Bolanos v. Purple Goat, LLC

649 S.W.3d 753

Vanessa BOLANOS, Mayra Bolanos, and Sheila Walton as Next Friend of Juan Manuel Solis, Decedent, Appellants,

v.The PURPLE GOAT, LLC, Appellee.

No. 08-21-00011-CV

Court of Appeals of Texas, El Paso.

May 31, 2022

ATTORNEY FOR APPELLANTS: Ali Crocker Russell, Crocker Russell & Associates, 2401 Callender Raod, Suite 103, Mansfield, TX 76063.

ATTORNEYS FOR APPELLEE: David C. Colley, Douglas Fletcher, Fletcher, Farley, Shipman & Salinas, LLP, 9201 N. Central Expressway, Suite 600, Dallas, TX 75231.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

JEFF ALLEY, Justice

Juan Manuel Solis died from injuries he sustained in a fall while working at Appellee The Purple Goat, LLC's restaurant/bar. Following Solis's death, Appellants Vanessa Bolanos, Mayra Bolanos, and Sheila Walton (collectively, Bolanos) sued The Purple Goat under several causes-of-action (negligence, wrongful death, negligence per se, and negligent hiring, supervision, and retention). Most of the factual allegations underpinning those claims related to The Purple Goat overserving alcohol to Solis and one of its customers. But some allegations pertain to a claimed failure to provide adequate security. The trial court granted The Purple Goat's special exceptions and dismissed the Bolanos’ common law negligence claims based on the exclusive remedy provisions in the Texas Dram Shop Act. The trial court subsequently granted a no-evidence motion for summary judgment disposing of the Dram Shop Act claim. We affirm those rulings.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

The Purple Goat is a restaurant and bar. Based on Bolanos’ live petition, Francisco Soto came to the establishment to drink and collect a gambling debt from Juan Manuel Solis, an employee at The Purple Goat. While seated at the bar, Soto asked a bartender to summon Solis who was on duty at the time. Solis met Soto at the bar the two began to talk and drink. The petition alleges that The Purple Goat's management and owners allowed the bartender to overserve alcohol to Solis, causing him to become severely intoxicated. Soto, who was also intoxicated, argued with Solis and struck him in the face, causing Solis to fall and hit his head on the ground. Solis was transported to the hospital but succumbed to his injuries after a three-week stay in an ICU and subsequent hospice admission. He died on August 26, 2017.

Bolanos sued: (1) The Purple Goat, LLC; (2) Cynthia Stephens and V.W. Stephens, who own The Purple Goat; and (3) Francisco Soto. This appeal involves only The Purple Goat, and as to that entity, Bolanos brought claims for negligence, wrongful death, negligence per se, along with negligent hiring, supervision, and retention.² The factual allegations underpinning those claims include that The Purple Goat (1) overserved alcohol to Soto and Solis, and (2) failed to provide adequate security. In response, The Purple Goat filed special exceptions and a motion to dismiss the common law negligence claims, arguing that because Bolanos asserted claims for overserving of alcoholic beverages, the exclusive available remedy was under the Texas Dram Shop Act.³ The trial court granted the special exceptions and dismissed Bolanos’ common law negligence claims against The Purple Goat with prejudice. Bolanos moved to reconsider that ruling and requested a permissive appeal, both of which were denied.⁴

The Purple Goat subsequently filed a no-evidence motion for summary judgment on the remaining wrongful-death claim under the Dram Shop Act. It argued that there was no evidence to establish the predicate for liability under the Act, namely that it was apparent to The Purple Goat that Soto or Solis was overserved with an alcoholic beverage to the point that either presented a clear danger to himself or others.⁵ It also asserted that there was "no evidence that The Purple Goat served [Solis], an employee of [The Purple Goat] on duty at the time of the incident, any alcoholic beverages prior the alleged incident." Finally, The Purple Goat argued that there was no evidence that Solis’ or Soto's intoxication was a proximate cause of the damages suffered.

Bolanos’ response to no-evidence summary judgment motion attached four unsigned, unsworn statements from persons who were purportedly present when Solis sustained his injuries. The response also contains a notary acknowledgment executed by Vanessa Bolanos.⁶ The Purple Goat filed objections and a motion to strike the "verified" response and the witness statements. It urged that the unsworn witness statements did not constitute competent summary judgment evidence, and a party cannot generically verify a response to a motion to summary judgment, so as to render the text of the response substantive evidence.

Following a hearing, the trial court sustained The Purple Goats’ objections and motion to strike the verified response and witness statements. The trial court also granted The Purple Goat's summary judgment motion by written order. This appeal follows.

II. ISSUES ON APPEAL

In three issues, Bolanos challenges the trial court's orders sustaining The Purple Goat's special exceptions and granting its summary judgment motion, arguing that: (1) the Dram Shop Act was not intended to preclude employees from bringing common law claims against employers who sell alcohol; (2) employees of alcohol providers are allowed to sue employers who negligently provide alcohol despite the Dram Shop Act; and (3) the trial court erred by granting the summary judgment on Bolanos’ wrongful-death claim. For the reasons below, we address the Dram Shop issues together and construe them as a challenge to the trial court's grant of The Purple Goat's special exceptions.

III. ORDER GRANTING SPECIAL EXCEPTION

A. Briefing Waiver

Before addressing the merits of Bolanos’ issues pertaining to exclusive remedy provisions under the Dram Shop Act, we first consider whether these claims are properly presented for our review. The Purple Goat argues that Bolanos waived any complaint about the trial court's grant of the special exceptions because her brief does not contain appropriate citations to the appellate record. Bolanos did not respond to this contention in a reply brief or other appellate filing.

TEX.R.APP.P. 38.1(i) requires an appellant's brief to contain "a clear and concise argument for the contentions made, with appropriate citations to the record." Failure to comply with rule 38.1(i) may result in waiver of an appellate claim, yet we must construe the Texas Rules of Appellate Procedure "reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to enforce the rules." Federal Corporation, Inc. v. Truhlar , 632 S.W.3d 697, 725 (Tex.App.--El Paso 2021, pet. denied), citing TEX.R.APP.P. 38.9, and Republic Underwriters Ins. Co. v. Mex-Tex, Inc. , 150 S.W.3d 423, 427 (Tex. 2004). Bolanos’ brief contains some citations to the record, and some citations to an appendix attached to the brief. As such, the brief does not fully comply with rule 38.1(i) ’s requirement of citations to the appellate record, and it risks rejection on this basis alone. See id. Nevertheless, because we have no difficulty identifying the few pleadings and orders that control this appeal, and in the interest of justice, we will consider the claims on their merits. See Lakeside Village Homeowners Ass'n, Inc. v. Belanger , 545 S.W.3d 15, 44 (Tex.App.--El Paso 2017, pet. denied) (addressing an appellate claim in the interest of justice despite the party's inadequate brief that lacked appropriate record citations).

The Purple Goat further argues that Bolanos’ claims are waived because the brief fails to specifically challenge the court's special exceptions order, and improperly cites only to the summary judgment standard of review. Our review of Bolanos’ brief shows that although it erroneously challenges the trial court's grant of summary judgment on the negligence claims, it also raises an argument challenging the court's order sustaining The Purple Goat's special exceptions.⁷

Again, although failure to comply with rule 38.1(i) may result in waiver of an appellate claim, we construe briefs reasonably, yet liberally, and to "reach the merits of an appeal whenever reasonably possible." Conroy v. Wilkerson , 626 S.W.3d 24, 30 (Tex.App.--El Paso 2021, no pet.), quoting Perry v. Cohen , 272 S.W.3d 585, 587 (Tex. 2008) (per curiam). Thus, we construe Issues One and Two as a challenge to the trial court's order sustaining The Purple Goat's special exceptions. And because we can fairly ascertain the nature of Bolanos’ claim, we will address its merits in the interest of justice. See Conroy , 626 S.W.3d at 30 ; Belanger , 545 S.W.3d at 44.

B. Standard of Review and Applicable Law

Special exceptions may be used to challenge the sufficiency of an opponent's pleadings. Friesenhahn v. Ryan , 960 S.W.2d 656, 658 (Tex. 1998). Along with challenges based on pleadings that are factually deficient or unclear, special exceptions may also be levelled at pleadings that fail to assert a legally viable cause of action. Baylor University v. Sonnichsen , 221 S.W.3d 632, 635 (Tex. 2007). The Purple Goat's special exception asserted such a legal challenge by contending the Texas Dram Shop Act precludes all but a statutory claim under the pleaded facts here.

When reviewing a trial court's dismissal of a cause of action following the sustaining of special exceptions, we review both the propriety of the trial court's decision to sustain the special exceptions and the order of dismissal. Perry v. Cohen , 285 S.W.3d 137, 142 (Tex.App.--Austin 2009, pet. denied), citing Cole v. Hall , 864 S.W.2d 563, 566 (Tex.App.--Dallas 1993, writ dism'd w.o.j.) (en banc).⁸ In general, a trial court has the discretion to grant special exceptions when it finds a plaintiff's pleadings defective, and similarly has the discretion to dismiss a case when a plaintiff refuses or fails to cure the defects. Perry , 285 S.W.3d...