Triplex Communications, Inc. v. Riley

• Decision Date: 21 July 1995
• Docket Number: No. 94-0567,KZZB-95,94-0567
• Citation: 900 S.W.2d 716,38 Tex.Sup.Ct.J. 765
• Parties: 38 Tex. Sup. Ct. J. 765 TRIPLEX COMMUNICATIONS, INC. d/b/a Radio StationFM, Petitioner, v. James R. RILEY, Mary Gray, and Deep East Texas Self Insurance Fund, Respondents.
• Court: Texas Supreme Court

Page 716

900 S.W.2d 716

38 Tex. Sup. Ct. J. 765

TRIPLEX COMMUNICATIONS, INC. d/b/a Radio Station KZZB-95 FM Petitioner, v. James R. RILEY, Mary Gray, and Deep East Texas Self Insurance Fund, Respondents.

No. 94-0567.

Supreme Court of Texas.

Argued Jan. 5, 1995.

Decided June 8, 1995.

Rehearing Overruled July 21, 1995.

Charles K. Kebodeaux, Donean Surratt, Beaumont, for petitioner.

Phillip Babin, III, Thomas A. Peterson, Joe Michael Dodson, Beaumont, for respondents.

SPECTOR, Justice, delivered the opinion of the Court, in which all Justices join.

In this cause we consider whether a radio station may be held liable under theories of joint enterprise, civil conspiracy, and negligent promotion for personal injuries resulting from a nightclub's violations of Texas' Dram Shop Act, TEX.ALCO.BEV.CODE § 2.02. The trial court refused to submit the plaintiffs' requested questions and definitions on joint enterprise, negligent promotion, and civil conspiracy. The court of appeals reversed and remanded, holding that the trial court abused its discretion by failing to submit the plaintiffs' tendered questions and definitions. 874 S.W.2d 333. Because we hold that the radio station may not be held liable for the tortious acts of the nightclub under any of the three theories, we reverse the judgment of the court of appeals and order that the plaintiffs take nothing from the radio station.

For about seven years, KZZB-95 FM (B-95), a Beaumont radio station, and the Cowboy Palace, Inc. (the Palace) collaborated on a weekly event known as "B-95 Ladies Night at the Palace." B-95 advertised that Thursday night was Ladies' Night at the Palace, meaning that women aged twenty-one years or older would be admitted at no charge. The Palace pre-screened the radio advertisements, except for occasional promotional spots that it could later change. Consistent with the law and at the Palace's request, B-95 indicated in its spots that persons aged eighteen to twenty would be admitted into the establishment. The Palace's Thursday night bar drinks were ninety-five cents, a price set to correspond with B-95's 95.1 FM frequency.

B-95 and the Palace worked closely to make "B-95 Ladies' Night" successful. The Palace sought to increase patronage and B-95 sought advertising revenue. Toward this end, B-95 assigned a disc jockey to the Palace for live remote broadcasts during Ladies' Night. The on-site disc jockey was responsible for making announcements over the public address system informing patrons of drink specials and other promotions. The announcements encouraged patrons to go to the bar. There was evidence that B-95's disc jockey witnessed people becoming intoxicated at the Palace and was aware of underage drinking at the club. Over the seven-year relationship, there were a number of other promotional activities, including the appearance of B-95's mascot, the "Super Bee," at the Palace during Ladies' Night.

On the evening of June 30, 1988, Michael Edward Poupart, an underage patron of the Palace, was served ten alcoholic beverages. After leaving the Palace on the evening in question, Poupart was involved in a serious automobile accident caused by his intoxication. The Beaumont police responded, and officers James Riley and Mary Gray were responsible for directing traffic off of the freeway approximately 300 to 400 yards north of the accident.

During that same evening, Joseph Wayne Stephens arrived at the Palace sometime between 8:30 and 9:00 P.M. Vernis T. Dartez, a Palace bartender, served Stephens either sixteen or seventeen mixed drinks. Stephens, a regular at the Palace, exhibited signs that he was highly intoxicated while he was being served alcoholic beverages.

Stephens was on his way home and travelling at a high rate of speed when his car hit another car that had stopped at the scene of Poupart's accident. Stephens' car ricocheted off the other car and struck Riley and Gray. Stephens' blood-alcohol content was later determined to be substantially above the legal limit, and it is undisputed that Stephens caused the accident.

Officers Riley and Gray brought this action against the Palace, Dartez, and B-95/Triplex. The trial court refused to submit Riley's and Gray's requested questions relating to joint enterprise and negligent promotion, and submitted a definition of civil conspiracy to which Riley and Gray objected. The jury found that the Palace and Dartez were liable under Chapter 2 of the Texas Alcoholic Beverage Code, but failed to find that Triplex and B-95 were engaged in a civil conspiracy with the Palace.

The trial court rendered judgment in favor of Riley, Gray, and an intervenor, Deep East Texas Insurance Fund (Riley's and Gray's workers' compensation carrier), in the amount of $1,410,837.43--to be assessed jointly and severally against the Palace and Dartez. The court also awarded $100,000 in punitive damages against the Palace. Because the jury failed to find the existence of a civil conspiracy, and had no opportunity to consider questions on joint enterprise and negligent promotion, Riley and Gray took nothing from B-95. The judgments against Dartez and the Palace are not before this Court.

The court of appeals reversed the judgment of the trial court, concluding that the trial court erred by failing to submit questions on joint enterprise and negligent promotion, and that the civil conspiracy definition was defective.

I. Joint Enterprise

Triplex first argues that the court of appeals erred in holding that Riley and Gray were entitled to a jury question on the issue of joint enterprise. 874 S.W.2d at 326-47. We agree.

If an issue is properly pleaded and is supported by some evidence, a litigant is entitled to have controlling questions submitted to the jury. See Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex.1992); Moore v. Lillebo, 722 S.W.2d 683, 686-87 (Tex.1986); TEX.R.CIV.P. 278. Here, while Riley and Gray may have properly pleaded joint enterprise liability, the evidence adduced at trial was legally insufficient to support the submission of their tendered question.

Riley's and Gray's requested question asked whether B-95 and the Palace had: (1) an express agreement; (2) a common purpose; (3) a common pecuniary interest; and (4) an equal right to control the enterprise. See Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 16-17 (Tex.1974). Even if the evidence adduced at trial satisfied the first three prongs of this test, there is no evidence of an equal right to direct and control the enterprise to justify the imposition of joint enterprise liability. ¹

Riley and Gray suggest that we define enterprise broadly, to encompass all of the business dealings between the Palace and B-95 relating to Ladies' Night. They argue that this expansive definition would reveal that B-95 exercised some control over the relationship, giving rise to some evidence of a joint enterprise. See Shoemaker, 513 S.W.2d at 15 (equal right of control means that each member of the joint venture must have an authoritative voice, or "must have some voice and right to be heard"); RESTATEMENT (SECOND) OF TORTS § 491 (1965). Triplex, on the other hand, prefers to characterize its relationship with the Palace as one in which a radio station, through advertising and promotions, conducted ordinary business with a client. Under either characterization, however, whether there was a joint business venture or a simple advertiser-client relationship, there is no evidence that B-95 had an equal right of control that would give rise to joint enterprise liability. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993) (general right of control insufficient to make defendant responsible for actor's criminal conduct in premises liability action).

To establish that B-95 exercised an equal right to control the business relationship, Riley and Gray place great emphasis on the fact that drink prices corresponded with B-95's FM frequency. Yet, it is undisputed that the Palace--not B-95--set drink prices. Drinks were 95 cents on all nights except KYKR night, when they were 93 cents to correspond with that station's FM frequency.

The Palace, which was licensed to sell alcohol, maintained absolute control over the provision of all drinks. The proprietors of the Palace decided who was admitted and ejected from the Palace, controlled how much liquor was served and to whom it was served, and were best positioned to monitor the amount of liquor that patrons consumed. There was no evidence that B-95 had a contractual right of control, or exercised any right of control, over who was served, admitted, or ejected. Similarly, the Palace had no right to control the operation of the radio station.

At most, the evidence at trial indicated that B-95 could make suggestions that the Palace could adopt or reject. There was no evidence that B-95 had a voice in, or an equal right to control, the provision of the alcohol. The evidence of B-95's general participation in the event is legally insufficient to support the submission of a question regarding joint enterprise. See TEX.R.CIV.P. 278.

II. Civil Conspiracy

Riley and Gray contend, and the court of appeals agreed, that the definition of civil conspiracy submitted to the jury was erroneous because it required...