pro se litigants are not exempt from the rules of procedure). If pro se litigants were not required to comply with applicable laws and rules of procedure, they would be given an unfair advantage over parties represented by counsel. See Robb v. Horizon Communities Improvement Ass'n, Inc. , 417 S.W.3d 585, 589-90 (Tex.App.--El Paso 2013, no pet.) ; see also Mansfield State Bank v. Cohn , 573 S.W.2d 181, 184 (Tex. 1978). And, as the Texas Supreme Court has recognized, "[h]aving two sets of rules--a strict set for attorneys and a lenient set for pro se parties--might encourage litigants to discard their valuable right to the advice and assistance of counsel." Wheeler , 157 S.W.3d at 444.

It is with these principles in mind that we conduct our review of Zavala's claim that the trial court erred in granting Franco's motion for summary judgment.

IV. STANDARD OF REVIEW FOR SUMMARY JUDGMENTS

When, as here, a plaintiff moves for traditional summary judgment, he "bears the burden to conclusively establish that [he] is entitled to judgment as a matter of law, notwithstanding the nonmovant's response or lack thereof." B.C. v. Steak N Shake Operations, Inc. , 598 S.W.3d 256, 258-59 n.12 (Tex. 2020), citing TEX. R. CIV. P. 166a(c) ; Rhône-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 222-23 (Tex. 1999) ("The...