Yakelyn Rubio Galindo, Travis Young, Saul Perea, Richard Acebo, Emily Ford, David Hashemi Seddighzadeh, Angela Benton, Alyssa Moebus v. Norman Garner, Individually, and as Representatives of the Estate of Amy Garner, Dec'd and as Next Friend of Sophia Garner, Felicia Garner ( 2019 )

AFFIRM; and Opinion Filed May 14, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00061-CV
YAKELYN RUBIO GALINDO, TRAVIS YOUNG, SAUL PEREA, RICHARD ACEBO,
EMILY FORD, DAVID HASHEMI SEDDIGHZADEH, ANGELA BENTON, ALYSSA
MOEBUS, PAPPAS RESTAURANTS, INC., PHCG INVESTMENTS, AND CHARLES
BRAY, Appellants
V.
NORMAN GARNER, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE
ESTATE OF AMY GARNER, DECEASED, AND AS NEXT FRIEND OF SOPHIA
GARNER, FELICIA GARNER, ZACHARY GARNER, AND HANNAH GARNER,
MINORS, AND CLARA GARNER, Appellees
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-03385
MEMORANDUM OPINION
Before Justices Whitehill, Partida-Kipness, and Pedersen, III
Opinion by Justice Pedersen, III
This appeal arises from a lawsuit that asserts a Dram Shop Act claim, among others.
Appellants,1 who are among the defendants in the suit, bring this accelerated interlocutory appeal
from an order denying their motions to transfer venue. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 5.003(b). We affirm.
1
Yakely Rubio Galindo, Travis Young, Saul Perea, Richard Acebo, Emily Ford, David Hashemi Seddighzadeh, Angela Benton, Alyssa
Moebus, Pappas Restaurants, Inc., PHCC Investments, and Charles Bray.
I.
BACKGROUND
On March 19, 2016, Amy Garner (Amy) was driving on Interstate 30 in Fort Worth, which
is located in Tarrant County, when her Chevrolet Suburban was struck by a vehicle driven by
Jwuan Johnson. Amy was killed in the collision. Four of her children, who were with her at the
time, were seriously injured.
Later that same year, Amy’s husband, appellee Norman Garner (Norman), individually, as
the representative of her estate, and as next friend of the couple’s children, filed a Rule 202 petition
in Tarrant County District Court. See TEX. R. CIV. P. 202.1–.5 (authorizing pre-suit deposition in
certain circumstances). This petition was heard by the trial court over a year later, on November
30, 2017, and the court signed an order that same day denying the petition.
Norman, individually, as the representative of Amy’s estate, and as next friend of the
children, next filed suit against Johnson and Pappas Restaurants, Inc. (Pappas) in Tarrant County
District Court. Norman alleged, on information and belief, that Johnson had consumed alcohol
shortly before the accident at a Pappadeaux restaurant in Arlington. According to Norman’s
petition, Pappas served an alcoholic beverage to Johnson even though it was apparent to Pappas
that Johnson at the time “was obviously intoxicated to the extent that he presented a clear danger
to [him]self and others.” Norman asserted a Dram Shop Act claim against Pappas, see TEX. ALCO.
BEV. CODE ANN. § 2.02(b),2 as well as a negligence and a negligence per se claim.
A dispute arose between the parties regarding Norman’s attempt to depose Pappas’s
corporate representative. Pappas filed a motion for protection and to quash the deposition, which
2
Section 2.02(b) states:
Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action . . . upon proof that:
(1) at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with
an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; and
(2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.
–2–
the court granted on February 9, 2018. A little over a month later, Norman nonsuited the Tarrant
County suit and re-filed suit in Dallas County. This suit also listed one of the couple’s children,
appellee Clara Garner, as a plaintiff, presumably because she had reached majority status. 3
The Dallas County suit named as defendants (i) Johnson, (ii) Pappas, (iii) PHCG
Investments, and (iv) a group of eleven employee bartenders or managers referred to herein as the
Employee Defendants.4 Appellees’ claims against the foregoing defendants mirrored those they
had previously asserted in their Tarrant County suit against Johnson and Pappas.5 They also
asserted that venue was appropriate in Dallas County “since some Defendants resided [there] at
the time the cause of action occurred.” See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a)(2)
(providing for venue in county of defendant’s residence at time cause of action accrued if
defendant is a natural person). Moreover, appellees alleged that Employee Defendant Saul Perea
“is an individual residing in Dallas County,” and they alleged the same with respect to Employee
Defendant Edward Carrigan.
Johnson, PHCG, Pappas, and the Employee Defendants, except for Employee Defendant
Stephen Powell, each filed a motion to transfer venue from Dallas County to Tarrant County. The
motions asserted venue was proper in Tarrant County because (i) the subject accident occurred
there, id. § 15.002(a)(1), and (ii) Johnson and appellees reside there, id. § 15.002(a)(2), (a)(4). In
addition, PHCG’s and Pappas’s motions urged that appellees failed to allege the county in which
PHCG and Pappas had their principal office. Id. § 15.002(a)(3). Moreover, each of the Employee
Defendants, except Employee Defendant Charles Bray, specifically denied that he or she resided
3
Previously, in the Tarrant County suit, Clara, along with the couple’s other children, was represented by Norman as her next friend.
4
Nine of the eleven Employee Defendants, specifically, Yakely Rubio Galindo, Travis Young, Saul Perea, Richard Acebo, Emily Ford, David
Hashemi Seddighzadeh, Angela Benton, Alyssa Moebus, and Charles Bray, are among the appellants in this appeal. Two of the Employee
Defendants, Stephen Powell and Edward Carrigan, have not appealed.
5
However, appellants contend that appellees’ original Dallas County petition did not allege that the Employee Defendants, as opposed to
Pappas, were providers under the Dram Shop Act.
–3–
in Dallas County on the date appellees’ cause of action accrued. As for Bray, his motion noted that
appellees’ petition alleged that Bray resided in Orange County, not in Dallas County.
In addition, each of the venue motions, except Johnson’s, urged that appellees failed to
plead a viable Dram Shop Act claim against the Employee Defendants—and in particular, against
defendants Perea and Carrigan, the two Employee Defendants alleged to reside in Dallas County.
Finally, each of the motions, except Johnson’s, argued that appellees failed to meet their burden
of establishing proper venue under section 15.003 of the Civil Practice and Remedies Code. See
TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(a)(1)–(4).
On October 25, 2018, the district court heard the foregoing motions, except for Johnson’s,
Carrigan’s, and Bray’s. The hearing was conducted in part that day. However, the court deferred
completion of the hearing (i) to permit appellees to cure a defect in an affidavit they previously
offered in their opposition to the motions to transfer, and (ii) to allow Johnson, Carrigan, and Bray
to set their motions for hearing so that the court could determine all pending motions at once. On
October 31, 2018, before the venue hearing resumed, Bray filed a motion to dismiss appellees’
claims against him pursuant to Rule 91a of the Texas Rules of Civil Procedure and set that motion
for hearing on December 7, 2018.
Appellees filed a first amended petition on December 3, 2018, which alleged that Bray
resides in Dallas County. However, they non-suited Bray later that same day, and four days after
that, the court signed an order effectuating the nonsuit. On December 11, 2018, appellees filed a
second amended petition that again named Bray as a defendant. Around this same time, defendants
Johnson and Carrigan withdrew their pending motions to transfer.
–4–
The venue hearing resumed on December 18, 2018. That same day, following the hearing,
the trial court signed an order denying the defendants’ motions to transfer venue. PHCG, Pappas,
and nine of the Employee Defendants have appealed the court’s ruling.6
II.
ANALYSIS
The outcome of this appeal depends on our determination of whether appellees satisfied
the requirements of Civil Practice and Remedies Code section 15.003(a), which applies in a suit
in which there is more than one plaintiff. This statute “takes as its starting point a ‘person who is
unable to establish proper venue.’” Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 602
(Tex. 1999) (citing Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 1, 1995 Tex. Gen. Laws 978,
979 (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(a)).7 Accordingly, the trial
court “first has to determine whether a plaintiff can independently establish proper venue.” Id.
“This determination . . . is made using venue proof standards—if the plaintiff offers prima facie
proof through pleadings and affidavits that venue is proper, the inquiry is over.” Id.; cf. TEX. CIV.
PRAC. & REM. CODE ANN. § 15.064(a) (“The court shall determine venue questions from the
pleadings and affidavits.”). Second, “when a plaintiff cannot establish proper venue, section
15.003(a) expressly places the burden on the plaintiff to ‘establish’ four elements before she can
join venue for the suit.” Surgitek, 997 S.W.2d at 602; accord TEX. CIV. PRAC. & REM. CODE ANN.
§ 15.003(a)(1)–(4).
In an interlocutory appeal of a trial court’s determination under the statute, we must
“determine whether the trial court’s order is proper based on an independent determination from
6
Powell, Carrigan, and Johnson are not parties to this appeal.
7
Subsequent to Surgitek, the Legislature amended section 15.003(a). Act of June 2, 2003, 78th Leg., R.S. ch. 204, § 3.03, 2003 Tex. Gen.
Laws 847, 853. The amended statute takes as its starting point “a plaintiff” who “cannot independently establish proper venue.” Id. This language
is in substance identical to the above-referenced statutory language that the supreme court construed in Surgitek.
–5–
the record and not under either an abuse of discretion or substantial evidence standard.” TEX. CIV.
PRAC. & REM. CODE ANN. § 15.003(c)(1). In other words, our “review of the merits” of the trial
court’s “joinder determination should be de novo.” Surgitek, 997 S.W.2d at 603.8 In conducting
this review, we must consider the entire record, including any evidence presented at the hearing.
Id.
A. Pleading and Proof of Venue Facts
We begin by considering whether each plaintiff independently established proper venue.
See TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(b)(1). To make this determination, we will look
to the rules generally applicable to motions to transfer venue. When such a motion is filed, “the
initial burden of proof that venue is maintainable in the county of suit is on the plaintiff.” WTFO,
Inc. v. Braithwaite, 899 S.W.2d 709, 714 (Tex. App.—Dallas 1995, no writ) (citing TEX. R. CIV.
P. 87(2)(a)).
Appellants’ first issue contends that appellees failed to properly plead and prove that any
of the defendants (and, in particular, Perea, Bray, and Carrigan) were residents of Dallas County
at the time of the subject accident. To resolve this issue, we must determine whether appellees met
their burden of properly pleading the requisite venue facts. See TEX. R. CIV. P. 87(2)(a), 87(3)(a).
If so, and given appellants’ specific denials of these facts, we will next determine whether
appellees offered prima facie proof to support their venue allegations. See WTFO, 899 S.W.2d at
714 (citing TEX. R. CIV. P. 87(3)(a)).
8
The version of section 15.003(c)(1) in effect when Surgitek was decided required the court of appeals to “determine whether the joinder or
intervention is proper,” Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 1, 1995 Tex. Gen. Laws 978, 979, as opposed to the current version of the
statute, which requires appellate review of “whether the trial court’s order is proper,” TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(c)(1). Other
than this difference, both versions of subsection (c)(1) are identical. Accordingly, we will apply the Surgitek court’s articulation of the applicable
standard of review to the facts of this case.
–6–
1. “Properly Pleaded”
Rule 87(2)(a) of the Texas Rules of Civil Procedure provides that “[a] party who seeks to
maintain venue of the action in a particular county . . . has the burden to make proof, as provided
in paragraph 3 of this rule, that venue is maintainable in the county of suit.” TEX. R. CIV. P.
87(2)(a). Paragraph 3(a) of the rule provides, in pertinent part, that “[a]ll venue facts, when
properly pleaded, shall be taken as true unless specifically denied by the adverse party.” Id. R.
87(3)(a) (emphasis added).
a. Timeliness of Second Amended Petition
As an initial matter, the parties disagree on which petition this Court may consider in
evaluating whether the venue facts were “properly pleaded.” As of the October 25 venue hearing,
appellees’ original petition was the live pleading on file. On December 3, 2018, appellees filed
their first amended petition. Eight days after that, on December 11, they filed their second amended
petition. Appellants contend that these petitions were untimely because they were filed “within
seven days . . . or thereafter” of the date that the venue hearing began, i.e, after the October 25
hearing, and appellees did not obtain leave of court to file these petitions late. TEX. R. CIV. P. 63
(emphasis added);9 see also In re Stroud Oil Props., Inc., 110 S.W.3d 18, 23 (Tex. App.—Waco
2002, orig. proceeding) (noting that the pleadings on which court makes its venue determination
“are the live pleadings on file at the time of the hearing” (citations omitted)); Taiwan Shrimp Farm
Vill. Ass’n v. U.S.A. Shrimp Farm Dev., Inc., 915 S.W.2d 61, 69 (Tex. App.—Corpus Christi–
Edinburg 1996, writ denied) (interpreting “date of trial” in Rule 63 as “the date the case is set for
trial,” not the date trial actually begins), superseded by statute on other grounds as stated in Myriad
Dev., Inc. v. Alltech, Inc., 817 F. Supp. 2d 946, 977–78 n.169 (W.D. Tex. 2011).
9
We assume that a venue hearing is a trial for purposes of Rule 63. See Moriarty v. Williams, 752 S.W.2d 610, 611 (Tex. App.—El Paso
1988, writ denied) (noting that appellant’s first amended original petition was filed more than seven days before venue hearing and was properly
before court at such hearing (citing TEX. R. CIV. P. 63)).
–7–
Appellees respond that their second amended petition was timely because it was filed on
December 11, which was seven days before the December 18 hearing. As support, appellees cite
Cantu v. Holiday Inns, Inc., 910 S.W.2d 113 (Tex. App.—Corpus Christi–Edinburg 1995, writ
denied). In that case, the defendant filed a motion for summary judgment, and the motion was set
for hearing on June 30, 1993. Id. Less than seven days before the hearing, the parties filed various
documents related to the defendant’s motion, and the defendant also filed an amended answer. Id.
The parties appeared before the court on June 30 and on July 1. Id. The court continued the hearing
for a month to permit the parties to cure the timeliness defects with respect to their late filings. Id.
In this circumstance, our sister court held that the defendant’s amended answer was timely because
it was filed “more than 7 days before the hearing that resulted in summary judgment.” Id. at 115.
According to the Cantu court, “the key date for purposes of Rule 63 was the date of the final
hearing from which the summary judgment sprang.” Id. This Court has cited Cantu with approval.
Ganter v. Indep. Bank, No. 05-15-00413-CV, 2016 WL 4376284, at *4 (Tex. App.—Dallas Aug.
16, 2016, pet. denied) (mem. op.) (summary judgment); Selz v. Friendly Chevrolet, Ltd., 152
S.W.3d 833, 834–35 (Tex. App.—Dallas 2005, no pet.) (same); accord Segal v. Bock, No. 01-10-
00445-CV, 2011 WL 6306623, at *4 (Tex. App.—Houston [1st Dist.] Dec. 15, 2011, no pet.)
(mem. op.) (same). We conclude that the reasoning from Cantu applies here, and the second
amended petition was filed timely. We will consider this petition in evaluating whether the venue
facts were “properly pleaded.”
b. Sufficiency of Factual Allegations
Section 15.002 of the Civil Practice and Remedies Code provides that venue is proper in
(i) “the county in which all or a substantial part of the events or omissions giving rise to the claim
occurred,” or (ii) “the county of [the] defendant’s residence at the time the cause of action accrued
if [the] defendant is a natural person,” or (iii) “the county of the defendant’s principal office in this
–8–
state, if the defendant is not a natural person,” or (iv) if the foregoing grounds do not apply, the
county of the plaintiff’s residence at the time the cause of action accrued. TEX. CIV. PRAC. & REM.
CODE ANN. § 15.002(a)(1)–(4).
Here, the second amended petition alleges that Perea, Bray, and Carrigan were residents of
Dallas County at the time the cause of action accrued. We conclude that these venue facts were
properly pleaded.
2. “Prima Facie Proof”
As noted previously, the defendants specifically denied the foregoing allegations. Given
these denials, appellees bore the burden of offering “prima facie proof” of the venue facts alleged
in the second amended petition. WTFO, 899 S.W.2d at 714 (citing TEX. R. CIV. P. 87(3)(a)). Such
proof “is made when the venue facts are properly pleaded and an affidavit, and any duly proved
attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such
pleading.” TEX. R. CIV. P. 87(3)(a). Affidavits must “be made on personal knowledge,” must “set
forth specific facts as would be admissible in evidence,” and must “show affirmatively that the
affiant is competent to testify.” Id.
To meet that burden, appellees filed the affidavit of Jamie Nay, a licensed private
investigator and process server whom appellees retained to locate and serve process on multiple
defendants in this case. According to the affidavit, Nay ran searches in a database (TLOxp), which
revealed that Bray, Carrigan, and Perea resided in Dallas County in 2016 when the cause of action
accrued. At the October 25 hearing, the court granted appellees leave to file an amended Nay
affidavit to attach the information that Nay obtained from TLOxp upon conducting her searches.
Appellees did so on November 1, 2018. Nay’s amended affidavit also states that private
investigators “customarily rely” upon TLOxp in “determining the residence of individuals within
the State of Texas at a given time.”
–9–
In addition, on December 18, appellees filed with the court a copy of Carrigan’s objections
and responses to appellees’ request for admissions. Appellees also raised these responses with the
court during the hearing that same day. In the responses, Carrigan admitted that he resided in
Dallas County at the time of the incident in question.
Appellants objected to Nay’s amended affidavit, among other grounds, on the basis that it
was inadmissible hearsay. They also urged that the Carrigan admission was not properly before
the court because it was not filed until the day of the hearing. The court overruled appellants’
evidentiary objections, but it did not rule on appellants’ objection to the Carrigan admission.
Appellants contend that the trial court erred in admitting the amended Nay affidavit into evidence.
They also argue that the Carrigan admission was untimely and that the record reflects the court did
not consider it.
We agree that the Carrigan admission was untimely absent leave of court. See TEX. R. CIV.
P. 87(1) (“Except on leave of court, any response or opposing affidavits shall be filed at least 30
days prior to the hearing of the motion to transfer.”). Moreover, the record must affirmatively
indicate that such leave was granted. Cf. B.C. v. Steak N Shake Operations, Inc., 532 S.W.3d 547,
550 (Tex. App.—Dallas 2017, pet. pending) (noting that, if summary-judgment response is filed
late, “the record must contain an affirmative indication that the trial court permitted the late filing
or the response is a nullity”). Here, the December 18 order denying the motions to transfer venue
states that the court “consider[ed] these motions[,] all other pleadings on file in this case,
arguments of counsel, and all other evidence on file.” (Emphasis added). We interpret this
recitation as an affirmative indication that the court granted appellees leave to file the Carrigan
admission.10 Cf. Villarreal v. Chesapeake Operating, LLC, No. 04-16-00107-CV, 2016 WL
10
In Steak N Shake, this Court held that a summary-judgment order’s recitation that the trial court “consider[ed] pleadings, evidence, and
arguments of counsel” was not an “affirmative indication” that the court considered the non-movant’s late-filed evidence. 532 S.W.3d at 550–51.
–10–
5112218, at *2 (Tex. App.—San Antonio Sept. 21, 2016, no pet.) (mem. op.) (concluding that
recital in summary-judgment order that trial court considered “the pleadings, motion, responses,
and evidence on file” reflected that court granted movant’s leave to file untimely summary
judgment evidence); Pink v. Goodyear Tire & Rubber Co., 324 S.W.3d 290, 294 (Tex. App.—
Beaumont 2010, pet. dism’d) (holding that recital in judgment that trial court considered “all of
the evidence on file” when it granted summary judgment made it apparent that court considered
non-movant’s supplemental summary judgment response in rendering judgment). Thus, the
Carrigan admission is within the scope of our review, and this admission demonstrates that
Carrigan was a resident of Dallas County at the time the cause of action accrued. See TEX. CIV.
PRAC. & REM. CODE ANN. § 15.002(a)(2). In sum, appellees have offered “prima facie” proof of
the venue allegation with respect to Carrigan. See TEX. R. CIV. P. 87(3)(a); WTFO, 899 S.W.2d at
714. Accordingly, we need not determine whether the court erred in admitting the amended Nay
affidavit. We overrule appellants’ first issue.
B. Viability of Claims against Employee Defendants
Appellants’ second issue argues that appellees “did not ‘properly’ plead claims against any
of the [d]efendants who were added to the case to establish venue in Dallas County”—specifically,
the Employee Defendants—“because no negligence or dram shop causes of action exist against
them as a matter of law.” In considering this issue, we will first examine appellees’ contention that
Rule 87 does not require us to determine whether appellees’ claims against the Employee
Defendants are viable as a matter of law. As described previously, the rule provides that “[i]t shall
not be necessary for a claimant to prove the merits of a cause of action, but the existence of a cause
In contrast to the order in Steak N Shake, the order in this case states that the court considered “all other evidence on file,” (emphasis added), which
we interpret as an affirmative indication that the court considered the Carrigan admission filed by appellees that same day.
–11–
of action, when pleaded properly, shall be taken as established as alleged by the pleadings.” TEX.
R. CIV. P. 87(2)(b) (emphases added).
In In re Texas Department of Transportation, the Texas Supreme Court held that the
plaintiffs failed to “properly plead” a contemporaneous-activity negligence cause of action for
which Travis County would be a proper venue. 218 S.W.3d 74, 76, 78–79 (Tex. 2007) (orig.
proceeding) (per curiam).11 The Austin Court of Appeals has also held that “a proper pleading as
defined by Rule 87” must include “facts that demonstrate standing,” In re Valetutto, 976 S.W.2d
893, 895 (Tex. App.—Austin 1998, orig. proceeding) (per curiam). Others of our sister courts have
assumed this to be true without deciding the issue. See In re Arcababa, No. 10-13-00097-CV, 2013
WL 5890109, at *4 (Tex. App.—Waco Oct. 31, 2013, orig. proceeding) (mem. op.) (assuming that
Rule 87 pleadings require allegations supporting ripeness); In re Reynolds, 369 S.W.3d 638, 649
(Tex. App.—Tyler 2012, orig. proceeding) (same); Sw. Bell Tel. Co. v. Superior Payphones, Ltd.,
No. 13–05–661–CV, 2006 WL 417423, at *5–6 (Tex. App.—Corpus Christi–Edinburg Feb. 23,
2006, pet. dism’d) (mem. op.) (questioning whether, but assuming without deciding that, “the
subject of standing is properly encompassed within [a] venue appeal”). Moreover, in Garrett v.
Patterson-UTI Drilling Co, the Eastland Court of Appeals concluded that a defendant’s residence
is immaterial for venue purposes if the plaintiff cannot assert a claim against him. 299 S.W.3d 911,
914 (Tex. App.—Eastland 2009, pet. denied). Although a claimant need not prove the merits of its
cause of action at the venue stage, see TEX. R. CIV. P. 87(2)(b), the Garrett court looked only to
whether the plaintiff in that case could plead one—“a question of law that does not require the
consideration of evidence.” 299 S.W.3d at 914.
11
Instead, the plaintiffs in Texas Department of Transportation “properly pled premises and special defect causes of action, but neither of
these claims arose, in any part, in Travis County.” Id. at 78.
–12–
Based on the foregoing authorities, we conclude that Rule 87 requires us to consider
whether appellees have alleged a viable cause of action, i.e., a “properly pleaded” claim, to the
extent our determination of this question disposes of whether appellees filed suit in the proper
venue. We next consider whether the claims against the Employee Defendants, and in particular,
the claim against Carrigan, were cognizable under Chapter 2 of the Alcoholic Beverage Code. See
TEX. ALCO. BEV. CODE ANN. §§ 2.01–.03. This statute, which is commonly known as the Dram
Shop Act, 20801, Inc. v. Parker, 249 S.W.3d 392, 395 n.2 (Tex. 2008), “provides the exclusive
cause of action for providing an alcoholic beverage to a person 18 years of age or older,” TEX.
ALCO. BEV. CODE ANN. § 2.03(c) (emphasis added). This cause of action is available against
commercial providers only. Smith v. Merritt, 940 S.W.2d 602, 605 (Tex. 1997); Graff v. Beard,
858 S.W.2d 918, 919 (Tex. 1993). The statute defines a “provider” as “a person who sells or serves
an alcoholic beverage under authority of a license or permit issued under the terms of this code or
who otherwise sells an alcoholic beverage to an individual.” TEX. ALCO. BEV. CODE ANN.
§ 2.01(1); see also El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex. 1987) (noting that “[t]he
legislature amended the Alcoholic Beverage Code to include a civil cause of action against an
alcoholic beverage licensee”).12
The parties join issue as to whether the Employee Defendants qualified as “providers.”
Appellants cite decisions by the Texas Supreme Court that refer to a provider as separate from its
employees. See 20801, 249 S.W.3d at 396 (noting that Legislature “decided . . . to allow providers
to avoid [Dram Shop Act] liability by having their employees attend certain training programs”
(citing TEX. ALCO. BEV. CODE ANN. §§ 2.02(b), 106.14(a))); F.F.P. Operating Partners, L.P. v.
Duenez, 237 S.W.3d 680, 684 (Tex. 2007) (“If a plaintiff meets the onerous burden of proof
12
In El Chico, the Texas Supreme Court created a common-law duty owed by alcoholic beverage licensees to injured third parties. Id. at 314.
However, during the same week that El Chico was decided, the Legislature superseded the newly recognized common-law duty by amending the
Alcoholic Beverage Code to create the Dram Shop Act. Smith, 940 S.W.2d at 605.
–13–
imposed by the Dram Shop Act, then the provider is liable for damages proximately caused by its
employees or patrons.” (citation and internal quotation marks omitted)). However, the question of
whether a licensee’s employees can themselves be liable as “providers” was not at issue in those
cases because the subject employees were not named as individual defendants. See 20801, 249
S.W.3d at 395 (identifying 20801, Inc., the operator of “Slick Willie’s Family Pool Hall,” as the
defendant sued); F.F.P, 237 S.W.3d at 682–83 (noting that assistant manager, though initially
sued, was subsequently nonsuited). Appellants also cite Leitch v. Hornsby, a non-Dram Shop Act
case that held, “unless alter ego is established, corporate officers and agents are subject to personal
liability for their actions within the employment context only when they breach an independent
duty of care.” 935 S.W.2d 114, 117 (Tex. 1996). Appellants contend that the Dram Shop Act did
not impose an independent duty of care on the Employee Defendants, but rather, the statute
imposed such a duty only on the licensee who employed them.
Appellees respond that the term “person,” as used in the statutory definition of a ‘provider,”
TEX. ALCO. BEV. CODE ANN. § 2.01(1), means “a natural person or association of natural persons,
trustee, receiver, partnership, corporation, organization, or the manager, agent, servant, or
employee of any of them.” Id. § 1.04(6) (emphasis added); see also id. at §1.04(11) (defining
“permittee” as including “an agent, servant, or employee of” a “person who is the holder of a
permit provided for in this code”); id. § 1.04(16) (defining “licensee” as including “any agent,
servant, or employee of” a “person who is the holder of a license provided in this code”).13 In
appellees’ view, each of the Employee Defendants met the statutory definition of a “person,” and
therefore each such defendant qualified as a “provider.” Appellees also cite Grand Aerie Fraternal
Order of Eagles v. Haygood, in which the Eastland Court of Appeals stated in dicta that “the server
13
Though section 1.04 is not contained in Chapter 2 of the Alcoholic Beverage Code, its definitions apply to Chapter 2. See TEX. ALCO. BEV.
CODE ANN. § 1.04 (stating that definitions apply “in this code”).
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or bartender may be liable” under the Dram Shop Act, though such liability “is not imputed to an
employer who requires its servers to attend an approved alcohol-service class if the server actually
attended the class, unless the employer encouraged service of intoxicated persons.”14 402 S.W.3d
766, 776 (Tex. App.—Eastland 2013, no pet.) (citing TEX. ALCO BEV. CODE ANN. §§ 2.01(1),
2.202(b), 106.140(a)). Moreover, they rely on Mata v. Schoch, in which a federal district court
noted that “courts have placed special emphasis on the elements of serving and selling alcohol”
when “construing the definition of provider under the Texas Dram Shop Act.” 337 B.R. 135, 137
(S.D. Tex. 2005). In that case, the court granted a summary judgment in favor of the defendant
manager based on his uncontroverted affidavit which showed that he “never personally sold or
served alcohol” to the subject driver. Id. at 138.
In the absence of controlling case authority that addresses the issue before us, we will
interpret the relevant statutory provisions according to well-settled principles of statutory
construction. “To discern [legislative] intent, we begin with the statute’s words.” TGS–NOPEC
Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011); see also TEX. GOV’T CODE ANN.
§ 311.011(a) (“Words and phrases shall be read in context and construed according to the rules of
grammar and common usage.”). If a statute’s language is unambiguous, we interpret this language
according to its plain meaning. ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex.
2017) (per curiam). In so doing, “we presume the Legislature included each word in the statute for
a purpose and that words not included were purposefully omitted.” Id. (citation and internal
quotation marks omitted).
As described previously, section 1.04(6) of the Alcoholic Beverage Code defines “person”
as including “the manager, agent, servant, or employee” of “a natural person or association of
14
Although the bartender was among the defendants sued in Haygood, the issue before the court was whether the trial court erred in denying
a special appearance filed by one of the other defendants. Id. at 771–72.
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natural persons.” This definition applies throughout the Code. Thus, section 2.01(1)’s definition
of a “provider” as a “person who sells or serves an alcoholic beverage under authority of a license,”
when considered in the context of section 1.04(6), includes a “manager, agent, servant, or
employee” of a licensee. Moreover, section 2.02(b)’s creation of a statutory cause of action against
“provider[s]” necessarily includes “person[s]” as set forth in section 2.01(1), which, in turn,
includes “manager[s], agent[s], servant[s], or employee[s]” as set forth in section 1.04(6). Read
together, the foregoing provisions create a statutory cause of action against employees of a licensee
who sell or serve an alcoholic beverage under the authority of their employer’s license, assuming
the other elements of the statute are met.
We must also “read the statute as a whole and interpret it to give effect to every part.”
20801, 249 S.W.3d at 396 (citation and internal quotation marks omitted). Related to this point,
appellants contend that the Alcoholic Beverage Code’s safe harbor provision, see TEX. ALCO. BEV.
CODE ANN. § 160.14, could never apply to individual employees because they “are not and cannot
be the employer/licensee.” They urge that the inclusion of individual employees as “providers”
would allow an employer to escape liability while an employee would not, which in appellants’
view would circumvent the purpose of the statute. Cf. Graff, 858 S.W.2d at 919 (in rejecting
appellant’s request to recognize common-law social host liability, finding it significant that the
Legislature considered and declined to provide for such liability in the Dram Shop Act); see also
Smith v. Sewell, 858 S.W.2d 350, 354 (Tex. 1993) (noting that a statute which “creates a liability
unknown to the common law . . . will be strictly construed in the sense that it will not be extended
beyond its plain meaning or applied to cases not clearly within its purview”). We disagree that the
unavailability of a statutory safe harbor for employees necessarily means that they cannot be
considered “providers” under the statute. Whatever the practical effect of the foregoing provisions,
“we must take statutes as we find them.” Tex. Lottery Comm’n v. First State Bank of DeQueen,
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325 S.W.3d 628, 637 (Tex. 2010). We “are not empowered to . . . disregard[ ] direct and clear
statutory language that does not create an absurdity.” Id. at 638.
On the topic of “absurdity,” appellants note that the Dram Shop Act creates a cause of
action against “providers . . . for the actions of their employees, customers, members or guests who
are or become intoxicated,” TEX. ALCO. BEV. CODE ANN. § 2.03(a), and they urge that such
“employees, customers, members, or guests” belong only to the employer, i.e., the licensee. They
also argue that an employee is not subject to a revocation hearing, id. §§ 2.02(b), 6.01(b), because
the employee is not a licensee. In appellants’ view, appellees’ interpretation of the Act is contrary
to the foregoing principles and would therefore lead to an absurd result. See Combs v. Health Care
Servs. Corp., 401 S.W.3d 623, 629 (Tex. 2013) (“If a statute is worded clearly, we must honor its
plain language, unless that interpretation would lead to absurd results.”). Nevertheless, “the bar
for reworking the words our Legislature passed into law is high, and should be.” Id. at 630. In
other words, “[t]he absurdity safety valve is reserved for truly exceptional cases, and mere oddity
does not equal absurdity.” Id. In our view, the inclusion of a licensee’s employees within the
statutory definition of a “provider” does not rise to the level of creating an absurdity.
Accordingly, we conclude that section 2.02(b), when read together with sections 2.01(1)
and 1.04(6), creates a statutory cause of action against employees of a licensee who sell or serve
an alcoholic beverage under the circumstances set forth in the statute. The second amended petition
pleads such a cause of action against the Employee Defendants, and in particular, against Carrigan.
Thus, the Dram Shop Claim against the Employee Defendants was “pleaded properly.” See TEX.
R. CIV. P. 87(2)(b).
For these reasons, we overrule appellants’ second issue. We need not consider their third
issue, which contends that each plaintiff failed to establish the statutory requirements for joining a
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pending suit for which such plaintiff could not independently establish proper venue. TEX. CIV.
PRAC. & REM. CODE ANN. § 15.003(a)(1)–(4).
III.
CONCLUSION
We affirm the district court’s order denying appellants’ motions to transfer venue.
/Bill Pedersen, III/
BILL PEDERSEN, III
JUSTICE
190061F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
YAKELYN RUBIO GALINDO, TRAVIS On Appeal from the 116th Judicial District
YOUNG, SAUL PEREA, RICHARD Court, Dallas County, Texas
ACEBO, EMILY FORD, DAVID Trial Court Cause No. DC-18-03385.
HASHEMI SEDDIGHZADEH, ANGELA Opinion delivered by Justice Pedersen, III.
BENTON, ALYSSA MOEBUS, PAPPAS Justices Whitehill and Partida-Kipness
RESTAURANTS, INC., PHCG participating.
INVESTMENTS, AND CHARLES BRAY,
Appellants
No. 05-19-00061-CV V.
NORMAN GARNER, INDIVIDUALLY,
AND AS REPRESENTATIVE OF THE
ESTATE OF AMY GARNER,
DECEASED, AND AS NEXT FRIEND
OF SOPHIA GARNER, FELICIA
GARNER, ZACHARY GARNER, AND
HANNAH GARNER, MINORS, AND
CLARA GARNER, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees NORMAN GARNER, INDIVIDUALLY, AND AS
REPRESENTATIVE OF THE ESTATE OF AMY GARNER, DECEASED, AND AS NEXT
FRIEND OF SOPHIA GARNER, FELICIA GARNER, ZACHARY GARNER, AND
HANNAH GARNER, MINORS, AND CLARA GARNER recover their costs of this appeal
from appellants YAKELYN RUBIO GALINDO, TRAVIS YOUNG, SAUL PEREA, RICHARD
ACEBO, EMILY FORD, DAVID HASHEMI SEDDIGHZADEH, ANGELA BENTON,
ALYSSA MOEBUS, PAPPAS RESTAURANTS, INC., PHCG INVESTMENTS, AND
CHARLES BRAY.
Judgment entered this 14th day of May 2019.