Reversed and Remanded and Majority and Dissenting Opinions filed June 26, 2012.




                                          In The

                          Fourteenth Court of Appeals
                                    ___________________

                                     NO. 14-11-00356-CV
                                    ___________________

                           JOHN B. PLUNKETT, Appellant

                                            V.

 JUSTIN CURTIS NALL, ROBERT W. NALL, AND OLGA L. NALL, Appellees


                       On Appeal from the 268th District Court
                               Fort Bend County, Texas
                       Trial Court Cause No. 09-DCV-177458-A


                           DISSENTING OPINION

       I respectfully dissent. In my opinion, the Nalls’ motion for summary judgment
addressed all causes of action asserted by Plunkett. Accordingly, we should overrule
Plunkett’s sole issue and affirm.

       Plunkett’s negligence claims against the Nalls are stated in the Plaintiff’s Original
Petition as follows:

       5.02 The Nall Defendants are each liable for common law negligence.

       5.03 Defendants failed to exercise due care in their undertaking. Once the
       Nall Defendants undertook the responsibility to protect those persons at their
        party from harm, they had the responsibility to do so as a reasonable ordinary
        person would do under the same or substantially the same
        circumstances. The Nall Defendants failed to do so, and as an actual and
        proximate cause of that failure, your Plaintiff was damaged.1

The Majority Opinion accurately states:

        The crux of Plunkett’s negligence allegation is not that the Nalls owed a duty
        as social hosts to prevent intoxicated guests from driving. Plunkett
        recognizes there was no such duty. Rather Plunkett alleges that, once the
        Nalls voluntarily undertook to prevent intoxicated guests from driving (for
        which they otherwise owed no duty), they had a duty to act with ordinary
        care.

        The Nalls’ motion for summary judgment specifically addressed Plunkett’s claim
that the Nalls’ voluntary undertaking created a duty to Plunkett; the Nalls specifically
moved for summary judgment on the ground that no duty was thereby created. The
Motion for Summary Judgment states:

               Plaintiff alleges that the Nall Defendants knew that their guests would
        be imbibing alcohol and, therefore, “required that all attendees remaining at
        the party at and after midnight on January 1, 2008, and still in attendance
        would be required to spend the entire night at the Premises”….

                .…

              Under the facts as alleged in Plaintiff’s Original Petition, the Nall
        Defendants have no duty to Plaintiff, and they are entitled to summary
        judgment as a matter of law….

The Nalls arranged the Argument and Authorities section of their Motion for Summary
Judgment into two parts:




        1
           Nowhere in the pleadings of either party are the words “negligent undertaking claim” used.
However, each side addressed elements of a claim for “negligent undertaking,” Plunkett in his petition, and
the Nalls in their motion for summary judgment.
                                                    2
       No statutory or common law duty is owed by a social host.

       Absent a legal right to restrain a guest, a host owes no duty to a guest to
       do so.

Under the second part, the Nalls cite authorities in response “to the arguments of Plaintiff
in the case at bar that the Nall Defendants assumed a duty by telling their guests they had to
stay till morning if they were still there at midnight.”          The Nalls discuss the case law in
connection with Plunkett placing “a great amount of emphasis on the alleged ‘rule’ of the
Nall hosts that required a guest who was still at the home at midnight to spend the night,”
asserting that the courts refuse to recognize the assumption of duty argument in such cases.

       On appeal, Plunkett’s sole issue is that the trial court erred in granting summary
judgment because the Nalls’ motion for summary judgment did not address Plunkett’s
cause of action based on a “negligent undertaking” theory.2 In my opinion, the Nalls’
motion for summary judgment clearly addressed this alleged cause of action, asserting as a
ground for summary judgment that no duty to Plunkett was created by the Nalls’ voluntary
undertaking. Accordingly, Plunkett’s sole issue should be overruled, and the judgment
should be affirmed.




                                                 /s/       Margaret Garner Mirabal
                                                           Senior Justice



Panel consists of Justices Seymore, Boyce, and Mirabal.3 (Seymore, J., Majority).

       2
          We do not have before us the issue of whether the Nalls’ motion for summary judgment was
meritorious on the law. We only have a pleading issue—whether all causes of action were addressed in the
motion for summary judgment.
       3
           Senior Justice Margaret Garner Mirabal sitting by assignment.
                                                       3
