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Raymond v. Pizza Venture of San Antonio, LLC

Court of Appeals of Texas, Fourth District, San Antonio

May 23, 2018

Carlos Antonio RAYMOND, Appellant
v.
PIZZA VENTURE OF SAN ANTONIO, LLC d/b/a Papa John's Pizza, Appellee

          From the County Court at Law No. 10, Bexar County, Texas Trial Court No. 2015CV00935 Honorable David J. Rodriguez, Judge Presiding

          Sitting: Karen Angelini, Justice, Marialyn Barnard, Justice Rebeca C. Martinez, Justice

          MEMORANDUM OPINION

          Marialyn Barnard, Justice

         This appeal arises from an automobile accident. After a jury trial, the trial court rendered a take-nothing judgment in favor of appellee Pizza Venture of San Antonio, LLC d/b/a Papa John's Pizza ("Pizza Venture").[1] On appeal, appellant Carlos Antonio Raymond raises several issues challenging the take-nothing judgment in favor of Pizza Venture. We affirm the trial court's judgment.

         Background

         A detailed rendition of the facts is unnecessary to our disposition of the appeal. Accordingly, we provide only a brief factual and procedural background for context.

         A Ford Taurus driven by Martin Joseph Roy rear-ended a Hummer driven by Raymond. At the time of the collision, Roy was on his way to his job as a delivery driver for a local Papa John's Pizza owned by Pizza Venture. Raymond sued Roy and Pizza Venture, claiming Roy was in the course and scope of his employment at the time of the collision.

         At trial, Raymond introduced evidence that at the time of the collision, Roy was wearing a Papa John's shirt and cap. Raymond testified that at the time of the accident, Roy repeatedly stated he was running late for work. Pizza Venture introduced evidence showing Roy had not yet "clocked-in" for work at the time of the accident.

         After the testimony was concluded, the matter was submitted to the jury. The jury found Roy negligent, but found he was not in the course and scope of his employment at the time of the collision. The jury declined to award Raymond any damages for physical pain, mental anguish, or medical expenses. It also declined to award any damages for repairs to Raymond's vehicle. Based on the jury's verdict, the trial court rendered a take-nothing judgment in favor of Pizza Venture. As to Roy, the trial court rendered a judgment in favor of Raymond, awarding him $2, 232.13 - the amount of the uncontested property damage. Thereafter, Raymond perfected this appeal.

         Analysis

         On appeal, Raymond, who is pro se, sets out four issues in his brief. Raymond first complains about the trial court's failure to provide the jury with a "missing evidence inference charge, " seemingly arguing he was entitled to such an instruction based on Pizza Venture's alleged failure to call certain witnesses or introduce certain evidence. Raymond next contends Pizza Venture should have introduced evidence of insurance coverage for its drivers, and because it did not, the trial court erred "in denying relief to correct a fault." This issue seems to be related to the first issue. Raymond then asserts he was denied his procedural due process rights, but the argument under that issue relates back to allegedly missing evidence, specifically certain photographs, and the trial court's failure to instruct the jury that the failure of Pizza Venture to produce the photographs required the jury to presume they would have been unfavorable to Pizza Venture. Finally, he contends he was improperly denied his right to recover damages pursuant to 42 U.S.C. § 1983. Again, however, his argument does not comport with his stated issue. Within the argument, he seems to argue the trial court rendered judgment contrary to the jury's verdict based on a motion to enter judgment filed by Pizza Venture.

         Before we substantively address any of Raymond's issues, we must first determine whether he has presented or preserved anything for our review. In its brief, Pizza Venture contends Raymond has waived his issues because: (1) he has failed to sufficiently brief them; and (2) he failed to preserve any of the issues raised here by proper request or objection in the trial court. We agree.

         Waiver - Inadequate Briefing

         When Raymond filed his original appellant's brief, this court rendered an order striking his brief. In our order, we noted Raymond's brief failed to contain any citations to the appellate record or authorities, failed to present legal arguments, and failed to include a certificate of compliance. See Tex. R. App. P. 9.4(i)(3) (requiring computer-generated documents subject to word limits to include certificate stating number of words in document); id. R. 38.1(i) (requiring appellant's brief to contain clear and concise argument with appropriate citations to record and authorities). Accordingly, we struck Raymond's brief and ordered him to file an amended brief correcting the violations set out in the order. After the amended brief was filed, we rendered another ...


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