Eric Flores v. United Freedom Associates, Inc., and Al Sanchez

• Court: Court of Appeals of Texas
• Decided: April 14, 2010
• Docket: 08-09-00158-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

ERIC FLORES, § No. 08-09-00158-CV Appellant, § Appeal from the v. § County Court at Law No. Five UNITED FREEDOM ASSOCIATES, § INC. AND AL SANCHEZ, of El Paso County, Texas § Appellees. (TC# 2009-1246) §

OPINION

Appellant, Eric Flores, appeals the trial court’s rendition of summary judgment in favor of

Appellees, United Freedom Associates, Inc. (UFA) and Al Sanchez, in Flores’ suit against UFA and

Sanchez for alleged employment discrimination. Finding Appellant failed to adequately brief his

issues, we determine that nothing is presented for review and therefore affirm the trial court’s

judgment.

BACKGROUND

Because the factual background and proceedings are well-known to the parties, we abbreviate

the recitation of the facts as follows. Through a contract with the U.S. Army, the Texas Department

of Assistive and Rehabilitative Services (TDARS) provided meals to soldiers. TDARS, in turn,

subcontracted these operations to Cantu Services. On November 1, 2008, the subcontract was

transferred to UFA.

Although disputed, Appellant alleges that he was employed by Cantu Services as a cook.

Appellant contends that during his employment, a Cantu Services manager permitted him to take

leave for a family emergency with a promise of job retention. Upon his return, apparently after November 1, 2008, Appellant learned of the subcontractor change. Some, but not all, Cantu Services

employees were hired by UFA.

In his petition, Appellant alleged that he applied for employment with UFA but, for

impermissible reasons, was not hired by UFA’s project manager, Mr. Al Sanchez, in violation of his

civil rights. UFA and Mr. Sanchez answered the petition, asserted special exceptions, and set forth

affirmative defenses. UFA and Mr. Sanchez jointly filed a motion for summary judgment, which

Appellant answered with a “Motion for Dilatory Pleas and Issue of Law.” After receiving notice,

Appellant failed to appear at the summary judgment hearing and the trial court granted summary

judgment in favor of UFA and Mr. Sanchez.

Appellant thereafter pursued a writ of mandamus that was denied. Appellant filed a notice

of restricted appeal as well as a motion for rehearing but requested that the motion be “disposed of”

if not already rendered and asked this Court to file his appellate brief. Appellant then filed a

supplement to his brief.

DISCUSSION

Appellant, appearing pro se, contends in two issues that his claims asserted a genuine issue

of material fact to prove as a matter of law an affirmative finding of employment discrimination and

that the trial court abused its discretion by failing to rule upon his “motion for issuance of law and

dilatory pleas within the time period that the motion was filed.” We need not reach any of

Appellant’s complaints as we find them inadequately briefed.

As Appellant is acting pro se on appeal, we must construe his appellate brief liberally. See

Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). However, the law is well-settled

that a party proceeding pro se must comply with all applicable procedural rules. Valadez v. Avitia,

238 S.W.3d 843, 845 (Tex. App.–El Paso 2007, no pet.); Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex. App.–El Paso 2006, no pet.); Clemens v. Allen, 47 S.W.3d 26, 28 (Tex. App.–Amarillo

2000, no pet.); Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.–Texarkana 1997,

no pet.); Harris v. Showcase Chevrolet, 231 S.W.3d 559, 561 (Tex. App.–Dallas 2007, no pet.). If

that were not the case, pro se litigants would be afforded an unfair advantage over those represented

by counsel. Valadez, 238 S.W.3d at 845; Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex.

App.–El Paso 2007, pet. struck); Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex.

App.–Amarillo 1998, pet. denied). Therefore, on appeal, the pro se litigant must properly present

his case. Valadez, 238 S.W.3d at 845; Martinez, 218 S.W.3d at 844; Strange v. Continental Cas.

Co., 126 S.W.3d 676, 678 (Tex. App.–Dallas 2004, pet. denied); Plummer v. Reeves, 93 S.W.3d 930,

931 (Tex. App.–Amarillo 2003, pet. denied).

Under the Rules of Appellate Procedure, Appellant’s brief is required to contain “a clear and

concise argument for the contentions made, with appropriate citations to authorities and to the

record.” TEX . R. APP . P. 38.1(i). When the appellate issue is unsupported by argument or lacks

citation to the record or legal authority, nothing is presented for review. Republic Underwriters Ins.

Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004); Valadez, 238 S.W.3d at 843; Martinez, 218

S.W.3d at 844; Plummer, 93 S.W.3d at 931; Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.

App.–Houston [14th Dist.] 2002, no pet.). As we noted in Valadez:

It is the Appellant’s burden to discuss her assertions of error. An appellate court has no duty – or even right – to perform an independent review of the record and applicable law to determine whether there was error. Were we to do so, even on behalf of a pro se appellant, we would be abandoning our role as neutral adjudicators and become an advocate for that party.

Valadez, 238 S.W.3d at 845 (citations omitted).

Here, Appellant provided no record references nor any citation to authorities where required.

See TEX . R. APP . P. 38.1. Although the argument in Appellant’s original brief contains a reference to Rule 166(a) of the Texas Rules of Civil Procedure, he provided no citation to any authorities, thus

failing to present any discussion or argument or explanation of how such cases supported his specific

contentions. In the supplement to his brief, we find the same inadequacies and note that while

Appellant did provide citation to a single authority in his argument, he thereafter provided no

discussion or argument of the case cited nor an explanation of how that case supported his specific

contentions. We therefore overrule Appellant’s complaints as inadequately briefed. See TEX . R. APP .

P. 38.1; Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 (Tex. App.–Dallas 2007, pet. denied) (issue

inadequately briefed when party gave general cite to one case stating elements of cause of action);

Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex. App.–Houston [14th Dist.] 2003, pet. denied) (issue

inadequately briefed when party failed to make proper citations to authority or the record and in

failing to make a cogent argument); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex.

App.–Houston [1st Dist.] 2002, no pet.) (issue inadequately briefed when party did little more than

summarily state his point of error, without citations to legal authority or substantive analysis);

Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 436 (Tex. App.–El Paso 2005, no pet.) (issue

inadequately briefed when argument did not contain any references to relevant cases or legal

principles).

CONCLUSION

The trial court’s judgment is affirmed.

GUADALUPE RIVERA, Justice

April 14, 2010

Before Chew, C.J., McClure, and Rivera, JJ.