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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