Ryan v. Friesenhahn

• Decision Date: 18 October 1995
• Docket Number: No. 04-93-00280-CV,04-93-00280-CV
• Citation: 911 S.W.2d 113
• Parties: Stephen G. RYAN and Sandra Ryan, Individually and As Natural Parents of Sabrina A. Ryan, a Minor, and Stephen G. Ryan, as Temporary Administrator of the Estate of Sabrina A. Ryan, Deceased, Appellants, v. Frederick FRIESENHAHN, Nancy Friesenhahn and Todd Friesenhahn, Appellees.
• Court: Texas Court of Appeals

Page 113

911 S.W.2d 113

Stephen G. RYAN and Sandra Ryan, Individually and As Natural Parents of Sabrina A. Ryan, a Minor, and Stephen G. Ryan, as Temporary Administrator of the Estate of Sabrina A. Ryan Deceased, Appellants, v. Frederick FRIESENHAHN, Nancy Friesenhahn and Todd Friesenhahn, Appellees.

No. 04-93-00280-CV.

Court of Appeals of Texas San Antonio.

Oct. 18, 1995.

Rehearing Overruled Nov. 15, 1995.

Donald J. Mach, San Antonio, for Appellants.

Ross S. Crossland, Phillips, Ettinger & Prikryl, L.L.P., Austin, Kenton P. Campbell, Dwain K. Rogers, Jr., Thornton, Summers, Biechlin, Dunham & Brown, L.C., Austin, for Appellees.

Before RICKHOFF, LOPEZ and GREEN, JJ.

OPINION

RICKHOFF, Justice.

This is an appeal from a take-nothing summary judgment granted the defendants in a social host liability case. Appellants' seventeen-year-old daughter was killed in a single-car accident after leaving appellees' party in an intoxicated condition. While we hold that appellants' were denied an opportunity to amend their pleadings, we also find that their pleadings stated a cause of action for negligence and negligence per se. We reverse and remand.

Summary of Facts

1. Factual Background

Todd Friesenhahn, son of Nancy and Frederick Friesenhahn, held an "open invitation" party at his parent's home that encouraged guests to "bring your own bottle." Sabrina Ryan attended the party, became intoxicated, and was involved in a fatal accident after she left the event. According to the Ryans' petition, Nancy and Frederick Friesenhahn were aware of this activity and of Sabrina's condition.

2. Procedural Chronology

Sandra and Stephen Ryan, acting in their individual and representative capacities, sued the Friesenhahns for wrongful death, negligence, and gross negligence. The Ryans also alleged several causes of action against commercial alcohol suppliers, but these claims were severed from the claims against the Friesenhahns.

On December 12, 1990, the Friesenhahns filed special exceptions to the Ryans' first amended petition, alleging that the Ryans failed to plead any facts on which liability could be assessed. Social host liability, they asserted, was not a recognized cause of action in Texas; that is, there was no liability to one who injures herself while driving under the influence of alcohol provided by a social host.

On March 23, 1992, the trial court heard the special exceptions and orally rendered ¹ an order (1) granting the special exceptions relating to Sabrina's cause of action; (2) denying the special exceptions relating to her parents' cause of action; and (3) permitting the Ryans to file a motion for leave to amend Sabrina's cause of action no sooner than twenty-five days before trial but not later than eight days before trial. The order also permitted the Friesenhahns to re-urge their special exceptions during that period. ²

According to the court's docket sheet, on January 30, 1992, a jury trial was set for November 16, 1992, but dropped at some indeterminate date.

The Ryans twice amended their claims against the corporate defendants but did not file a motion for leave to amend Sabrina's claims before the Friesenhahns filed a motion for summary judgment alleging they owed no duty to the Ryans. The Ryans responded that the motion for summary judgment was premature because the trial court had ordered them to file a motion for leave to amend their pleadings no sooner than twenty-five days before trial, and no later than eight days after trial. The Ryans also requested an opportunity to replead.

The trial court heard the motion for summary judgment on October 14, 1992. On November 13, 1992, the trial court (1) signed its order granting special exceptions, which was orally rendered on March 23, 1992; (2) denied the Ryans' request to abate for repleading; and (3) granted the summary judgment on all causes of action, including those of the minor and her parents. ³

Arguments on Appeal

In three points of error, the Ryans contend the trial court erred in (1) granting the motion for summary judgment; (2) doing so before allowing them to replead their case in accordance with its order on the special exceptions; and (3) denying their request to abate the summary judgment hearing in order to replead their case. The Friesenhahns maintain the Ryans cannot amend their pleadings to allege a viable claim, essentially because no authority explicitly creates a cause of action.

1. Standard of Review

Special exceptions may be used to challenge the factual or legal sufficiency of a plaintiff's pleading. Fort Bend County v. Wilson, 825 S.W.2d 251, 253 (Tex.App.--Houston [14th Dist.] 1992, no writ); TEX.R.CIV.P. 91. When the trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading. Texas Dept. of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.1974); Susanoil, Inc. v. Continental Oil Co., 516 S.W.2d 260, 264 (Tex.Civ.App.--San Antonio 1973, no writ).

If the plaintiff refuses to amend or the amended pleading fails to state a cause of action, then summary judgment may be granted. Herring, 513 S.W.2d at 10; Cox v. Galena Park Indep. Sch. Dist., 895 S.W.2d 745, 749 (Tex.App.--Corpus Christi 1994, n.w.h.). Summary judgment may also be proper if a pleading deficiency is of the type that could not be cured by an amendment. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Garza v. State, 878 S.W.2d 671, 674 (Tex.App.--Corpus Christ 1994, no writ).

When evaluating a summary judgment granted on the basis of deficient pleadings, we review the pleadings de novo, taking all allegations, facts, and inferences in the pleadings as true and viewing them in the light most favorable to the pleader. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Garza, 878 S.W.2d at 674.

2. Opportunity to Amend

In their second and third points of error, the Ryans contend the trial court erred by denying them the right to replead, which it previously granted by sustaining special exceptions. They argue that, assuming a trial setting of November 13, 1992, they could not have complied with the order on special exceptions as of October 14, 1992, the date of the summary judgment hearing.

The trial court's order on special exceptions permitted the Ryans to file a motion for leave to amend Sabrina's cause of action not sooner than twenty-five days prior to trial but not later than eight days prior to trial. Given this timeframe, the Ryans could not amend on October 14, a month before the trial setting.

We conclude the trial court erred by not giving the Ryans the opportunity to amend their petition to state a cause of action on Sabrina's behalf. However, because the trial court denied special exceptions on the adults' cause of action, it was not required to allow them to amend those claims.

We sustain the Ryans' second and third points of error to the extent they address Sabrina's cause of action.

3. Existence of a Cause of Action

In their first point of error, the Ryans contend the trial court erred in granting summary judgment. We read this point of error as addressing the adults' cause of action. However, we must determine whether the Ryans' petition stated a cause of action on Sabrina's behalf because, as the adults concede, their claim is derivative of Sabrina's claim. See Sanchez v. Schindler, 651 S.W.2d 249, 253 (Tex.1983); Upjohn Co. v. Freeman, 885 S.W.2d 538, 549 (Tex.App.--Dallas 1994, writ denied).

a. The Petition

The Ryans pled, in their third amended petition, that Todd Friesenhahn planned a "beer bust" that was advertised by posting general invitations in the community for a party to be held on the "Friesenhahn Property." The invitation was open and general and invited persons to "B.Y.O.B." (bring your own bottle). According to the petition, the Friesenhahns had actual or constructive notice of the party and the conduct of the minors in "possessing, exchanging, and consuming alcoholic beverages."

The Ryans alleged the Friesenhahns were negligent in (1) allowing the party to be held on the Friesenhahn property; (2) directly or indirectly inviting Sabrina to the party; (3) allowing the party to continue on their property "after they knew that minors were in fact possessing, exchanging, and consuming alcohol"; (4) failing "to provide for the proper conduct at the party"; (5) allowing Sabrina to become intoxicated and failing to "secure proper attention and treatment"; (6) and allowing Sabrina to leave the Friesenhahn property while driving a motor vehicle in an intoxicated state. In the severed claims, the Ryans also alleged that certain companies were negligent in selling, transferring, giving, and exchanging alcoholic beverages to individuals under the age of twenty-one in violation of state law.

b. Negligence Per Se

Accepting the petition's allegations as true, the Friesenhahns were aware that minors possessed and consumed alcohol on their property and specifically allowed Sabrina to become intoxicated. The Texas Alcoholic Beverage Code provides that one commits an offense if, with criminal negligence, he "makes available an alcoholic beverage to a minor." TEX.ALCO.BEV.CODE ANN. § 106.06(a) (Vernon Supp.1995). The exception for serving alcohol to a minor applies only to the minor's adult parent. Id. § 106.06(b) (Vernon 1978).

An unexcused violation of a statute constitutes negligence per se if the injured party is a member of the class protected by the statute. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); see also Peek v. Oshman's Sporting Goods, Inc., 768 S.W.2d 841, 845 (Tex.App.--San Antonio 1989, writ denied). The Alcoholic Beverage Code was designed to protect the general public and minors in particular and must be liberally construed. Id. §§ 1.03, 106.06(a); Smith v. Merritt, No. 12-93-00197-CV, slip op. at 4 (Tex.App.--Tyler, Aug. 23, 1995, n.w.h.) (involving a third-party injured by an intoxicated minor). ⁴ We conclude that Sabrina is a...