AFFIRM; and Opinion Filed May 14, 2019.

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05
- 19
- 00061
- CV YAKELYN RUBIO GALIND O, TRAVIS YOUNG, SAU L PEREA, RICHARD ACE BO, EMILY FORD, DAVID HA SHEMI SEDDIGHZADEH, ANGELA BENTON, ALYSS A MOEBUS, PAPPAS RESTAURANTS, INC., PHCG INVESTMEN TS, AND CHARLES BRAY , Appellants V. NORMAN GARNER, INDIV IDUALLY, AND AS REPR ESENTA TIVE OF THE ESTATE OF AMY GARNER , DEC EASED, AND AS NEXT FRIEND OF SOPHIA GARNER, FELICIA GARN ER, ZACHARY GARNER, AND HANNAH GARNER,

MINORS, AND CLARA GA RNER , Appellees On Appeal from the 116th Judicial District Court

Dallas County, Texas Trial Court Cause No. DC
- 18
- 03385 

### MEMORANDUM OPINION Before Justices Whitehill, Partida

- Kipness, and Pedersen, III

Opinion by Justice Pedersen, III This appeal arises from a lawsuit that asserts a Dram Shop Act claim, among others. Appellants , 1 who are among the defendants in the suit, bring this accelerate d interlocutory appeal from an order denying their motions to transfer venue. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 5.003(b). We affirm.

1 Yakely Rubio Galindo, Travis Young, Saul Perea, Richard Acebo, Emily Ford, David Hashemi Seddighzadeh, Angela Benton, Alyssa Moebus, Pappas Restaurants, Inc., PHCC Investments, and Charles Bray

.– 2

– I. BACKGROUND On March 19, 2016 , Amy Garner (Amy) was driving on Interstate 30 in Fort Worth , which is located in Tarrant County, when her Chevrolet Suburban was struck by a vehicle driven by Jwuan Johnson . A m y was killed in the collision. Four of h er children, who were with her at the time, were seriously injured. Later that same year , Amy’s husband , appellee Norman Garner (Norman), individually, as the representative of her estate , and as next friend of the couple’s children, filed a Rule 202 petition in Tarrant County District Court. See T EX
. R. C IV
. P. 202 .1

– .5 ( authorizing pre

- suit deposition in certain circumstances )

. This petition was heard by the trial court over a year later, on November 30, 2017, and the court signed an order that same day denying the petition

. Norman , individually, as the representative of Amy’s estate , and as next friend of the children, next filed suit against Johnson and Pappas Restaurants, Inc. (Pappas) in Tarrant County District Court

. Norman alleged, on information and belief, that Johnson had consumed alcohol shortly before the accid ent at a Pappadeaux restaurant in Arlington

. According to Norman’s petition, Pappas served an alcoholic beverage to Johnson even though it was apparent to Pappas that Johnson at the time “was obviously intoxicated to the extent that he presented a clear da nger to [him]self and others.” Norman asserted a Dram Shop Act claim against Pappas, s ee T EX
. A LCO
. B EV
. C ODE A NN
. § 2.02(b), 2 as well as a negligence and a negligence per se cla im.
A dispute arose between the parties reg arding Norman’s attempt to depose Pappas’s corporate representative. Pappas filed a motion for protection and to quash the deposition, which

2 Section 2.02(b) states: Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action . . . upon proof that: (1) at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided wi th an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; and (2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.– 3

–

the court granted on February 9, 2018

. A little o ver a month later , Norman nonsuited the Tarrant County suit and re - filed suit in Dallas County

. This suit also listed one of the couple’s children, appellee Clara Garner, as a plaintiff, presumably because she had reached majority status. 3 The Dallas County suit named as defendants (i) Johnson, (ii) Pappas, (ii i ) PHC G
Investments , and (i v ) a group of ele ven employee bartenders or managers referred to he rein as the Employee Defendants

. 4 Appellees’ claims against the foregoing defendants mirrored those they had previously asserted in their Tarrant County suit against Johnson and Pappas. 5 They also asserted that venue was appropriate in Dallas County “since some Defendants resided [there] at the time the cause of action occurred

. ” See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.002(a)(2) (providing for venue in county of defendant’s residence at time cause of actio n accrued if defendant is a natural person)

. Moreover, appellees alleged that Employee D efendant Saul Perea “is an individual residing in Dallas County,” and they alleged the same with respect to Employee
D efendant Edward Carrigan. Johnson, PHCG, Pappas, a nd the Employee Defendants , except for Employee D efendant Stephen Powell , each filed a motion to transfer venue from Dallas County to Tarrant County . T he motions asserted venue was proper in Tarrant County because (i) the subject accident occurred there , id. § 15.002 (a)( 1 ) , and (ii) Johnson and appellees reside there , id. § 15.00 2(a)(2), (a)(4)

. In addition, PHCG ’s and Pappas’s motions urged that appellees failed to allege the county in which PHCG and Pappas had their principal office. I d. § 15.002(a)(3). Moreover , each of the Employee Defendants , except Employee Defendant Charles Bray , specifically denied that he or she resided

3 Previously, in the Tarrant County suit, Cla ra, along with the couple’s other children, was represented by Norman as her next friend.
4 Nine of the eleven Employee Defendants, specifically, Yakely Rubio Galindo, Travis Young, Saul Perea, Richard Acebo, Emily Fo rd, David Hashemi Seddighzadeh, Angela Benton, Alyssa Moebus, and Charles Bray, are among the appellants in this appeal. Two of the Employee Defendants, Stephen Powell and Edward Carrigan, have not appealed. 5 However, appellants contend that appellees’ original Dallas County petition did not a llege that the Employee Defendants , as opposed to Pappas, were providers under the Dram Shop Act

.– 4

–

in Dallas County on the date appellees ’ cause of action accrued

. As for Bray, his motion noted that appellees ’ petition alleged t hat Bray resided in Orange County , not in Dallas County

. In addition, e ach of the venue motions , except Johnson’s , urged that appellees fail e d to plead a viable Dram Shop Act claim against the Employee Defendants

— and in particular, against defendants Perea and Carrigan, the two Employee D efendants alleged to reside in Dallas County

. Finally , each of the motions , except Johnson’s , argued that appellees failed to meet their burden of establishing proper venue under section 15.003 of the Civil Practice and Remedies Code. See
T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.003(a) (1)

– (4)

. On October 25, 2018, the district court heard the foregoing motions , except for Johnson’s, Carrigan’s, and Bray’s. T he hearing was conducted in part that day. However, the court defer red completion of the hearing (i) to permit appellees to cu re a defect in an affidavit they previously offered in their opposition to the motions to transfer, and (ii) to allow Johnson, Carrigan, and Bray to set their mot ion s for hearing so that the court could determine all pending motions at once

. On October 31, 2018 , before the venue hearing resumed, Bray filed a motion to dismiss appellees ’ claims against him pursuant to Rule 91a of the Texas Rules of Civil Procedure a n d set th at motion for hearing on December 7, 2018

. Appellees filed a first amended petition on December 3 , 2018, which alleged that Bray resides in Dallas County. However, they non

- suited Bray later that same day, and four days after that, the court sign ed an order effectuating the nonsuit. On December 11, 2018, appellees filed a second amended petition that again named Bray as a defendant. Around this same time, defendants Johnson and Carrigan withdrew their pending motions to transfer

.– 5

–

The venue h earin g resumed on December 18, 2018

. That same day, f ollowing the hearing , the trial court signed an order denying the defendants ’ motions to transfer venue

. PHCG, Pappas, and nine of the Employee Defendants have appealed the court’s ruling

. 6 II. ANALYSIS The outcome of this appeal depends on our determination of whether appellees satisfied the requirements of Civil Practice and Remedies Code section 15.003 (a) , which applies in a suit in which there is more than one plaintiff

. This statute “takes as its startin g point a ‘ person who is unable to establish proper venue. ’ ” Surgitek, Bristol

- Myers Corp. v. Abel , 997 S.W.2d 598 , 602 ( Tex. 1999) (citing Act of May 8 , 1995, 74th Leg., R.S. , ch. 138, § 1, 1995 Tex. Gen. Laws 978, 979 (current version at T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.003(a)). 7 Accordingly , the trial court “first has to determine whether a plaintiff can independently establish proper venue.” Id

. “This determination . . . is made using venue proof standards

— if the plaintiff offers prima facie proof through pleadings and affidavits that venue is proper, the inquiry is over.” Id. ; cf. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.064(a) (“The court shall determine venue questions from the pleadings and affidavits.”)

. Second , “w hen a plaintiff cannot establish proper venue, section 15.003(a) expressly places the burden on the plaintiff to ‘establish’ four elements before she can join venue for the suit .” Surgitek , 997 S.W.2d at 602 ; accord T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.003(a)(1)

– (4)

. In an interlocutory appeal of a trial court’s determination under the statute , we must “determine whether the trial court’s order is proper based on an independent determination from

6 Powell , Carrigan , and Johnson are not parties to this appeal

. 7 Subsequent to Surgitek , the Legislature amended section 15.003(a). Act of June 2 , 2003, 78th Leg., R.S. ch. 204, § 3.03, 2003 Tex. Gen. Laws 847, 853

. The amended statute takes as its starting point “a plaintiff” who “cannot independently establish proper venue.” Id. This language is in substance identical to the above

- referenced statutory la nguage that the s upreme c ourt construed in Surgitek

.– 6

–

the record and not under either an abuse of discretion or substantial evidence standard.” T E X
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.003 (c)(1)

. In other words, our “review of the merits” of the trial court’s “joinder determination should be de novo.” Surgitek , 997 S.W.2d at 603. 8 In conducting this review , we must consider the entire record, including any evidence presented at the hearing. Id

. A. Pleading and Proof of Venue Facts We begin by considering whether each plaintiff independently established proper venue.
See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.003(b)(1)

. To make this determination, we will look to the rules generally applicable to motions to transfer venue. When such a motion is filed, “ the initial burden of proof that venue is maintainable in the county of suit is on the plaintiff.” WTFO, Inc. v. Braithwaite , 899 S.W.2d 709 , 714 ( Tex. App.

— Dallas 1995 , no writ ) (citing T EX
. R. C IV
. P. 87(2)(a)). Appellants’ first issue contends that appellees failed to properly plead and prove that any of the d efendants (and , in particular , Perea, Bray , and Carrigan) were resident s of Dallas County
at th e time of the subject accident

. To resolve this issue, w e must determine whether appellees met their burden of properly pleading the requisite venue facts. See T EX
. R. C IV
. P. 87(2)(a), 87(3)(a).
I f so, and given appellants ’ specific denials of these facts , we will next determine whe ther appellees offered prima facie proof to support their venue allegations

. See WTFO , 899 S.W. 2d at 714 (citing T EX
. R. C IV
. P. 87(3)(a)).

8 The version of section 1 5.003(c)(1) in effect when Surgitek was decided required the court of appeals to “determine whether the joinder or intervention is proper,” Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 1, 1995 Tex. Gen. Laws 978, 979 , as opposed to the current version of the statute, which requires appellate review of “whether the trial court’s order is proper , ” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.003(c)(1). Other than this difference , both versions of subsection (c)(1) are identical. Accordingly, we will apply the Surgitek court’s articulation of the applicable standard of review to the facts of this case

.– 7

–

1. “Properly Pleaded” Rule 87(2) (a) of the Texas Rules of Civil Procedure prov ides that “[a] party who seeks to maintain venue of the action in a particular county . . . has the burden to make proof, as provided in paragraph 3 of this rule, that venue is maintainable in the county of suit.” T EX
. R. C IV
. P. 87(2)(a). Paragraph 3 (a) o f the rule provides, in pertinent part, that “ [ a ] ll venue facts, when properly pleaded , shall be taken as true unless specificall y denied by the adverse party.” Id. R. 87(3)(a) ( e mphasis added).

a. Timeliness of Second Amended Petition As an initial matter, the parties disagree on which petition this C ourt may consider in evaluating whether the venue facts were “properly pleaded.” As of the October 25 venue hearing, appellees ’ original petition was the live pleading on file. O n December 3, 2018 , appellees fil ed their first amended petition

. Eight days after th at, on December 11, they filed their second amended petition

. Appellants contend that these petitions were untimely because they were filed “within seven days . . . or thereafter ” of the date that the ven ue hearing began , i.e, after the October 25 hearing , and appellees did not obtain leave of court to file the se petitions late

. T EX
. R. C IV
. P. 63 ( emphasis added ) ; 9 see also In re Stroud Oil Pro p s . , Inc. , 110 S.W.3d 18, 23 (Tex. App.

— Waco 2002, orig. proceeding) (noting that the pleadings on which court makes its venue determination “are the live pleadings on file at the time of the hearing” (citations omitted)) ; Taiwan Shrimp Farm Vill

. Ass’ n v. U.S.A. Shrimp Farm Dev., Inc. , 915 S.W.2d 61, 69 (Tex. A pp.

— Corpus Christi

– Edinburg 1996, writ denied) (interpreting “date of trial” in Rule 63 as “the date the case is set for trial , ” not the date trial actually begins ) , superseded by statute on other grounds as stated in Myriad
Dev. , Inc. v. Alltech, Inc. , 81 7 F. Supp. 2d 946 , 977

– 78 n.169 ( W.D. Tex. 2011)

.

9 We assume that a venue hearing is a trial for purposes of Rule 63. See Moriarty v. Williams , 752 S.W.2d 610 , 611 ( Tex. App.

— El Paso 1988 , writ denied ) (noting that appellant’s first amended original petition was filed more than seven days before venue hearing and was properly before court at such hearing (citing T EX
. R. C IV
. P. 63) )

.– 8

–

Appellees respond that their second amended petition was timely because it was filed on December 11, which was seven days before the December 18 hearing

. As support, appellees cite Cantu v. Holiday Inns, Inc. , 910 S.W.2d 113 ( Tex. App.

— Corpus Christi

– Edinburg 1995 , writ denied )

. In that case, the defendant filed a motion for summary judgment, and the motion was set for hearing on June 30, 1993. Id. Less than seven days before the hearing, the parties filed various documents related to the defendant’s motion, and the defendant also filed an amended answer. Id

. The parties appeared before the court on June 30 and on July 1

. Id. The court continued the hearing for a month to permit the parties to cure the timeliness defects with respect to their late filings. Id. In this circumstance , our sister court held that the defendant’s amended answer was timely because it was filed “more than 7 days before the he aring that resulted in summary judgment.” Id. at 115

. A ccording to the Cantu court, “the key date for purposes of Rule 63 was the date of the final hearing from which the summary judgment sprang.” Id. T his Court has cited Cantu with approval.
Ganter v. Indep. Bank , No. 05

- 15

- 00413

- CV , 2016 WL 4376284 , at *4 (Tex. App.

— Dallas Aug. 16, 2016, pet. denied) (mem. op.) (summary judgment) ; Selz v. Friendly Chevrolet, Ltd. , 152 S.W.3d 833, 834

– 35 (T ex. App.

— Dallas 2005, no pet.) (same) ; accord Segal v. Bock , No. 01

- 10

- 00445

- CV, 2011 WL 6306623, at *4 (Tex. App.

— Houston [1st Dist.] Dec . 15, 2011, no pet.) (mem. op.) (same)

. We conclude that the reasoning from Cantu applies here, and th e second amended petition was filed timely

. W e will consider this petition in evaluating whether the venue facts were “properly pleaded.”

b. Sufficiency of Factual Allegations Section 15.002 of the Civil Practice and Remedies C ode provides that venue i s proper in (i) “the county in which all or a substantial part of the events or o missions giving rise to the claim occurred, ” or (ii) “the county of [the] defendant’s residence at the time the cause of action accrued
if [the] defendant is a natural person , ” or (iii) “the county of the defendant’s principal office in this– 9

–

state, if the defendant is not a natural person , ” or (iv) if the for egoing grounds do not apply, the county of the plaintiff’s residence at the time the cause of action accrued. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.002(a)(1)

– (4). Here, the second amended petition alleges that Perea, Bray, and Carrigan were residents of Dallas County at the time the cause of action accrued

. We conclude that these venue facts were properly ple a d ed

. 2. “Prima Facie Proof” As noted previously, the defendants speci fically denied the foregoing allegations. Given these denials, appellees bore the burden of offering “ prima facie proof ” of the venue facts alleged in the second amended petition

. WTFO , 899 S.W. 2d at 714 (citing T EX
. R. C IV
. P. 87(3 ) (a) )

. Such proof “is made wh en the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such pleading. ” T EX
. R. C IV
. P. 87(3)(a). Affidavits must “be made on personal knowledge,” must “ set forth specific facts as would be admissible in evidence, ” and must “ show affirmatively that the affiant is competent to testify .” Id.
To meet th at burden, appellees filed the affidavit of Jamie Nay, a li censed p rivate investigator and process server whom appellees retained to locate and serve process on multiple defendants in this case

. According to the affidavit, N ay ran searches in a database (TLOxp), which revealed that Bray, Carrigan, and Perea resided in Dal las County in 2016 when the cause of action accrued. At the October 25 hearing , the court granted appellees leave to file an amended Nay affidavit to attach the information that Nay obtained from TLOxp upon conducting her searches

. Appellees did so on November 1, 2018

. Nay’s amended affidavit also states that private investigators “customarily rely” upon TLOxp in “determining the residence of individuals within the St ate of Texas at a given time.”– 10

–

In addition, on December 18 , appellees filed with the co urt a copy of Carrigan’s objections and responses to appellees’ request for admissions

. Appellees also raised the se responses with the
court during the hearing that same day

. In the responses , Carrigan admitted that he resided in Dallas County at the tim e of the incident in question

. A ppellants objected to Nay ’s amended affidavit, among other grounds, on the basis that it

was inadmissible hearsay . They also urged that the Carrigan admission was not properly before the court because it was not filed until the day of the hearing . The court overruled appellants’ evidentiary objection s, but it did not rule on appellants’ objection to the Carrigan admission

. Appe llants contend that the trial court erred in admitting the amended Nay affidavit into evidence

. T hey also argue that the Carrigan admission was untimely and that the record reflects the court did not consider it

. We agree that the Carrigan admission was un timely absent leave of court. See T EX
. R. C IV
. P. 87 (1) ( “ Except on leave of court, any response or opposing affidavits shall be filed at least 30 days p rior to the hearing of the motion to transfer .”). Moreover, the record must affirmatively indicate that such leave was granted. C f. B.C. v. Steak N Shake Operations, Inc ., 532 S.W.3d 547 , 550 ( Tex. App.

— Dallas 2017 , pet. pending ) (noting that, if summary

- judgment response is filed late, “ the record m ust contain an affirmative indication that the trial court permitted the late filing

or the response is a nullity ”)

. Here , the December 18 order denying the motions to transfer venue
state s that the court “consider[ed] these motions[,] all other pleadings on file in this case, arguments of counsel, and all other evidence on file .” (Emphasis added)

. We interpret this recitation as an affirmative indication that the court granted appellees leave to file the Carrigan admission. 10 Cf. Villarreal v. Chesapeake Operating, LLC , No. 04

- 16

- 00107

- CV , 2016 WL

10 In Steak N Shake , this Court held that a summary - judgment order ’s recitation that the trial court “consider[ed] pleadings, evidence, and arguments of counsel” was not an “affirmative indication” that the court considered the non

- movant’s late

- filed evidenc e. 532 S.W.3d at 550

– 51.– 11

–

5112218 , at * 2 (Tex. App.

— San Antonio Sept. 21, 2016, no pet. ) (mem. op.) ( concluding that recital in summary -

judgment order that trial court considered “the pleadings, motion, responses , and evidence on file” reflected that court granted movant’s leave to file untimely summary judgment evidence ); Pink v. Goodyear Tire & Rubber Co. , 324 S.W.3d 290 , 294 ( Tex. App.

— Beaumont 2010 , pet. dism’d ) (holding that recital in judgment that trial cou rt considered “all of the evidence on file” when it granted summary judgment made it apparent that court considered

non - movant’s supplemental summary judgment response in rendering judgment). Thus, the Carrigan admission is within the scope of our review, and this admission demonstrates that Carrigan was a resident of Dallas County at the time the cause of action accrued. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.002(a)(2). In sum, appellees have offered “prima facie” proof of the venue allegation with respect to Carrigan

. See T EX
. R. C IV
. P. 87 ( 3 ) (a) ; WTFO , 899 S.W. 2d at 714. Accordingly, we need not determine whether the court erred in admitting the amended Nay affidavit. We overrule appellants’ first i ssue. B. Viability of Claims against Employee Defendants Appellants’ second issue argues that appellees “did not ‘properly’ plead claims against any of the [d]efendants who were added to the cas e to establish venue in Dallas County ”

— specifically , the Employee Defendants

— “ because no negligence or dram shop causes of action exist ag ainst them as a matter of law.” In considering t his issue, we will first examine appellees ’ contention that Rule 87 does not require us to determine whether appellees ’ claims again st the Employee Defendants are viable as a matter of law. As described previously, t he rule provides that “ [i]t shall not be necessary for a claimant to prove the merits of a cause of action, but the existence of a cause

In contrast to the order in Steak N Shake , the order in this case states that the court considered “ all other evidence on file ,” (emphasis added), which we interpret as an affirmative indication that the court considered the Carrig an admission filed by appellees that same day.– 12

–

of action, when pleaded proper ly , shall be taken as established as alleged by the pleadings.” T EX
. R. C IV
. P. 87(2)(b) (emphases added)

. In In re Texas Department of Transp ortation , the Texas Supreme Court held that the plaintiffs failed to “properly plead” a contemporaneous

- activity n egligence cause of action for which Travis County would be a proper venue. 218 S.W.3d 74 , 76, 78

– 79 ( Tex. 2007) (orig. proceeding) (per curiam ). 11 The Austin Court of A ppeals has also held that “a proper pleading as defined by Rule 87” must include “facts that demonstrate standing, ” In re Valetutto , 976 S.W.2d 893, 895 (Tex. App.

— Austin 1998, orig. proceeding) (per curiam) . O thers of our sister courts have assumed this to be true without deciding the issue

. S ee In re Arcababa , No. 1 0

- 13

- 00097

- CV, 2013 WL 5 890109, at *4 (Tex. App.

— Waco Oct. 31, 2013, orig. proceeding) (mem. op.) (assuming that Rule 87 pleadings require allegations supporting ripeness); In re Reynolds , 369 S.W.3d 638, 649 (Tex. App.

— Tyler 2012, orig. proceeding) (same); Sw. Bell Tel. Co. v. S uperior Payphones, Ltd. , No. 13

– 05

– 661

– CV, 2006 WL 417423, at *5

– 6 (Tex. App.

— Corpus Christi

– Edinburg Feb. 23, 2006, pet. dism’d) (mem. op.) (questioning whether, but assuming without deciding that, “the subject of standing is properly encompassed within [ a] venue appeal”). Moreover, in Garrett v.
Patterson

- UTI Drilling Co , the Eastland Court of Appeals concluded that a defendant’s residence is immaterial for venue purposes if the plaintiff cannot assert a claim against him. 299 S.W.3d 911, 914 (Tex. App.

— E astland 2009, pet. denied) . Although a claimant need not prove the merits of its cause of action at the venue stage , see T EX
. R. C IV
. P. 87(2)(b), the Garrett court looked only to whether the plaintiff in that case could plead one

— “a question of law that does not require the consideration of evidence.” 299 S.W.3d at 914.

11 Instead, the plaintiffs in Texas Department of Transportation “properly pled premises and special defect causes of action, but neither of these claims arose, in any part, in Travis County.” Id. at 78.– 13

–

Based on the foregoing authorities , we conclude that Rule 87 requires us to consider whethe r appellees have alleged a viable cause of action, i.e., a “ properly pleaded ” claim , to the extent our determination of this question disposes of whether appellees filed suit in the proper

venue . We next co nsider whether the claims against the Employee Def endants , and in particular, the claim against Carrigan, were cognizable under Chapter 2 of the Alcoholic Beverage Code

. See
T EX
. A LCO
. B EV
. C ODE A NN
. § § 2.01

– .03

. Th is statute , which is commonly known as the Dram Shop Act, 20801, Inc. v. Parker , 249 S.W.3d 392 , 395 n.2 (Tex. 2008), “ provides the exclusive cause of action for providing an al coholic beverage to a person 18 years of age or older, ” T EX
. A LCO
. B EV
. C ODE A NN
. § 2.03 (c) (emphasis added) . This cause of action is available against commercial provide rs only. Smith v. Merritt , 940 S.W.2d 602, 605 (Tex. 1997) ; Graff v. Beard , 858 S.W.2d 918, 919 (Tex. 1993) . The statute defines a “ provider ” as “a person who sells or serves an alcoholic beverage under authority of a license or permit issued under the ter ms of this code or who otherwise sells an alcoholic beverage to an individual .” T EX
. A LCO
. B EV
. C ODE A NN
. § 2.01 (1); see also El Chico Corp. v. Poole , 732 S.W.2d 306 , 314 ( Tex. 1987) (noting that “[t]he legislature amended the Alcoholic Beverage Code to in clude a civil cause of action against an alcoholic beverage licensee ” ). 12 The parties join issue as to whether the Employee Defendants qualified as “providers.” Appellants cite decisions by the Texas Supreme Court that refer to a provider as separate from its employees. See 20801 , 249 S.W.3d at 396 (noting that Legislature “ decided . . . to allow providers to avoid [ Dram Shop Act ] liability by having their employe es attend certain training programs ” (citing T EX
. A LCO
. B EV
. C ODE A NN
. § § 2.02(b), 106.14(a)) ) ; F.F.P. Operating Partners, L.P. v. Duenez , 237 S.W.3d 680 , 684 ( Tex. 2007) ( “If a plaintiff meets the onerous burden of proof

12 In El Chico , the Texas Supreme Court created a common - law duty owed by alcoholic beverage licensees to injured third parties. Id. at 314

. However, during the same week that El Chico was decided, the Legislature superseded the newly recognized common

- law duty by amending the Alcoholic Be verage Code to create the Dram Shop Act. Smith , 940 S.W.2d at 605.– 14

–

imposed by the Dram Shop Act, then the provider is liable for damages proximately caused by its employees or patrons.” (citation and internal quotation marks omitted))

. However, the question of whether a licensee’s employees can themselves be liable as “provider s ” was not at issue in those cases because the subject employees were not named as individual defendants

. See 20801 , 249 S.W.3d at 395 (identifying 20801, Inc., the operator of “Slick Willie’s Family Pool Hall , ” as the defendant sued ) ; F.F.P , 237 S.W.3d at 682

– 83 (noting that assistant manager, though initially sued, was subsequently nonsuited ). Appellants also cite Leitch v. Hornsby , a non - Dram Shop Act case that held , “unless alter ego is established, corporate officers and agents are subject to personal liabili ty for their actions within the employment context only when they breach an independent duty of care.” 935 S.W.2d 114 , 117 ( Tex. 1996)

. Appellants contend that the Dram Shop Act did not impose an independent duty of care on the Employee Defendants, but rat her, the statute imposed such a duty only on the licensee who employed them

. Appellees respond that the term “person , ” as used in the statutory definition of a ‘provider,”
T EX
. A LCO
. B EV
. C ODE A NN
. § 2.01 (1), means “ a natural person or association of natural persons, trustee, receiver, partnership, corporation, organization, or the manager, agent, servant, or employee of any of them .” Id. § 1.04(6) (emphasis added) ; see also id. at §1.04(11) (defining “permittee” as inc luding “an agent, servant, or employee of” a “person who is the holder of a permit provided for in this code”); id. § 1.04(16 ) (defining “licensee” as including “any agent, servant, or employee of

” a “person who is the holder of a license provided in this code”)

. 13 In appellees ’ view, each of the Employee Defendants met the statutory definition of a “person,” and therefore each such defendant qualified as a “provid er . ” Appellees also cite Grand Aerie Fraternal Order of Eagles v. Haygood , in which the Eastlan d Court of Appeals stated in dicta that “ the server

13 Though section 1.04 is not contained in Chapter 2 of the Alcoholic Beverage Code, its definitions apply to Chapter 2. See T EX
. A LCO
. B EV
. C ODE A NN
. § 1.04 (sta ting that definitions apply “in this code”).– 15

–

or bartender may be liable” under the Dram Shop Act, though such liability “is not imputed to an employer who requires its servers to attend an approved alcohol

- service class if the server actually attend ed the class, unless the employer encouraged service of intoxicated persons.” 14 402 S.W.3d
766 , 776 ( Tex. App.

— Eastland 2013 , no pet. ) (citing T EX
. A LCO B EV
. C ODE A NN
. §§ 2.01(1), 2.202(b), 106.140(a)). Moreover, they rely on Mata v. Schoch , in which a federal district court noted that “courts have placed special emphasis on the elements of serving and selling alcohol” when “construing the definition of provider under the Texas Dram Shop Act.” 337 B.R. 135 , 137 ( S.D. Tex. 2005) . In that case, the court g ranted a summary judgment in favor of the defendant
manager based on h is uncontroverted affidavit which showed that he “never personally sold or served alcohol” to the subject driver

. Id. at 138

. In the absence of controlling case authority that addresses the issue before us , we will interpret the relevant statutory provisions according to well

- settled principles of statutory construction. “To discern [legislative] intent, we begin with the statute’s words.” TGS

– NOPEC Geophysical Co. v. Combs , 340 S.W.3d 43 2, 439 (Tex. 2011) ; see also T EX
. G OV ’ T C ODE A NN
. § 311.011(a) (“ Words and phrases shall be read in context and construed according to the rules of grammar and common usage .”)

. If a statute’s language i s unambiguous, we interpret this language according to its plain meaning. ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895 , 899 ( Tex. 2017) (per curiam) . In so doing, “we presume the Legislature included each word in the statute for a purpose and that words not included were purposeful ly omitted.” Id. (citation and internal quotation marks omitted). As described previously, section 1.04(6) of the Alcoholic Beverage Code defines “person” as including “ the manager, agent , servant , or employee” of “a natural person or association of

14 Although the bartender was among the defendants sued in Haygood , the issue before the court was whether the trial court erred in denying a special appearance filed by one of the other defendants. Id. at 771

– 72

.– 16

–

natura l persons.” T his definition applies throughout the Code. Thus, section 2.01 (1) ’s definition of a “provider” as a “person who sells or serves an alcoholic beverage under authority of a license,” when considered in the context of section 1.04(6), includes a “ manager, agent , servant, or employee” of a licensee . Moreover, section 2.02(b)’s creation of a statutory cause of action against “provider [s] ” necessarily includes “person[s]” as set forth in section 2.01(1), which, in turn, includes “ manager[s], agent[s] , servant[s], or employee[s]” as set forth in section 1.04(6 ) . Read together, the foregoing provisions create a statutory cause of action against employees of a licensee

w ho sell or serve an alcoholic b everage under the authority of their employer’s license , assuming the other e lements of the statute are met

. W e must also “read the statute as a whole and interpret it to give effect to every part.”
20801 , 249 S.W.3d at 396 (citation and internal quotation marks omitted). Related to this point , appella nts contend that the Alcoholic Beverage Code’s safe harbor provision, see T EX
. A LCO
. B EV
. C ODE A NN
. § 160.14, could never apply to individual employees because they “are not and canno t be the employer/ licensee.” They urge that the inclusion of individual e mployees as “providers” would allow an employer to escape liability while an employee would not, which in appellants’ view would circumvent the purpose of the statute. Cf. Graff , 858 S.W.2d at 919 (in rejecting appellant’s request to recognize common

- law s ocial host liability, finding it significant that the Legislature considered and decline d to provide for such liability in the Dram Shop Act) ; see also Smith v. Sewell , 858 S.W.2d 350, 3 54 (Tex. 1993) (noting that a statute which “creates a liability unkno wn to the common law . . . will be strictly construed in the sense that it will not be extended beyond its plain meaning or applied to cases not clearly within its purview ” ). We disagree that the unavailability of a statutory safe harbor for employees nece ssarily means that they cannot be considered “providers” under the statute. Whatever the practical e ffect of the foregoing provisions , “we must take statutes as we find them.” Tex. Lottery Comm’ n v. First State Bank of DeQueen ,– 17

–

325 S.W.3d 628, 637 (Tex. 2010). We “are not empowered to . . . disregard[ ] direct and clear statutory language that does not create an absurdity.” Id. at 638

. On the topic of “absurdity,” appellants note that the Dram S h op Act creates a cause of action against “providers . . . for the actions of their employees, customers, members or guests who are or become intoxicated,” T EX
. A LCO
. B EV
. C ODE A NN
. § 2.03(a), and they urge that such “employees, customers, members, or guests” belong only to the employer, i.e., the licensee . Th ey also argue that an employee is not subject to a revocation hearing, id. §§ 2.02(b), 6.01(b), because the e mployee is not a licensee . In appellants’ view, appellees ’ interpretation of the Act is contrary to the foregoing principles and would therefore le ad to an absurd result

. See Combs v. Health Care Servs. Corp. , 401 S.W.3d 623 , 629 ( Tex. 2013) (“If a statute is worded clearly, we must honor its plain language, unless that interpretation would lead to absurd results.”). Nevertheless, “the bar for rework ing the words our Legislature passed into law is high, and should be.” Id. at 630. In other words , “[t] he absurdity safety valve is reserved for truly exceptional cases, and mere oddity does not equal absurdity.” Id. In our view, the inclusion of a licensee’s employees within the statutory definition of a “ provider” does not rise to the level of creating an absurdity

. Accordingly, we conclude that section 2.02(b) , when read together with sections 2.01(1) and 1.04(6) , creates a statutory cause of acti on against employees of a licensee who sell or serve an alcoholic beverage under the circumstan ces set forth in the statute

. The second amended petition pleads such a cause of action a gainst the Employee Defendants, and in particular, against Carrigan

. Thu s, the Dram Shop Claim against the Employee Defendants was “pleaded properly

. ” See T EX
. R. C IV
. P. 87(2)(b ). For these reasons, w e overrule appellants’ second issue. We need not consider their third issue, which contends that each plaintiff failed to estab lish the statutory requirements for joining a– 18

–

pending suit for which such plaintiff could not independently establish proper venue. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.003(a)(1)

– (4). III. CONCLUSION We affirm the district court’s order denying appellants’ motions to transfer venue.

190061F.P05 /Bill Pedersen, III/ BILL PEDERSEN , III JUSTICE

## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
YAKELYN RUBIO GALINDO, TRAVIS YOUNG, SAUL PEREA, RICHARD ACEBO, EMILY FORD, DAVID HASHEMI SEDDIGHZADEH, ANGELA BENTON, ALYSSA MOEBUS, PAPPAS RESTAURANTS, INC., PHCG INVESTMENTS, AND CHARLES BRAY, Appellants
No. 05

- 19

- 00061

- CV V. NORMAN GARNER, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE ESTATE OF AMY GARNER, DECEASED, AND AS NEXT FRIEND OF SOPHIA GARNER, FELICIA GARNER, ZACHARY GARNER, AND HANNAH GARNER, MINORS, AND CLARA GARNER, Appellees On Appeal from the 116th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC

- 18

- 03385. Opinion delivered by Justice Pedersen, III. Justices Whitehill and Partida

- Kipness participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellees NORMAN GARNER, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE ESTATE OF AMY GARNER, DECEASED, AND AS NEXT FRIEND OF SOPHIA GARNER, FELICIA GARNER, ZACHARY GARNER, AND HANNAH GARNER, MINORS, AND CLARA GARNER recover their costs of this appeal fr om appellants YAKELYN RUBIO GALINDO, TRAVIS YOUNG, SAUL PEREA, RICHARD ACEBO, EMILY FORD, DAVID HASHEMI SEDDIGHZADEH, ANGELA BENTON, ALYSSA MOEBUS, PAPPAS RESTAURANTS, INC., PHCG INVESTMENTS, AND CHARLES BRAY.
Judgment entered this 14th day of May 2019.