OPINION Juan Manuel Solis died from injuries he sustained in a fall while working at Appellee The Purple Goat, LLC’s restaurant/bar. Following Solis’s death, Appellants Vanessa Bolanos, Mayra Bolanos, and Sheila Walton (collectively, Bolanos) sued The Purple Goat under several causes- of-action (negligence, wrongful death, negligence per se, and negligent hiring, supervision, and retention). Most of the factual allegations underpinning those claims related to The Purple Goat overserving alcohol to Solis and one of its customers. But some allegations pertain to a claimed failure to provide adequate security. The trial court granted The Purple Goat’s special exceptions and dismissed the Bolanos’ common law negligence claims based on the exclusive remedy provisions in the Texas Dram Shop Act. The trial court subsequently granted a no-evidence motion for summary judgment disposing of the Dram Shop Act claim. We affirm those rulings.[1] Factual and Procedural Background The Purple Goat is a restaurant and bar. Based on Bolanos’ live petition, Francisco Soto came to the establishment to drink and collect a gambling debt from Juan Manuel Solis, an employee at The Purple Goat. While seated at the bar, Soto asked a bartender to summon Solis who was on duty at the time. Solis met Soto at the bar the two began to talk and drink. The petition alleges that The Purple Goat’s management and owners allowed the bartender to overserve alcohol to Solis, causing him to become severely intoxicated. Soto, who was also intoxicated, argued with Solis and struck him in the face, causing Solis to fall and hit his head on the ground. Solis was transported to the hospital but succumbed to his injuries after a three-week stay in an ICU and subsequent hospice admission. He died on August 26, 2017. Bolanos sued: (1) The Purple Goat, LLC; (2) Cynthia Stephens and V.W. Stephens, who own The Purple Goat; and (3) Francisco Soto. This appeal involves only The Purple Goat, and as to that entity, Bolanos brought claims for negligence, wrongful death, negligence per se, along with negligent hiring, supervision, and retention.[2] The factual allegations underpinning those claims include that The Purple Goat (1) overserved alcohol to Soto and Solis, and (2) failed to provide adequate security. In response, The Purple Goat filed special exceptions and a motion to dismiss the common law negligence claims, arguing that because Bolanos asserted claims for overserving of alcoholic beverages, the exclusive available remedy was under the Texas Dram Shop Act.[3] The trial court granted the special exceptions and dismissed Bolanos’ common law negligence claims against The Purple Goat with prejudice. Bolanos moved to reconsider that ruling and requested a permissive appeal, both of which were denied.[4] The Purple Goat subsequently filed a no-evidence motion for summary judgment on the remaining wrongful-death claim under the Dram Shop Act. It argued that there was no evidence to establish the predicate for liability under the Act, namely that it was apparent to The Purple Goat that Soto or Solis was overserved with an alcoholic beverage to the point that either presented a clear danger to himself or others.[5] It also asserted that there was “no evidence that The Purple Goat served [Solis], an employee of [The Purple Goat] on duty at the time of the incident, any alcoholic beverages prior the alleged incident.” Finally, The Purple Goat argued that there was no evidence that Solis’ or Soto’s intoxication was a proximate cause of the damages suffered. Bolanos’ response to no-evidence summary judgment motion attached four unsigned, unsworn statements from persons who were purportedly present when Solis sustained his injuries. The response also contains a notary acknowledgment executed by Vanessa Bolanos.[6] The Purple Goat filed objections and a motion to strike the “verified” response and the witness statements. It urged that the unsworn witness statements did not constitute competent summary judgment evidence, and a party cannot generically verify a response to a motion to summary judgment, so as to render the text of the response substantive evidence. Following a hearing, the trial court sustained The Purple Goats’ objections and motion to strike the verified response and witness statements. The trial court also granted The Purple Goat’s summary judgment motion by written order. This appeal follows. Issues on Appeal In three issues, Bolanos challenges the trial court’s orders sustaining The Purple Goat’s special exceptions and granting its summary judgment motion, arguing that: (1) the Dram Shop Act was not intended to preclude employees from bringing common law claims against employers who sell alcohol; (2) employees of alcohol providers are allowed to sue employers who negligently provide alcohol despite the Dram Shop Act; and (3) the trial court erred by granting the summary judgment on Bolanos’ wrongful-death claim. For the reasons below, we address the Dram Shop issues together and construe them as a challenge to the trial court’s grant of The Purple Goat’sspecial exceptions. Order Granting Special Exception Briefing Waiver Before addressing the merits of Bolanos’ issues pertaining to exclusive remedy provisions under the Dram Shop Act, we first consider whether these claims are properly presented for our review. The Purple Goat argues that Bolanos waived any complaint about the trial court’s grant of the special exceptions because her brief does not contain appropriate citations to the appellate record. Bolanos did not respond to this contention in a reply brief or other appellate filing. TEX.R.APP.P. 38.1(i) requires an appellant’s brief to contain “a clear and concise argument for the contentions made, with appropriate citations to the record.” Failure to comply with rule 38.1(i) may result in waiver of an appellate claim, yet we must construe the Texas Rules of Appellate Procedure “reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to enforce the rules.” Federal Corporation, Inc. v. Truhlar, 632 S.W.3d 697, 725 (Tex.App.–El Paso 2021, pet. denied), citing TEX.R.APP.P. 38.9, and Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004). Bolanos’ brief contains some citations to the record, and some citations to an appendix attached to the brief. As such, the brief does not fully comply with rule 38.1(i)’s requirement of citations to the appellate record, and it risks rejection on this basis alone. See id. Nevertheless, because we have no difficulty identifying the few pleadings and orders that control this appeal, and in the interest of justice, we will consider the claims on their merits. See Lakeside Village Homeowners Ass’n, Inc. v. Belanger, 545 S.W.3d 15, 44 (Tex.App.–El Paso 2017, pet. denied) (addressing an appellate claim in the interest of justice despite the party’s inadequate brief that lacked appropriate record citations). The Purple Goat further argues that Bolanos’ claims are waived because the brief fails to specifically challenge the court’s special exceptions order, and improperly cites only to the summary judgment standard of review. Our review of Bolanos’ brief shows that although it erroneously challenges the trial court’s grant of summary judgment on the negligence claims, it also raises an argument challenging the court’s order sustaining The Purple Goat’s special exceptions.[7] Again, although failure to comply with rule 38.1(i) may result in waiver of an appellate claim, we construe briefs reasonably, yet liberally, and to “reach the merits of an appeal whenever reasonably possible.” Conroy v. Wilkerson, 626 S.W.3d 24, 30 (Tex.App.–El Paso 2021, no pet.), quoting Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam). Thus, we construe Issues One and Two as a challenge to the trial court’s order sustaining The Purple Goat’s special exceptions. And because we can fairly ascertain the nature of Bolanos’ claim, we will address its merits in the interest of justice. See Conroy, 626 S.W.3d at 30; Belanger, 545 S.W.3d at 44. Standard of Review and Applicable Law Special exceptions may be used to challenge the sufficiency of an opponent’s pleadings. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). Along with challenges based on pleadings that are factually deficient or unclear, special exceptions may also be levelled at pleadings that fail to assert a legally viable cause of action. Baylor University v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). The Purple Goat’s special exception asserted such a legal challenge by contending the Texas Dram Shop Act precludes all but a statutory claim under the pleaded facts here. When reviewing a trial court’s dismissal of a cause of action following the sustaining of special exceptions, we review both the propriety of the trial court’s decision to sustain the special exceptions and the order of dismissal. Perry v. Cohen, 285 S.W.3d 137, 142 (Tex.App.–Austin 2009, pet. denied), citing Cole v. Hall, 864 S.W.2d 563, 566 (Tex.App.–Dallas 1993, writ dism’d w.o.j.) (en banc).[8] In general, a trial court has the discretion to grant special exceptions when it finds a plaintiff’s pleadings defective, and similarly has the discretion to dismiss a case when a plaintiff refuses or fails to cure the defects. Perry, 285 S.W.3d at 142; see also Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286, 290-91 (Tex.App.–Houston [1st Dist.] 1992, no writ) (after trial court granted special exceptions and the appellant refused to amend his pleadings, the trial court did not abuse its discretion in dismissing the action). A trial court abuses its discretion by acting without reference to any guiding rules or principles, that is, it acted arbitrarily or unreasonably. See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). A trial court’s legal conclusion about whether the petition adequately states a cause of action is subject to de novo review. Perry, 285 S.W.3d at 142. The Dram Shop Act imposes liability on providers of alcohol for the actions of intoxicated individuals if: (1) at the time of serving the alcohol, it was apparent to the provider that the individual was obviously intoxicated to the point that he or she presented a clear danger to themselves and others; and (2) the intoxication of the recipient was a proximate cause of the damages suffered. TEX.ALCO.BEV.CODE ANN. § 2.02(b). Under section 2.03(a), “[t]he liability of providers under this chapter for the actions of their employees, customers, members, or guests who are or become intoxicated is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages.” TEX.ALCO.BEV.CODE ANN. § 2.03(a). Section 2.03(a) was amended in 2003 to add “employees” to the list of individuals whose sole remedy against alcoholic-beverage providers is under the Dram Shop Act. See Acts 2003, 78th Leg., ch. 456, § 1, eff. Sept. 1, 2003 (codified at TEX.ALCO.BEV.CODE ANN. § 2.03(a)). And section 2.03(c) further provides that “[t]his chapter provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.” The Supreme Court has recognized that “the Dram Shop Act codifies the exclusive action against an alcohol provider for injuries or damages resulting from the intoxication of a patron[.]” F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 691 (Tex. 2007). Section 2.03 “expressly precludes a negligence or negligence per se cause of action when the purchaser is at least eighteen years of age.” Southland Corp. v. Lewis, 940 S.W.2d 83, 84 (Tex. 1997). At least one of our sister courts has also recognized that “Texas law is unequivocal that the Dram Shop Act is the exclusive means of pursuing liability against a provider.” See Last v. Quail Valley Country Club, L.P., No. 01-08-00759-CV, 2010 WL 1253782, at *5 (Tex.App.–Houston [1st Dist.] Mar. 25, 2010, pet. denied) (mem. op.), citing Parker v. 20801, Inc., 194 S.W.3d 556, 561 (Tex.App.–Houston [14th Dist.] 2006), rev’d on other grounds, 249 S.W.3d 392 (Tex. 2008). Analysis In the live petition, Bolanos sued The Purple Goat for: (1) negligence, arguing that the restaurant breached its duty to Solis by failing to properly train its bartenders in the amount of alcohol it served to its customers, and by failing to provide adequate security to protect its customers; (2) negligence per se, alleging that The Purple Goat allowed public intoxication on its premises; (3) negligent hiring, supervision, and retention, contending that The Purple Goat failed to prevent its servers from overserving customers, did not provide proper security, and allowed employees to consume alcohol on the premises; and (4) wrongful death, averring that The Purple Goat overserved Solis with alcohol, which resulted in his death. The Purple Goat’s special exceptions urged that the negligence causes of action should be dismissed with prejudice under section 2.03 for failing to state viable causes of action because those claims were “preempted by the exclusive remedy provision of the Dram Shop Act.” Bolanos argues, however, that The Purple Goat owed Solis “a duty of reasonable care and is liable for physical harm caused to him while under their control.” Bolanos argues that the Dram Shop Act does not preclude employees from bringing common law causes of action against employers who provide alcohol. In this regard, Bolanos relies on Otis Eng’g Corp. v. Clark, 668 S.W.2d 307 (Tex. 1983), and D. Houston, Inc. v. Love, 92 S.W.3d 450 (Tex. 2002). In Otis, an employee with a previously known history of drinking on the job, became visibly intoxicated while on his dinner break at his workplace. 668 S.W.2d at 308 In response, his supervisor walked him to his car in the company parking lot and sent him home. Id. The supervisor asked the employee before he left if he was able to drive home, and the employee responded that he could. Id. The employee drove away, and about thirty minutes later contributed to causing a motor-vehicle accident that killed two women. Id. Their families sued Otis for common law wrongful death; the trial court granted Otis’s motion for summary judgment because as a matter of law the company owed no duty to the deceased women. Id. at 309. The Texas Supreme Court, however, reversed, reasoning that “when, because of an employee’s incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others.” Id. at 311. Based on this holding, the court found that the plaintiffs raised a genuine issue of material fact as to whether Otis acted as a reasonable and prudent employer in sending the employee home in an obviously intoxicated state. Id. This Court recognized that the “linchpin of the duty of care recognized in Otis Engineering is an affirmative act of control following, and prompted by, the employee’s incapacity.” Hall v. Domino’s Pizza, Inc., 410 S.W.3d 925, 928 (Tex. App.–El Paso 2013, pet. denied). Bolanos also relies on D. Houston, Inc. v. Love. There, an exotic dancer was working in a night club as an independent contractor. 92 S.W.3d at 451. She consumed “at least twelve alcoholic beverages” with customers and became heavily intoxicated. Id. The woman left the night club after her shift ended and suffered serious injuries when she crashed her car on the way home. Id. The woman sued the night club under the Dram Shop Act and a common law negligence theory. The trial court granted the night club’s motion for summary judgment on the woman’s common law claims because the Dram Shop Act is the exclusive cause of action for providing an alcoholic beverage to a person eighteen years old or older. Id. at 452-53. The Texas Supreme Court, however, held that the Dram Shop Act did not preclude the common law claims because the woman did not sue the night club as a “provider” under the Act, but she rather sued the night club for failing to use reasonable care in exercising its retained control over her work as an independent contractor. Id. at 454. Some evidence in the case showed that the night club encouraged its waitress employees to have customers buy the dancers drinks to run up the tab. Id. at 454. And in deposition, the plaintiff-dancer testified that she was directly pressured to drink alcohol with the customers. Id. at 455-56 (“When asked in her deposition to admit that she freely chose to order alcoholic rather than non-alcoholic beverages, she replied, ‘I wanted to keep my job.’”). The court further held that if an employer requires its independent contractor while working to consume alcohol in sufficient amounts to become intoxicated, the employer owes the employee a duty to take reasonable care to prevent her from driving when she leaves work. Id. at 457. We conclude that neither limited exception to the Dram Shop Act as explained in Otis or Love applies here. See Nabors Drilling, U.S.A. v. Escoto, 288 S.W.3d 401, 403, 405, 408-09 (Tex. 2009) (recognizing that the Otis and Love exceptions and the duty recognized in Love are “limited” in scope). The Otis exception applies when an employer knowingly assumes control over an intoxicated employee, which results in injury to a third party. See Otis, 668 S.W.2d at 311. And several courts have refused to apply Otis when the plaintiff failed to show the employer exercised control over an intoxicated employee or required the employee to consume alcohol. See Clark v. EOG Res., Inc., No. 01-12-00262-CV, 2014 WL 50798, at *6 (Tex.App.–Houston [1st Dist.] Jan. 7, 2014, pet. denied) (mem. op.); see also Edwards v. Silva, 32 S.W.3d 713, 715- 16 (Tex.App.–San Antonio 2000, pet. denied) (holding that a duty under Otis only exists when the “employer performs some affirmative act of control over an incapacitated employee.”); Catlin v. Gen. Motors Corp., 936 S.W.2d 447, 451 (Tex.App.–Houston [14th Dist.] 1996, no writ) (“In order for a duty to third persons to arise, an employer must perform some affirmative act of control over an ‘incapacitated employee.’”). Bolanos does not allege that The Purple Goat or one of its employees assumed control over Solis while he was intoxicated. Rather, Bolanos alleges that The Purple Goat served alcohol to Solis while he was working, and a third party caused Solis’ death by striking him and causing his head to strike the ground. For this reason, we find Otis to be inapplicable. For the same reason, we also find that the exception in Love does not apply here. The Love exception applies when an employer requires the employee to consume alcohol as a condition of their employment. See Love, 92 S.W.3d at 457. Because Bolanos did not allege that The Purple Goat required Solis to consume alcohol while he was working, but merely allowed him to do so, the Love exception is also inapplicable. Love may not apply here for another reason. When Love was decided, the exclusive remedy provision in section 2.03 applied to the liability of providers “for the actions of their customers, members, or guests who are or become intoxicated[.]” Id. at 453. The legislature amended section 2.03(a) in 2003—after Love was decided—and specifically added “employees” to the group of persons subject to the exclusive remedy provision. It was undisputed that Solis was employed as a dishwasher at The Purple Goat when he sustained his injuries. Thus, under the applicable version of the Dram Shop Act, the sole remedy lies under the Act, at least for a claim directly tied to serving alcohol. See TEX.ALCO.BEV.CODE ANN. § 2.03(a), (c). We do not suggest that the only duties owed by The Purple Goat to its employees arise exclusively under the Dram Shop Act. By example, if Soto had been injured in the course and scope of his employment as a dishwasher, his remedy would be under the Texas Worker’s Compensation Act (or the common law if his employer was a non-subscriber). But the opening line from the argument section of Bolanos’ appellate brief concedes “Appellants’ tort claims arose out of [The Purple Goat's] overserving alcohol to an employee at [its] restaurant establishment.” Appellants’ Brief at p. 13. And that pegs this claim as one governed by the Dram Shop Act. See TEX.ALCO.BEV.CODE ANN. § 2.02 (“providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action under this chapter[.]); Id. § 2.03 (a) (“The liability of providers under this chapter for the actions of their employees, customers, members, or guests who are or become intoxicated is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages); Id. § 2.03 (c) (“This chapter provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.”). In sum, because: (1) neither the Otis or Love exceptions apply to these facts; and (2) section 2.03(a) now includes employees within the list of individuals whose sole remedy against providers of alcoholic beverages is under the Dram Shop Act, we conclude that the trial court did not abuse its discretion by sustaining The Purple Goat’s special exceptions and dismissing Bolanos’ common law negligence claims. Bolanos’ Issues One and Two are overruled. Summary Judgment Standard of Review and Applicable Law A no-evidence motion for summary judgment is like a pre-trial motion for directed verdict. See Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021), citing TEX.R.CIV.P. 166a(i). The motion must state the elements as to which the movant believes there is no evidence. TEX.R.CIV.P. 166a(i). “A properly filed no-evidence motion shifts the burden to the nonmovant to present evidence raising a genuine issue of material fact supporting each element contested in the motion.” JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021). “[A] no- evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions,” while less than a scintilla exists “when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact.” Id. (internal quotation marks omitted). In reviewing a trial court’s ruling on a no-evidence motion for summary judgment, we examine the evidence in the light most favorable to the non-movant, indulge every reasonable inference in favor of the non-movant, and resolve any doubts against the motion. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We review a trial court’s order granting summary judgment de novo. Cmty. Health Sys. Prof’l Services Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). We review evidentiary rulings made in connection with a summary judgment motion under the abuse of discretion standard. See Starwood Mgmt. LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (per curiam). And our review of that discretion turns on whether the trial court acted “without reference to any guiding rules and principles.” Id., quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Analysis In its no-evidence motion for summary judgment, The Purple Goat argued that Bolanos has not presented a scintilla of evidence to support either element of a wrongful-death claim under the Dram Shop Act. In response, Bolanos filed a verified response, attaching several unsigned statements that The Purple Goat had produced through discovery. Bolanos presented no other evidence in response to The Purple Goat’s summary judgment motion. The Purple Goat objected to the verified response and the statements. The trial court granted The Purple Goat’s motion to strike the verified response and the statements. On appeal, Bolanos contends that the trial court erred by granting the summary judgment motion, contending that one of the statements which The Purple Goat produced during discovery, contains an admission that Soto had bought Solis a beer. But in reviewing whether a summary judgment was properly granted, we may not consider struck portions of the record because that evidence is not a part of the summary judgment record. McCollum v. The Bank of New York Mellon Tr. Co., 481 S.W.3d 352, 362 (Tex.App.–El Paso 2015, no pet.). And on appeal, Bolanos does not specifically challenge the trial court’s ruling excluding the evidence. It was Bolanos’ burden to challenge on appeal each basis for the trial court’s exclusion of evidence. See, e.g., Trahan v. Lone Star Title Co. of El Paso, Inc., 247 S.W.3d 269, 284 (Tex.App.–El Paso 2007, pet. denied). Otherwise, Bolanos has waived any error in excluding the evidence.[9] Because Bolanos fails to address the evidentiary challenges to the excluded evidence, she is effectively left with nothing in the record to respond to the no-evidence motion for summary judgment. Given that record, we are compelled to affirm the order granting of the Rule 166a(i) motion. See TEX.R. CIV. P. 166a(i); McCollum, 481 S.W.3d at 362 (“Because the only evidence McCollum produced in response to Mellon’s no-evidence motion for summary judgment was stricken by the trial court, there was no summary judgment evidence for the trial court to consider, and likewise no summary judgment evidence for us to consider in our appellate review.”); Blackard v. Fairview Farms Land Co., Ltd., 346 S.W.3d 861, 869 (Tex.App.–Dallas 2011, no pet.) (“Once the trial court struck all of Blackard’s summary judgment evidence, she was left with no summary judgment evidence with which to raise a genuine issue of material fact[.]“).[10]We therefore conclude that the trial court did not err by granting The Purple Goat’s no-evidence summary judgment motion. Bolanos’ third issue is overruled. Conclusion We affirm the trial court’s orders granting The Purple Goat’s special exceptions and motion for no-evidence summary judgment. JEFF ALLEY, Justice May 31, 2022 Before Rodriguez, C.J., Palafox, and Alley, JJ.
