Marco Calvillo v. William Frazier A/K/A Bill Frazier, Individually and D/B/A Kliff Klub
511 S.W.3d 194
| Tex. App. | 2015Background
- On Nov. 10–11, 2010, Felicia Janis attended the Kliff Klub celebrating her daughter Sherrie’s birthday; she testified she “never bought a drink” and drank from her daughter’s drink.
- Sherrie testified she also never bought drinks at the Kliff Klub and that men bought drinks for women; neither recalled specific times or whether Felicia was intoxicated at the club.
- At 3:30 a.m. on Nov. 11, 2010, Felicia drove the wrong way on I-30 and collided head-on with Marco Calvillo; Felicia’s post‑accident BAC was .177.
- Calvillo sued Kliff Klub and William Frazier under the Texas Dram Shop Act, alleging the club (through employees/agents) sold, served, or provided alcohol to Felicia while she was obviously intoxicated and that intoxication proximately caused Calvillo’s injuries.
- Kliff Klub moved for traditional and no‑evidence summary judgment asserting there was no evidence it sold, served, or provided alcohol to Felicia; the trial court granted summary judgment without specifying grounds.
- The court of appeals reviewed under Texas Rule of Civil Procedure 166a(i) and affirmed, concluding Calvillo failed to produce more than a scintilla of evidence that the club served alcohol directly to Felicia or that Felicia was obviously intoxicated at the club.
Issues
| Issue | Calvillo’s Argument | Frazier’s Argument | Held |
|---|---|---|---|
| Whether a private club "provides, sells, or serves" alcohol to a patron who consumed drinks bought by others | A club is liable because all alcohol consumed in the club originates from the club | No evidence the club directly provided or served alcohol to Felicia; third‑party purchases and transfers do not establish club liability | Rejected Calvillo’s broad theory; club not liable absent evidence it directly sold/served/provided to Felicia |
| Whether there was more than a scintilla of evidence that Felicia was provided alcohol by Kliff Klub | Evidence that Felicia drank at the club and BAC at time of crash supports inference club provided alcohol | Testimony shows Felicia drank from her daughter’s drink and neither bought drinks; no evidence employees served Felicia | Insufficient evidence—more than a scintilla not shown that club provided alcohol to Felicia |
| Whether Felicia’s intoxication was obvious to the provider at time of service | Plaintiff contends intoxication was apparent given post‑crash BAC and circumstantial evidence | No evidence Felicia was intoxicated while at the club or that any server observed obvious intoxication | Insufficient evidence—no showing intoxication was apparent to a provider at the club |
| Whether summary judgment under rule 166a(i) was proper | Argued fact issues precluded summary judgment on dram shop elements | Maintained plaintiff produced no evidence on essential elements | Affirmed summary judgment for defendant; plaintiff failed to meet 166a(i) burden |
Key Cases Cited
- Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (standard for non‑movant opposing a 166a(i) summary judgment motion)
- Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (definition of "more than a scintilla" evidentiary threshold)
- Bruce v. K.K.B., Inc., 52 S.W.3d 250 (Tex. App.—Corpus Christi 2001, pet. denied) (distinguishing service of a shared container from individual service)