Opinion
No. 14-03-00478-CV
Opinion filed September 21, 2004.
On Appeal from the 212th District Court Galveston County, Texas, Trial Court Cause No. 00CV0308.
Affirmed.
Panel consists of Chief Justice HEDGES, Justices FROST and GUZMAN.
OPINION
In this case we examine whether appellants' circumstantial evidence regarding their dram shop claims is sufficient to defeat appellees' summary judgment motions. Having found the evidence is no more than a scintilla, we affirm the trial court's summary judgment in favor of appellees.
FACTUAL AND PROCEDURAL BACKGROUND
Tragically, in the early morning hours of May 17, 1998, as Mario Alaniz and his wife, Ludivina, crossed Seawall Boulevard, they were struck and killed by a vehicle driven by Ronald Kurtz. The evidence shows Kurtz began drinking at J.W.'s 8 Mile Road Bait Camp ("J.W.'s") during the afternoon hours of May 16. While at J.W.'s, Kurtz drank between four and six beers. At about 9:30 that evening, Kurtz and several of his friends left J.W.'s and went to the Oasis, a bar owned by appellee Rebello Food and Beverage Services, L.L.C., d/b/a The Oasis ("Oasis"). While there, Kurtz had two mixed drinks. He left the Oasis at approximately 11:30 p.m. Kurtz testified that as he turned onto Seawall Boulevard, he blacked out and has no recollection of what occurred thereafter, including the accident which occurred at approximately 12:40 a.m. on May 17.
The record reflects that Kurtz was tried and convicted in a criminal proceeding in connection with the deaths of Mario and Ludivina Alaniz.
Appellants, children of Mr. And Mrs. Alaniz, their aunt, and grandmother, filed suit against Kurtz and appellees, Oasis, SRK Management, Inc., d/b/a Howard Johnson Suites ("SRK"), and Kirit Patel, alleging various causes of action, including suit under the Dram Shop Act. Appellants claimed appellees served alcoholic drinks to Kurtz when it was apparent he was obviously intoxicated.
Appellants later non-suited their claims against Kurtz.
Appellants also filed suit against Howard Johnson International, Inc. The trial court granted summary judgment in favor of Howard Johnson International and appellants do not challenge that judgment on appeal.
Appellees filed a traditional and no-evidence motion for summary judgment arguing (1) their evidence established it was not apparent to anyone at the Oasis that Kurtz was obviously intoxicated; and (2) there was no evidence Kurtz was obviously intoxicated and no evidence of proximate causation. They also filed a motion to exclude the testimony of appellants' expert witness, James C. Garriott. Appellants filed a partial motion for summary judgment, claiming that appellees' attempt to join Kurtz as a responsible third party, and thereby apportion liability, was in contravention of the Dram Shop Act. After a hearing on the motions, the trial court granted appellees' motion and denied appellants' motion. This appeal ensued.
See TEX. ALCO. BEV. CODE ANN. § 2.01-.03 (Vernon 1995).
ISSUES PRESENTED
In seven issues, the appellants challenge the trial court's grant of summary judgment in favor of appellees on the following grounds: (1) appellees' no-evidence summary judgment motion failed to meet the specificity requirements of Rule 166a(i); (2) appellants raised more than a scintilla of evidence as to the elements of their Dram Shop cause of action; (3) material issues of fact existed as to the apparent intoxication of Ronald Kurtz and proximate causation; (4) appellees' summary judgment evidence was insufficient; (5) the testimony of appellants' expert witness should not have been stricken; (6) appellants' summary judgment motion on the issue of the intoxicated driver's comparative responsibility should have been granted; and (7) the trial court erred in requiring appellants to produce a blood alcohol level as evidence of obvious intoxication. We address appellants' issues in the order in which they are raised.
DISCUSSION
A. Did appellants' no-evidence summary judgment motion meet the requirements of Rule 166a(i)?
In their first issue, appellants argue that appellees' no-evidence summary judgment motion failed to meet the specificity requirements of Rule 166a(i). See Tex. R. Civ. P. 166a(i). Appellants contend appellees' motion merely recites the Dram Shop Act and makes a general statement as to a lack of evidence. Appellants argue that because of the lack of specificity, they did not have sufficient notice as to which elements appellees were challenging. After examining the Dram Shop Act and appellees' no-evidence motion, we conclude it was sufficiently specific under Rule 166a(i).
This court has previously held that the sufficiency of a motion under Rule 166a(i) may be challenged for the first time on appeal. Cuyler v. Minns, 60 S.W.3d 209, 213 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).
Rule 166a(i) provides in part that a no-evidence summary judgment motion must "state the elements as to which there is no evidence." Id. Essentially, this requirement prohibits conclusory no-evidence motions or general no-evidence challenges to an opponent's case. See TEX. R. CIV. P. 166a(i) cmt; Cuyler v. Minns, 60 S.W.3d 209, 212 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).
Under the Dram Shop Act, a plaintiff must prove that at the time alcohol was provided, sold, or served, it was apparent to the provider that the person consuming the alcohol was obviously intoxicated to the extent that he presented a danger to himself and others. See Tex. Alco. Bev. Code Ann. § 2.02(b)(1); Borneman v. Steak Ale of Tex., Inc., 22 S.W.3d 411, 412 (Tex. 2000). The plaintiff must also prove that the intoxication of the person consuming the alcohol was a proximate cause of the damages suffered. TEX. ALCO. BEV. CODE ANN. § 2.02(b)(2); Borneman, 22 S.W.3d at 412.
In their summary judgment motion, appellees first provide a factual recitation of the case and conclude that section with a summation of their no-evidence and traditional summary judgment grounds. After setting forth their argument on the traditional summary judgment motion, appellees then state their no-evidence motion arguments, in part, as follows:
a. One element of a dram-shop case is that at the time the provision of alcohol occurred, it was apparent to the provider that the person being provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others. Here, there is no evidence that while Kurtz was at the Oasis, it was apparent to the employees . . . that Kurtz was obviously intoxicated to the extent that he presented a clear danger to himself and others.
b. The Dram Shop Act also requires that the intoxication of the recipient of the alcoholic beverages have been a proximate cause of the damages suffered. Here, there is no evidence that the intoxication of Kurtz was a proximate cause of the damages suffered.
The foregoing statements specifically set forth the two elements appellants are required to prove under the Dram Shop Act and correspondingly, identify the specific elements on which appellees contend appellants have no evidence. See TEX. ALCO. BEV. CODE ANN. § 2.02(b)(2); Borneman, 22 S.W.3d at 412 (setting out elements a plaintiff must prove under Dram Shop Act). Thus, appellees have satisfied the requirements of Rule 166a(i). See, e.g., Johnson v. Felts, No. 14-03-00112-CV, 2004 WL 414379, at *2-3 (Tex.App.-Houston [14th Dist.] March 2, 2004, no pet. h.) (citing Johnson v. Brewer Pritchard, 73 S.W.3d 193, 207 (Tex. 2002)); Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 436 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Further, the motion sufficiently put appellants on notice of the elements being challenged by appellees. Accordingly, we overrule appellants' first issue.
B. Did material issues of fact preclude the trial court's grant of summary judgment?
In their second and third issues, appellants argue, respectively, that the trial court erred in granting appellees' no-evidence summary judgment motion regarding Kurtz's intoxication, and in granting appellees' traditional summary judgment motion on the issue of intoxication because material fact issues exist as to Kurtz's "apparent intoxication" and causation. We discuss these issues jointly because they involve the same evidence.
1. Standard of Review
A traditional summary judgment is proper only when the movant establishes there is no genuine issue of material fact and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Corporate Leasing Int'l, Inc. v. Groves, 925 S.W.2d 734, 736 (Tex.App.-Fort Worth 1996, writ denied). A trial court properly grants summary judgment in favor of a defendant if that party conclusively establishes all elements of an affirmative defense, or conclusively negates at least one element of the plaintiff's claim. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
A party may also move for summary judgment on the basis that there is no evidence of an essential element of the nonmovant's cause of action. TEX. R. CIV. P. 166a(i). As established, the motion must state the elements for which there is no evidence. Id. To defeat a no-evidence summary judgment motion, a party need only present more than a scintilla of probative evidence raising a genuine issue of material fact on the challenged elements. See TEX. R. CIV. P. 166a(i) cmt.; Lampasas, 988 S.W.2d at 432. We sustain the judgment if (1) there is a complete absence of proof of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Coastal Conduit Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex.App.-Houston [14th Dist.] 2000, no pet.).
When reviewing a summary judgment under either standard, we view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Flameout Design Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
Appellants challenge appellees' summary judgment on both no-evidence and traditional grounds. Because the trial court's judgment does not specify the grounds for its ruling, appellants must defeat each summary judgment ground argued by appellees. State Farm Fire Cas. Co. v. S.S. G.W., 858 S.W.2d 374, 380 (Tex. 1993).
2. Evidentiary Review a. Appellees' summary judgment evidence
As noted, on their Dram Shop Act claims, appellants must prove two elements: (1) that at the time alcohol was provided, sold, or served, it was apparent to the appellees that Kurtz was obviously intoxicated to the extent he presented a danger to himself and others; and (2) Kurtz's intoxication was a proximate cause of the damages suffered. See TEX. ALCO. BEV. CODE ANN. § 2.02(b)(2); Borneman, 22 S.W.3d at 412. Conduct is "apparent" when it is "visible, evident, and easily observed." Perseus, Inc. v. Canody, 995 S.W.2d 202, 206 (Tex.App.-San Antonio 1999, no pet.). A plaintiff seeking to impose liability on a provider under the Dram Shop Act has an onerous burden of proof, approaching a common-law gross negligence standard. F.F.P. Operating Partners, L.P. v. Duenez, 47 Tex. Sup. Ct. J. 1068, 2004 WL 1966008, at *2 (Tex. Sept. 3, 2004).
Prior to the enactment of section 2.02 of the Alcoholic Beverage Code, an alcohol provider's duty to discontinue serving alcohol arose "once, through the observation of a patron's demeanor, conduct or appearance, [the provider] knows or should know the patron is intoxicated." El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987). However, with the enactment of section 2.02, the Legislature created a more onerous burden of proof for a plaintiff. Id. at 315.
Appellees summary judgment evidence included affidavit and deposition testimony of Melody Albonetti, the individual serving drinks to Kurtz while at the Oasis, and also of several individuals accompanying Kurtz to the Oasis. Albonetti stated that Kurtz did not appear intoxicated at the time she served the drinks to him. She also stated that Kurtz was not slurring his words, having trouble communicating, acting loud, boisterous or aggressive, and that he was not overly friendly to other guests or exhibiting other inappropriate behaviors. She testified further that Kurtz was not buying drinks for strangers or acting careless with his money, he was not using foul language or making irrational statements, and he was not stumbling or bumping into things. In sum, Albonetti stated that when she served the drinks to Kurtz, he did not appear obviously intoxicated to the extent he presented a clear danger to himself or others.
Also, Brenda Ragan, a friend of Kurtz's at the Oasis that evening, stated in her affidavit that she had successfully completed a Texas Alcoholic Beverage Commission-approved Alcohol Sellers/Servers Program, that she was with Kurtz at the Oasis and had observed him and interacted with him and he did not appear to be intoxicated. She stated further that Kurtz, "appeared to be sober and in full control of his mental faculties and bodily movements." Like Albonetti's testimony, Ragan also stated that Kurtz was not exhibiting a list of behaviors traditionally construed as evidence of intoxication. Further, Ragan stated that based upon her training and experience, at no time did Kurtz appear obviously intoxicated to an extent that he presented a danger to himself or others.
Ragan's affidavit stated:
Based upon my personal observation of Ronald Kurtz, he did not appear confused, nor did he appear to be suffering from impaired perception, impaired memory or comprehension, increased reaction time, sensory motor incoordination [sic], disorientation, impaired imbalance, drowsiness, general muscular incoordination [sic], or slurred speech. . . . Ronald Kurtz did not have glassy eyes, clumsiness in motion, staggering, an unsteady gait while walking, nor was Ronald Kurtz making inappropriate responses to the conversation of those around him or to those whom [sic] he was speaking.
In his deposition, James W. Carra, the owner of J.W.'s and a friend of Kurtz, stated that based upon his observations of Kurtz while at the Oasis, Kurtz did not appear obviously intoxicated to the extent he presented a danger to himself or others. Bobbi Carra, James's wife, testified similarly. Although she stated she was not really paying any attention to Kurtz, she testified that based on her observations of him, he was not obviously intoxicated while at the Oasis. Appellees also provided a transcript of the testimony of Theresa Yancey from the criminal proceeding against Kurtz. Yancey accompanied Kurtz and the others to the Oasis on May 16. She testified that Kurtz did not appear drunk when he left the bar, stating, "He seemed all right, . . . He didn't seem drunk. He had no slurred words or physical impairment, unable to — weave or anything."
Kurtz's deposition testimony was also attached to appellees' summary judgment motion. Kurtz testified that he suffered from post-traumatic stress disorder ("PTSD") due to his combat service in Vietnam where he served as a Marine. He also stated that at the time of the accident, he was taking three medications for the PTSD, including Trazadone, Zoloft, and Lithium Carbonate. He stated he was not intoxicated on the night of the accident. Kurtz testified that after getting into his truck in the Oasis parking lot, he took one-half of a Trazodone tablet, approximately 100 milligrams. Shortly thereafter, he blacked out.
Kurtz also testified that he suffered from black-outs or "lost time events" in which he could not recall events. He attributed these events to his PTSD and stated that the "events" occurred when he drank alcohol as well as when he was not drinking. However, there was some evidence that PTSD does not cause "lost time events."
b. Appellants' evidence in response to summary judgment motion
In response to appellees' motion, appellants pointed to several pieces of evidence which they claim raise a fact issue as to Kurtz's obvious intoxication. First, appellants rely primarily on a 40-second video tape made of Kurtz at a convenience store where he stopped just after the accident, at approximately 12:38 a.m. in the morning hours of May 17. In addition, Michael Reilly, a customer at the convenience store when Kurtz entered, testified that Kurtz appeared obviously intoxicated at the convenience store. He stated that when Kurtz entered the store he was staggering and when Kurtz spoke, he was loud. Reilly also testified that it appeared Kurtz may have urinated on himself. Although this evidence indicates Kurtz may have been intoxicated at 12:38 a.m. on May 17, we cannot infer based on this evidence that he appeared obviously intoxicated when served at the Oasis. According to the record evidence viewed in the light most favorable to the appellants, Kurtz left the Oasis at approximately 11:45 p.m. on May 16; thus, the accident occurred some 50 to 55 minutes after Kurtz left the Oasis. Given this length of time between when Kurtz left the Oasis and the accident, we cannot infer from Kurtz's appearance on the video tape that he was "obviously intoxicated" while at the Oasis. See, e.g., J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87, 92 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (finding evidence of intoxication at scene of accident occurring fifty-five minutes after leaving the premises of a defendant alcohol provider was no evidence the driver was "obviously intoxicated" while at that defendant's establishment). Moreover, there is no evidence as to when Kurtz may have been served his last drink at the Oasis, nor any evidence as to Kurtz's whereabouts during that 50 to 55 minute time period prior to the accident. Kurtz has no recollection of the events which occurred during that period of time and there is no other evidence in the record to account for that time. Although "obvious intoxication" may be established by circumstantial evidence, the evidence must transcend mere suspicion. See Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001). "Obvious intoxication" must be a reasonable inference from known circumstances. See id. Here, we cannot infer that Kurtz appeared obviously intoxicated when served at the Oasis based on his intoxicated appearance in a video tape made 50 to 55 minutes after he left the Oasis.
The police report indicates the accident happened at 12:40 a.m. on May 17, but appellees do not dispute that the accident happened prior to the video recording.
Appellants also rely on the statement of appellee's expert witness, Dr. Wayne Snodgrass, that Kurtz was "probably" inebriated while at the convenience store, based on his appearance in the video tape. However, because the video tape is no evidence of whether Kurtz was obviously intoxicated while at the Oasis, we do not consider Snodgrass's conclusion as probative evidence raising a fact issue.
Cianci v. M. Till, Inc., 34 S.W.3d 327, 331 (Tex.App.-Eastland 2000, no pet.); Perseus, 995 S.W.2d at 207.
Appellants also claim that appellees' own expert witness, Dr. Wayne Snodgrass, testified that Kurtz was "impaired" upon arriving at the Oasis. However, examining Snodgrass's testimony in context, he specifically testified that Kurtz was "impaired for driving." He then explained that a person may be "impaired for driving" if their blood alcohol level is .05, though the legal limit for driving while intoxicated in Texas is .08. Significantly, Snodgrass further explained that even though an individual may be impaired for driving at a blood alcohol level of .05, that individual may not show any observational effects of the alcohol. He testified that based on published studies, if Kurtz had a blood alcohol level of above .3, then it was more likely he would have exhibited observational effects of being drunk. Finally, Snodgrass also stated that alcoholics, such as Kurtz, have a higher tolerance for alcohol and are thus better able to mask signs of intoxication.
Reading Snodgrass's testimony in full, we do not agree that his statement raises a fact issue sufficient to defeat summary judgment. When Snodgrass's testimony is examined in its entirety, "impaired for driving" does not equate to exhibiting observational effects of alcohol such that we can reasonably infer that Kurtz appeared obviously intoxicated at the Oasis.
Appellants also rely on the testimony of their expert witness as raising a fact issue; however, the trial court sustained the appellees' motion to exclude the testimony of appellants' expert witness, an issue raised by appellants on appeal and addressed later in this opinion. Because we find the evidence was properly excluded by the trial court, we do not consider it in our analysis of the summary judgment. See Praytor v. Ford Motor Co., 97 S.W.3d 237, 246 (Tex.App.-Houston [14th Dist.] 2002, no pet.). In addition, appellants argue there is a fact issue as to when Kurtz left the Oasis, relying on an unsworn, unsigned transcript of a telephone conversation with Brenda Ragan in which she stated that when she left the Oasis at 11:45 p.m., Kurtz was still sitting at the bar. However, the transcript is not competent summary judgment evidence and, therefore, we cannot consider it in our analysis. See Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex. 1970) (holding that unsworn statement was not an affidavit and could not support summary judgment); Geiselman v. Cramer Fin. Group, Inc., 965 S.W.2d 532, 537 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (finding the trial court should not have considered an incompetent affidavit in ruling on a motion for summary judgment); Elam v. Yale Clinic, 783 S.W.2d 638, 643 (Tex.App.-Houston [14th Dist.] 1989, no writ) (stating absence of jurat is substantive defect in affidavit and is not waived by failing to bring it to trial court's attention); Conte v. Ditta, No. 14-02-00482-CV, 2003 WL 21191296, at *3 (Tex.App.-Houston [14th Dist.] May 22, 2003, no pet.) (not designated for publication) (finding that, without notarization, a statement is not an affidavit and is not competent summary judgment proof and could not be considered on appeal, citing Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 567 (Tex.App.-Houston [14th Dist.] 1997, writ denied)).
Appellants argue that Snodgrass also testified it was not probable that Kurtz's intoxicated state, as displayed in the video, arose after leaving the Oasis. However, again when examined in context, Snodgrass's statement is not sufficient to raise a fact issue as to Kurtz's intoxication while at the Oasis. In eliciting this statement from Snodgrass, appellants' counsel asked how many drinks Kurtz would have had to consume between 11:45 p.m., the time Kurtz left the Oasis, and the time of the accident to appear as he did in the video, assuming Kurtz had a blood alcohol level of zero at 11:45. Snodgrass responded that Kurtz would have had to consume 9, 10, or 11 drinks in 53 minutes to get his blood alcohol level to .3, the point where he would be exhibiting observational effects of alcohol. Appellants' counsel followed up, asking Snodgrass, "[i]s that possible to do that, drink that many drinks in 55 minutes?" Snodgrass stated, "It's possible. Probably not likely." Thus, in posing the hypothetical, counsel specifically asked Snodgrass to assume Kurtz had a blood alcohol level of zero at 11:45 p.m., an assumption contrary to the record evidence. There is no dispute that Kurtz in fact had been drinking that evening and the record evidence indicates that Kurtz could not have had a zero blood alcohol level when he left the Oasis. When an expert's opinion is based on assumed facts that vary materially from actual, undisputed facts, the opinion has no probative value and is therefore, no evidence. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499-500 (Tex. 1995). The issue here is whether Kurtz was apparently intoxicated while being served at the Oasis such that he presented a danger to himself or others. We do not find that Snodgrass's response to the hypothetical posed raises a genuine issue of material fact on that matter.
Also, in response to appellees' summary judgment motion, appellants furnished a portion of Carra's testimony in which he stated he was not "keeping an eye on [Kurtz] or watching him, per se." Appellants argue this is evidence that Carra was not observing Kurtz for signs of intoxication and thus, raises a fact issue. Carra's testimony, as relied on by appellees, is limited to his observations of Kurtz while at the Oasis. Stating he was not "keeping an eye" on Kurtz does not raise a fact issue as to whether Kurtz appeared obviously intoxicated while at the Oasis when observed by Carra.
Appellants also point to evidence that Kurtz blacked out only "seconds" after leaving the Oasis. Appellants rely on El Chico Corporation v. Poole, 732 S.W.2d 306 (Tex. 1987), to argue that circumstantial evidence a driver has "blacked-out due to consumption of alcohol" sufficiently raises a fact issue. Appellants claim they have brought forward the same evidence as in El Chico. For the reasons discussed below, we reject appellants' argument.
The appellants make a similar argument in reference to the El Chico court's noting that the intoxicated driver was an alcoholic. However, the El Chico court based its holding on the fact that the driver showed signs of intoxication at the accident scene which occurred within minutes of leaving the alcohol provider's premises. El Chico, 732 S.W.2d at 315. In this case, we do not have the temporal connection between the accident and Kurtz's leaving the Oasis such that we can reasonably infer that, because Kurtz was an alcoholic and blacked out, his involvement in an accident 50 to 55 minutes later establishes he exhibited signs of obvious intoxication while at the Oasis.
First, El Chico is distinguishable from this case. In El Chico, the circumstantial evidence clearly established that the accident occurred only a few minutes after the intoxicated patron left the alcohol provider's establishment. Id. at 308, 314. Thus, temporally, there was no question the intoxicated driver had left the provider's establishment only moments before the accident occurred. Here, the accident occurred some 50 to 55 minutes after Kurtz left the Oasis, regardless of when he may have blacked out. In El Chico the plaintiff was required to prove only that the beverage server "knew or should have known" that the individual was intoxicated. See id. at 314. An inference the alcohol server "should have known" an individual was intoxicated is more reasonable when an accident occurs within a close temporal proximity to leaving the defendant's establishment. In this case, there is no evidence of that close temporal proximity.
The facts in this case are more appropriately analogized to those in J.D. Abrams, Inc. v. McIver, in which the First Court of Appeals determined that though there was evidence of the driver's intoxication at the accident scene, because the accident occurred one hour after leaving the premises of the defendant's establishment, there was no evidence that the driver appeared "obviously intoxicated" to the alcohol server, to the extent the driver presented a clear danger to himself and others. Id. at 92. The First Court of Appeals distinguished El Chico primarily on this time differential. Id.
966 S.W.2d 87, 91-92 (Tex.App.-Houston [1st Dist.] 1998, pet. denied).
Likewise, here, although the video tape and Reilly's testimony may be some evidence that Kurtz was intoxicated immediately following the accident, because the accident occurred almost an hour after leaving the Oasis, it is no evidence that Kurtz was obviously intoxicated while being served at the Oasis. While it is true that circumstantial evidence may be used to establish any material fact, to raise a genuine issue of material fact the evidence must transcend "mere suspicion." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). "Evidence that is so slight as to make any inference a guess is in legal effect no evidence." Id. Here, the evidence relied on by appellants raises only suspicions and is, in effect, no evidence.
Appellants also argue that because the accident occurred within two miles of the Oasis, we should infer that Kurtz left the bar at a time much closer to the accident. In light of the record evidence, any such conclusion would be merely speculation.
We note, the El Chico court based its holding — that the driver's "apparent intoxication" at the scene of the accident raised a fact issue as to whether the employees knew or should have known of his intoxication — on the temporal proximity of the accident to the driver's leaving the defendant's establishment. 732 S.W.2d at 315. The court only incidentally mentioned that the intoxicated driver had blacked-out. Id. at 308.
Finally, we cannot agree with appellant's characterization of Kurtz's testimony, that he supposedly blacked out only "seconds" after leaving the Oasis. Indeed, it is not clear from the record before us exactly how long it may have been before Kurtz blacked out after leaving the Oasis, however, it clearly was not "seconds."
In sum, we find appellants failed to present more than a scintilla of evidence that at the time alcohol was provided, sold, or served to Kurtz while he was at the Oasis, it was apparent to appellees that he was obviously intoxicated to the extent he presented a danger to himself and others. Therefore, the trial court did not err in granting appellees' no-evidence summary judgment motion. Further, we find that appellees' summary judgment evidence established there was no genuine material fact issue that, while Kurtz was at the Oasis, it was not apparent to the alcohol providers that Kurtz was obviously intoxicated. We affirm the trial court's granting appellees' summary judgment motion and overrule appellants' second and third issues. C. Did the trial court err in granting appellees' motion to strike appellants' expert?
In their fourth issue, appellants also challenge the affidavits furnished by appellees, arguing the witnesses were not observing Kurtz while he was at the Oasis, Albonetti's testimony was contradictory, and the witnesses were all "interested witnesses" and were themselves intoxicated while at the Oasis. Again, we do not agree with appellant's characterization of the record evidence; regardless, because we find the trial court properly granted appellees' no-evidence motion, we do not address these contentions. See, e.g., Rocha v. Faltys, 69 S.W.3d 315, 318 n. 1 (Tex.App.-Austin 2002, pet. ref'd) (affirming the trial court's granting of appellees' no-evidence summary judgment and therefore, not reaching issues raised by appellants' regarding the traditional summary judgment). Moreover, even assuming the only evidence was from interested witnesses, testimonial statements by an interested witness may be the basis for a summary judgment when the statements are clear, positive, and direct, are otherwise credible and free from contradiction and inconsistency, and could have been readily controverted. TEX. R. CIV. P. 166a(c); McMahan v. Greenwood, 108 S.W.3d 467, 480 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Here, the evidence was clear, positive, direct, and free from contradictions, and could have been readily controverted. The record indicates a private party was being held at the Oasis on the evening Kurtz was there, but appellants failed to offer any evidence from anyone at the Oasis that evening. In addition, although some of the testimonial evidence came from friends of Kurtz, this does not necessarily establish that these individuals would be compelled to offer testimony or sworn statements that were untrue.
In their fifth issue, appellants argue the trial court erred in granting appellees' motion to strike their expert witness, Dr. James Garriott. In their motion, appellees assert that Garriott's testimony is unreliable because Garriott relied on inaccurate assumptions about Kurtz's alcohol consumption, his opinions were speculative, and he admitted that without an actual blood alcohol level for Kurtz, he could not estimate an accurate blood alcohol level while Kurtz was at the Oasis. We agree.
We review the trial court's decision to exclude an expert's affidavit under an abuse of discretion standard. Blan v. Ali, 7 S.W.3d 741, 744 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998)). The trial court abuses its discretion when its ruling is arbitrary, unreasonable, or made without reference to any guiding rules or legal principles. See id.
An expert opinion that is not based on a reliable foundation is inadmissible. TEX. R. EVID. 705(c); Weiss v. Mech. Associated Servs., Inc., 989 S.W.2d 120, 124 (Tex.App.-San Antonio 1999, pet. denied). The burden is on the proponent of the evidence to demonstrate scientific reliability. Weiss, 989 S.W.2d at 124. Also, "[e]xpert opinions must be supported by facts in evidence, not conjecture." Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003); see also United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (noting that supporting and opposing affidavits, under Rule 166a(f), must set forth facts as would be admissible in evidence).
In his report, Garriott opined as to Kurtz's blood alcohol level at 11:30 p.m. on May 16, stating it would be .090 to .115, based on the assumption that Kurtz consumed 4 to 6 beers from 6:00 p.m. to 9:00 p.m., and two regular mixed drinks while at the Oasis. Garriott also opined as to Kurtz's blood alcohol level if the mixed drinks were "doubles," and thus raising the estimated blood alcohol levels. In his deposition, however, Garriott admitted there was no evidence the drinks were doubles. Garriott also acknowledged that given a longer duration of consumption, blood alcohol levels would be lower. Although the evidence established Kurtz may have begun drinking as early as 1:00 p.m. on the afternoon of May 16 or as late as 4:30 that afternoon, Garriott's opinions were based on the assumption that Kurtz began drinking at 6:00 p.m. despite the lack of record evidence that Kurtz began drinking at that later time. When an expert's opinion is based on assumed facts that vary materially from the actual facts, the opinion has no probative value and is no evidence. Burroughs, 907 S.W.2d at 499-500. Also, Garriott admitted he did not take into account whether Kurtz had eaten, though the evidence indicated he had. Garriott acknowledged further that food intake slows down the absorption of alcohol, affecting observational effects of drinking.
Importantly, during his deposition Garriott described the case as a "little bit unusual" because generally, when he testified as an expert on intoxication, he would have a blood alcohol level to extrapolate from in estimating a person's level of intoxication. Garriott admitted that he relied "very heavily" on a known blood alcohol level in giving his opinions and making interpretations; however, he acknowledged there was no known blood alcohol level to work with in this case. Indeed, he admitted that because he did not have a blood alcohol level from which he could work, his opinion in this case was less reliable.
Garriott also stated that he could not testify to a reasonable medical probability or reasonable toxicological probability what Kurtz's physical appearance may have been while he was at the Oasis and agreed that those witnesses physically present at the Oasis while Kurtz was there were in the "best position to provide testimony and information regarding [Kurtz's] physical characteristics and appearance during that time."
Because Garriott had no actual blood alcohol level from which to extrapolate, his methodology was admittedly less reliable. In addition, Garriott based his calculations on facts not in evidence and on assumptions that were contrary to facts. Examining Garriott's report and testimony in light of the above, we cannot say the trial court abused its discretion in excluding Garriott's testimony. We overrule appellants' fifth issue.
In light of this holding, we do not address appellants' seventh issue, that the trial court erred in "requiring that Appellants produce a blood alcohol level as evidence of obvious intoxication."
D. Did the trial court err in denying appellants' Partial Summary Judgment Motion?
In their sixth issue, appellants argue the trial court erred in denying their summary judgment motion regarding apportioning liability to Kurtz. However, appellants' motion for partial summary judgment did not seek a final judgment and therefore, we lack appellate jurisdiction to review the trial court's denial of that motion. Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365, 396 (Tex.App.-Houston [14th Dist.] 2004, no pet. h.) (citing CU Lloyd's of Texas v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998)). Because we may not address an issue not properly before this court, we do not consider appellants' sixth issue.
Moreover, appellants' issue is rendered moot by the trial court's summary judgment.
For the foregoing reasons, the judgment of the trial court is affirmed.