*1 60(b), involved neither case Civil Rule of laches.55 application CONCLUSION was not barred claim Because Theresa's limitations, and because
the statute its discretion
superior court did abuse was entitled to
concluding that Theresa military retirement division of
prospective decision of the AFFIRM the we
benefits respects. VA- in these We
superior court that the division determination CATE the on June commences
pension benefits with directions REMAND August divided as of
such benefits KALENKA, Representative Personal
Uwe Kalenka, of Eric W.
of the Estate
Appellant,
JADON, INC., d/b/a Morrell and William
Jack Elias Wassili, II, Appellees.
P.
No. S-13899. Alaska.
Supreme Court of
Aug. P.3d at 975-77. Morgan, 1222-24; Sandoval, 915 P.2d at
evidence to clear Alaska's low threshold for summary judgment support and to a reason- able inference that Morrell's intoxication was plain easily observed while at the bar. We therefore reverse the granting decision to Chil- koot Charlie's.
II. AND FACTS PROCEEDINGS
A. Facts
In February 2004 Morrell and two cousins
went to Chilkoot Charlie's in Anchorage.
They
hours,
were there for two to four
dur-
ing which time
steadily
Morrell was
drinking.
Morrell stated that he did
not have
arriving
drinks
Charlie's,
nor did he have
drinks after
bar.
Jacobus,
Jacobus,
Kenneth P.
Kenneth P.
Charlie's,
After leaving
possibly
Chilkoot
P.C., Anchorage,
Appellant.
a.m.,
as late as 2:30
Morrell drove his cous-
Blasco,
Robert P.
Hoffman Silver Gilman
nearby
in's vehicle to a
park and then to a
Blasco, Juneau,
Jadon,
&
Appellee
Inc.
a.m.,
Taco Bell. At about 3:15
in the Taco
appearance by
No
Bell
Appellees
drive-through,
Jack Elias
Morrell's vehicle struck
Wassili,
Morrell and William P.
IL.
Kalenka's vehicle's
bumper.
rear
Kalenka
got out of
ensued;
his car and a confrontation
CARPENETI,
Justice,
Before:
Chief
produced
Morrell
a knife and stabbed Kalen-
FABE, WINFREE, STOWERS, and
multiple
ka
times. Kalenka died soon there-
MAASSEN,
after,.
Justices.
police
Two
officers who arrived at
OPINION
scene later testified at Morrell's criminal trial
Kalenka,
that
after stabbing
Morrell
STOWERS, Justice.
uncooperative,
slurred
speech,
his
I.
INTRODUCTION
Doucet,
smelled of alcohol. Claude
who wit-
Jack
spent
Elias Morrell
several hours in
confrontation,
nessed the
also testified at the
Chilkoot Charlie's bar and was served alco- criminal
trial
appeared
Morrell
intoxi-
beverages.
bar,
holic
After Morrell
left the
cated,
loud,
noting
cursing,
confrontation;
he and Eric Kalenka had a
stumbling. Morrell was estimated to have a
produced
Morrell
fatally
a knife and
stabbed
blood alcohol level at the time of the incident
personal
Kalenka. The
representative of Ka-
0.27,
high
equivalent
as
having up
brought
lenka's
wrongful
estate
death
typical
13 to 14
in his
claim
alleging the
system.
bar had served alcohol to Morrell when he
general manager
of Chilkoot Charlie's
statutorily
defined
person"
stated that
employees
none of the bar's
re-
and therefore the bar was liable for Kalen-
seeing
membered
Morrell
night.
Dou-
ka's death.
cet had also been at the bar for several hours
The issue before us is whether the Kalenka
evening
incident,
before the Taco Bell
Estate
raised a
issue
fact whether
stated he did not see Morrell at the
Morrell
person"
was a "drunken
within the bar and
anyone
did not observe
"obviously
meaning of AS 04.16.080when he was
served intoxicated"
served at Chilkoot Char-
lie's. A Chilkoot
employee recog-
alcohol at Chilkoot Charlie's. We hold that
presented
Kalenka Estate
enough
has
picture
nized Morrell from
newspa-
motion,
expert
presenting the
opposed
he had seen
per and stated
2004;
Elizabeth Trendowski.3
February
times before
the bar several
po-
had been
[Morrell]
those occasions
"On
"was to
report's purpose
The Trendowski
party
Neither
mellow."
lite,
spoken
soft
if the
determine
action/inaction
of Morrell's
any direct
Charlie's(']
management
employees
while at Chil-
conduct
appearance
actual
*3
liquor
and violated the Alaska state
negligent
and,
specifically, pre-
more
koot
beverages to be
by permitting alcohol
code
ap-
Morrell's
evidence of
no direct
sented
given to a
sold or
alcohol at
when served
pearance or conduct
(1) a
toxicolo
relied on:
forensic
Trendowski
Charlie's.
Chilkoot
"was under the
report concluding Morrell
gy
of alcohol
Proceedings
influence of a combination
B.
stabbing";
at the time of the
energy drinks
Kalenka,
per
the
Uwe
February 2006
In
(2)
testimony at Morrell's
police officers'
the
estate
Eric Kalenka's
of
representative
sonal
describing
"actions
trial
Morrell's
criminal
Estate),
(Kalenka
wrongful death ac
filed a
they ar
at the scene" after
and demeanor
Charlie's).1
(Chilkoot
Jadon, Inc.
tion
(8)
rived;
testimony at
Doucet's
Chilkoot Char
claimed
Kalenka Estate
regarding his observations of
criminal
trial
by serving alcohol
AS 04.16.0830
lie's violated
toxicology report
Bell.4 The
Morrell at Taco
person
a drunken
when he was
to Morrell
concen
extrapolated Morrell's blood alcohol
Kalenka's death.2
liable for
was
and therefore
at 8:15
between 0.11 and 0.27
tration to be
Chilkoot Charlie's
February
a.m.,
stabbing, and estimated
the time of the
two
summary
on
moved for
between seven and 18
Morrell had consumed
(1)
evidence that Chil-
there was no
grounds:
toxicologicalfind
In addition to the
drinks.
negligence pro-
with criminal
koot Charlie's
upon,
Kalenka
ings
relied
Trendowski
he was a "drunk-
alcohol when
vided Morrell
toxicologist Joel R. Mil-
Estate submitted
(2)
stabbing
Morrell's
of
person";
en
extrapolating the same blood-
report
zoff's
superseding cause
Kalenka was a sufficient
estimating Morrell
but
alcohol concentration
of
liabili-
discharge Chilkoot Charlie's
to
7.5 and 19.5 drinks.
consumed between
The Kalenka Estate
ty
Kalenka's death.
objection
superior
or
appropriate
in the
court
and William P.
named Morrell
1. The Estate also
court,
Wassili,
report
and will be consid-
this
and the
Neither of these indi-
II as defendants.
appeal.
merits.
participated in this
ered on its
have
viduals
provider
prohibits
hearsay
a licensed
with
testimony
2. AS 04.16.030
trial
as to
4. The criminal
selling
giving
801(c)
negligence
or
alco-
from
criminal
Evid.
Charlie's. See Alaska R.
.
allowing
person
a drunken
hol to a drunken
("Hearsay
than one made
statement,
is a
other
premises.
on licensed
person
enter and remain
testifying
to
by
at the trial or
the declarant while
hearing,
prove
offered in evidence to
the truth
04.21.020(a),
immunity
pro-
the dram
AS
asserted.").
summary judg-
When
the matter
its
in
vision,
reads
pertinent
part:
considered,
ment motion was
beverages
person
provides alcoholic
who
[A]
challenging
pending
a
motion
Charlie's had
may
civilly
person
be held
liable
another
trial,
admissibility
but an
of such
injuries resulting
intoxication of
from the
rely
opinion testimony
expert's
can
on inadmissi-
provides
person
person
who
unless
(providing
AlaskaR. Evid. 703
ble evidence. See
beverages
a license ... and ...
holds
expert
upon
data
which an
bases
that "facts or
are
the alcoholic
admissible, "but
opinion"
not need to be
an
do
of AS 04.16.030.
drunken
in violation
reasonably
upon by
type
relied
must be of
forming opin-
experts
particular
field in
in the
statement,
nor is it
3. The
is not a sworn
subject");
upon
also
see
fons or inferences
validly
See Maines
sworn affidavit.
attached to
Church,
Way Assembly
King's
God
Alaska, Inc.,
Broderick
323-24
v. Kenworth
(Alaska 1991) (stating hear-
P.2d
(Alaska 2007)
(concluding
superior
did
court
opinion
say
permissible
expert's
basis of
can be a
excluding unsigned
in
not abuse its discretion
testimony "provided
reliance test
the reasonable
from its consideration
and unsworn declaration
summary judgment,
of fact
Gatts,
as assertions
Norris
is satisfied"
1987))).
did not
Chilkoot Charlie's
cannot be
pleadings and memoranda
unverified
regarding
superior
objection
judg-
court
raise an
denying
on in
motion for
relied
ment).
hearsay
evidence.
reliance on
raise an
Trendowski's
Charlie's did not
But Chilkoot
discussing
statutory
Morrell;
After
Alaska's
re-
number of drinks served to
quirements
liquor
employ-
for a
licensee and
recognize
failed to observe and
education,
intoxication;
ee aleohol-server
re-
stop
Trendowski's
failed to
serving
stated,
port
person.
"Morrell's aberrant behavior
aleoho! to a drunken
a direct result of his intoxication and should
granted
Chilkoot Char-
have
been observed
a certified
lie's'
motion on the basis
bartender,
...
server or bouneer." The re-
there was no admissible evidence its
port
toxicology
stated that based
on
re-
employees acted
negligence
with criminal
port,
"[clertified
servers should have ree-
to Morrell
The court stated Trendowski's
ognized the effect ...
the excessive amount
report "implicate[d] the Court in such a de-
[energy
of vodka and
having
drink] was
gree
speculation"
prop-
that no
Mr. Morrell and cut him off
consuming
erly
observably
infer Morrell was
drunk at
any more alcohol."
the bar.
*4
report
Trendowski's
concluded that "Mor-
appeals
The Kalenka Estate
superior
likely
rell more
than not exhibited visible
grant
of
dismiss-
signs
premises
of intoxication while on the
of
ing
its suit
Chilkoot Charlie's.
Chilkoot Charlie's. Based on the
III
STANDARD
OF REVIEW
Bell,
independent
of the
witnesses
Taco
irrational,
acting
angry,
Mr. Morrell was
grant
We review a
of summary
uncooperative
with both the victim and
judgment de novo.5 We review the facts in
report
law enforcement."
The
described
light
non-moving
favorable to the
most
Morrell's actions at Taco Bell as "visible and
party and draw all factual inferences in the
intoxication,"
signs
of
and noted that
non-moving party's
grant
favor.6 A
of sum
"[a]
attentive bartender or server mary judgment
is affirmed "when there are
signs
would have observed similar
at the bar
fact,
genuine
no
issues of material
and the
stopped
the service of alcohol. The
prevailing party ...
entitled
[is]
of intoxication observed
a
genuine
as matter of law."7 "A
issue of
Mr. Morrell
left Chilkoot Charlie's would material
fact exists
jurors
where reasonable
server;
have been obvious to
aleohol
disagree
on the resolution of a factual
particularly one who
has been
trained."
issue."8
Whether the evidence
a
genuine issue of
question
material fact is a
of
Although
report
Trendowski's
conceded
law that
independently
we
review.9
changes
behavioral
associated with in-
toxication
appear simultaneously,"
"do not all
IV. DISCUSSION
"[they
appear
progres-
asserted that
in a
"(there
plenty
sive manner" and
op-
Alaska's dram
statute
immu
portunity
server,
attentive
bartender
a
provider
nizes
licensed alcohol
from civil
or bouncer
liability
to observe some or all of
damages
[his]
patron's
caused
a
behaviors that indicated Mr. Morrell was ob-
intoxication unless the licensee
aleo-
viously
patron
intoxicated." Trendow-
hol to the
when
"drunken
person
report ultimately
A drunken
ski's
is "a
concluded that Chil-
koot Charlie's:
failed to monitor
whose
substantially
conduct
is
Eagles
City
5. Fraternal
Borough
Order
&
9. Olson v. Teck Cominco Alaska,
Inc., 144 P.3d
Juneau,
(Alaska 2011) (citing
254 P.3d
(Alaska
2006)
459, 463
French v. Jadon,
(Alaska
Erikson,
Rockstad v.
113 P.3d
(Alaska 1996)).
Inc.,
911 P.2d
2005)).
04.21.020(a)(2)
(immunizing
10. See AS
alcohol
Rockstad,
1219).
(quoting
Id.
113 P.3d at
provider
liability
from civil
unless alcoholic bev-
Rockstad,
erages provided
person);
to drunken
113 P.3d at
see also AS
(prohibiting
provider
04.16.030
alcohol
with
Covell,
8. Burnett v.
negligence
selling
giving
criminal
alco-
2008) (citing McGee Steel Co. v. State ex rel.
person).
hol to drunken
McDonald
Alaska,
Indus.
failed to raise a
Summary judgment should
Morrell alcohol
served
non-moving party
if
has not
granted
statutorily defined "drunken
he was a
when
fact.14
of material
genuine
issue
raised
Mor-
evidence of
is no direct
person." There
stringent
standard."15 When
This is not
or conduct
appearance
rell's
genuine
there is a
issue
deciding whether
superior court stated
and the
fact, we must draw all reasonable
material
may have been intoxicated
although Morrell
of the
evidence in favor
inferences from the
proper
inference
has to be
"there still
issue of ma
non-moving party.16
"A
impairment]
visible
[regarding
jurors
where reasonable
terial
fact exists
*5
draw,
speculation, and
pure
can
rather
than
of a factual
disagree onthe resolution
land of
is]
Trendowski
[the
17
ju
that reasonable
issue." We conclude
here."
pure speculation
whether Chilkoot
disagree
rors could
about
argues that
The Kalenka Estate
while he was a stat
Charlie's served Morrell
evidence of
improper because
judgment was
utorily
defined "drunken
conduct at Taco
appearance and
Morrell's
Room,
Tommy's
v.
Elbow
In Kavorkian
experts
"extrapolated
Bell can be
we examined an action under the
Morrell was at Chilkoot
to the time that
back
jury
The
in that case heard con
statute.18
Charlie's,
behavior would have
and what his
patron
flicting testimony about whether
Kalenka Estate con-
like
[there]."
been
at the
visibly intoxicated while served
was
Mor-
on the observations of
tends that based
bar,
"[tlestimony concern
and we noted that
that Mor-
Bell and the estimate
rell at Taco
shortly before
ing
patron's] condition
[the
drinks
7.5
19.5
rell consumed between
incident,
is cireumstan-
correctly
[the bar]
and after his visit to
Trendowski
before the
State,
Transp.
Dep't
& Pub.
15. See Hammond
Inc.,
389,
P.2d
Stores,
882
Gonzales
Safeway
871,
Facilities,
(Alaska 2005) ("It
04.21.080(b)(8)).
1994)
is
(Alaska
107 P.3d
881
(citing AS
393
evidentiary
'the
threshold
well established
04.21.080(b)(8) provides:
12. AS
summary judg-
necessary
preclude
entry
an
person" means a
whose
")
Heating
Serv. v.
ment is low.'
John's
substantially
physical
im-
or mental conduct is
2002)).
(Alaska
1024,
Lamb, 46 P.3d
1032
paired
the introduction of an
as a result of
beverage
person's body and
alcoholic
into the
(quoting Dominic
Price,
This conclusion is consistent with decisions from a number holding of states that sum evidence of obvious intoxication at the time of Id. at 165 n. 9. 22. Morrell stated that he consumed both beer and "mandarin Red Bull," a combination of vod- drink, energy ka and an at the bar. Eagles City Borough Fraternal Order & of of (Alaska 2011) Juneau, 254 P.3d (quoting 348, 352 23. Witnesses testified that Morrell was emotional Rockstad v. Erikson, 113 uncooperative police toward commands and 2005). stumbling instructions and that he was and slur- ring speech. his Rockstad, 113 P.3d at (Iowa 2004). 24. 688 NW.2d summary presented necessary to survive to survive sum- enough evidence not is service mary judgment.
judgment:
subjective observation
officer's
police
A
V, CONCLUSION
obviously intoxicat
employee
that the
may
banquet
leaving the
discussed,
shortly after
we REVERSE
ed
For the reasons
obviously
summary judg-
she was
grant
superior court's
an inference
the
raise
her,
employer served
dismissing
the
Kalenka Estate's
the
when
ment
con
employee did not
Charlie's.
the
claim
provided
leaving
banquet
the
any alcohol
sume
MAASSEN, Justice, with whom
unac
no time remains
provided
Justice,
WINFREE,
dissenting.
joins,
banquet and the
for between
counted
observation.[25]
subsequent
grant
I would affirm
Pennsylva
for de
Our threshold
summary judgment.
in Indiana and
appeal
Courts
low,
indeed
as
feating
conclusions.
similar
have reached
nia
out,1
it is still a
today's opinion points
but
that "the
Indiana,
appeals held
court of
only with evi
that can be crossed
threshold
one beer to
even
bar] served
fact that
liability claim
The Kalenka Estate's
dence.
was in a state
thereafter
person who
only to consider
requires
question
to a
gives rise
intoxication
of serious
inferences
and draw reasonable
visibly in
evidence
person]
of fact whether
Pennsylvania
it,
that certain
speculate
A
time."26
but also
at the
toxicated
then draw infer
occurred and
interactions
quest
with a similar
was confronted
imagined events. This
from those
ences
trial estab
Evidence
ion.27
speculation.
far into the realm of
travels too
had consumed
sub
lished that
alcohol before
amount
stantial
de
shop liability under Alaska law
Dram
bar, that he drove
last drink
served his
intoxication that
is or
pends
proof
bar,
ap
that he
erratically upon
A
apparent
to the server.
licensee
should
police
investigating
peared intoxicated
liability
injuries
civil
is immune from
officer,
content was
his blood-aleohol
and that
"the alco
intoxication unless
resulting from
"[dlespite
held that
The court
elevated.28
drunken
beverages
are
to a
holic
bearing on [the
lack of direct
Alas
of AS 04.16.0830."
violation
when he was served
patron's] condition
if,
04.16.0380is violated
ka Statute
jury could have
drink,
we think
last
"sellfs]},
here,
give[s], or
the licensee
relevant
visibly in
that he was
reasonably concluded
to a drunken
barter[s]
that time."
toxicated at
negli-genee."
so "with criminal
person" and does
respect
negligence"with
"Criminal
cases,
direct
In all of these
3
*7
means that "the
particular cireumstance
to a
when the
patron's behavior
about a
and
perceive
to
a substantial
necessary
person fails
to survive
was not
was served
unjustifiable
that
the cireumstance
authority
risk
this
summary judgment. Given
exists;
of such a nature and
the risk must be
and our own low
from other states
perceive it consti-
the failure to
threshold,
degree
has
that
Kalenka Estate
433,
96,
(1997)
prove
shop
plaintiff
liabili-
that a
can
436
clude
25. 131 Wash .2d
457,
Edwards,
eyewitness evidence
ty
of direct
in the absence
105 Wash.2d
v.
Dickinson
at a time
(1986)).
individual was served alcohol
that an
without who witnessed off-duty waitress An bar]." anything had to had he the bar-before bar testified patron's condition drunk," though a bar "obviously again-when that he was out that he walked drink-and longer no that he was displayed could and a customer testified any symptoms he tender thus direct evidence not.14 There was serving him. deter Chilkoot counterpart here. It no Kavorkian that has the bar in between any around But rambles may well noting that evidence bears such there speculative.10 Nor is purely are times court, in superior have been available. spoke in the Morrell ever summary judg during the oral remarks its server, exhibit so as to presence aof "there's zero testi hearing, ment noted that the court also speech" on which "slurring of Morrell went mony in the case about where jury can I do not believe relies.11 served, bar}, sat, got where he how he [in a conversation that such "infer" did, him, how he be who served what he occurred, it occurred Mor- "infer" that after bar," though the court had haved in the even intoxicated, and "in rell had become part give of trial "in to granted a continuance conversation hypothetical fer" that in this depose Mr. opportunity an [the Estate] way in such a speech his Morrell slurred Morrell," inexpli opportunity an the Estate grossly notice it was who failed to server cably passed participating up.15 reasonable-person standard deviating from a apparently available to be in the case and Any chain of conclusions is of care. such other, more disinter deposed. Even absent pure speculation, reasonable inferences testimony, eyewitness reasonable infer ested from the evidence. Morrell exhibited the ences about whether could certainly agree that the ciream- of intoxication I outward manifestations While deposition tes- developed from his court relies is have been on which the stantial evidence coming, get there's zero that beer Op. server 9. at 347. he was so intoxicated that say[, beer.'" couldn't sit jury perhaps infer that Morrell would 10. A 'AJuother at least once to the men's room have traveled spent at Chilkoot Charlie's. the hours he Tommy's Op. at 350-51 Kavorkian hand a inference in But with that reasonable Room, Inc., 165 n. 9 Elbow pile went others: that Morrell would have to on 1985), grounds reh'g, rev'd on other becoming visibly intoxi- to the men's room (Alaska 1985)). before; just that he exhibited the cated and not while en of intoxication outward manifestations route; P.2d at 165. Kavorkian, that, apparently "a ca- in what was night, pacity Mardi Gras the servers' crowd" for & nn. 12-13. dur- intoxicated state failure to observe Morrell's ing hypothetical trip to the men's room gross reasonable-person stan- deviation from a I'm floored remarked, "I must 15. The court say counsel] [Morrell's] did not take dard of care. Estate's him a life- the Court threw because deposition, virtually him that the Court correctly told line to do so observed 11. As the you case without Mr. can make a hearing, evi- doesn't think "There's no gets you giving information that incapable sitting some at a dence that [Morrell] *9 here, server([, ... play whatever reason you and for into quietly saying table and 'AJnother go want to there." say counsel] didn't please.['] you [the to a Estate's all have to beer That's
355 mance, timony about his explained interactions and movements why plain- she found the proposing any in the bar. I am not tiffs sort of evidence insufficient: evidentiary insurmountable hurdle when I strongly this case supports speculative call the Estate's case itas stands. the conclusion that [the driver] was intoxi accident; cated at the seene of the might today The court relies on cases other even be inferable that [the driver] was jurisdictions similarly juries allow intoxicated when he left the Hooters res speculate, on the basis of blood-aleohol evi However, taurant. the record contains no later, dence and observations made about evidence that support would an inference whether the driver's intoxication was mani any employee of Hooters served [the fest at the bar. gamut But cases run the alcohol driver] while he visibly intoxicat determining when it comes to the critical ed.[19] point at which such evidence is deemed suffi And in Denny Sorensen v. Breton, In Nash a New example, cient. Reed v. for York rejected, court as insufficient to Michigan defeat Supreme rejected Court plain summary judgment, an inference "that be argument tiffs' that the driver's blood alcohol cause [the driver] level, consumed a certain the amount spent drinking, of time he amount of alcohol throughout evening and other cireumstantial evidence could raise early morning hours and exhibited an issue of fact as to visibly whether he was A.M., of intoxication at 8:15 he must have impaired drinking while at the defendant es been during intoxicated period time three tablishment, eyewitness in the face of testi and, hours before more importantly, mony that he was not.16 In Alaniz v. Rebello appeared I find these per cases more so." L.L.C., Beverage, Food & appellate a Texas suasive than the ones opinion. cited in the videotape eyewitness held that a short, testimony demonstrating the I driver's do not believe the Kalenka Estate in intoxication a convenience this case store 50 to 55 evidence on which a minutes after he reasonable left the bar could "does not estab decide the dram claim in its favor. lish that In the obviously [the driver] was absence intoxicat evidence, of such a verdict bar), ed while served at Estate only could be based on inferences about Mor- regarding inferences his obvious intoxication rell's behavior interactions that them- while there would amount to no more than selves imagined, were speculation." not inferred. mere In Owens v. Hooters I would affirm the grant summary Restaurant, Supreme the Alabama Court af to Chilkoot Charlie's. opinion firmed without grant judgment to the defendant in a dram shop MAASSEN, Justice, with whom case in which the driver was in an accident WINFREE, Justice, joins, dissenting. just away six-tenths of a mile from the res taurant, where he was found to have a blood-
alcohol content of slurring .16 and "was speech and staggering." Chief Justice Cobb, concurring per curiam affir- 531, 770, 16. 475 Mich. 718 NW.2d consumption 776-77 alcohol and his obvious intoxi- (2006). brought Reed against involved a claim cation at the accident scene an hour after he left the second-to-last bar to serve the intoxicated the bar were insufficient in "any the absence of driver; enjoy presumption such bars a rebuttable 'obviously driver] was intoxi- shop liability Michigan under law. cated' ... at the time he was alcohol at Although Id. at 774. the court held that [the defendant bars} or that such condition presumption could be defeated "clear 'apparent' provider"). was then evidence," convincing it also held that "the proofs presented [in the case before it] 743, (Ala.2009) (Cobb, C.J., 18. 41 So.3d con- competent even meet the and credible standard curring). rebutting presumption to show service to Id. at 775-76. (Cobb, C.J., concurring). Id. at 744 (Tex.App.2005); 165 S.W.3d 13-14 see also 20. 249 AD.2d 671 N.Y.S.2d Abrams, J.D. McIver, Inc. v. 966 S.W.2d (Tex.App.1998) (holding (1998). that evidence of driver's