Ronald Oman and Karen Anderson v. Wildflower Country Club, Inc. D/B/A Wildflower Country Club and Jeremy Lawson
CourtTexas Court of Appeals, 3rd District (Austin)
Date FiledOctober 16, 2026
Docket03-25-00249-CV
StatusPublished
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Full Opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-25-00249-CV
Ronald Oman and Karen Anderson, Appellants
v.
Wildflower Country Club, Inc. d/b/a Wildflower Country Club and Jeremy Lawson,
Appellees
FROM THE 169TH DISTRICT COURT OF BELL COUNTY
NO. 24DCV346878, THE HONORABLE CARI L. STARRITT-BURNETT, JUDGE PRESIDING
MEMORAN D U M OPI N I ON
After a members’ golf tournament, appellants Ronald Oman and Karen Anderson
had several drinks at their country club’s bar, became intoxicated, drove home in a golf cart, and
were injured. Contending that they were overserved, they sued appellees Wildflower Country
Club, Inc. d/b/a Wildflower Country Club and its bartender Jeremy Lawson (the Club) for
compensatory and exemplary damages of over $10 million for claims under the Texas Dram Shop
Act, common-law negligence, negligence per se, and gross-negligence. In addition to their
overservice claims, Appellants allege that Lawson “knowingly, recklessly, and intentionally”
intensified their intoxication by spiking their drinks with drugs other than Oman’s prescribed
opiates, and that the country club is vicariously liable for Lawson’s actions because they were
taken in the course and scope of his employment. The Club prevailed on a traditional motion for
summary judgment based on an executed release and waiver of liability in Appellants’ application
for club membership. On appeal, Appellants argue that fact issues exist as to whether that release
was enforceable; whether the release applied to them on the date of their alleged overservice; and
whether the release barred Anderson’s claims, the gross-negligence claims, and the claims of
knowing, reckless, and intentional drugging. Because we conclude that the release is valid and
enforceable but that the Club’s summary-judgment motion addressed only the release of
Appellants’ negligence-based overservice claims under the Dram Shop Act, we will affirm the trial
court’s final judgment in part as to those claims and reverse and remand in part as to the
non-overservice-based claims.
DISCUSSION 1
Appellants dispute the applicability of this release, which was the subject of the
Club’s summary-judgment motion:
Appellants argue that fact issues exist as to whether this provision barred their claims.
1 Because the facts of this case are well known to the parties, we include only those
necessary for the disposition of this appeal. Tex. R. App. P. 47.1.
2
We review summary-judgment rulings de novo, viewing the evidence in the light
most favorable to the non-movant, crediting evidence favorable to that party if reasonable jurors
could and disregarding contrary evidence unless reasonable jurors could not. Raoger Corp.
v. Myers, 711 S.W.3d 206, 211 n.7 (Tex. 2025). A defendant who moves for traditional summary
judgment under Texas Rule of Civil Procedure 166a(c) must demonstrate that “there is no genuine
issue as to any material fact” and that it is “entitled to judgment as a matter of law.” 2 Zive
v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022). If the movant carries its summary-judgment
burden, then the burden shifts to the nonmovant to raise a genuine issue of material fact precluding
summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). When the trial court
does not specify the grounds for its ruling, we affirm the summary judgment if any of the grounds
on which judgment is sought are meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244,
248 (Tex. 2013). Here, the Club moved for summary judgment and had the burden of proving its
affirmative defense based on the release. See Tex. R. Civ. P. 94 (including release among
affirmative defenses).
Fair Notice of Release
Generally, a release surrenders legal rights or obligations between the parties to an
agreement. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). It
operates to extinguish claims or causes of action between the parties and is an absolute bar to any
2 The Texas Supreme Court amended Texas Rule of Civil Procedure 166a and renumbered
its provisions, but “[o]ther than the deadline changes, Rule 166a’s rewrite is not intended to
substantively change the law.” 89 Tex. B.J. 286, 289-92 (2026). Because the amendments apply
only to summary-judgment motions filed on or after March 1, 2026, and the filing of the Club’s
summary-judgment motion preceded the amendments, we refer to the provisions of Rule 166a in
effect at the time. See id. at 286.
3
right of action on the released matter. See id. A release is subject to the rules of construction
governing contracts. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990) (citing Loy
v. Kuykendall, 347 S.W.2d 726, 728 (Tex. App.—San Antonio 1961, writ ref’d n.r.e.)). Whether a
contract is ambiguous and how to interpret unambiguous provisions are questions of law that we
review de novo. URI, Inc. v. Kleberg County, 543 S.W.3d 755, 763 (Tex. 2018). A contract is not
ambiguous merely because the parties disagree about its meaning. Id. When neither party alleges
that the release was induced by fraud and the language of the release is unambiguous, interpretation
of the release is decided by the court as a question of law. Memorial Med. Ctr. of E. Tex. v. Keszler,
943 S.W.2d 433, 434 (Tex. 1997) (per curiam).
To effectively release a claim, the releasing instrument must mention the claim to
be released. Victoria Bank & Tr. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991). But it is unnecessary
for parties to specifically enumerate all released claims; Texas law permits broad-form releases.
See Keck, Mahin & Cate v. National Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698
(Tex. 2000). Thus, the parties need not identify every potential cause of action relating to the
subject matter of the release for that cause of action to fall within the scope of the release. Id. To
be enforceable, a liability release must satisfy two fair notice requirements: (1) conspicuousness
and (2) the express-negligence doctrine. Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190,
192 (Tex. 2004). Whether a release complies with the fair-notice requirements is a question of law
for the court. Dresser Indus., 853 S.W.2d at 509.
1. Conspicuousness
The supreme court has adopted the Uniform Commercial Code (UCC) definition
of “conspicuousness” for risk-shifting agreements such as this one that relieve a party of
4
responsibility in advance. See id. at 511 (adopting prior definition). The current UCC definition
states
(10) “Conspicuous,” with reference to a term, means so written, displayed, or
presented that a reasonable person against which it is to operate ought to have
noticed it. Whether a term is “conspicuous” or not is a decision for the court.
Conspicuous terms include the following:
(A) a heading in capitals equal to or greater in size than the surrounding text, or in
contrasting type, font, or color to the surrounding text of the same or lesser size;
and
(B) language in the body of a record or display in larger type than the surrounding
text, or in contrasting type, font, or color to the surrounding text of the same size,
or set off from surrounding text of the same size by symbols or other marks that
call attention to the language.
Tex. Bus. & Com. Code § 1.201(10). Under this definition, a provision is conspicuous when a
reasonable person ought to have noticed it. Id.; Dresser Indus., 853 S.W.2d at 511. That is,
“‘something must appear on the face of the [contract] to attract the attention of a reasonable person
when he looks at it.’” Storage & Processors, Inc., 134 S.W.3d at 192 (quoting Dresser Indus.,
853 S.W.2d at 508). Language may satisfy the conspicuousness requirement by appearing in
capital headings, contrasting type, font, or color, or an extremely short document, or by otherwise
calling attention to itself. See Tex. Bus. & Com. Code § 1.201(10); Storage & Processors, Inc.,
134 S.W.3d at 192; Dresser Indus., 853 S.W.2d at 511.
Applying these standards here, we conclude that the Club met its burden of
establishing as a matter of law that the release of liability in the membership agreement is
conspicuous. The summary-judgment evidence shows that the release is in the first full paragraph
near the top of the third page in a three-page document. Only a few brief paragraphs separate the
release from the signature line, and the release is the only paragraph on that page—and in the entire
5
document—containing a series of capitalized words. These features call attention to the release
and distinguish it from the remainder of the agreement, such that a reasonable person ought to have
noticed it. Thus, the Club showed as a matter of law that this release complies with the fair notice
requirement of conspicuousness. See, e.g., Quintana v. Crossfit Dall., L.L.C., 347 S.W.3d 445,
451 (Tex. App.—Dallas 2011, no pet.) (concluding release was conspicuous where document
consisted of two pages and word “release” was near top of second page in larger type than any
other text on that page and was bolded); Sydlik v. REEIII, Inc., 195 S.W.3d 329, 332 (Tex. App.—
Houston [14th Dist.] 2006, no pet.) (determining release was conspicuous where document
consisted of one page with three paragraphs and statement in large, bold, and underlined letters at
top identifying it as release and releasing party initialed each paragraph); see also Arthur’s Garage,
Inc. v. Racal-Chubb Sec. Sys., 997 S.W.2d 803, 815 (Tex. App.—Dallas 1999, no pet.) (concluding
that indemnity provision was conspicuous where its title, indemnity language, and liability
limitation were in capital letters). Having concluded that the Club met its burden as to the
fair-notice requirement of conspicuousness, we consider whether it met its burden as to the
express-negligence doctrine. See Storage & Processors, Inc., 134 S.W.3d at 192; Dresser Indus.,
853 S.W.2d at 509.
2. Express-Negligence Doctrine
The express-negligence doctrine states that if a party intends to be released from its
own future negligence it must state that intent specifically in the four corners of the contract. 3
3 Appellants wrongly fault the Club for “failing” to address the express-negligence doctrine
in its summary-judgment motion. Page 6 of the motion addresses the express-negligence
doctrine—“a release that releases a party for its own negligence requires it to plainly say so in the
four corners of the document”—cites case law and notes similarity between this release and that
in Quintana v. Crossfit Dallas, L.L.C., 347 S.W.3d 445, 452 (Tex. App.—Dallas 2011, no pet.).
6
Storage & Processors, Inc., 134 S.W.3d at 192. The purpose of “the express negligence rule is to
require scriveners to make it clear when the intent of the parties is to exculpate” a party for that
party’s own negligence. Atlantic Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex.
1989). Language that specifically refers to “any negligent act of [the released party]” may be
sufficient to define the parties’ intent. Id.; Quintana, 347 S.W.3d at 450. The release in this
case stated
I ASSUME ALL RISKS associated with accessing the Club facilities and the
facilities of any participating network clubs, including, but not limited to, dining
and event rooms, recreational amenities and outdoor areas, grounds, parking areas,
equipment, golf balls or clubs, and golf carts. I ALSO HEREBY FULLY
RELEASE AND DISCHARGE THE CLUB, ITS PARENT, AFFILIATED AND
SUCCESSOR COMPANIES, AND ALL OF THEIR RESPECTIVE
EMPLOYEES, AGENTS, SHAREHOLDERS, MEMBERS, MANAGERS,
AFFILIATES AND ASSIGNS (THE “RELEASED PARTIES”) FROM ANY AND
ALL LIABILITIES, INJURIES, LOSSES, DAMAGES OR CLAIMS ARISING
FROM MY OR MY FAMILY’S USE OF THE CLUB FACILITIES, INCLUDING
ANY SUCH CLAIMS CAUSED BY THE RELEASED PARTY’S OWN
NEGLIGENCE.
This release language is similar to the one in Quintana that satisfied the express-negligence
doctrine:
I hereby waive, release, remise and discharge CrossFit Plano and its agents, officers,
principals and employees and volunteers, of any and all liability, claims, demands,
actions or rights of action, or damages of any kind related to, arising from, or in any
way connected with, my participation [in] CrossFit Plano fitness programs/classes,
including those allegedly attributed to the negligent acts or omissions of the above
mentioned parties.
347 S.W.3d at 451. And it is similar to the release upheld in Sydlik:
I do hereby waive, release and forever discharge Curves International Inc., Curves
for Women®, and their officers, agents, employees, representatives, executors, and
7
all others (Curves® representatives) from any and all responsibilities, or liabilities,
from injuries or damages ar[is]ing out of or connected with my attendance at Curves
for Women®, my participation in all activities, my use of equipment or machinery,
or any act or omission, including negligence by Curves® representatives.
195 S.W.3d at 331-32. The language in this release specifically refers to the released parties’
negligence and sufficiently defines the parties’ intent to exculpate the identified “RELEASED
PARTIES” by releasing them from their own future negligence. See Storage & Processors, Inc.,
134 S.W.3d at 192; Atlantic Richfield Co., 768 S.W.2d at 726. Thus, this release satisfied the
express-negligence doctrine, the second and final component of the fair-notice requirements.
The Club’s summary-judgment evidence established, as a matter of law, that this
release of liability met both fair-notice requirements and is enforceable. Because the Club met its
burden of showing its entitlement to summary judgment based on the affirmative defense of
release, the burden shifted to Appellants to show that a genuine issue of material fact precluded
summary judgment. See Tex. R. Civ. P. 166a(c); Roper v. CitiMortgage, Inc., No. 03-11-00887-
CV, 2013 WL 6465637, at *4 n.4 (Tex. App.—Austin Nov. 27, 2013, pet. denied) (mem. op.)
(noting that factual dispute precludes summary judgment only if disputed issue is “genuine” issue
of material fact). A material fact issue is “genuine” only if a reasonable factfinder could resolve
the fact issue in favor of the nonmovant. Roper, 2013 WL 6465637, at *4 n.4. When the evidence
simply shows that some metaphysical doubt as to the fact exists, or when the evidence is not
significantly probative, the material fact issue is not “genuine.” Id.
Alleged Fact Issues
Appellants argue that summary judgment was improper because fact issues existed
as to whether they were club members, whether their membership application was approved,
8
whether Anderson was married to Oman when the application was made, whether Oman had
authority to sign the application for her, and whether the release applicable to the club facilities
encompasses the country club’s bar. None of these alleged fact issues are genuine. See id.; cf.
Tex. R. Civ. P. 166a(c).
The Club’s summary-judgment evidence includes this application information for
Appellants, which contains Oman’s representation that he and “Karen Anderson” were married, as
well as his listing of their marriage date and his identification of “Mrs.” Anderson as his spouse:
Directly above the application’s signature line, Oman certified that he and his spouse had a
marriage license or its equivalent and that he was authorized to sign on her behalf as a user on the
membership. In conjunction with the date of marriage, Oman used Anderson’s personal
identifying information, including her name and date of birth, 4 and further affirmed that the
information he was providing to the country club therein was “true and correct”:
4 The statute prohibiting the fraudulent use or possession of the identifying information of
another person without their consent defines “[i]dentifying information” as “information that alone
or in conjunction with other information identifies a person, including a person’s: . . . name and
date of birth . . . .” Tex. Penal Code § 32.51(a)(1)(A).
9
As support for their contention that there was a fact issue about whether Anderson consented or
authorized Oman to apply for their country club membership and whether they were married on
or before the application date—i.e., that the personal identifying information Oman provided to
the country club about himself and Anderson was false and/or fraudulently used—Appellants rely
only on their attorney’s argument, which is not evidence. See Pine Forest Invs. Grp., LLC
v. County of Bastrop, Tex., No. 03-16-00789-CV, 2018 WL 3077972, at *5 n.9 (Tex. App.—Austin
June 22, 2018, pet. denied) (mem. op.) (noting that counsel’s argument in motion is not evidence);
see also Tex. R. Civ. P. 93(7) (requiring verification of denial that written instrument was executed
with person’s authority); cf. Whittlesey v. Miller, 572 S.W.2d 665, 669 (Tex. 1978) (“In the absence
of evidence showing authority,” spousal relationship does not give contracting authority). 5
No authority is provided for Appellants’ assertion that there is a fact issue about
whether the club facilities referenced in the release excluded the bar within those facilities. Such
an interpretation is contrary to the broad definition of “Club facilities” in the release paragraph,
which refers to “the Club facilities and the facilities of any participating network clubs, including,
5 Nor is there any evidence that during the nearly year and a half that the country club
afforded membership benefits to Appellants, Anderson notified them that Oman lacked her consent
or authorization to use her personal identifying information to enroll her as a club member.
10
but not limited to, dining and event rooms, recreational amenities and outdoor areas, grounds, [and]
parking areas.” That interpretation is also contrary to the common meaning of “facility” as “a
place, especially including buildings, where a particular activity happens.”
https://dictionary.cambridge.org/us/dictionary/english/facility (last visited Oct. 13, 2026). And
that interpretation is contrary to Appellants’ statements about the incident to police. In the
unobjected-to evidence from a Temple Police Department incident sheet, 6 Oman discussed the
location of the events, stating “[H]e and his wife, Karen Anderson, were at the country club,”
“consumed several alcoholic beverages while they were sitting near the bar,” and afterward “he
and Anderson drove their golf cart from the Country Club Clubhouse” to their residence. 7 No
reasonable factfinder could determine from the summary-judgment evidence in this record that the
meaning of club facilities in the release excluded a bar inside a club building or clubhouse. See
Roper, 2013 WL 6465637, at *4 n.4.
Appellants’ contention that there are fact issues about their club-member status is
also unfounded. A membership processing checklist in evidence shows a “Member Number” and
“Join Date,” and that the application was “APPROVED”:
6 For the first time on appeal, Appellants contend that this police record is hearsay.
Unobjected-to hearsay is probative evidence. See Tex. R. Evid. 802 (inadmissible, unobjected-to
hearsay is not denied probative value because it is hearsay); Texas Com. Bank, Nat’l Ass’n v. New,
3 S.W.3d 515, 516 (Tex. 1999) (“unobjected-to hearsay is, as a matter of law, probative evidence”).
7Oman’s statement to police about the location where he and his wife consumed several
alcoholic beverages is consistent with Jeremy Lawson’s statement that Appellants were both very
intoxicated, and he helped Oman “down the stairs on the back side of the Clubhouse and helped
him to his golf cart.” Police documented that Oman had a blood-alcohol content of .26, and
Anderson had a blood-alcohol content of .18.
11
And the police-incident sheet notes that on the date in question, Oman had an account at the club.
In response to the Club’s motion, Appellants provided no affidavits or other
summary-judgment evidence contesting the above information. 8 Thus, the summary-judgment
evidence before the trial court at the time of the hearing showed that Appellants were club
members; that their membership application was approved; that they had a join date, an assigned
member number, and a current club account; that they consumed several drinks in the bar and
became intoxicated after a members’ golf tournament 9; that they were married to each other; that
Oman had authority to sign for Anderson; and that all the information Oman provided to the Club
8 None of the exhibits to Appellants’ response—a demand letter, an unauthenticated
screenshot, an incomplete police-incident sheet, and an unauthenticated page on medications—
involve arguments about the release, and they are immaterial to analysis of these appellate issues.
9 Appellants’ live pleading states, “After a members[’] golf tournament, Mr. Oman, his
wife, and several friends were in the bar area of the club in the evening of November 4, 2023.
Admittedly they all had several drinks in the bar.” Such “[a]ssertions of fact, not plead in the
alternative, in the live pleadings of a party are regarded as formal judicial admissions.” Houston
First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983). And “judicial admissions in an
opposing party’s pleadings may be used as evidence to support a summary-judgment motion.”
Weekley Homes, LLC v. Paniagua, 646 S.W.3d 821, 828 (Tex. 2022).
12
was true and correct. Given this evidence, Appellants failed to show that summary judgment was
precluded based on a genuine issue of material fact about the release’s validity and enforceability.
Overservice Claims
Next, Appellants argue that this release, even if valid and enforceable, does not bar
their overservice claims for gross negligence. This presumes that those are stand-alone claims.
“[N]egligence and gross negligence are not separable causes of action but are inextricably
intertwined.” AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 299 (Tex. 2020) (quoting Ford
Motor Co. v. Miles, 967 S.W.2d 377, 390 (Tex. 1998) (Gonzalez, J., concurring)); Pecan Valley
Mental Health Mental Retardation Region Operating as Pecan Valley Ctrs. for Behav. & Develop.
Healthcare v. Doe, 678 S.W.3d 577, 594 (Tex. App.—Eastland 2023, pet. denied) (“Gross
negligence is not an independent cause of action; rather, ordinary negligence and gross negligence
are ‘inextricably intertwined’—gross negligence is contingent upon an affirmative finding of
ordinary negligence.”); Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946, 949 (Tex. App.—
Austin 1990, writ denied) (noting that “one’s conduct cannot be grossly negligent without being
negligent” and that “[t]he difference between these two forms of negligence is one of degree rather
than kind”). The Club contends here, as it did below, that Texas law does not recognize
common-law negligence and gross-negligence claims for overservice independent of the Dram
Shop Act, and that it was entitled to dismissal of all Appellants’ dramshop liability claims against
Wildflower Country Club and negligence-based claims for overservice against Lawson based on
the valid and enforceable release. We agree.
The Dram Shop Act allows liability claims against alcoholic-beverage providers for
damages resulting from the provision of alcohol to “obviously intoxicated” persons (overservice).
13
See Tex. Alco. Bev. Code § 2.02(b); Raoger Corp., 711 S.W.3d at 209. Section 2.03 of the Texas
Alcoholic Beverage Code specifies that the Act is the exclusive means for recovery against a
provider of alcohol and is in lieu of any common-law claims against the provider:
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
[and that] this chapter provides the exclusive cause of action for providing an
alcoholic beverage to a person 18 years of age or older.
Tex. Alco. Bev. Code § 2.03(a); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 686
(Tex. 2007). “Section 2.03 simply means that the Dram Shop Act provides the exclusive remedy
against an alcohol provider for damages caused by an intoxicated patron at least 18 years of age—
i.e., common law remedies are no longer available.” F.F.P. Operating Partners, L.P., 237 S.W.3d
at 686; see Steak & Ale of Tex., Inc. v. Borneman, 62 S.W.3d 898, 910 (Tex. App.—Fort Worth
2001, no pet.) (noting that statutory cause of action under Dram Shop Act is “to the exclusion of
all other common law causes of action”); see also Southland Corp. v. Lewis, 940 S.W.2d 83, 84
(Tex. 1997) (“Lewis’ negligence and negligence per se claims are clearly barred by the exclusive
remedy provision of chapter 2 of the Texas Alcoholic Beverage Code.”). A gross-negligence
determination is relevant only to the assessment of exemplary damages. Trevino, 782 S.W.2d at
950. Exemplary damages are unrecoverable for an overservice claim under the Dram Shop Act.
See Steak & Ale of Tex., Inc., 62 S.W.3d at 910 (noting that “[a]llowing recovery of exemplary
damages based on a finding of gross negligence would be inconsistent with the plain language and
intent of the Dram Shop Act”). Absent an award of actual damages, there is no recovery of
exemplary damages. Nabours v. Longview Sav. & Loan Ass’n, 700 S.W.2d 901, 903 (Tex. 1985).
14
Thus, Appellants’ reliance on their common law gross-negligence claims as a
stand-alone basis for recovery for overservice against the Club—independent of the release of their
negligence-based overservice claims and their statutory claims for overservice under the Dram
Shop Act—is legally unsupported and does not entitle them to reversal of the summary judgment
on their overservice claims. 10
10 For the first time on appeal, Appellants raise an issue challenging the release as against
public policy. That new issue is not preserved for appellate review and provides no basis for
reversal of the summary judgment because Appellants failed to expressly raise it in their
summary-judgment response. See Tex. R. Civ. P. 166a(c); Tex. R. App. P. 33.1(a); State Bd. of Ins.
v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex. 1986) (per curiam) (“[I]ssues not expressly
presented to the trial court may not be considered on appeal as grounds for reversal of a summary
judgment.”); Khan v. Chaudhry, No. 09-14-00479-CV, 2016 WL 1158734, at *2 (Tex. App.—
Beaumont Mar. 24, 2016, pet. denied) (mem. op.) (rejecting party’s attempt to add new appellate
issue that parties’ contracts “were void as illegal or against public policy”); Charbonnet v. Shami,
No. 04-12-00711-CV, 2013 WL 2645720, at *5 (Tex. App.—San Antonio June 12, 2013, pet.
denied) (mem. op.) (“The Charbonnets’ response did not, however, present any argument regarding
the possible public policy in Texas prohibiting an advance waiver of liability for gross negligence.
Thus, this argument was not preserved for our review.”); see also Los Arboles Tulum, L.P. v. Matula
Family, L.P., No. 03-23-00488-CV, 2025 WL 2485159, at *5-6 (Tex. App.—Austin Aug. 29, 2025,
pet. denied) (concluding that party who failed to raise argument that “could have been raised, and
should have been raised, in response to [opponent’s] summary-judgment motion” had “waived the
argument for appellate review,” and that we “may not consider it as grounds for reversal”); Last
v. Quail Valley Country Club, L.P., No. 01-08-00759-CV, 2010 WL 1253782, at *2, *8 (Tex.
App.—Houston [1st Dist.] Mar. 25, 2010, pet. denied) (mem. op.) (concluding that Lasts—who
challenged trial court’s judgment on validity and enforceability of pre-injury release barring their
Dram Shop Act claims against private club for allegedly overserving operator of mechanical bull
ride and overserving Robert Last before his bull ride—failed to adequately present and support
their issue contending that release was against public policy).
“Requiring parties to raise complaints at trial conserves judicial resources by giving trial
courts an opportunity to correct an error before an appeal proceeds.” In re B.L.D., 113 S.W.3d
340, 350 (Tex. 2003). Circumventing preservation requirements by relying on the “discredited
doctrine” of fundamental error has been done only rarely, “when the record shows on its face that
the court lacked jurisdiction” and when reviewing “certain types of error in juvenile-delinquency
cases.” Id. Neither of those circumstances are present here. We refrain from applying the
fundamental-error doctrine to an area of the law where it has not been applied. Goodson
v. Castellanos, 214 S.W.3d 741, 750 (Tex. App.—Austin 2007, pet. denied).
15
Non-Overservice Claims
Appellants’ non-overservice claims are based on their drugging allegations.
Appellants allege that Lawson “knowingly, recklessly, and intentionally” intensified their
intoxication by spiking their drinks with drugs other than Oman’s prescribed opiates. The
complete, unobjected-to police-incident sheet states that the final analysis of Appellants’ blood
tests showed “no evidence of them being drugged” and a forensic nurse determined the same. 11
But the police incident sheet also states that Oman’s initial blood-analysis results were
presumptively positive for opiates and amphetamines, when Oman reported using only
prescription opiates. 12 Oman’s initial blood-analysis results create a fact issue precluding
summary judgment on the pleaded drugging allegations against Lawson, and Appellants allege
that because the drugging was done in the course and scope of Lawson’s employment, the country
club is vicariously liable for it.
The Club’s traditional motion for summary judgment does not address these
non-overservice claims. Thus, the trial court erred by granting more relief than the motion
requested when rendering final judgment in favor of the Club. See G &H Towing Co. v. Magee,
347 S.W.3d 293, 297 (Tex. 2011) (stating general rule that granting summary judgment on claim
unaddressed in summary-judgment motion is reversible error). In such circumstances, we “treat
11 The complete police-incident sheet is proper summary-judgment evidence because it
was filed before the hearing with the Club’s objections to Appellants’ summary-judgment evidence
and it was incorporated by reference into the Club’s reply. See Tex. R. Evid. 106 (“If a party
introduces all or part of a writing or recorded statement, an adverse party may introduce, at that
time, any other part—or any other writing or recorded statement—that in fairness ought to be
considered at the same time.”); Met Water Vista Ridge, LP v. Blue Water Sys., LP, 717 S.W.3d 901,
911 (Tex. App.—Houston [14th Dist.] 2025, no pet.) (“Proper summary judgment evidence
includes all evidence on file with the trial court at the time of the summary judgment hearing.”).
12 Anderson’s blood-analysis never showed drugs in her system.
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the summary judgment as any other final judgment, considering all matters raised and reversing
only those portions of the judgment based on harmful error.” Id. at 298.
CONCLUSION
We affirm the trial court’s final judgment in part as to Ronald Oman’s and Karen
Anderson’s overservice claims against Wildflower Country Club and Jeremy Lawson, reverse the
final judgment in part as to Ronald Oman’s and Karen Anderson’s non-overservice claims against
Wildflower Country Club and Jeremy Lawson, and remand this cause to the trial court for further
proceedings consistent with this opinion.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Crump and Ellis
Concurring and Dissenting Opinion by Justice Ellis
Affirmed in Part; Reversed and Remanded in Part
Filed: October 16, 2026
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