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In what several appellate lawyers believe is an ominous signal, the Texas Supreme Court last week heard oral argument in a rehearing of a dram shop decision the justices had handed down only 14 months earlier, which had affirmed a $35 million jury verdict. The case, F.F.P. Operating Partners v. Xavier Duenez, et al., involves the claims of a family of five injured in a 1997 head-on collision with a drunk driver. The high court affirmed the verdict in a 5-4 ruling on Sept. 3, 2004. But after three justices who voted in the majority left the court, the court voted in April of this year to rehear the case. Some observers believe that the Duenez rehearing indicates that the court may not be willing to abide by stare decisis, which mandates that appellate courts abide by their previous rulings. The key issue in Duenez is whether the proportionate responsibility statute, Texas Civil Practice & Remedies Code Chapter 33, applies to a dram shop claim brought by an innocent third party such as the Duenez family against a store that sold alcohol to a drunk driver. The court has previously ruled that Chapter 33 does apply when the plaintiff allegedly was negligent in the accident that injured him, i.e. a drunk driver hurt in a wreck who sues the establishment that sold him alcohol. A plaintiff can bring a dram shop claim under Texas Alcoholic Beverage Code Chapter 2.01-2.03, if he can prove that an alcohol provider sold alcohol to a person who was “obviously intoxicated to the extent that he presented a clear danger to himself and others.” The court split in its decision in Duenez on Sept. 3, 2004, on how to apply liability in this type of innocent third-party dram shop case. Chapter 33 governs the apportionment of responsibility generally and applies to “any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of harm.” However, the Dram Shop Act includes an exclusive remedy provision that assigns liability to providers of alcohol “for the actions of their employees, customers, members or guests who become intoxicated … in lieu of common law or other statutory law.” According to the opinion, the facts are as follows. The Duenezes sued F.F.P. Operating Partners and F.F.P.’s store, Mr. Cut Rate #602, after a clerk in the store sold a 12-pack of beer to Roberto Ruiz. Ruiz entered the store after consuming a case and a half of beer. He then got into his truck, opened a beer, got on a highway and swerved on the road. As he was reaching for a compact disc on the floor of the truck, he swerved across the center line and hit the Duenezes’ car. Ruiz was arrested at the scene of the accident, pleaded guilty to intoxication assault and was sentenced to prison, according to the opinion. The opinion goes on to describe the history of the case. The Duenezes sued F.F.P., Ruiz and several other parties but eventually nonsuited all parties except F.F.P. F.F.P named Ruiz a responsible third party and filed a cross-action against him. The Duenezes obtained a partial summary judgment in the trial court, which held that the proportionate responsibility statute did not apply in this type of innocent third-party plaintiff case. The trial court then severed F.F.P.’s cross-action against Ruiz, leaving F.F.P. as the only defendant for trial. The jury found for the plaintiff, awarding $35 million. F.F.P then appealed the jury’s verdict against it. The 13th Court of Appeals affirmed the lower court ruling, holding that the proportionate responsibility statute did not apply to the case, because “a provider is vicariously liable for the damages caused by an intoxicated person and such a provider is not entitled to offset its liability by that of the intoxicated person.” But a majority of the September 2004 high court, in an opinion written by Justice Harriet O’Neill, found that the proportionate responsibility statute did apply in an innocent third-party case such as Duenez. It also concluded that the trial court should have submitted the question of Ruiz’s percentage of responsibility to the jury. However, the majority found the trial court’s ruling was still correct, because F.F.P. “is responsible to the Duenezes for its own percentage of the liability and that of Ruiz and because there is nothing that would prevent a jury from fairly apportioning responsibility between F.F.P. and Ruiz in the severed action.” The dissent in Duenez, written by former Justice Priscilla Owen, found that the proportionate responsibility statute did apply in Dram Shop Act cases, but that the majority did not apply the proportionate responsibility statute correctly. It also complained that the majority read too much into Dram Shop Act’s liability section. Before the court granted rehearing in April, Xavier and Irene Duenez settled their claims against F.F.P. for an undisclosed amount of money. Two of their children’s claims are still pending. SQUARE OR ROUND? From the outset of the argument, it was clear by the solemn look on O’Neill’s face that she was not happy to be hearing this case again. She asked the most probing questions of F.F.P.’s lawyer, Russell “Rusty” McMains, a Corpus Christi, Texas, solo. McMains told the high court in his booming baritone voice that its previous decision was wrong. “This principle of aggregation that arises out of the court’s prior opinion basically ignores the application of the other portion of the statute in Chapter 33, which says that you only owe that percentage you have caused,” McMains told the court. “Of course you can argue it square or round,” O’Neill shot back. “You can also say that the proportionate responsibility statute ignores the language of the Dram Shop Act about liability to the customers. It just depends on which part you want to ignore.” When it was the Duenezes’ lawyers turn, John Griffin, a partner in Victoria’s Houston, Marek & Griffin, reminded the justices that the Texas Legislature passed the Dram Shop Act and the proportionate responsibility statute the very same year: 1987. In an animated argument, Griffin said that F.F.P. can’t “wrap its mind” around the fact that lawmakers intended to broaden liability for alcohol sellers in 1987. “This idea that a legislature can’t on the one hand enact tort reform, and on the other hand broadened the liability so as to deter the disastrous consequences of serving alcohol to people who are already drunk or are minors — that was a policy decision our Legislature had the right to make,” Griffin told the judges. Using Chapter 33 the way F.F.P. wants it used, and ignoring the Dram Shop Act’s exclusive remedy provision stating that alcohol providers are liable for the actions of their customers, would severely weaken the Dram Shop Act, Griffin argued. “Make no mistake, this argument seeks to suck the life out of a carefully created legislative enactment to benefit the public,” Griffin told the justices. “There is no good faith argument against the plain words of the statute.” Two of the court’s justices, Nathan Hecht and Scott Brister — who both voted in the dissent in the previous decision — then jumped on Griffin. “Well then, why is the court struggling so? We’re just idiots or what?” Hecht asked Griffin. “Your argument is that there’s just one way.” Brister also had strong words for Griffin and suggested that he help the court make a connection between the Dram Shop Act’s exclusive remedy provision and the proportionate responsibility statute. “Don’t tell me this is so easy, because the plain words don’t say that,” Brister told Griffin of his assessment of the Dram Shop Act. “Help us put together two statutes that don’t seem to me to have reference to each other.” “Your honor, if I can’t persuade you that liability for the actions of their customers is the opposite of being liable for their own acts, I don’t know how I can convince the court,” Griffin said. POINTED QUESTIONS Both Griffin and McMains emerged from the courtroom agreeing on one thing: They had survived a very hot argument. “There were some pointed questions,” Griffin says. “But the answer to the pointed questions is always the plain language of the statute.” Griffin believes this type of rehearing threatens the jurisprudence of the state by upsetting lower court decisions. “The danger in this type of rehearing is the lower courts have already cited this as settled law,” Griffin says. McMains says he’s certain of one thing — there’s at least one justice on the court whose opinion he did not change. “It’s obvious that Justice O’Neill, who authored the majority opinion, is not going to change her spots,” McMains says. And assuming that the three sitting justices who voted in the dissent in the first Duenez decision haven’t changed their minds either, McMains says he needs to pick up two new votes to prevail in the case. McMains says the court’s willingness to rehear cases and issues in general is likely due to one thing: turnover. Only three of the court’s nine justices were on the court before 2002. “The problem we’ve had is the problem we’ve always had: the revolving door,” McMains says. “As long as you have that, it will always be unstable.”

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