                                                                                       ACCEPTED
                                                                                    08-16-00134-cv
                                                                       EIGHTH COURT OF APPEALS
                                                                                  EL PASO, TEXAS
                             08-16-00134-CV                                  10/27/2016 3:58:06 PM
                                                                                DENISE PACHECO
                                                                                            CLERK

                       Case Number 08-16-00134-CV

                 IN THE EIGHTH COURT OF APPEALS       FILED IN
                                               8th COURT OF APPEALS
                           at El Paso, Texas       EL PASO, TEXAS
                                                          10/27/2016 3:58:06 PM
                                                             DENISE PACHECO
                                                                   Clerk
    PAUL FLETCHER and wife, JAIME FLETCHER as Next Friends of
                      Their Daughter, IF,
                          Appellants,

                                     v.

             STEVEN STRIFLER, SS, and SYDNEY STRIFLER,
                            Appellees.



   ON APPEAL FROM THE 442ND JUDICIAL DISTRICT COURT, DENTON COUNTY, TEXAS
                    TRIAL COURT CAUSE NO. 16-03909-443



                          APPELLANTS’ BRIEF


THE LAW OFFICE OF                         ALDOUS\WALKER, LLP
CHRISTOPHER A. PAYNE, PLLC
Christopher A. Payne                      Charla G. Aldous
State Bar No. 15651500                    State Bar No. 20545235
9101 LBJ Freeway, Suite 760               Brent R. Walker
Dallas, Texas 75231                       State Bar No. 24047053
Telephone Number (972) 755-1954           Heather L. Long
Facsimile Number (214) 453-2435           State Bar No. 24055865
                                          2311 Cedar Springs Rd., Suite 200
                                          Dallas, TX 75201
                                          Telephone Number (214)526-5595
ATTORNEYS FOR APPELLANTS                  Facsimile Number (214) 526-5525
PAUL FLETCHER and wife,
JAIME FLETCHER as Next
Friends of their Daughter, IF             October 27, 2016

                    ORAL ARGUMENT REQUESTED
                IDENTITY OF PARTIES AND COUNSEL

1. APPELLANTS

    Paul Fletcher, Jaime Fletcher, as Next Friends of IF

2. APPELLANTS’ TRIAL AND APPELLATE COUNSEL

    Christopher A. Payne
    LAW OFFICE OF CHRISTOPHER A. PAYNE, PLLC
    9101 LBJ Freeway, Suite 760
    Dallas, Texas 75243

    Charla G. Aldous
    Brent Walker
    Heather Long
    ALDOUS\WALKER, LLP
    2311 Cedar Springs Road, Suite 200
    Dallas, Texas 75201

3. APPELLEES

    Steven Strifler, Sydney Strifler, and SS

4. APPELLEES’ TRIAL AND APPELLATE COUNSEL

    Carlos Balido
    Matt Montgomery
    WALTERS, BALIDO & CRAIN, LLP
    10440 N. Central Expressway, Suite 1500
    Dallas, Texas 75231

5. DISTRICT COURT TRIAL JUDGE

    Hon. Tiffany Haertling sitting as Judge of the 442nd Judicial District
    Court of Denton County, Texas

                                                                             ii
                                           TABLE OF CONTENTS

                                                                                                                        Pages

Identity of Parties and Counsel ..................................................................... iii

Table of Contents ............................................................................................. iv

Index of Authorities ......................................................................................... vi

Statement of the Case ........................................................................................ 1

Issue Presented ................................................................................................... 2

Statement of Facts ............................................................................................... 3

       I.        Allowing Teenagers in the Home Unsupervised Proximately
                 Caused IF Harm ............................................................................... 3

       II.       The Strifler Teenagers Had Notice of the Danger AV Posed to
                 IF ......................................................................................................... 7

       III.      Leaving the House Unsupervised Created an Environment for
                 the Teenagers to Break Rules and Take Risks ........................ 11

       IV.       Steven Strifler Learned About the Party and Did Nothing .. 14

       V.        IF Experienced Harm .................................................................... 15

Standard of Review .......................................................................................... 15

Summary of the Argument ............................................................................. 16

Argument ........................................................................................................... 17


       I.        The Trial Court Erred if it Granted Summary Judgment on
                                                                                                                                  iii
                 Duty ................................................................................................. 17

                 A. The Striflers are Not Social Hosts Entitled to Invoke the
                    Dram Shop Act Exclusive Remedy Provision ................... 18

                      1. The Act only applies to those who serve or sell alcohol
                         .................................................................................................. 20

                      2. Providing alcohol must proximately cause the harm ...22

                      3. Common-law liability not foreclosed to Plaintiffs
                         under age eighteen ..............................................................24

                 B. The Striflers’ Duties to IF Arose Under Common-Law ... 25

        II.      The Trial Court Erred If It Granted Summary Judgment on
                 Proximate Cause ............................................................................ 30

                 A. The Acts of Third Parties Did Not Destroy the Causal
                    Links Between the Striflers’ Negligence and IF’s Injuries
                    .................................................................................................... 31

Prayer .................................................................................................................. 34

Certificate of Service ........................................................................................ 35

Certificate of Compliance .............................................................................. 36




                                                                                                                                 iv
                                       INDEX OF AUTHORITIES
                                                                                                                    Pages
Cases:

Carter v. Abbyad,
   299 S.W.3d 892 (Tex. App.—Austin 2009, no pet.) ................. 23, 26, 27

Dew v. Crown Derrick Erectors, Inc.,
   208 S.W.3d 448 (Tex. 2016) .......................................................................... 31

Doe v. Messina,
   349 S.W.3d 797 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) .......
   ............................................................................................................. 31, 32, 33

El Chico Corp. v. Poole,
    732 S.W.2d 306, 312 (Tex. 1987) ................................................................. 26

Ford Motor Co. v. Ridgway,
   135 S.W.3d 598, 600 (Tex. 2004) ................................................................. 15

Golden v. Tips,
   651 S.W.2d 364 (Tex. App.—Tyler 1983, no writ) .................................. 26

Graff v. Beard,
   858 S.W.2d 918 (Tex. 1993) ....................................................... 18, 19, 20, 25

Greater Hous. Transp. Co. v. Phillips,
   801 S.W.2d 523 (Tex. 1990) ............................................................. 23, 25, 26

Inc. v. Parker,
    249 S.W.3d 392, 399 (Tex. 2008) ................................................................. 16

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
  289 S.W.3d 844, 848 (Tex. 2009) ................................................................. 16

                                                                                                                              v
Nall v. Plunkett,
   404 S.W.3d 552 (Tex. 2013) ......................................................................... 23

Newson v. B.B.,
   306 S.W.3d 910 (Tex. App.—Beaumont 2010, pet. denied) ................... 26

Nixon v. Mr. Prop. Mgmt. Co.,
   690 S.W.2d 546 (Tex. 1985) ......................................................................... 31

Reeder v. Daniel,
   61 S.W.3d 359 (Tex. 2001) ............................................................... 20, 24, 25

Smith v. Merritt,
   940 S.W.2d 602 (Tex. 1997) ......................................................................... 20

Smith v. O'Donnell,
   288 S.W.3d 417, 424 (Tex. 2009) ........................................................... 15, 16

Valence Operating Co. v. Dorsett,
   164 S.W.3d 656 (Tex. 2005) ......................................................................... 15

Williams v. Steves Indus., Inc.,
   699 S.W.2d 570 (Tex. 1985) ......................................................................... 26

Statutes:

TEX. ALCO. BEV. CODE § 1.06 .............................................................................. 23

TEX. ALCO. BEV. CODE § 2.01 ........................................................................ 20, 21

TEX. ALCO. BEV. CODE § 2.02(c) ................................................................... 20, 22

TEX. ALCO. BEV. CODE § 2.03 .............................................................................. 20

TEX. ALCO. BEV. CODE § 2.03(a) ......................................................................... 21

TEX. ALCO. BEV. CODE § 2.03(c) .................................................................. 24, 25
                                                                                                                vi
Secondary Sources:

RESTATEMENT (SECOND) OF TORTS § 315 ...................................................... 26

RESTATEMENT (SECOND) OF TORTS § 323 ...................................................... 23




                                                                                            vii
                       STATEMENT OF THE CASE

     This lawsuit for damages arose from the actions Appellees took which

turned their home into a dangerous place for I.F. and others. This appeal is

from a summary judgment order that granted Defendants Steven Strifler, SS,

and Sydney Strifler’s Traditional and No-Evidence Motion for Summary

Judgment in which Defendants challenged the duties owed to I.F. as well as

the foreseeability of the harm she endured. Summary judgment was made

final by an order severing I.F.’s claims against the Appellees from claims

against other Defendants named in the underlying lawsuit.

     The Hon. Tiffany Haertling sitting as Judge of the 442nd Judicial District

Court of Denton County, Texas, signed the Order granting Defendants

summary judgment on April 4th, 2016 and signed the Order granting

Defendants motion for severance on May, 18th, 2016. Plaintiff filed a Notice of

Appeal on June 7th, 2016.




                                                                              1
                            ISSUE PRESENTED

     The trial court got it wrong. IF asks this Court to reverse the order

granting summary judgment on her negligence claims none of the grounds

advanced in the Striflers’ hybrid motion support the trial court’s order.


     1. Mr. Strifler left his two teenage children home alone overnight. The
        teens gave their friends permission to take dangerous actions,
        including consuming drugs, at the home. Teenage boys sexually
        assaulted IF during the party. The Striflers argued they were social
        hosts relieved of common law duties to IF. The trial court erred if it
        agreed with them.

     2. Mr. Strifler gave his children authority over the home, and they
        exercised that authority over their guests throughout the night. The
        Strifler teenagers watched as the danger increased during the night,
        including IF and the boys’ interactions before the assault. They chose
        to allow the party to continue, but claim their own negligence was not
        a concurrent cause. The trial court erred if it agreed with them.




                                                                             2
                           STATEMENT OF FACTS

I.     ALLOWING TEENAGERS       IN THE   HOME UNSUPERVISED PROXIMATELY
       CAUSED IF HARM.

       “I allowed them to stay by themselves at the house on Friday night,”

admitted Steven Strifler when asked who was in charge of supervising his

children on September 28, 2012. C.R. at 220. As a father of three, Mr. Strifler

knew that children, especially teenagers, needed supervision. Id. He

specifically knew that his children, fifteen-year-old SS and sixteen-year-old

Sydney, needed supervision when he left them in his home alone while he

went out of town for the weekend. Id. Mr. Strifler could have sent the children

to stay at his parents’ home less than an hour away, but decided to let them

stay home alone instead. C.R. at 292. Indeed, that Friday night Mr. Strifler’s

teenagers took advantage of their adult-free house and held the gathering

where teenage boys sexually assaulted fourteen-year-old IF.

       Mr. Strifler's decision to allow his children to stay in the family home

without adult supervision set in motion a series of events that forever changed

IF's life:

       Q. You would agree with me that the kids who came over to your
       house on September 28, 2012, basically were unsupervised?

       A. Yes, ma'am.

                                                                              3
        Q. And had you been home, I assume you would have never
        allowed that to happen.

        A. They would have never came in the house.

        Q. And, certainly, [IF] wouldn't have been in a situation where she
        was intoxicated in your home and got raped by two boys if you
        had been there, correct?

        A. Whatever happened to her would not have happened if I was
        there.

C.R. at 233.

        His, SS, took the opportunity to invite his friends to come over, which

grew into the party which IF attended that Friday night. C.R. at 264–65. Mr.

Strifler’s other teenage child, a junior in high school, Sydney Strifler was

notified of the gathering, and took it upon herself to supervise the guests. C.R.

at 294 - Sydney Strifler Dep. at 15:24-16:12.

        One of the people SS invited to the party was his classmate and

teammate from the football team, AV. C.R. at 265 - SS Dep. at 18:16-19. Over

the course of the week before Mr. Strifler’s departure, the teenagers made

plans to take advantage of the adult-free house. C.R. at 265 – SS Dep. at 20:3-

21:7.

        Based on Sydney’s recollection, there were 15 to 20 teenagers at the

house during the height of the party. C.R. at 297 – Sydney Strifler Dep. at 27:7-

                                                                                4
10. Of those, only four were female—IF, AH, Sydney, and Sydney’s best friend

and fellow junior, Kristin. C.R. at 296-297 – Sydney Strifler Dep. at 25:25-26:13.

The gathering began with SS hanging out with his male friend DM in the

Strifler house in the presence of then sixteen-year-old Sydney. C.R. at 294 –

Sydney Strifler Dep. at 15:6-16. At around 7:00-8:00pm, the first guests arrived

and brought alcohol with them. C.R. at 294 – Sydney Strifler Dep. at 16:25-17:2.

Later, IF arrived with her friend AH and a group of freshman boys that

included AV. C.R. at 239-240 – IF Dep. at 38:15-43:5.

      IF and AH met AV and the other freshman boys at the home of a male

classmate down the street from the Strifler house. Id. The group walked to the

Strifler home, bringing their own alcohol with them. Id. IF remembered

accepting a beer from SS, drinking less than half of it, and walking outside to

the backyard. C.R. at 242 – IF Dep. at 49:7-50:15. Once outside, IF observed a

group of people smoking marijuana, including IG. C.R. at 242 – IF Dep. at

50:16-51:1. IF smoked marijuana, and walked back inside the house. C.R. at 242

– IF Dep. at 52:11-52:20.

      Later, the guests exhausted the supply of alcoholic beverages, and a

guest contacted his family friend, J.T. Abbott, to bring over more. C.R. at 265 –

SS Dep. at 20:16-21:7. Abbott brought the alcohol, and IF remembered his

                                                                                 5
arrival. C.R. at 243 – IF Dep. at 53:25-54:22.

      IF recalled seeing AV with a baggie containing Xanax pills and hearing

others joking about how it would be funny to put the drugs in people’s drinks.

C.R. at 244-245 – IF Dep. at 59:22-61:8. Later, IF was handed a cup that she

believed to contain a mixture of Coca-Cola and liquor. C.R. at 243-244 – IF Dep.

at 55:24-57:1. After starting to drink from the cup, IF began to have gaps in her

memory. C.R. at 244 – IF Dep. at 58:17-59:10.

      SS, Sydney, and the other guests noticed that IF became completely

incoherent very quickly. C.R. at 278-279 – SS Dep. 71:4-12, 74:6-10; C.R. at 298-

299 – Sydney Strifler Dep. at 33:8-34:23. IF’s first memory after consuming the

drink was looking for AH and finding her in a restroom performing oral sex

on AV. C.R. at 245 – IF Dep. at 61:24-62:5. IF recalled SS being beside her and

telling him what she had seen. Id. SS responded: “Are you kidding me? No,

you didn’t see that.” C.R. at 245 – IF Dep. at 62:6-9. IF also recalled vomiting

blood in the presence of SS, and asking him to take her to the hospital. C.R. at

245 – IF Dep. at 63:5-19.

      After seeing AH and AV in the restroom, IF recalled leaving the house

through the front door, stumbling outside, and AV following her. C.R. at 245-

246 - IF Dep. at 64:23-65:9. IF described the events that followed in the pages

                                                                                6
cited, including: “I remember [AV] bugging me, trying to kiss me … and I was

falling all over the place.” C.R. at 245-247 – IF Dep. at 64:23-69:9. She cried as

she fell on the ground and felt AV push her head onto his penis. Id. IF recalled

IG joining them and the two boys trying to get her to give them oral sex at the

same time. Id. She also remembered hearing Sydney’s voice outside and J.T.

Abbott attempting to have IF perform oral sex on him. Id. The next thing IF

remembered was waking up in Mr. Strifler’s bedroom. Id.

      Sydney recalled IF coming back inside the house and vomiting for

approximately an hour. C.R. at 318 – Sydney Strifler Dep. at 111:4-113:7.

Sydney recognized that IF was too intoxicated to leave the house with AH and

AH’s mother. Id. She feared that AH’s mother would learn about the party,

and Sydney insisted the IF stay at the Strifler house. Id. Sydney drove IF home

the following morning. Id.

II.   The Strifler Teenagers Had Notice of the Danger AV Posed to IF.

      SS knew that AV posed a danger to the girls who attended that party at

the Strifler home while his father was away. C.R. at 281 – SS Dep. at 84:9-21

[referencing DX 29]. There were several warning signs indicating that at least

AV had every intent of engaging in sexual contact with females impaired by

alcohol at the party. Id.; See also C.R. at 351-352 – AV Dep. at 46:8-49:6. The

                                                                                 7
evening before the party, AV exchanged the following text message about the

party with AH, IF’s best friend.




     AV asked SS before the party if IF and AH could come over on the night

boys planned to drink unsupervised in the Strifler house. C.R. at 281 - SS Dep.

at 84:9-85:21. SS could not remember if he had seen the text exchange above,

but admitted that is was possible he had seen it (though he claimed not to

understand what it meant). (Id.).

     AV was questioned about the above text message exchange that

occurred before SS allowed him to bring AH and IF to the party, and his

                                                                              8
response was to assert his Fifth Amendment privilege against self-

incrimination. C.R. at 351 – AV Dep. at 47:16-48:7. Information available to SS

on AV’s Twitter account at the time of the party also put SS on notice that AV

wanted to have sex with girls, even if girls protested. C.R. at 353 - AV Dep. at

55:1-56:3; C.R. at 359 - Ex. 8, AV’s Public Claim “It’s Not Rape if I Have Swag”

posted prior to the rape [DX 37]. The week before the party, SS could also see

that AV publicly announced his approval of the following Adolf Hitler

statement: “Don’t let what other people think, stop you from doing the things

you love.” C.R. at 353 – AV Dep. at 55:1-58:14; C.R. at 362 - Ex. 9, Hitler

Approval [DX 38].

     Further, AV publicly displayed approval of rape and fixation on rape

just four days prior to SS allowing him to come into the unsupervised Strifler

house with two girls, one of which he had already expressed a desire to obtain

oral sex from that she stated she would not consent to give. C.R. at 354 - AV

Dep. at 58:15-59:24; C.R. at 363 - Ex. 10, Raped in Hell Post 9/24/12 [DX 39].




                                                                                 9
     In fact, SS and Sydney witnessed AV having oral sex with AH (the girl

that had told AV “no” when he requested oral sex at the party via text message

the previous day). C.R. at 351 – AV Dep. at 47:16-48:7; C.R. at 344 - AV Text

Re: Inviting IF and AH [DX 29 & DX 34]; C.R. at 267 - SS Dep. at 26:18-34:1;

C.R. at 320-321 - Sydney Strifler Dep. at 119:20-122:12. Sydney confirmed that

she and SS witnessed this act before IF was raped. C.R. at 320-321 - Sydney

Strifler Dep. at 119:20-122:12. Sydney’s testimony about the sequence of events

is consistent with IF’s recollection and provides strong evidence that Sydney


                                                                             10
was present when AV was showing the Xanax around the kitchen and talking

with others about putting it in drinks as IF recalls. According to Sydney, she

was in the kitchen at the beginning of the party before those events happened

to AH and after AV arrived. C.R. at 295 – Sydney Strifler Dep. at 19:21-20:14.

III.   LEAVING THE HOUSE UNSUPERVISED CREATED AN ENVIRONMENT FOR THE
       TEENAGERS TO BREAK RULES AND TAKE RISKS.

       Allowing teenagers to stay home alone on a Friday night without any

supervision created an environment ripe for breaking rules and taking risks.

Although he did not keep alcoholic beverages in the home, Steven Strifler had

previously caught Sydney intoxicated and in possession of alcohol. C.R. at 220

– Steven Strifler Dep. at 16:25-17:2; C.R. at 222 – Steven Strifler Dep. at 22:9-

23:23. Since there was no alcohol in the home, the teenagers brought their own

beverages and used the home as a place to consume their drinks since there

were no adults present to stop them.

       Sydney, a high school junior at the time, was at home when her brother’s

freshman friends began to arrive with alcohol, marijuana, and other

substances. C.R. at 294-295 – Sydney Strifler Dep. at 14:11-29:24; C.R. at 266-

267 – SS Dep. at 24:1-26:2. She knew SS, AV, and the other freshmen intended

to experiment with alcohol since there were no parents in the house and she

knew that drinking alcohol, particularly when consumed in combination with
                                                                               11
other substances, could lead to several harmful situations. C.R. at 293-294 –

Sydney Strifler Dep. at 11:16-14:10; C.R. at 294-295 – Sydney Strifler Dep. at

14:11-29:24. Rather than tell SS’s guests to leave or call her father to report the

gathering, Sydney decided to let the group stay and undertook to supervise

them herself. C.R. at 294 – Sydney Strifler Dep. at 15:21-16:12. Sydney believed

herself to be mature enough to supervise and control the party. Id. In her own

words: “At the moment it didn’t concern me because I wasn’t aware my father

was going to find out, so I was okay with them drinking that small amount of

alcohol f I was there to watch them.” C.R. at 295 – Sydney Strifler Dep. at 19:3-

10.

      The kitchen quickly transformed into a bar with alcohol for the teenagers

to consume. C.R. at 294-298 – Sydney Strifler Dep. at 14:11-29:24. The backyard

became a place for the teenagers to smoke marijuana. C.R. at 297 – Sydney

Dep. at 27:14-28:12. Illicit sexual acts began occurring in bedrooms and

bathrooms. C.R. at 266-269 - SS Dep. at 24:19-35:23; C.R. at 297, 316-326 -

Sydney Dep. at 26:18-27:7, 102:11-144:24.

      During the course of the party, Sydney became nervous about the guests

opening and closing the doors to the house, and feared that it would alert the

neighbors. C.R. at 295-296 – Sydney Strifler Dep. at 21:24-22:13. Sydney

                                                                                 12
instructed the guests to text her if additional individuals needed to enter the

house, and she would open the doors. Id. Sydney recognized the party was

getting out of control and becoming dangerous, but chose not to call her father

or otherwise attempt to stop the growing crowd of unsupervised teenagers

going in and out of the house. C.R. at 294-298 – Sydney Dep. at 14:11-29:24.

      SS and Sydney knew that their guests were present without the

knowledge of their parents in order to take advantage of the adult-free

environment. C.R. at 296 – Sydney Rep. at 25:8-27:6. Instead of stopping the

party that was getting out of hand, Sydney called her high school classmates

Kristin and Chance to help her watch over the party. Id.

      Sydney personally witness AV—one of IF’s assailants—receive oral sex

from the other freshman girl at the party before he sexually assaulted IF. C.R.

at 320-321 - Sydney Strifler Dep. at 119:20-122:12. SS and others at the party

witness the sexual interaction as well. C.R. at 267 - SS Dep. at 26:18-34:1. The

party was quickly getting out of control, and if SS had been in sober mind, he

would have sent everyone home when the initial supply of alcohol was

depleted. Instead, SS encouraged the other teenagers to procure more alcohol.

C.R. at 265 – SS Dep. at 20:16-21:7.

      After the party, SS told the police that IF was incapable of consenting to

                                                                               13
sex when she was at his party: C.R. at 277-278, 285 - SS Dep. at 68:4-72:20, 98:1-

19; C.R. at 372 - Ex. 13, SS Aff. 10/29/12 [DX 26].




He described her to police as “out of it,” “falling,” and not having “a clue.”

C.R. at 278 - SS Dep. at 70:18-71:12. Sydney confirmed the same in her

statements to police and during her deposition. C.R. at 298-299 – Sydney

Strifler Dep. at 33:8-34:23.

IV.   STEVEN STRIFLER LEARNED ABOUT THE PARTY AND DID NOTHING.

      The mother of one of the freshman boys who attended the party called

Steven Strifler when she found her son extremely intoxicated and informed

him of the party. C.R. at 220-221 – Steven Strifler Dep. at 12:11-15:15. Mr.

Strifler asked her to bang on the door and stop the party while he began calling

his children. Id. The teenagers did not answer the phone, and Mr. Strifler took

no further action until the following morning. C.R. at 221 – Steven Strifler Dep.

at 14:14-16:14. Rather than contacting neighbors, the children’s mother, the

children’s grandparents, or the police in order to check on the situation at his

home, Mr. Strifler chose not to act. Id.

                                                                                14
V.    IF Experienced Harm.

      IF has suffered severe mental anguish and developed post-traumatic

stress disorder since these events occurred. C.R. at 252 – IF Dep. at 89:1-91:24.

She left school as a result of the bullying and harassment by Sydney and others

as well as the trauma of having to go to school with her rapists. C.R. at 274-280

- SS Dep. at 55:16-81:12.

                             STANDARD OF REVIEW

      This appeal arises from a general order granting a hybrid motion for

 summary judgment on all of Appellant’s claims. Whether the trial court

 erred in granting summary judgment on Appellant’s negligence claim is the

 only matter raised on this appeal. Normally, appellate courts reviewing

 hybrid summary judgment decisions, consider whether the non-movant met

 her burden on no-evidence points before evaluating error on the propriety of

 traditional summary judgment. Ford Motor Co. v. Ridgway, 135 S.W.3d 598,

 600 (Tex. 2004)

      This Court reviews summary judgment decisions de novo. Valence

 Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing both a

 traditional and no-evidence summary judgment, it considers the evidence in

 the light most favorable to the non-movant. Smith v. O'Donnell, 288 S.W.3d

                                                                               15
 417, 424 (Tex. 2009); 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). It

 credits evidence favorable to the non-movant if reasonable jurors could, and

 disregards evidence contrary to the non-movant unless reasonable jurors

 could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

 844, 848 (Tex. 2009).

      Because this appeal arises from a general order that did not specify the

 grounds for the trial court’s decision and both parts of the hybrid motion

 raised identical grounds for summary judgment, this brief addresses the

 hybrid standards for each ground raised together.

                      SUMMARY OF THE ARGUMENT

      This is a case for a jury to decide. The Striflers voluntarily engaged in

conduct that turned their residential home into a dangerous place for IF and

others. They cannot use the exclusive statutory remedy provision of the Dram

Shop Act to shield themselves from the duties they owed IF under common

law. That provision only applies to providers that sell or serve alcohol for

injuries proximately caused by providing alcohol, none of which forms the

factual basis of IF’s claims against the Striflers. Further, the exclusive statutory

remedy does not apply to claims involving providing alcohol to persons under

the age of eighteen, and cannot apply here because IF was fourteen when these

                                                                                  16
events took place.

      Summary judgment on proximate cause was also wrong. The sexual

assault IF endured naturally progressed from the environment that Appellees

created and the actions they took. Their actions were a proximate cause of the

harm IF suffered and that cause was not superseded by others' foreseeable

criminal acts.

      IF asks this Court to reverse the trial court’s order granting summary

judgment on her negligence claim so that a jury can consider the case.

                                 ARGUMENT

I.    THE TRIAL COURT ERRED IF IT GRANTED SUMMARY JUDGMENT ON DUTY.

      In their hybrid motion for summary judgment, the Striflers argued that

 they should not be held liable for the harm that came to IF while at their home

 because they did not owe IF a legal duty. They argued that they were social

 hosts liable only to the extent provided by statute for providers of alcohol.

 They did not, however, challenge the duty element on any other grounds

 under the no-evidence summary judgment standard. Nor did they meet their

 traditional summary judgment burden to conclusively negate the element of

 duty on any other basis than as social hosts.

      The Striflers were not social hosts entitled to avoid the imposition of

                                                                              17
other common law duties. The law does not support their position, and

neither do the facts. If the trial court granted summary judgment based on

the element of duty, it did so in error. The Striflers owed IF a duty to take

affirmative action to control or avoid increasing the danger from another

persons’ conduct which because they at least partially created the danger by

their own acts.

      A.    THE STRIFLERS ARE NOT SOCIAL HOSTS ENTITLED TO INVOKE THE
            DRAM SHOP ACT EXCLUSIVE REMEDY PROVISION.

      This is not a social host case. This is not a case where evidence shows

the hosts of the party provided alcohol to a person that was injured due to the

alcohol’s intoxicating affects. Instead, it is a case where the residents of a house

made the house available to teenagers for the purpose of engaging in

dangerous activities without adult supervision – including use of illegal

drugs, drinking, and sexual assault. And a case where two of the residents

had every reason to know someone at the party intended to get sexual

intercourse from female guests who were unable to consent. And it is a case

where a resident of the home recognized the danger that was created, in part

by her own conduct, and took action to increase the danger that had been

created.

      In Graff v. Beard, the Supreme Court of Texas decided whether it should
                                                                                  18
impose a common law duty on a social host who makes alcohol available to

an intoxicated adult guest who the host knows will be driving. 858 S.W.2d 918

(Tex. 1993). The injured person at issue in that case was a motorist hit by the

drunk guest after leaving the host’s home. Id. at 918–19. The decision did not

expand beyond the facts presented by the parties to the case and did not

address situations where a person may be harmed at a social gathering where

alcohol was consumed but that harm was not proximately caused by an

intoxicated person. Id. at 919. Indeed, as noted in the dissent by Justice

Gammage and joined by Justice Doggett:

      The legislature may enact a statute that creates a duty. But the
      legislature’s failure to act does not “uncreate” an existing duty. A
      duty created by the common law continues to exist unless and
      until the legislature changes it, and as such the existing common
      law duty applies to the defendant here.

Id. at 922.

      The Graff Court placed significant emphasis on the legislature’s then-

recent (1993) passage of legislation making the Texas Dram Shop Act the

exclusive basis for civil liability of commercial providers of alcohol: “The

statutory duty established by the legislature also placed a less onerous burden

on commercial providers and a correspondingly higher burden of prove on

injured parties than the common law duty.” Id. at 919–20. The decision came

                                                                             19
out nearly ten years before the legislature amended the Texas Dram Shop Act

to expand social host liability.

     The cases relied on by the Striflers below—Reeder v. Daniel and Smith v.

Merritt—also pre-dated the 2005 legislative expansion of social host liability

and involved individuals over the age of eighteen. Reeder v. Daniel, 61 S.W.3d

359 (Tex. 2001); Smith v. Merritt, 940 S.W.2d 602 (Tex. 1997). The Reeder Court

held that it was not permitted to recognize a social host cause of action under

Texas law based on the same 1993 amendments relied on by the Graff Court

to reach its conclusions and those amendments did not include any provision

for social host liability. Reeder, 61 S.W.3d at 362-65.

     After Reeder and Smith were decided, the 2005 Legislature amended the

Act to add a statutory duty for certain social hosts in situations involving

alcohol. Lawmakers did not, however, go so far as to expressly excuse hosts

of social gatherings from other common law duties that might exist simply

because alcohol consumption took place at the gathering.           The express

language of the present statute makes its inapplicability to this case clear. See

TEX. ALCO. BEV. CODE §§ 2.01, 2.02, 2.03.

           1.     The Act only applies to those who serve or sell alcohol.

     The presence and consumption of alcohol alone does not bring a case

                                                                               20
within the Act and its limits on available causes of action. Rather, drafters

narrowly defined the class of actors and the activities they intended the

statute to address—providers that sell or serve alcohol for harms proximately

caused by such provision. See TEX. ALCO. BEV. CODE at § 2.01 (defining

“provider” and “provision”).

      Only providers are entitled to the Act’s elimination of common law

duties, as evidenced by the express language of section 2.03(a) and (b):

      (a)   The liability of providers under this chapter for the actions of
            their employees, customers, members, or guests who are or
            become intoxicated is in lieu of common law or other statutory
            law warranties and duties of providers of alcoholic beverages.

      (b)   This chapter does not impose obligations on a provider of
            alcoholic beverages other than those expressly stated in this
            chapter.

Id at § 2.03(a), (b) (emphasis added).

      The Striflers’ own summary judgment evidence disproved their status

as “providers” entitled to protection for common law duties by the Act’s

exclusive remedy provision. To be considered providers, the Striflers had to

conclusively prove they sold or served alcohol that proximately caused the

occurrence at issue. Steve Strifler testified he did not keep any alcohol in the

house at the relevant time. S.C.R. at 105–06. His (then) seventeen-year-old


                                                                              21
daughter Sydney and son SS confirmed that they did not have alcohol to

provide teens coming to their adult-free house. S.C.R. at 120-22. Instead, the

teenagers visiting the unsupervised house brought their own alcohol with

them. S.C.R. at 142-43. Both Sydney and SS denied mixing or serving drinks to

other people at their house. S.C.R. at 120-25, 142-50. According to their own

admission, the Striflers provided an environment conducive to dangerous

activities like drinking but they did not provide alcohol to any of the

individuals involved.

           2.    Providing alcohol must proximately cause the harm.

     Had the legislature wanted to relieve all hosts of social gatherings of

their existing common law duties to situations where providing alcohol was

not a proximate cause of the harm it would have done so. It did not when it

amended the Act to address the very narrow situation of when an adult age

twenty-one or older can be held liable for damages proximately caused by

providing the intoxication of a minor under the age of eighteen. TEX. ALCO.

BEV. CODE at § 2.02(c). By their plain meaning, the amendment does not

wholly absolve individuals below, at, or above the age of twenty-one from

common law duties that exist in situations where the intoxication did not

proximately cause the damages at issue. Id.

                                                                            22
      In cases where allegations are made of a recognized tort separate and

apart from the mere negligence in the serving of alcohol, the persons who host

a party where alcohol happens to be consumed can and should be held liable

for damages caused by breaching other common law duties. See e.g., Phillips,

801 S.W.2d at 525 (party who agreed to help someone owes a duty); Carter v.

Abbyad, 299 S.W.3d 892, 895-98 (Tex. App.—Austin, no pet.) (recognizing an

undertaking under Restatement (Second) of Torts § 323 constitutes a “special

relationship” or control).

      The Act’s stated purpose confirms the statute was not created to

eliminate common law duties in situations where alcohol is not the proximate

cause of the occurrence at issue. It exclusively deals with the safe sale and

regulation of alcoholic beverages. See TEX. ALCO. BEV. CODE § 1.06. It does not

govern situations where a person engages in acts unrelated to the

consumption of alcohol that proximately cause injury. In fact, in Nall v.

Plunkett, the Supreme Court of Texas twice emphasized that it would not

decide the merits of a case alleging the social hosts owed duties to the plaintiff

outside the social host liability provision enacted in 2005, and instead decided

the matter pending before it on procedural grounds alone. 404 S.W.3d 552,

554–56 (Tex. 2013).

                                                                                23
      As explained in further detail later in this brief, the Striflers’ undertook

actions that turned their residential home into a dangerous place for IF and others.

The sexual assault IF endured naturally progressed from the environment that

Defendants created and the actions they took. Their actions were a proximate

cause of the harm IF suffered and that cause was not superseded by others'

foreseeable criminal acts.

            3.     Common-law liability not foreclosed to plaintiffs under
                   age eighteen.

      Plaintiffs under the age of eighteen maintain their common law liability

claims under the plain language of the exclusive statutory remedy provision:

      (c) This chapter provides the exclusive cause of action for
      providing an alcoholic beverage to a person 18 years of age or
      older.

TEX. ALCO. BEV. CODE § 2.03(c) (emphasis added). If the legislature intended to

prevent minors like IF from recovering for all injuries in which they could be

harmed by the provision of alcoholic beverages, it would have included

persons under the age of eighteen in the exclusive remedy provision.

      Justices on the Reeder Court recognized this very point. The concurring

opinion authored by Chief Justice Phillips with Justice Hankinson and O’Neill

joining, stated:

                                                                                  24
      Nothing in the Dram Shop Act itself forecloses common-law
      liability for an adult who provides alcohol to a minor… If the
      Legislature wanted to foreclose a cause of action for providing
      alcohol to persons under eighteen, it could have easily written the
      law so that it would provide the exclusive remedy for providing
      alcohol to anyone, regardless of age.

Reeder, 61 S.W.3d at 365 (Phillips, CJ concurring) (citing TEX. ALCO. BEV. CODE

§ 2.03(c)). The concurrence also noted that Graff clearly left open the question

of liability for social host providing alcohol to minors. Id.

      Again, this is not a social host case. The Striflers were not entitled to no-

evidence or traditional summary judgment on duty and the order granting

summary judgment cannot be affirmed on that ground.

      B.    THE STRIFLERS’ DUTIES TO IF AROSE UNDER COMMON LAW.

      The facts and circumstances surrounding IF’s sexual assault gave rise to

common law duties because: (1) the Striflers’ actions increased IF’s risk of

harm, (2) the Striflers engaged in negligent undertaking; or (3) both. IF’s

negligence claims should not have been dismissed based on a lack of duty.

      To determine whether a duty exists, courts consider several interrelated

factors: risk, foreseeability, and likelihood of injury weighed against the social

utility of the actor’s conduct, the magnitude of the burden of guarding against

the injury, and the consequences of placing the burden on the defendant.

Phillips, 801 S.W.2d at 525.
                                                                                 25
      Generally, the law does not impose a duty on persons to control the

conduct of others. Id. However, one of the core principles of common law

negligence recognizes a people “have the duty to take affirmative action to

control or avoid increasing the danger from another’s conduct which the actor

has at least partially created.” El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex.

1987) (citing Williams v. Steves Indus., Inc., 699 S.W.2d 570 (Tex. 1985), Golden

v. Tips, 651 S.W.2d 364 (Tex. App.—Tyler 1983, no writ), and RESTATEMENT

(SECOND) TORTS § 315 (1965)).

      Likewise, an actor that voluntarily takes on a duty he or she would

otherwise not have, must act reasonably in that undertaking. Newson v. B.B.,

306 S.W.3d 910, 914 (Tex. App.—Beaumont 2010, pet. denied). For instance, in

Carter v. Abbyad, victims stabbed by a drugged and threatening party goer

filed suit against the assailant’s main companions for bringing him to the

party. 299 S.W.3d at 894–95. The trial court dismissed the claims on the

pleadings after several rounds of special exceptions. Id. According to those

pleadings, the assailant’s companions observed him acting bizarre and

threatening under the influence of drugs and decided to take him to a party

in that condition because it would be fun to watch the assailant be ridiculed.

The court examined whether the companions had a duty to the partygoers

                                                                                 26
that the assailant stabbed, and found the facts compelling enough to find the

companions owed a duty. Id. However, after balancing the risk, foreseeability,

and likelihood of injury based on the facts alleged in the petition, it could not

find any allegations to support that the companions had reason to believe that

the assailant would use a knife to attack someone at the party. Id. at 895–900.

The court ultimately held that it could not find a duty because there was no

evidence of the companions having a special relationship or voluntarily

taking control of the assailant with others’ reliance on that control.

      Jointly and individually each of the Striflers had a legal duty to IF.

Steven Strifler voluntarily took the affirmative course of action to allow his

teenagers to stay home without any adult supervision. C.R. at 220. He had an

obligation to engage in that course of action reasonably and a special

relationship with his children that gave him the right of control over them. Id.

His children, over whom he had a right of control and who he gave authority

to regulate his home, allowed: drugs, alcohol, and a person they had reason

to know glorified rape in that home. At the time they let those things happen,

they had reason to know that AV intended to take sexual advantage of at least

one girl who had already told him she did not consent to sexual contact with

him at that party.

                                                                               27
      SS and Sydney had individual duties that arose separate and apart from

Strifler’s assumed course of conduct. SS and Sydney voluntarily allowed

multiple minors to enter their home with drugs and alcohol so that those

minors could take advantage of the fact that there were no adults around to

stop them. C.R. at 294 Sydney Strifler Dep. at 16:25-17:2. At the time SS invited

AV, he had reason to know and should have known that AV glorified rape

and intended to engage in sexual contact with females at the party regardless

of whether they consented to his advances. C.R. at 281 – SS Dep. at 84:9-85:21

[referencing DX 29]; C.R. at 351-353 – AV Dep. at 46:8-49:6, 55:1-56:3; C.R. at

359 - Ex. 8, AV’s Public Claim “It’s Not Rape if I Have Swag” posted prior to

the rape [DX 37].

      Moreover, even if SS’s pre-party knowledge of the danger AV posed to

females at the party was not enough to create a duty, events that took place

before the sexual assault put them on notice of the risk they increased by

allowing AV in their home. Specifically, the evidence shows SS and Sydney

were aware of the danger they created by opening their home to AV because:

(1) both witnessed AV engaging in sexual contact with AH, a girl with whom

he had no prior romantic relationship; (2) they observed AV handling Xanax

drugs in their home; (3) they saw these things prior to AV’s attack on IF; (4)

                                                                               28
they witnessed IF becoming suddenly incoherent and unaware of her

surroundings; and (5) they witnessed AV paying romantic attention to IF in

that state. C.R. at 295, 298-300, 318, 320-321 - Sydney Strifler Dep. at 19:21-

20:14, 33:8-34:23, 39:8-40:22, 111:4-113:7, 119:20-122:12; C.R. at 267, 278 - SS

Dep. at 26:18-34:1, 70:18-71:12; C.R. at 244-245 – IF Dep. at 59:22-61:8.

      SS and Sydney gave AV and the other teens at the party permission to

remain in the home after witnessing these events. Id. They had the authority

to make AV leave after witnessing those things, but they chose to allow him

to remain in the environment. They chose to allow him to remain in the

environment despite witnessing him begin paying romantic attention to IF

after she became suddenly incoherent and unaware. SS and Sydney were not

under an obligation to continue the party as they witnessed these increasing

dangers. The party continued because they affirmatively decided to let it

continue.

      The Strifler children’s voluntary choice and their control is evidenced

by their conduct. They exhibited their control over the home by making

demands on the people there throughout the night, for instance: (1) requiring

new people to be allowed in by texting a guest and the guest having Sydney

open the door; (2) kicking DM out when he was too intoxicated; (3) refusing

                                                                              29
to allow IF to leave with her preset ride; (4) moving all people out of the

backyard when DM’s mother approached the home; (5) demanding AV get

out of the bathroom when he was there with AH. C.R. at 295-296, 304, 318,

320-321 – Sydney Strifler Dep. at 21:24-22:13, 54:24-57:17, 111:4-113:7, 119:20-

122:13. AV knew SS and Sydney controlled who could come and who could

stay at the party because he asked SS for permission to invite IF and AH in the

first place. C.R. at 281 - SS Dep. at 84:9-85:21. Moreover, they were ON

NOTICE that AV was dangerous in exactly this way.

      Simply put, the Striflers owed IF a duty to act reasonably based on the

courses of action they willfully chose to take. IF’s injuries were not

proximately caused by intoxication. They were caused by the environment

Appellees willfully created. This is not a social host matter. It is a matter of

common law negligence. Therefore, IF’s negligence claims are not precluded

by the Dram Shop Act, and evidence provided by IF raised a genuine fact issue

as to the existence of the common law. The trial court’s order should not be

affirmed as to the existence of a duty.

II.   THE TRIAL COURT ERRED        IF IT   GRANTED SUMMARY JUDGMENT          ON
      PROXIMATE CAUSE.

      Appellees also moved for summary judgment under both traditional

and no-evidence standards on the proximate cause on IF’s negligence claims.
                                                                              30
They argued that they should not be held liable for the harm that came to IF

while at their home because: (1) the conduct of the boys that sexually

assaulted IF constituted an intervening and superseding cause; and (2) IF’s

injuries were not foreseeable. The evidence IF submitted shows there are fact

issues as to both arguments that a jury should decide. Therefore, the trial

court erred if its order dismissing IF’s negligence claims was based on a lack

of proximate cause.

     A.    The Acts of Third Parties Did Not Destroy the Causal Links
           Between the Striflers’ Negligence and IF’s Injuries.

     There can be more than one proximate cause of a person’s injury. A

superseding cause is one that alters the natural sequence of events flowing

from the Defendants’ negligence, causing an injury different from that which

might have been expected at the time of the original negligent act. Dew v.

Crown Derrick Erectors, Inc., 208 S.W.3d 448, 451–52 (Tex. 2016). Not all new

and independent causes destroy the causal link necessary to hold a defendant

liable. Id. To destroy liability, the new and independent cause must be a

superseding cause—causing a wholly unexpected injury. Id.

     Criminal conduct of a third party is not a superseding cause if that

conduct is a foreseeable consequence of negligence. Nixon v. Mr. Prop. Mgmt.

Co., 690 S.W. 2d 546, 549-50 (Tex. 1985). In Doe v. Messina, a case relied on by
                                                                              31
Appellees, Doe brought suit against the owners of a property on Lake Travis

that included two large houses. 349 S.W.3d 797, 799 (Tex. App.—Houston

[14th Dist.] 2011, pet. filed). Doe, her eventual assailant Kervin, Doe’s brother,

and the owners’ two twin sons used the guest house on the property to party

after going to a concert. Doe fell asleep on the couch and woke to Kervin

sexually assaulting her. She asserted a claim against the property owners,

alleging that they were negligent in supervising the teenagers and knowingly

allowed them to consume drugs and alcohol. Id. She did not assert the

property owners’ sons were liable for any negligence, and did not provide

any evidence that the property owner knew or should have known there was

alcohol and drug use in the house. Id. at 801–03. The appellate court affirmed

summary judgment, because the evidence showed there was no evidence

presented that the sexual assault was foreseeable as a consequence of

allowing those teenagers to consume alcohol without adult supervision. Id. at

803.

       This case is different. Here, there is plenty of evidence for a jury to

conclude that Mr. Strifler should have known his children would experiment

with alcohol, drugs, and invite friends over to his unsupervised home despite

his testimony to the contrary. He recognized that he had caught Sydney

                                                                                32
drinking on a prior occasion, and Sydney herself testified that she was an

experienced drinker by the time Mr. Strifler left she and her brother alone in

her home. C.R. at 293 - Sydney Strifler Dep. at 11:12-13:14. Even if Mr. Strifler

did not keep alcohol in his home, he was on notice that his daughter knew

how to get alcohol from other sources.

        More importantly, Mr. Strifler aside, this case involves direct claims of

negligence against SS and Sydney for their own acts on the night of September

28, 2012. And there is ample evidence, as described above, that SS and Sydney

were absolutely aware of the drugs, alcohol, sexual intentions of AV, and his

targets before he sexually assaulted IF in the front yard while she was

drugged. These claims and this type of evidence was not present in Messina,

but it was properly before the trial court in this case.

        The sexual assault of IF was part of the natural progression of events that

SS and Sydney put into motion when they allowed their unsupervised house

to be a place where teens used alcohol, illegal drugs, and joked about putting

drugs in drinks. They were both aware that AV and AH engaged in oral sex

and that IF was absolutely unaware of the things around her. They also knew

AV glorified rape and did not have any regard for whether a girl told him to

stop.

                                                                                 33
     They had multiple opportunities to ask any and all guests to leave as

they witnessed the party becoming more and more dangerous. And they had

utilized their authority over the events taking place in their home in other

ways throughout the night. None of the evidence indicates the teenagers

there would not have left the home if Sydney or SS told them to do so. To the

contrary, the evidence shows the teenagers were following the directions

Sydney gave them while at the home. CR at 366 & 373.

     The summary judgment evidence IF brought before the trial court

contradicts the self-serving, conclusory testimony offered by the Striflers to

prove they could not have anticipated AV’s attack that night. Therefore, the

evidence and facts provided by IF raised a genuine fact issue, as to whether

IF’s injuries were foreseeable to the Striflers and that should have precluded

summary judgment at the trial court.


                                  PRAYER

     WHEREFORE, PREMISED CONSIDERED, the Appellant respectfully

prays that the Honorable Court sustain their point of error and reverse the

judgement of the trial court and either render a judgment for Appellant or

remand the case for further proceedings in the case.


                                                                            34
                                  RESPECTFULLY SUBMITTED,

                                  /s/ Christopher A. Payne
                                  Christopher A. Payne
                                  State Bar No. 15651500
                                  chris@christopherapayne.com
                                  THE LAW OFFICE OF
                                  CHRISTOPHER A. PAYNE, PLLC
                                  9101 LBJ Freeway, Suite 760
                                  Dallas, Texas, 75243
                                  Phone: 972-775-1954
                                  Fax: 214 435-2435

                                  CHARLA G. ALDOUS
                                  Texas Bar No. 20545235
                                  caldous@aldouslaw.com
                                  BRENT R. WALKER
                                  Texas Bar No. 24047053
                                  bwalker@aldouslaw.com
                                  HEATHER L. LONG
                                  Texas Bar No. 24055865
                                  hlong@aldouslaw.com
                                  ALDOUS\WALKER, LLP
                                  2311 Cedar Springs Rd., Suite 200
                                  Dallas, TX 75201
                                  Phone: (214) 526—5595
                                  Fax: (214) 526-5525

                                  ATTORNEYS FOR APPELLANTS

                        CERTIFICATE OF SERVICE

      On October 27th, 2016, this Appellate Brief is being served upon all
 counsel of record through the Court’s e-filing system.

                                        /s/ Christopher A. Payne
                                        Christopher A. Payne
Gregory R. Ave
                                                                             35
Greg.Ave@wbclawfirm.com
Carlos Balido
Carlos.balido@wbclawfirm.com
WALTERS BALIDO & CRAIN
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Phone: (214) 347-8320
Fax: (214) 347-8321

Attorneys for Appellees
Steven Strifler, SS and
Sydney Strifler


                       CERTIFICATE OF COMPLIANCE

      As required by Texas Rule of Appellate Procedure 9.4(i)(3), I certify that there
are 8191 words in the Appellant’s brief. I relied on the word counter in Microsoft
Word.

                                             /s/ Christopher A. Payne
                                             Christopher A. Payne




                                                                                    36
