American Produce & Vegetable Co. v. J. D. Campisi's Italian Restaurant

• Decision Date: 31 December 1975
• Docket Number: No. 870,870
• Citation: 533 S.W.2d 380
• Court: Texas Court of Appeals
• Parties: AMERICAN PRODUCE & VEGETABLE COMPANY, Appellant, v. J. D. CAMPISI'S ITALIAN RESTAURANT et al., Appellees.

Page 380

533 S.W.2d 380

AMERICAN PRODUCE & VEGETABLE COMPANY, Appellant, v. J. D. CAMPISI'S ITALIAN RESTAURANT et al., Appellees.

No. 870.

Court of Civil Appeals of Texas,

Tyler.

Dec. 31, 1975.

Appellant's Motion for Rehearing Granted with Written

Opinion Feb. 5, 1976.

Appellee's Rehearing Denied Feb. 26, 1976.

Samuel B. Paternostro, Dallas, for appellant.

Jerry W. Biesel, Dallas, for appellees.

DUNAGAN, Chief Justice.

This suit on a sworn account was instituted in the 193rd Judicial District Court of Dallas County, Texas, by appellant, American Produce & Vegetable Company, against J. D. Campisi's Italian Restaurant, a Texas Corporation, and Alvin Zidell, individually. The only answer filed was by the defendant Zidell. Trial was to a jury. At the conclusion of the testimony, the court submitted to the jury twelve special issues inquiring as to the liability of the defendant, Zidell, based, upon partnership and sole proprietorship theories. The jury answered favorably to the appellant on the theory of partnership and answered in favor of appellee Zidell on the theory of sole proprietorship. This appeal is from the trial court's granting of appellee Zidell's motion for judgment non obstante veredicto. The judgment was in favor of appellant and against J. D. Campisi's Italian Restaurant in the sum of $8,836.80, together with the sum of $500 in attorneys' fees, costs of court and statutory interest until judgment is satisfied. The judgment further decreed that appellant 'recover nothing of and from the Defendant Alvin Zidell, individually, and that the Defendant Zidell go hence with his costs of court.' From this judgment appellant has duly perfected its appeal. Defendant, J. D. Campisi's Italian Restaurant, is not a party to this appeal.

Subsequent to the return of the jury's answers to the issues, appellee Zidell filed his motion to disregard the jury answers to all the special issues, except No. 7 which was answered favorably to him, and for judgment non obstante veredicto on the grounds that there was 'no evidence' or 'the evidence was insufficient' and there were no pleadings to support the jury's answers to said issues complained of. Appellee's objections to the submission of those issues were on substantially the same grounds and were overruled. Seven days after appellee filed his motion for judgment non obstante veredicto appellant filed a motion for permission to file a trial amendment to plead the question of partnership in more particularity to better conform to both the proof and special issues submitted by the court.

Appellant, by its original and supplemental brief, is before this court on twelve points of error; however, he presents argument only under points of error 1 and 12. Points 2 through 11, not being briefed, were waived and will not be considered by this court. West Texas Utilities Company v. Bergstrom, 458 S.W.2d 548 (Tex.Civ.App.--Eastland 1970, writ ref'd n.r.e.); Employers' National Life Insurance Co. v. Willits, 436 S.W.2d 918 (Tex.Civ.App.--Amarillo 1968, writ ref'd n.r.e.); Watson v. Godwin, 425 S.W.2d 424 (Tex.Civ.App.--Amarillo 1968, writ ref'd n.r.e.); Inman v. Parr, 311 S.W.2d 658, 704 (Tex.Civ.App.--Beaumont 1958, writ ref'd n.r.e.) and Rule 418, T.R.C.P.

Appellant has predicated its point of error No. 1 on the contention that there is evidence of probative force to support the jury's answer to Special Issue No. 1 and therefore the trial court erred in granting appellee's motion for judgment non obstante veredicto on the ground that there was either no evidence or insufficient evidence and no pleading to support the jury's answer to Special Issue No. 1. ¹ By its point of error No. 12 it asserts that the trial court erred in not allowing it to file a trial amendment pleading in more particularity the question of partnership so as to have better conformed to both the proof and the special issues submitted by the court.

A judgment contrary to the verdict cannot be granted on the ground of factually insufficient evidence to support the verdict. Therefore, appellant is limited in this appeal to 'no evidence' points. Bellaire General Hospital, Inc. v. Campbell, 510 S.W.2d 94 (Tex.Civ.App.--Houston, 14th Dist., 1974, writ ref'd n.r.e.). Moreover, a defect in the pleadings constitutes no ground for a judgment non obstante veredicto under Rule 301, T.R.C.P.; 4 McDonald, Texas Civil Practice, Sec. 17.32 at 207. For a judgment non obstante veredicto to be upheld, it must appear that there is no evidence of probative force in support of the disregarded jury finding. Bellaire General Hospital, Inc. v. Campbell, supra; Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Hays v. Nelson, 400 S.W.2d 12 (Tex.Civ.App.--Fort Worth 1966, n.w.h.). Thus, appellant's burden on appeal is to point out some evidence of probative force in support of these findings.

Appellant does not seem to have briefed that portion of its point of error complaining of the trial court's action in sustaining appellee's motion for judgment non obstante veredicto on the grounds of no evidence. The thrust of appellant's argument under its point of error No. 1 is directed to its complaint that the trial court erred in not permitting it to file a trial amendment. Appellant in its original brief states 'The only two entities left after piercing the corporate veil would be as either a partnership or a sole proprietorship, both of which are implied in Paragraph IV of the Plaintiff's Original Petition.' It also asserts in its original brief that these entities were well known to the defendant-Zidell and that he claimed no surprise during the trial and made no objections to appellant's cross examination concerning these two entities. It also states that appellee offered evidence in an attempt to counter these two entities. At this point in its original brief appellant does refer this court to certain pages in the statement of facts apparently for the purpose of showing that the question of partnership was tried by implied consent. The evidence referred to certainly can be of no comfort to appellant as it is the evidence of Zidell denying any partnership. Therefore, the only evidence that appellant has pointed out to us in the statement of facts supports the appellee's allegation in his motion for judgment non obstante veredicto that there is no evidence to support the jury's answer to Special Issue No. 1.

Appellant does not point out any evidence in the record that would support the jury's answer to Special Issue No. 1. This court is not required to search the entire statement of facts, consisting of 219 pages, for the purpose of finding evidence that may, or may not, sustain appellant's point of error. The burden is upon appellant to point out and demonstrate to this court by proper references to the statement of facts, that there was evidence to support the finding. This, appellant has failed to do. Mid-Continent Supply Co. v. Conway, 240 S.W.2d 796, 806 (Tex.Civ.App.--Texarkana 1951, writ ref'd n.r.e.); Gowan v. Reimers, 220 S.W.2d 331, 335--336 (Tex.Civ.App.--Fort Worth 1949, writ ref'd n.r.e.); McDaniel v. Thompson, 195 S.W.2d 202, 204 (Tex.Civ.App.--San Antonio 1946, writ ref'd); May v. Consolidated Underwriters, 170 S.W.2d 295 (Tex.Civ.App.--Fort Worth 1943, writ ref'd w.o.m.). If the references to the statement of facts were for the purpose of demonstrating to us that there was evidence to support the jury's finding to Special Issue No. 1 they totally failed to do so. If they were only for the purpose of showing that appellee was not surprised by the substance of the trial amendment, then appellant has failed to brief the portion of the first point of error asserting that the trial court erred in granting appellee's motion for judgment non obstante veredicto on the ground there was 'no evidence' to support the jury's answer to Special Issue No. 1. Therefore, that portion of appellant's point of error No. 1 is waived. Rule 418, T.R.C.P.

In view of our disposition of this appeal, it is unnecessary for us to pass on appellant's point of error No. 12. If the trial court erred in refusing to permit appellant to file a trial amendment it would be harmless error and judgment would be affirmed as appellant (1) has not briefed his contention that the trial court erred in granting appellee's motion for judgment non obstante veredicto on the ground of 'no evidence' to support the jury's answer to Special Issue No. 1 or (2) has not pointed out or demonstrated to this court by proper references to the statement of facts any evidence to support the jury's answer to Special Issue No. 1.

We sustain the trial court's judgment for the reasons herein stated.

Judgment affirmed.

ON MOTION FOR REHEARING

Appellant, by its motion for rehearing, has now directed us to evidence which it contends supports the jury's answer to the special issues in question. The appeal will now be disposed of on the merits.

As stated in our original opinion, this suit on a sworn account was instituted by appellant, American Produce & Vegetable Company, against J. D. Campisi's Italian Restaurant and Alvin Zidell. Defendant Zidell, pursuant to Rule 169, T.R.C.P., admitted that J. D. Campisi's Restaurant was a corporation of which Alvin Zidell was an officer and the principal backer. This corporation was unable to pay the account owing to appellant in the amount of $8,386.80.

Appellant's original petition sought recovery from Zidell on two grounds, to-wit: that he had assured various agents of appellant that if appellant would continue to extend credit to J. D. Campisi's Italian Restaurant, Zidell would personally see to it that these debts were paid; and that Zidell was the alter ego of J. D. Campisi's Italian Restaurant and therefore the court should pierce the corporate veil and hold Zidell accountable. Appellant's agents testified that Zidell told them that he would pay the account and that the restaurant was a partnership. Zidell denied making such...