Evan Toledo v. Silver Eagle Distributors, L.P. ( 2013 )

Opinion issued January 10, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00488-CV
———————————
EVAN TOLEDO, Appellant
V.
SILVER EAGLE DISTRIBUTORS, L.P., Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2007-55595
MEMORANDUM OPINION
Appellant, Evan Toledo, challenges the trial court’s summary judgment
rendered against him in his suit against appellee, Silver Eagle Distributors, L.P.
(“Silver Eagle”), for negligence and violations of the Texas Dram Shop Act.1 In
two issues, Toledo contends that the trial court erred in granting Silver Eagle
summary judgment.
We affirm.
Background
In his fifth amended original petition, Toledo alleges that the defendants,
Silver Eagle, Frontier Fiesta Association, the Sigma Pi National Fraternity (“Sigma
Pi”), and Aramark University Food Service Cougar Catering (“Aramark”)
provided alcohol to Mario Perez, a bouncer at Frontier Fiesta, an event held at the
University of Houston. Toledo specifically alleges that Perez, while obviously
intoxicated, assaulted him at Frontier Fiesta and Silver Eagle violated the Texas
Dram Shop Act by delivering and providing alcohol “to minors and intoxicated
individuals who subsequently caused injury.” Toledo also alleges that Silver Eagle
was negligent in the hiring, training, and supervision of its employees. Finally,
Toledo alleges that Silver Eagle and the other defendants are “guilty of joint
enterprise” and, thus, “liable for all torts that were committed while acting in the
scope of the enterprise.”
In its original answer, Silver Eagle generally denied Toledo’s allegations and
asserted that “the incident in question was proximately caused, either solely or
1
See TEX. ALCO. BEV. CODE ANN. §§ 2.01–2.03 (West 2007).
2
partially,” by third parties and the carelessness and negligence of Toledo. Silver
Eagle also asserted that it was not a “provider” of alcohol as defined in the Texas
Dram Shop Act.2 In its summary-judgment motion, Silver Eagle argued that the
Dram Shop Act did not apply to Silver Eagle because it was a wholesaler and not a
provider of alcohol, and Toledo had presented no evidence of its negligence or
joint enterprise with the other defendants.
Silver Eagle attached to its motion its Texas Alcoholic Beverage
Commission permit, which was classified as a “General Class B Wholesaler’s
Permit” and a “Private Carrier’s Permit.” It also attached the affidavit of Vince
Tydlacka, a “Team Leader” who supervised Silver Eagle’s deliveries to the
University of Houston. Tydlacka testified that Silver Eagle “is a wholesaler and
distributor of alcoholic beverages” and “not a provider of alcohol.” He explained
that Silver Eagle simply “sells to retailers, who in turn sell directly to consumers,”
and it “does not sell or serve alcoholic beverages directly to consumers.” At
Frontier Fiesta, Tydlacka was personally responsible for receiving orders from
Aramark for kegs of alcohol and bags of ice. The student organizations present at
Frontier Fiesta would purchase beer directly from Aramark, who would then notify
Silver Eagle “of the name and location of the organization where Silver Eagle was
to deliver the beer.” Silver Eagle would then deliver the beer to the specific “tent
2
See id. § 2.01(1).
3
area” where the organization was located. Tydlacka noted that Silver Eagle’s
employees would spend “no longer than a minute or two” at the organizations’
tents and would “immediately depart[]” the area after delivering the order. Finally,
Tydlacka explained that:
[N]either I nor any other Silver Eagle employee ever (i) had any
contact with the purchasers of the alcohol (other than occasionally
being shown where to specifically deposit the beer), (ii) had any
contact with the consumers of the alcohol Silver Eagle delivered to
the various organizations, (iii) had any contact with any persons
visiting the tent areas to which Silver Eagle delivered the beer, (iv)
connected a beer keg to dispensing equipment (e.g., a tap) to enable
the beer to be poured from keg, (v) sold or served alcohol to any
person, (vi) identified which persons were consuming alcohol, or the
age or level of intoxication of any persons possibly consuming
alcohol, (vii) exercised any control over the area where a delivery was
being made, or (viii) exercised any control over any person at or near
a tent area where delivery of beer was being made.
In his response to Silver Eagle’s motion, Toledo asserted that Perez struck
Toledo, “knocked him to the ground,” and “continued beating him” after an
argument as to whether Toledo could enter the Sigma Pi tent. He asserted that
Silver Eagle “took the beer directly to the tents where the beer was consumed
without limit or control or supervision of any kind” and “sold and provided alcohol
directly to the fraternity tent where [Perez] was a bouncer and where he became
intoxicated and assaulted” Toledo.
Toledo attached to his response the deposition testimony of Tydlacka.
Tydlacka testified in his deposition that the student organizations would place their
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orders directly with retailer Aramark, which would provide Silver Eagle with an
invoice and direct Silver Eagle as to where to deliver the ordered supplies. He
noted that Silver Eagle “did not sell any product to anyone other than Aramark” at
the event and a Silver Eagle employee would deliver the kegs, beer, ice, and other
supplies directly to the organization’s tent. The extent of any interaction between
Silver Eagle’s employees and a person at the tent area would be to indicate where
to deposit the supplies. Toledo explained that Silver Eagle employees would
simply “drop[]” off the supplies and leave immediately. In exchange for its
delivery services, Silver Eagle received checks signed by Aramark at the end of the
event.
Tydlacka further testified in his deposition that before the event, he met with
an Aramark representative to discuss the Frontier Fiesta arrangement. At the
meeting, Tydlacka received information regarding “product,” “times,” and
“locations.” He noted that while Aramark had a license to sell alcohol at the event,
Silver Eagle merely had a license to provide alcohol to Aramark. And Aramark’s
license restricted the times during which it could sell alcohol and Silver Eagle
could deliver alcohol.
Toledo also attached to his response the deposition of Allisdair McClean,
Aramark’s resident district manager. McClean testified that prior to Frontier
Fiesta, he met with representatives from the University of Houston and the Frontier
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Fiesta Association. At this meeting, at which Silver Eagle was not present, the
parties created a “Memo of Understanding” that “outlined what the event was, the
prices and the terms around that.” Silver Eagle had simply provided a “service of
delivering” for Aramark at Frontier Fiesta and other events in the past. And
Aramark would pay Silver Eagle directly for the alcohol orders, with the
University of Houston receiving a percentage of the total food and alcohol sales.
The trial court granted Silver Eagle’s summary-judgment motion, noting that
its order was interlocutory because Toledo had pending claims against other
parties. The trial court later entered another “Order Granting Interlocutory
Summary Judgment for Silver Eagle,” specifically ordering that Toledo take-
nothing on “his claim for joint-enterprise.” Toledo later settled his claims against
Frontier Fiesta Association and non-suited his claims against Sigma Pi, Aramark,
and Perez.
Standard of Review
To prevail on a summary-judgment motion, a movant has the burden of
proving that it is entitled to judgment as a matter of law because there is no
genuine issue of material fact. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 548 (Tex. 1985); Farah v. Mafrige & Kormanik, 927 S.W.2d
663, 670 (Tex. App.—Houston [1st Dist.] 1996, no writ).
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To assert a no-evidence summary-judgment motion, a movant must
specifically assert that there is no evidence of an essential element of the adverse
party’s cause of action or affirmative defense. TEX. R. CIV. P. 166a(i); Sw. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Flameout Design &
Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—
Houston [1st Dist.] 1999, no pet.). Although the non-moving party is not required
to marshal its proof in response, he must present evidence that raises a genuine,
material fact issue on each of the challenged elements. TEX. R. CIV. P. 166a(i). A
no-evidence summary-judgment motion may not properly be granted if the non-
movant brings forth more than a scintilla of evidence to raise a genuine issue of
material fact on the challenged elements. Id.; Spradlin v. State, 100 S.W.3d 372,
377 (Tex. App.—Houston [1st Dist.] 2002, no pet.). More than a scintilla of
evidence exists when the evidence “rises to a level that would enable reasonable
and fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc.
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). When reviewing a summary-
judgment motion, we assume that all evidence favorable to the non-movant is true
and indulge every reasonable inference and resolve all doubts in favor of the non-
movant. Nixon, 690 S.W.2d at 548–49; Spradlin, 100 S.W.3d at 377.
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Texas Dram Shop Act
In his first issue, Toledo argues that trial court erred in granting Silver
Eagle’s summary-judgment motion because when Silver Eagle delivered alcohol to
the tent where Perez became obviously intoxicated, Silver Eagle qualified as a
“provider” under the Texas Dram Shop Act.
The Texas Dram Shop Act imposes civil liability on providers of alcoholic
beverages for damages resulting from the sale or service of alcohol to a person
who is obviously intoxicated. See TEX. ALCO. BEV. CODE. ANN. §§ 2.01–2.03
(West 2007); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683
(Tex. 2007) (explaining history of Texas Dram Shop Act). The Dram Shop Act
reads, in pertinent part:
Providing, selling, or serving an alcoholic beverage may
be made the basis of a statutory cause of action under this
chapter . . . upon proof that:
(1) at the time the provision occurred it was
apparent to the provider that the individual
. . . 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.
TEX. ALCO. BEV. CODE. ANN. § 2.02(b).
8
Only a “provider,” as defined by the Dram Shop Act, is liable under section
2.02(b). Harris v. Houston Livestock Show & Rodeo, Inc., 365 S.W.3d 28, 32
(Tex. App.—Houston [1st Dist.] 2011, pet. denied); Smith v. Merritt, 940 S.W.2d
602, 605 (Tex. 1997) (noting that section 2.02(b) “creates a statutory cause of
action against commercial providers only”) (emphasis in original); Graff v. Beard,
858 S.W.2d 918, 919 (Tex. 1993) (holding Dram Shop Act applies only to
commercial providers). “Provider” is defined as “a person who sells or serves an
alcoholic beverage under the authority of a license or permit . . . or who otherwise
sells an alcoholic beverage to an individual.” TEX. ALCO. BEV. CODE ANN. §
2.01(1).
In support of its argument that it did not “provide” alcohol to Perez as
statutorily defined, Silver Eagle relies on Schmidt v. Centex Beverage, Inc., 825
S.W.2d 791 (Tex. App.—Austin 1992, no writ). In Schmidt, the plaintiff
trespassed onto the grounds of an Austin festival, where a confrontation with the
festival’s volunteers left him with a broken neck. Id. at 792–93. He then brought
suit against the wholesale beer distributors for violations of the Dram Shop Act and
other causes of action, asserting that the defendants had agents at the festival and
“had reason to know alcohol would be consumed to excess at the event.” Id. at
795. The court held that the defendant did not meet the statutory definition of
9
“provider” because it had no duty “to oversee the sale of alcohol to consumers.”
Id.
Toledo points to Silver Eagle’s permits from the Texas Alcoholic Beverage
Commission as evidence that Silver Eagle qualified as a “provider” because
“liability under the Dram Shop Act is premised upon licensing.” However, at the
time of the incident, Silver Eagle had a General Class B Wholesaler’s Permit and
Private Carrier’s Permit, which statutorily limited its actions to (1) selling beer in
its original container to retailers authorized to sell it and (2) transporting beer to the
retailers. See TEX. ALCO. BEV. CODE ANN. § 20.01 (West Supp. 2012); id. § 42.01
(West 2007). Thus, Silver Eagle’s permit actually restricted it from providing
alcohol directly to Perez, and there is no evidence in the record that Silver Eagle’s
conduct did not comply with the terms of its license.
Here, as in Schmidt, Silver Eagle acted only as a wholesaler, providing beer
to organizations participating in the Frontier Fiesta based on Aramark’s
instructions. And Tydlacka repeatedly testified that Silver Eagle delivered alcohol
only to the tents, did not have any contact with consumers, did not sell or serve
alcohol to any individuals, and did not have any control over which individuals
were served alcohol. As noted by Toledo in his brief to this Court, Aramark was
“the only licensed provider of alcohol to the public among the Defendants.” And
there is no evidence that Silver Eagle sold or served alcohol directly to Perez, as
10
3
required by the Texas Dram Shop Act. See TEX. ALCO. BEV. CODE ANN. §
2.01(1).
We conclude that Toledo presented no evidence demonstrating that Silver
Eagle qualified as a “provider” under the Dram Shop Act. Accordingly, we hold
that the trial court did not err in granting Silver Eagle’s summary judgment on the
ground that it violated the Dram Shop Act.
We overrule Toledo’s first issue.
Joint Enterprise
In his second issue, Toledo argues that the trial court erred in granting Silver
Eagle’s summary-judgment motion because he presented “ample evidence” of the
existence of a joint enterprise between Silver Eagle, Aramark, and the Frontier
Fiesta Association.
3
In support of his argument that he need only prove that Perez demonstrated
“obvious signs of intoxication” to establish that Silver Eagle is liable under the
Texas Dram Shop Act, Toledo relies on several cases. However, each case cited
by Toledo involves defendants who directly served alcohol to individuals, where it
was undisputed that the defendants were “provider[s]” under the statute. See Fay-
Ray Corp. v. Tex. Alcoholic Beverage Comm’n, 959 S.W.2d 362, 365, 369 (Tex.
App.—Austin 1998, no pet.) (upholding revocation of restaurant’s alcoholic
beverage permit where restaurant waitress served plaintiff alcohol); Bruce v.
K.K.B., Inc., 52 S.W.3d 250, 256 (Tex. App.—Corpus Christi 2001, pet. denied)
(holding more than scintilla of evidence existed that restaurant violated Dram
Shop Act where plaintiffs were served by restaurant’s bartender); Perseus, Inc. v.
Canody, 995 S.W.2d 202, 207 (Tex. App.—San Antonio 1999, no pet.) (affirming
jury verdict in favor of plaintiff against nightclub owner where nightclub served
plaintiff alcohol); Steak and Ale v. Borneman, 62 S.W.3d 898, 902–04 (Tex.
App.—Fort Worth 2001, no pet.) (holding evidence legally sufficient that
restaurant violated Texas Dram Shop Act).
11
A successful claim based on a joint enterprise will make “each party thereto
the agent of the other . . . to hold each responsible for the negligent acts of the
other.” Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 14 (Tex. 1974). To find
a joint enterprise, there must be: (1) an agreement, express or implied, among the
members of the group; (2) a common purpose to be carried out by the group; (3) a
community of pecuniary interest in that purpose; and (4) an equal right to a voice
in the direction of the enterprise. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608,
613 (Tex. 2000); Shoemaker, 513 S.W.2d at 16–17.
Community of Pecuniary Interest
In regard to the third factor, Toledo argues that because Silver Eagle,
Aramark, and the University of Houston all benefited from the sales of alcohol,
they shared a “common pecuniary interest.” Toledo points to the following
testimony from McClean as evidence of the existence a common pecuniary
interest:
Following your example, the $50-dollar keg would have been sold at
whatever the rates were outlined in the agreements. Again, Silver
Eagle would have been paid their $50. The university would have
been paid, in whichever case that would fall 15 or 10 percent of the
overall sales. And we obviously are funding the remainder of tax and
labor and other.
The Texas Supreme Court has noted that the term “common business or
pecuniary interest” does not mean a “community of pecuniary interest.” St. Joseph
Hosp. v. Wolff, 94 S.W.3d 513, 527 (Tex. 2003). Thus, although two businesses
12
may have a common pecuniary interest in the sale of their products and each may
stand to benefit financially from such a sale, this is different from a “community”
in which the common purpose is shared “without special or distinguishing
characteristics.” Id. at 528; see also Ely v. Gen. Motors Corp., 927 S.W.2d 774,
779 (Tex. App.—Texarkana 1996, writ denied). As such, a “franchisor,
wholesaler, or supplier usually does not have a ‘community of pecuniary interest’
in the retail sales of its respective franchisees, retailers, or customers.” St. Joseph
Hosp., 94 S.W.3d at 528. Although such entities “stand to benefit financially from
the successful downstream marketing of their goods or services, their interests in
those activities are not held in ‘community’ with the members of the latter.” Id.
Here, Tydlacka testified that Silver Eagle is “a wholesaler and distributor of
alcoholic beverages.” Silver Eagle’s permit from the Texas Alcoholic Beverage
Commission was classified a “General Class B Wholesaler’s Permit.” And,
McClean testified that Silver Eagle received payment based on how much beer
Aramark directed it to deliver, and Aramark paid Silver Eagle directly for this
service. When asked about the profit breakdown, McClean testified that Aramark
would “just pay for [the ice and beer] prior like we do with anything else. So there
was not I wouldn’t say a profit sharing. We order a product. We pay whatever the
agreed upon rate is for that.” Later, McClean explained,
Well, again, I just would say that there’s not a split of profits; so
maybe I’m getting hung up on that. Regardless of if there’s a profit or
13
not, we are required as outlined in that Memo of Understanding to pay
the University “X” percentage.
So if we made a dollar of profit or we didn’t make a dollar of profit,
it’s irrelevant to the fact that Silver Eagle is going to get paid their
$50. And the university is going to receive their commissions for
whatever those sales would have been.
Thus, there existed a “special or distinguishing characteristic” as to Silver
Eagle’s and the other defendants’ pecuniary interests. See, e.g., Harris v. Houston
Livestock Show & Rodeo, Inc., 365 S.W.3d 28, 35 (Tex. App.—Houston [1st Dist.]
2011, pet. denied) (holding that although defendant benefitted by receiving portion
of revenues from drink sales, it did not share community of pecuniary interest
when its pecuniary interest was calculated differently from drink provider); Ely,
927 S.W.2d at 779 (stating that court could find “no cases where a . . .
wholesaler/retailer relationship has been determined to create [a] common
pecuniary benefit” and holding that “[w]hen one party is selling vehicles wholesale
to another to sell retail, there is not a pecuniary interest in a common purpose”).
And Toledo presented no evidence that Silver Eagle shared a “community of
pecuniary interests” with the other defendants.
Equal Right to Control
In regard to the fourth factor, an “equal right to a voice to control the
enterprise,” Toledo asserts that Silver Eagle “admits to having input into the
method and means of accomplishing the purpose of the joint enterprise.”
14
To establish an equal right to control a joint enterprise, each entity “must
have an authoritative voice or . . . [s]ome voice and right to be heard.” Shoemaker,
513 S.W.2d at 15. This right to control must extend over the same common
purpose in which the parties have a common pecuniary interest. St. Joseph Hosp.,
94 S.W.3d at 529.
In support of its argument that Toledo failed to provide evidence of an equal
right to control, Silver Eagle cites Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d
716 (Tex. 1995). In Riley, the court held that a radio station was not liable under
the joint enterprise theory for a nightclub’s violations of the Dram Shop Act. Id. at
719. The plaintiff emphasized that the nightclub priced its drinks based on the
radio station’s FM frequency, arguing that this demonstrated control over the
nightclub. Id. However, the nightclub set the drink prices, was “licensed to sell
alcohol, maintained absolute control over the provision of all the drinks,” and was
“best positioned to monitor the amount of liquor that patrons consumed.” Id.
Thus, the court held that there was no evidence of an equal right to control for the
purposes of imposing joint liability. Id.
Likewise, here, McClean testified that the University of Houston set the
price of beer sold to the organizations through a “Memo of Understanding” at a
meeting with Aramark and the Frontier Fiesta. Silver Eagle was not present at the
meeting. And, like the defendant in Ripley, Tydlacka testified that he was not
15
responsible for determining “whether anybody was or was not intoxicated” or for
monitoring “how much alcohol was being purchased by a particular group or any
individual.” Instead, he testified that Silver Eagle employees would simply “drop[]
off” alcohol at the locations designated by Aramark. And Aramark’s license
dictated the specific times that Silver Eagle should start and stop delivering beer.
Toledo argues that he established that Silver Eagle had an equal right to
control because Tydlacka testified to meeting with Aramark before the Frontier
Fiesta to determine “details” in how Silver Eagle and Aramark would “work[]
together” at the event. However, Tydlacka testified that the purpose of that
meeting was limited to “what products [Silver Eagle] was going to bring to the
event” and information pertaining to “product,” “times,” and “locations.” See
Riley, 900 S.W.2d at 718–19 (holding that there was no evidence of right to control
in Dram Shop claim where there was no evidence that defendants “exercised any
right of control . . . over who was served, admitted, or ejected”). And because the
only written agreement in the present case is the “Memo of Understanding,” which
Silver Eagle did not participate in drafting, there is no evidence of a contractual
right to control the enterprise. Compare Tex. Dep’t of Transp. v. Able, 35 S.W.3d
608, 616 (Tex. 2000) (distinguishing Ripley and upholding jury finding that equal
right to control existed between Texas Department of Transportation and Houston
Metropolitan Transit Authority because contract gave parties an “equal right to
16
control” procedures for transit operations). Thus, Toledo presented no evidence
that Silver Eagle had an “equal right to a voice to control the enterprise” at Frontier
Fiesta.
Because Toledo presented no evidence on two essential elements of a joint
enterprise, we hold that the trial court did not err in granting Silver Eagle’s
summary-judgment motion on the ground that it was not civilly liable as a joint
enterprise.
We overrule Toledo’s second issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
17