Kyle Stawarczik v. Kenneth M. Weaver, NAC BCH Social Club, Inc., D/B/A Banita Creek Hall, Bamboozled, Inc., D/B/A Banita Creek Hall ( 2012 )

NO. 12-12-00145-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KYLE STAWARCZIK, § APPEAL FROM THE 145TH
APPELLANT
V.
KENNETH M. WEAVER, NAC BCH § JUDICIAL DISTRICT COURT
SOCIAL CLUB, INC., d/b/a BANITA
CREEK HALL, BAMBOOZLED, INC.,
d/b/a BANITA CREEK HALL,
APPELLEE § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
Kyle Stawarczik appeals from take nothing summary judgments in favor of Kenneth M.
Weaver, NAC BCH Social Club, Inc., d/b/a Banita Creek Hall, and Bamboozled, Inc., d/b/a
Banita Creek Hall, alleging that the trial court improperly granted the motions.1 Because Banita
Creek Hall’s no evidence motion for summary judgment did not address Stawarczik’s Dram
Shop Act cause of action, we reverse the trial court’s order granting its motion for summary
judgment on that cause of action.2 In all other respects, the summary judgments granted to
Weaver and Banita Creek Hall are affirmed.
1
Both NAC BCH Social Club, Inc. and Bamboozled, Inc. were doing business as Banita Creek Hall.
Banita Creek Hall was a club selling alcoholic beverages pursuant to authority from the Texas Alcoholic Beverage
Commission located at 401 West Main Street, Nacogdoches, Texas. In this opinion, we will refer to these two
corporations as Banita Creek Hall.
2
The trial court first issued an order granting Weaver’s motion for summary judgment. A few days later,
the trial court issued another order granting Banita Creek Hall’s motion for summary judgment. In the second order,
the trial court also ordered that Stawarczik take nothing and that costs of suit were assessed against him. It is clear
that the trial court and the parties believed that the orders disposed of all issues and all parties. See Lehmann v.
Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Therefore, based on the facts in this proceeding, the judgment is
final for purposes of appeal, and we will address the merits of the issues raised in this appeal.
1
BACKGROUND
Kenneth M. Weaver was the sole owner of two corporations that operated Banita Creek
Hall. Following the opening night of a rodeo in Nacogdoches, Banita Creek Hall hosted a
popular local band. An estimated five hundred people attended the concert. Banita Creek Hall’s
bar was also open. Stephanie Manning, a Stephen F. Austin State University (SFASU) student,
served as one of Banita Creek Hall’s bartenders that evening. During the course of the evening,
Manning was slapped on her rear end by Mickey Gee, a professional rodeo steer wrestler.
Manning asked Stawarczik, also a student at SFASU, to confront Gee about this unwanted
attention. When Stawarczik verbally confronted Gee, another professional steer wrestler, Tyler
Pearson, pushed Stawarczik away from Gee. Gerald Smith, a Nacogdoches County constable
who had been hired by Weaver to police the event, immediately separated the two steer wrestlers
and Stawarczik. No one was hurt in this brief confrontation.
Weaver, who was next to the stage where the concert was being performed, noticed the
commotion in the bar area and immediately went to see Constable Smith to find out what had
occurred. Constable Smith informed Weaver that two men had ―bowed up against each other,‖
but he had separated them, and no further action had been needed.
Banita Creek Hall closed at midnight. Gee, Pearson, and Stockton Graves, another
professional steer wrestler, rode in Weaver’s vehicle with him to Weaver’s home.3 Stawarczik
left Banita Creek Hall with Manning and another mutual friend from SFASU, Rachael Rice. As
they were driving to the Pike House, a fraternity house at the university, Weaver called Manning
inviting her to his home to enjoy some of the shrimp that he was cooking. Manning responded
that she had Rice and Stawarczik in the vehicle with her and asked if they could accompany her
to his home. Weaver told her that would be fine since he had plenty of food.
When the three university students arrived at Weaver’s home, Stawarczik quickly noticed
the three steer wrestlers. He immediately approached Gee and told him that he was not there to
cause any trouble and wanted to keep the peace in Weaver’s home. Stawarczik stated in his
summary judgment evidence that he also made Weaver aware of the incident at the club and told
him that he and Gee agreed they did not want to cause any trouble for Weaver in his home.
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The summary judgment evidence shows that Gee actually drove Weaver’s vehicle and Weaver was a
passenger.
2
Stawarczik and Weaver then went to the backyard to play a game of washers. As they played,
the steer wrestlers were sitting on the back porch, and Stawarczik became uncomfortable because
of the looks they gave him during the game. At the end of the game, Stawarczik informed
Weaver that he felt uncomfortable with the three steer wrestlers and wished to leave. Stawarczik
also informed Manning and Rice that he wanted to leave. While Manning and Rice prepared to
leave and then said their goodbyes to Weaver in his living room, Stawarczik attempted to make
his way to Manning’s vehicle by going through Weaver’s garage. In the garage, he was
physically attacked by Gee, Pearson, and Graves. He suffered severe head and facial injuries as
a result of this assault.
Stawarczik filed this suit against Weaver, Banita Creek Hall, Gee, Pearson, and Graves.
Following the severance of Gee, Pearson, and Graves from the suit, the trial court granted
Weaver’s no evidence and traditional motions for summary judgment and Banita Creek Hall’s no
evidence motion for summary judgment. Stawarczik appealed, challenging the trial court’s grant
of Weaver’s and Banita Creek Hall’s motions for summary judgment.
STANDARD OF REVIEW
The standard for reviewing a traditional summary judgment is well established. See
Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994); Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 548–49 (Tex. 1985); First Union Nat’l Bank v. Richmont Capital
Partners I, L.P., 168 S.W.3d 917, 923 (Tex. App.–Dallas 2005, no pet.). The movant for
traditional summary judgment has the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);
Nixon, 690 S.W.2d at 548. When the movant seeks summary judgment on a claim in which the
nonmovant bears the burden of proof, the movant must either negate at least one essential
element of the nonmovant’s cause of action or prove all essential elements of an affirmative
defense. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once
the movant has established a right to summary judgment, the burden shifts to the nonmovant to
respond to the motion and present to the trial court any issues that would preclude summary
judgment. See City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).
Additionally, after an adequate time for discovery has passed, a party without the burden
of proof at trial may move for summary judgment on the ground that the nonmoving party lacks
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supporting evidence for one or more essential elements of its claim. See TEX. R. CIV. P. 166a(i).
Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to
the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). We review a no evidence
motion for summary judgment under the same legal sufficiency standards as a directed verdict.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). A no evidence motion is
properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence
to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on
which the nonmovant would have the burden of proof at trial. Id. at 751. If the evidence
supporting a finding rises to a level that would enable reasonable, fair minded persons to differ in
their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of
evidence exists when the evidence is so weak as to do no more than create a mere surmise or
suspicion of a fact, and the legal effect is that there is no evidence. Id.
In both traditional and no evidence summary judgment motions, we review the entire
record de novo and in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291,
292 (Tex. 2006); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746,
748 (Tex. 1999). All theories in support of or in opposition to a motion for summary judgment
must be presented in writing to the trial court. See TEX. R. CIV. P. 166a(c). If the trial court’s
order does not specify the grounds on which it granted summary judgment, we affirm the trial
court’s ruling if any of the theories advanced in the motion is meritorious. State Farm Fire &
Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Moreover, when a party moves for both a traditional and a no evidence summary
judgment, generally, we first review the trial court’s summary judgment under the no evidence
standards of Rule 166a(i). Ridgway, 135 S.W.3d at 600. If the no evidence summary judgment
was properly granted, we do not reach arguments made under the traditional motion for summary
judgment. See id. at 602. It logically follows, however, that this rule cannot be applied unless
the same issue was raised in both motions. See Dunn v. Clairmont Tyler, LP, 271 S.W.3d 867,
870 (Tex. App.–Tyler 2008, no pet.).
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APPLICABLE LAW
Stawarczik alleged premises liability, negligence, and civil conspiracy causes of action
against Weaver and Banita Creek Hall. He also alleged a fourth cause of action against Banita
Creek Hall under the Dram Shop Act.
1. Premises Liability
Premises liability is a special form of negligence where the duty owed to the plaintiff
depends upon the status of the plaintiff at the time the incident occurred. W. Invs., Inc. v.
Urena, 162 S.W.3d 547, 550 (Tex. 2005). In a premises liability case, the duty owed to the
plaintiff depends on his status as an invitee, licensee, or trespasser. Osadchy v. S. Methodist
Univ., 232 S.W.3d 844, 849 (Tex. App.—Dallas 2007, pet. denied). Whether a plaintiff is an
invitee or a licensee depends on his purpose in coming onto the property. Mellon Mortg. Co. v.
Holder, 5 S.W.3d 654, 672 (Tex. 1999) (O’Neill J., dissenting).
An invitee is a person who goes on the premises of another in answer to the express or
implied invitation of the owner or occupant on the business of the owner or the occupant or for
their mutual advantage. Tex. Power & Light Co. v. Holder, 385 S.W.2d 873, 885 (Tex. Civ.
App.—Tyler 1964), writ ref’d n.r.e. per curiam, 393 S.W.2d 821 (Tex. 1965). In the absence of
some relation that inures to the mutual benefit of the two, or to that of the owner, no invitation
can be implied, and the injured person must be regarded as a mere licensee. Burton Constr. &
Ship Bldg., Co. v. Broussard, 273 S.W.2d 598, 602 (Tex. 1954).
A licensee is a person who is privileged to enter or remain on land only by virtue of the
possessor’s consent. Knorpp v. Hale, 981 S.W.2d 469, 471 (Tex. App.—Texarkana 1998, no
pet.). Thus, a licensee is one who enters with permission of the landowner but does so for his
own convenience or on business for someone other than the owner. Id. A social guest is
classified as a licensee. Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 164
(Tex. App.—Dallas 2011, no pet.). A trespasser enters another property without lawful
authority, permission, or invitation. Am. Indus. Life Ins. Co. v. Ruvalcba, 64 S.W.3d 126, 134
(Tex. App.—Houston [14th Dist.] 2001, pet. denied).
Premises owners owe invitees a duty to adequately warn of any dangerous condition on
the premises or to make the condition reasonably safe. TXI Operations, L.P. v. Perry, 278
S.W.3d 763, 765 (Tex. 2009). This duty requires the landowner to use ordinary care to reduce or
eliminate an unreasonable risk of harm that it knew or reasonably should have known. See City
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of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008). The existence of this duty is a question of
law for the court. Perry, 278 S.W.3d at 765.
To prevail on a premises liability claim against the landowner, an invitee must prove (1)
that he had actual or constructive knowledge of some condition on the premises; (2) that the
condition posed an unreasonable risk of harm; (3) that the landowner did not exercise reasonable
care to reduce or eliminate the risk; and (4) that the landowner’s failure to use reasonable care
proximately caused the plaintiff’s injuries. Motel Six G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.
1996).
The duty owed to a licensee is not to injure the licensee by willful, wanton, or grossly
negligent conduct and, in cases in which the licensor has actual knowledge of a dangerous
condition unknown to the licensee, to use ordinary care to either warn the licensee of the
condition or to make the condition reasonably safe. Wyckoff, 357 S.W.3d at 164. In order to
establish liability, a licensee must prove (1) a condition of the premises created an unreasonable
risk of harm to the licensee; (2) the licensor actually knew of the condition; (3) the licensee did
not actually know of the condition; (4) the licensor failed to exercise ordinary care to protect the
licensee from danger; and (5) the licensor’s failure was a proximate cause of the injury to the
licensee. Id.
If the licensee has the same knowledge about the dangerous condition as the licensor,
then no duty to the licensee exists. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.
2003). A licensee is not entitled to expect that the possessor of land will warn him of conditions
that are perceptible to him, or the existence of which can be inferred from facts within his present
or past knowledge. Id.; see also Osadchy, 232 S.W.3d at 852 (―[A] licensor owes no duty to a
licensee so long as the evidence conclusively establishes the licensee perceived the alleged
dangerous condition.‖).
2. Negligence
A negligence cause of action requires proof that (1) the defendant owed a legal duty to
the plaintiff, (2) the defendant breached that duty, and (3) the breach proximately caused the
plaintiff’s injury. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Negligence is
commonly a question of fact unless the evidence establishes a complete absence of negligence as
a matter of law. Perry, 278 S.W.3d at 765.
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Proximate cause includes the elements of cause in fact and foreseeability. Sw. Key
Program, Inc. v. Gil–Perez, 81 S.W.3d 269, 274 (Tex. 2002). These elements cannot be
established by mere conjecture, guess, or speculation. Doe v. Boys Clubs of Greater Dallas,
Inc., 907 S.W.2d 472, 477 (Tex. 1995). An act or omission is a cause in fact of an injury if it is a
substantial factor in bringing about the injury, without which the harm would not have occurred.
Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). But cause in fact is not shown if the
defendant’s conduct did no more than furnish a condition that made the injury possible. Doe,
907 S.W.2d at 477. ―In other words, even if the injury would not have happened but for the
defendant’s conduct, the connection between the defendant and the plaintiff’s injuries simply
may be too attenuated to constitute legal cause.‖ Id. (citing Union Pump Co. v. Allbritton, 898
S.W.2d 773, 776 (Tex. 1995); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991)).
Foreseeability exists when ―the actor as a person of ordinary intelligence should have
anticipated the dangers his negligent act creates for others.‖ Love, 92 S.W.3d at 454. ―The
danger of injury is foreseeable if its general character . . . might reasonably have been
anticipated.‖ Doe, 907 S.W.2d at 478. The inquiry is one of ―common experience applied to
human conduct, [and] asks whether the injury might reasonably have been contemplated as a
result of the defendant’s conduct.‖ Id.
3. Civil Conspiracy
The elements of actionable civil conspiracy are (1) two or more persons; (2) an object to
be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more
unlawful, overt acts; and (5) damages as a proximate result. TRI v. J.T.T., 162 S.W.3d 552, 556
(Tex. 2005). Civil conspiracy requires specific intent. Triplex Commc’ns, Inc. v. Riley, 900
S.W.2d 716, 719 (Tex. 1995). For a civil conspiracy to arise, the parties must be aware of the
harm or the wrongful conduct at the beginning of the combination or agreement. Firestone Steel
Prods. Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996). One cannot agree, expressly or tacitly,
to commit a wrong about which he has no knowledge. Id.
4. Dram Shop Act
The Dram Shop Act imposes liability on alcoholic beverage providers for damages
proximately caused by the intoxication of individuals who were served despite being obviously
intoxicated. TEX. ALCO. BEV. CODE ANN. § 2.02(b) (Vernon 1995); 20801, Inc. v. Parker, 249
S.W.3d 392, 395 (Tex. 2008). For the provider to be held liable under the Dram Shop Act, the
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intoxication of the recipient of the alcohol must be the proximate cause of the damages suffered.
TEX. ALCO. BEV. CODE ANN. § 2.02(b)(2); Biaggi v. Patrizio Rest., Inc., 149 S.W.3d 300, 304
(Tex. App.—Dallas 2004, pet denied).
WEAVER SUMMARY JUDGMENT
Stawarczik contends in his sole issue that the no evidence summary judgment was
improperly granted to Weaver because he was Weaver’s invitee. He contends that he was an
invitee at Weaver’s home because he had been an invitee at Banita Creek Hall. We disagree.
1. Premises Liability and Negligence
While Stawarczik was at Banita Creek Hall, he was an invitee. That relationship ended at
midnight when he paid his bar tab and left the club. A new relationship between Stawarczik and
Weaver was created when Weaver told Manning that Stawarczik could come along with her to
his home. When Stawarczik was at Banita Creek Hall, he and Weaver both benefitted from his
presence. When Stawarczik went to Weaver’s home, he became a social guest because there was
no mutual benefit from his presence there. As a social guest, Stawarczik was only a licensee.
See Wyckoff, 357 S.W.3d at 164.
Because Stawarczik was a licensee, the evidence that Stawarczik had more knowledge
than Weaver concerning the incident with Gee at Banita Creek Hall is critical. There is no
evidence in the record before us that Weaver knew Stawarczik and Gee were involved in the
incident that Constable Smith had reported to him at the club. Weaver testified that he did not
learn that Stawarczik and the steer wrestlers were the ones involved in the altercation at Banita
Creek Hall until they were all at his home. Stawarczik speculates, however, that Weaver must
have known the details of the incident because Weaver was in close proximity to the
confrontation, and that he and the steer wrestlers were friends and rode together to Weaver’s
residence from Banita Creek Hall. Stawarczik infers from these facts that Weaver and the steer
wrestlers must have discussed the altercation and that he knew Stawarczik was the person
involved in the altercation with his friends.
Evidence cannot be taken out of context so that it seems to support a fact when it actually
does not. City of Keller v. Wilson, 168 S.W.3d 802, 812 (Tex. 2005). For instance, if a witness
testifies, ―I did not do that,‖ the factfinder can disregard the whole statement but cannot
disregard the middle word alone. See id. Findings must be based on more than speculation to be
8
sufficient. See id. at 827. As applied in the summary judgment context, it is true that the
reviewing court must review the evidence and all reasonable inferences in the light most
favorable to the nonmovant, but speculative summary judgment evidence does not raise a fact
issue. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727–28 (Tex. 2003) (stating that
summary judgment evidence is insufficient if it is based on conjecture or speculation because
―some suspicion linked to other suspicion produces only more suspicion, which is not the same
as some evidence‖). Finally, under the equal inference rule, evidence of circumstances equally
consistent with two facts is insufficient evidence of either. See Wilson, 168 S.W.3d at 813.
Moreover, Stawarczik conceded that Weaver did not appear to know about the incident
until he told him about it at his home. It is clear from the record that Stawarczik knew more
about the incident and his relationship with Gee and the other two steer wrestlers than Weaver
did. When the licensee has the same knowledge or even more knowledge about the dangerous
condition than the licensor, no duty to the licensee exists. See Miller, 102 S.W.3d at 709. As a
result, Weaver had no legal duty to Stawarczik as a licensee for the assault by the three steer
wrestlers that occurred at his home.
2. Civil Conspiracy
Stawarczik contends that Weaver conspired with Gee, Pearson, and Graves to lure him to
his home where he could be assaulted. But there is no evidence in the record to support such a
contention. There is nothing in the record to suggest that when Weaver called Manning to invite
her to his home, he knew Stawarczik was with Manning. There is no summary judgment
evidence to show that Weaver had any knowledge of the incident involving Gee and Stawarczik
at the club. As we have stated, Stawarczik conceded that Weaver appeared to know nothing
about the incident until he told him about it at his home. One cannot agree to commit a wrong
about which he has no knowledge. See Barajas, 927 S.W.3d at 614. We hold that there was no
evidence of a conspiracy between Weaver and the three steer wrestlers to assault Stawarczik.
3. Conclusion
We have held that all of Stawarczik’s claims against Weaver must fail. Accordingly, we
conclude that the trial court properly granted summary judgment as to these claims.
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BANITA CREEK HALL SUMMARY JUDGMENT
Stawarczik also contends in his sole issue that the trial court erred in granting Banita
Creek Hall’s motion for summary judgment.
1. Premises Liability, Negligence, and Conspiracy
To prevail on each of these three causes of action, Stawarczik was required to show that
he had suffered an injury at Banita Creek Hall. He specifically stated that he had not been hurt at
Banita Creek Hall, and that he was not injured until later when he was a social guest at Weaver’s
residence. Without having shown the required injury for each of these three causes of action,
Stawarczik’s suit fails against Banita Creek Hall.
As to his negligence claim, Stawarczik nevertheless contends that Banita Creek Hall
personnel had a duty to inform Weaver of the altercation, that the individuals fighting should
have been removed from Banita Creek Hall, the duty was breached, and that the breach was the
proximate cause of the injuries he later suffered at Weaver’s home. Assuming that Banita Creek
Hall had such a duty, an issue we do not address, there is no evidence that any breach of such a
duty proximately caused his injuries. As we have noted, Constable Smith informed Weaver that
two men had ―bowed up against each other,‖ that he had separated them, and that no further
action was needed. The concert at Banita Creek Hall continued for the rest of the evening
without incident. Stawarczik later went to Weaver’s house as a social guest. After Weaver
arrived at his home, he learned of the confrontation at Banita Creek Hall, but Stawarczik assured
him that he and the steer wrestlers ―came to an understanding‖ not to engage in further hostilities
at Weaver’s residence. While playing a game of washers, Stawarczik became uncomfortable
with the steer wrestlers’ stares and decided to leave. Not long thereafter, Stawarczik was
assaulted.
It is true that Stawarczik most likely would have never been injured if the altercation at
Banita Creek Hall had not occurred. However, several factors intervened to break the chain of
causation as to Stawarczik’s injuries stemming from his contact with the steer wrestlers at Banita
Creek Hall, namely, (1) a significant amount of time passed between the altercation and his
injury; (2) no other incident occurred at Banita Creek Hall for the remainder of the evening after
Stawarczik’s brief exchange with the steer wrestlers at the bar; (3) Stawarczik voluntarily chose
to travel to Weaver’s home as a social guest; (4) Stawarczik saw the steer wrestlers at the
gathering but elected to remain at the party; (5) he discussed the matter with Gee and they agreed
10
that they would not engage in further hostilities at the residence; and (6) Stawarczik made
Weaver aware of this agreement at his home.
As to the cause in fact analysis, the evidence shows that Banita Creek Hall, at most,
furnished the initial condition giving rise to the ultimate assault that occurred hours later at a
different location. In other words, the connection between Banita Creek Hall’s conduct and
Stawarczik’s injuries is simply too attenuated to constitute legal cause. See Doe, 907 S.W.2d at
477. Moreover, given the evidence produced in this case, neither Banita Creek Hall, through
Weaver in his capacity as its owner, nor its employees, could reasonably have foreseen what
happened much later at Weaver’s home.
2. Dram Shop Act
In its no evidence motion for summary judgment, Banita Creek Hall failed to allege that
there was no evidence to support Stawarczik’s Dram Shop Act claim. To prevail on a no
evidence summary judgment motion, a movant must allege that there is no evidence of an
essential element of the adverse party’s cause of action. TEX. R. CIV. P. 166a(i); Holloway v.
Tex. Elec. Util. Const., Ltd., 282 S.W.3d 207, 213 (Tex. App.—Tyler 2009, no pet.); Mott v.
Red’s, Safe & Lock Servs., Inc., 249 S.W.3d 90, 95 (Tex. App.—Houston [1st Dist.] 2007, no
pet.). Thus, the trial court erred in rendering judgment against Stawarczik on his Dram Shop Act
cause of action.
The portion of Stawarczik’s sole issue pertaining to his Dram Shop Act claim against
Banita Creek Hall is sustained, but the remaining portion of his sole issue pertaining to Banita
Creek Hall is overruled.
CONCLUSION
We have sustained Stawarczik’s sole issue only as it relates to his Dram Shop Act claim
against Banita Creek Hall. We reverse the part of the trial court’s order granting summary
judgment against Stawarczik on his Dram Shop Act claim, and remand that claim for further
proceedings. As to all other causes of action against Weaver, in his individual capacity, NAC
BCH Social Club, Inc., d/b/a Banita Creek Hall, and Bamboozled, Inc., d/b/a Banita Creek Hall,
the judgment of the trial court is affirmed.
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JAMES T. WORTHEN
Chief Justice
Opinion delivered December 12, 2012.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
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