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Faircloth v. Borderlands, A Southwest Grill, Inc.

Court of Appeals of Texas, Eleventh District

August 31, 2017


         On Appeal from the 350th District Court Taylor County, Texas Trial Court Cause No. 8, 597-D

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.



         Barbara 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[1] including Borderlands, a Southwest Grill, Inc. d/b/a Lytle Land & Cattle Company (Lytle), for the wrongful death of Heather Marie Ince.[2] 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.

         On 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.

         I. Background Facts

         Around 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.

         Thompson 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.

         II. Standard of Review

         We 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).

         When 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).

         III. Analysis

         Lytle 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.

         A. The elements required to prove a ...

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