Appeal from the 350th District Court Taylor County, Texas
Trial Court Cause No. 8, 597-D
consists of: Wright, C.J., Willson, J., and Bailey, J.
Faircloth, individually and as personal representative of the
Estate of Heather Marie Ince, and Shannon Ince, individually
and as parent and next friend of Kayce Ince, Kimberly Rene
Ince, and Dustin Ince, minors (Faircloth), sued several
parties including Borderlands, a Southwest Grill,
Inc. d/b/a Lytle Land & Cattle Company (Lytle), for the
wrongful death of Heather Marie Ince. After Lytle answered and
moved for summary judgment on no-evidence and traditional
grounds, the trial court held a hearing. Afterward, the trial
court granted summary judgment in Lytle's favor.
appeal, Faircloth asserts two issues. First, Faircloth
asserts that a genuine issue of material fact existed that
Jeanette Lynn O'Fallon was served alcohol at Lytle, when
she was already intoxicated, and afterward, drove a pickup
and struck and killed Heather. Second, Faircloth asserts that
genuine issues of material fact existed as to whether (1) all
of Lytle's servers were certified by the Texas Alcoholic
Beverage Commission and (2) whether Lytle encouraged its
servers to serve intoxicated patrons. We affirm.
midnight, O'Fallon drove a pickup on Judge Ely Road in
Abilene and struck and killed Heather. Earlier that evening,
O'Fallon had celebrated her birthday. O'Fallon first
went to celebrate at Firehouse Bar & Grill where she
drank beer, and she left there feeling "buzzed, "
"feeling good." Her next stop was at Legacy Bar and
Grill, where she had additional drinks. She denied that
servers eventually refused her additional service. Between
9:30 p.m. and 10:00 p.m., O'Fallon left Legacy and went
to another bar, Western Edge, where she had a beer and a shot
of Tequila. She was there less than 30 minutes. O'Fallon
claimed that she next went to get cash at an ATM and then
went to Lytle Land & Cattle Company. She claimed that,
while she was there, she had two "Patron shots" and
a couple of beers, paid cash, and was served by a male in a
white cowboy hat. She called a friend, Ray Thompson, at 10:15
p.m. and asked him to meet her at Lytle.
had first seen O'Fallon at Firehouse earlier that
evening, as she celebrated her birthday, and she wanted to go
for a ride on his motorcycle. Later, after she called him at
10:15 p.m., he went to pick her up at Lytle. Thompson drove
his motorcycle to Lytle because he thought he might "get
lucky" and have sex with her. Once he was at the parking
lot at Lytle, he called her. He said she "slurred"
her words when she talked during the call. Thompson claimed
that he saw her leave Lytle; that she was "wobbly,
" "staggering, " and "pretty lit";
and that she "slurred" her words. He said that he
had to grab her because she almost fell. Thompson would not
let her ride his motorcycle. Thompson said he put her into
her pickup to let her pass out and sleep it off. O'Fallon
claimed that she left Lytle between 11:30 p.m. and midnight.
Shortly after midnight, as Heather was riding her bicycle on
Judge Ely Road, O'Fallon ran over her and killed her.
Standard of Review
review summary judgment motions under a well-settled,
multifaceted standard of review. Kemp v. Jensen, 329
S.W.3d 866, 868 (Tex. App.-Eastland 2010, pet. denied).
Summary judgments are reviewed de novo. Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A
defendant who moves for traditional summary judgment must
either negate at least one essential element of the
nonmovant's cause of action or prove all essential
elements of an affirmative defense. Randall's Food
Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).
To determine if a fact question exists, we must consider
whether reasonable and fair-minded jurors could differ in
their conclusions in light of all the evidence presented.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d
754, 755 (Tex. 2007); City of Keller v. Wilson, 168
S.W.3d 802, 823, 827 (Tex. 2005). If differing inferences may
reasonably be drawn from the summary judgment evidence, a
summary judgment should not be granted. Nixon v. Mr.
Property Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).
the trial court's summary judgment order does not specify
the grounds upon which it relied for its ruling, the judgment
must be affirmed if any of the theories advanced are
meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d
237, 242 (Tex. 2001); Carr v. Brasher, 776 S.W.2d
567, 569 (Tex. 1989); Barker v. Roelke, 105 S.W.3d
75, 82 (Tex. App.-Eastland 2003, pet. denied).
challenged Faircloth's Dram Shop Act claim on traditional
grounds. Lytle claimed that O'Fallon was not at Lytle and
could not have been served alcohol there because it was
closed at the time that she claimed to have been there.
The elements required to prove a ...