ACCEPTED
03-13-00286-CV
6610835
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/21/2015 7:54:45 PM
JEFFREY D. KYLE
CLERK
No. 03-13-00286-CV
RECEIVED IN
In the Third Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
8/21/2015 7:54:45 PM
Austin, Texas JEFFREY D. KYLE
Clerk
RICHARD PATRICK FAGERBERG,
Appellant
V.
STEVE MADDEN, LTD., SXSW, INC., AND W3 EVENT SPECIALISTS, INC.,
Appellees
APPEAL FROM CAUSE NO. D-1-GN-13-000933
261ST DISTRICT COURT OF TRAVIS COUNTY, TEXAS
HON. SUZANNE COVINGTON PRESIDING
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellant Richard Patrick Fagerberg files this motion for rehearing in
response to the Court’s opinion and judgment issued on July 3, 2015.
INTRODUCTION
Without hearing oral argument, a panel consisting of Justices Puryear,
Pemberton, and Field affirmed the trial court’s take-nothing summary judgment for
Appellees Steve Madden, Ltd., SXSW, Inc., and W3 Event Specialists, Inc. This
motion is limited to Fagerberg’s claim against W3, namely the Court’s conclusions
that W3’s contract with Stubb’s only obligated W3 to protect against crowd
activities and that any duty would have been owed only to Stubb’s and not to
audience members.
POINTS RELIED ON FOR REHEARING
1. In concluding that W3 owed no duty to Fagerberg, the Court
misapplied the plain language of W3’s contract with Stubb’s and improperly relied
on extraneous evidence when interpreting it.
2. In concluding that W3 owed no duty to Fagerberg, the Court re-cast
the issue into one W3 did not raise in the trial court or on appeal and improperly
affirmed the summary judgment on an unraised ground.
ARGUMENT
I. The Court’s Conclusion that the W3’s Contractual Duty Was Limited
to Addressing Crowd Activities Conflicts with the Contract’s Plain
Language
The Court quoted testimony from a Stubb’s representative that “W3 was
hired to ensure crowd safety and ‘monitoring the crowd inside the venue . . . If it
requires escorting off the premises, things like that where contact, human contact
would come into play, we rely on them [W3] to take care of that for us.’” Slip op.
at 17-18. From this and the contract’s use of the phrase “guard protection
services,” the Court concluded that “the evidence established that the contract
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between W3 and Stubb’s required W3 to protect against crowd activities” and
nothing more. See id. at 19.
The Court improperly relied on parol evidence when neither party asserted
ambiguity. See Senna Hills, Ltd. v. Sonterra Energy Corp., No. 03-08-00219-CV,
2010 WL 143408, at *6 (Tex. App.—Austin Jan. 15, 2010, no pet.) (“Only after a
contract is found to be ambiguous may parol evidence be admitted for the purpose
of ascertaining the true intentions of the parties as expressed in the contract.”
(citations omitted)). More troubling is the Court’s failure to apply the contract’s
plain language, even after quoting part of the operative portion in its opinion. The
relevant clause states:
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CR 468 (highlighting added). Under this provision, W3’s obligation clearly was
not limited to “guard protection services” or crowd control. Rather, W3 expressly
agreed to observe and monitor “any potentially or actually hazardous or dangerous
conditions and activities” and to “protect individuals from bodily harm” resulting
from those conditions. This contractual duty was broad enough to cover the falling
camera boom that indisputably injured Fagerberg. Rehearing should be granted.
II. The Court Erred by Basing Affirmance in Part on an Argument W3
Never Made
The Court went on to frame the duty issue in a way W3 had not: whether
Fagerberg was a third-party beneficiary of the contract between W3 and Stubb’s.
See slip op. at 19 & n.11 (citing Black + Vernooy Architects v. Smith, 346 S.W.3d
877, 881-82 (Tex. App.—Austin 2011, pet. denied) (en banc)). The Court’s
resolution of this unargued point should not end the inquiry. Had Fagerberg been
put on notice in the trial court that his status as a third-party beneficiary would be
an issue, he could have tailored his summary-judgment evidence and arguments
accordingly.1 By raising that point for W3, the Court has affirmed a summary
judgment on grounds not asserted in the trial court. See Progressive County Mut.
1
Fagerberg’s live pleading alleged that W3 owed him a duty of reasonable care when
performing its responsibilities under the contract. CR 39-40. In addition to the requirements for
demonstrating a duty to a third-party beneficiary outlined in Black, Fagerberg may have
expressly asserted a negligent-undertaking theory. See Torrington Co. v. Stutzman, 46 S.W.3d
829, 838 (Tex. 2000) (noting that “a duty may exist separately when a person undertakes to
provide services to another, either gratuitously or for compensation”).
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Ins. Co. v. Boyd, 177 S.W.3d 919, 921 (Tex. 2005) (per curiam) (noting that
affirmance on unraised grounds is not permitted). Rehearing should be granted.
CONCLUSION AND PRAYER
For these reasons, Fagerberg respectfully asks the Court to grant this motion;
sustain the points presented; and issue a substitute opinion reversing the summary
judgment for W3 and remanding that portion of the case for further proceedings.
Fagerberg requests all other appropriate relief to which he is entitled.
Respectfully submitted,
SMITH LAW GROUP LLLP
By: /s/D. Todd Smith
D. Todd Smith
State Bar No. 00797451
todd@appealsplus.com
1250 Capital of Texas Highway South
Three Cielo Center, Suite 601
Austin, Texas 78746
(512) 439-3230
(512) 439-3232 (fax)
Lead Counsel for Appellant
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CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Texas Rule of
Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface
no smaller than 14-point for text and 12-point for footnotes. This document also
complies with the word-count limitations of Rule 9.4(i) because it contains 675
words, excluding any parts exempted by Rule 9.4(i)(1).
/s/ D. Todd Smith
D. Todd Smith
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CERTIFICATE OF SERVICE
On August 21, 2015, in compliance with Texas Rule of Appellate Procedure
9.5, I served this document by e-service, e-mail, and/or mail to:
Steven J. Knight
CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY
1200 Smith Street, Suite 1400
Houston, Texas 77002-4496
Counsel for Appellee Steve Madden, Ltd.
Peter D. Kennedy
GRAVES, DOUGHERTY, HEARON & MOODY, P.C.
401 Congress Avenue, Suite 2200
Austin, Texas 78701
Counsel for Appellee SXSW, Inc.
John T. Dailey
ALLEN, STEIN & DURBIN, P.C.
6243 IH-1 0 West, 7th Floor
P. O. Box 101507
San Antonio, Texas 78201
Counsel for Appellee W3Event Specialists, Inc.
/s/D. Todd Smith
D. Todd Smith
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