Affirmed and Opinion Filed January 13, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00013-CV
MARCO CALVILLO, Appellant
V.
WILLIAM FRAZIER A/K/A BILL FRAZIER, INDIVIDUALLY AND D/B/A KLIFF
KLUB, Appellee
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-12-00566-D
OPINION
Before Justices Bridges, Lang-Miers, and Myers
Opinion by Justice Bridges
Marco Calvillo appeals the trial court’s summary judgment on his claims under the Texas
Dram Shop Act (the Act). In seven issues, Calvillo argues fact issues precluding summary
judgment exist concerning whether Felicia Janis was provided, sold, or served alcohol by the
Kliff Klub and whether her intoxication was apparent to the provider of alcoholic beverages; the
safe harbor defense under the Act was not available to the Kliff Klub; and Calvillo was entitled
to seek punitive damages for the alleged violations of the Act in this case. We affirm the trial
court’s judgment.
The record shows that, during the late night of November 10, 2010, and early morning
hours of November 11, Felicia Janis was at the Kliff Klub celebrating the birthday of her
daughter, Sherrie Janis. Felicia did not remember how many drinks she had, but her deposition
testimony was that she was drinking from her daughter’s drink and “never bought a drink.”
When Felicia left the Kliff Klub, “someone” drove her to her niece’s house. At some point,
Felicia “got into [her] truck and drove off” from her niece’s house. Felicia did not know what
time she left the Kliff Klub, arrived at her niece’s house, or left her niece’s house. Felicia also
did not know if anyone was with her. Felicia could not “remember anything from that night.”
In her deposition, Sherrie testified she did not recall whether Felicia drank anything while
at the Kliff Klub. Sherrie testified she “never bought a drink” at the Kliff Klub. When asked
how she drank alcohol if she never bought a drink, Sherrie answered, “I’m a lady, and men buy
ladies’ drinks.” Sherrie testified the Kliff Klub closed at 1:30 a.m., but she did not recall
whether she stayed until it closed.
At 3:30 a.m. on November 11, 2010, Felicia was driving the wrong way down Interstate
Highway 30 when she collided head-on with Calvillo’s vehicle. Calvillo was injured in the
accident. Testing at the hospital following the accident showed Felicia’s blood alcohol level was
at .177.
In February 2012, Calvillo sued Kliff Klub and William Frazier, a/k/a Bill Frazier,
individually and d/b/a Kliff Klub, asserting claims under the Act. Specifically, Calvillo asserted
Kliff Klub, through its employees and/or agents, “sold, served, or provided alcoholic beverages
to Felicia Janis when Felicia Janis was obviously intoxicated to the extent that she presented a
clear danger to herself and others.” Calvillo further alleged Felicia’s intoxication was a
proximate cause of the accident and Calvillo’s resulting injuries.
Kliff Klub filed traditional and no-evidence motions for summary judgment asserting
Calvillo could not produce any evidence Kliff Klub employees or agents sold, served, or
provided Felicia with an alcoholic beverage. The trial court granted Kliff Klub’s motions for
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traditional and no-evidence summary judgment without specifying the grounds. This appeal
followed.
In his first issue, Calvillo argues that, under the Act, a private club “provides, sells, or
serves” all of the alcoholic beverages consumed in the club because all alcohol consumed in the
club comes from the club, as opposed to any outside source. In his second issue, Calvillo argues
fact issues on each element of his cause of action under the Act precluded summary judgment.
Specifically, Calvillo argues there was more than a scintilla of evidence to show (1) Felicia was
provided alcohol by the Kliff Klub and (2) Felicia’s obvious intoxication was apparent to the
provider of alcohol.
We first review the trial court’s summary judgment under the standards of rule 166a(i).
See TEX. R. CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The
non-movant, here Calvillo, must produce summary judgment evidence raising a genuine issue of
material fact to defeat summary judgment under that provision. Ridgway, 135 S.W.3d at 600. A
genuine issue of material fact exists if more than a scintilla of evidence establishing the existence
of the challenged element is produced. Id. If Calvillo fails to produce more than a scintilla of
evidence under that burden, then there is no need to analyze whether Frazier’s proof satisfied the
rule 166a(c) burden for a traditional summary judgment. Id.
When determining if more than a scintilla of evidence has been produced in response to a
rule 166a(i) motion for summary judgment, the evidence must be viewed in the light most
favorable to Calvillo. Id. at 601. More than a scintilla of evidence exists if the evidence “rises to
a level that would enable reasonable and fair-minded people to differ in their conclusions.” Id.
(quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
Under the Act, providing, selling, or serving an alcoholic beverage may be made the
basis of a statutory cause of action upon proof that:
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(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.
TEX. ALCO. BEV. CODE ANN. § 2.02(b) (West 2007).
Here, the evidence showed Felicia and Sherrie “never bought a drink” at the Kliff Klub.
Instead, Sherrie testified in her deposition that men bought her drinks, and Felicia testified she
drank alcohol from her daughter’s drink. Thus, Felicia’s consumption of alcohol at the Kliff
Klub was twice removed from the provision of alcohol to the men who purchased it and gave it
to Sherrie. Further, there was no evidence to show Felicia was intoxicated while at the Kliff
Klub. Under these circumstances, we reject Calvillo’s argument that Felicia was provided, sold,
or served alcohol merely because the alcohol served in the Kliff Klub ultimately came from the
Kliff Klub. Because no evidence existed to show Felicia was served alcohol by the Kliff Klub,
no cause of action was available to Calvillo under the Act. See id.; TEX. R. CIV. P. 166a(i);
Ridgway, 135 S.W.3d at 600. In reaching this conclusion, we note this case did not involve the
“service” of a bottle of wine or pitcher of beer for consumption by multiple customers. Cf.
Bruce v. K.K.B., Inc., 52 S.W.3d 250 (Tex. App.—Corpus Christi 2001, pet. denied). We
overrule Calvillo’s first and second issues. Because of our disposition of Calvillo’s first and
second issues, we need not address Calvillo’s remaining issues.
We affirm the trial court’s judgment.
140013F.P05
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARCO CALVILLO, Appellant On Appeal from the County Court at Law
No. 4, Dallas County, Texas
No. 05-14-00013-CV V. Trial Court Cause No. CC-12-00566-D.
Opinion delivered by Justice Bridges.
WILLIAM FRAZIER A/K/A BILL Justices Lang-Miers and Myers
FRAZIER, INDIVIDUALLY AND D/B/A participating.
KLIFF KLUB, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee William Frazier, a/k/a Bill Frazier, Individually and d/b/a
Kliff Klub recover his costs of this appeal from appellant MARCO CALVILLO.
Judgment entered January 13, 2015.
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