ACCEPTED
03-13-00286-CV
6728551
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/31/2015 3:17:44 PM
JEFFREY D. KYLE
CLERK
No. 03-13-00286-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
8/31/2015 3:17:44 PM
3Jn tbe \!Cbirb QL:ourt of ~ppeals JEFFREY D. KYLE
Clerk
~ustin, \!Cexas
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
261 ST DISTRICT COURT OF TRAVIS COUNTY, TEXAS
HON. SUSANNE COVINGTON PRESIDING
W3 EVENT SPECIALISTS, INC.'S RESPONSE, OBJECTION AND
ARGUMENT IN RESPONSE TO APPELLANT'S
MOTION FOR REHEARING
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellee, W3 Event Specialists, Inc. ("W3"), files this it's Response,
Objection and Argument to Appellant's Motion for Rehearing.
#1334025/5551-033/JTD :jmf
Appellant, Fagerberg, in his Motion for Rehearing, complains that this Court
erred in affirming the Trial Court's decision that W3 owed no duty to Fagerberg.
Appellant also complains that this Court improperly recast the issue of duty.
The issue of duty has always been central to Fagerberg's negligence cause of
action against W3 and has now been fully considered by both the Trial and
Appellate Court, with both determining that no duty was owed to Fagerberg by
W3.
In its Memorandum Opinion, the Appellate Court's "Discussion" of the case
and applicable law is straightforward. When a Plaintiff alleges negligence, that
Plaintiff must show that a legal duty was owed to him by another, that there was a
breach of that duty and that damages were proximally caused by the breach.
In his attempt to establish a duty, Fagerberg's points to (1) W3's contract with
Stubbs and/or (2) an alleged exercise of actual control by W3.
Interpretation of a contract is one of law for the Court. Fagerberg's appeal
called upon the Appellate Court to review the contract between W3 and Stubbs and
determine whether a duty to Fagerberg existed by virtue of that contract. The
Appellate Court, like the Trial Court, has ruled that no such duty exists by virtue of
that contract. Fagerberg now, however, appears to complain about the manner in
which the Appellate Court reached that decision.
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Appellant, in his points of error, complains that the Appellate Court
misapplied the plain language of the contract and/or looked at evidence outside the
contract. In the Appellate Court's Memorandum Opinion, the Court stated that
"W3 established that it that it did not owe a duty to Fagerberg, either under its
contract with Stubbs or by way of any exercise of actual control. .. " Nowhere in
the Memorandum Opinion does this Court state that its decision with regard to the
contract was based, in whole or in part, on evidence outside the contract. While
such Memorandum Opinion does reference the evidence in the case, it was the
Appellant who asked for a review of such evidence by asking the Court to
determine whether W3 exercised actual control over others working at the concert,
specifically including Brown or Onslaught, and/or their activities involving the
camera and boom which fell, resulting in injury to Fagerberg. As to the "plain"
language of the contract, such has already been fully debated in two different
Courts, with both Courts concluding that, based upon the language of the contract,
W3 's "act or participation" in the concert was through providing security and
monitoring crowd activity and that W3 had no authority to exercise any control
over Brown or OnSlot or their activities "either contractually or in actual fact". No
rehearing of that issue is necessary or appropriate.
Appellant also complains that the Appellate Court, when reviewing the
contract, considered whether Fagerberg was a beneficiary of the contract. Again, it
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was the Appellant who has argued from the beginning that the contract by and
between W3 and Stubbs created a duty owing from W3 to Fagerberg.
Accordingly, the question as to whether Fagerberg was a beneficiary of that
contract, has always been at the center of that issue. If Appellant failed to
recognize that fact and, in his appeal failed to establish his status as a beneficiary
of the contract, he cannot now complain of his failure to do so. W3 would also
show that Appellant, it his Motion for Rehearing, makes no attempt to establish
that he was, in fact, a third-party beneficiary of such contract. No rehearing of that
issue is necessary or appropriate.
As to an alleged exercise of actual control, the Appellate Court, like the Trial
Court before it, after a thorough review of the evidence as outlined in both parties
briefs, correctly concluded that the evidence showed that W3 's "active
participation" in the concert was limited to providing security and monitoring
crowd activity, only. This Court's Memorandum Opinion provides a summary of
the evidence related to W3 's "active participation". As reflected therein, Madden
hired OnSlot, which hired Brown. Stubbs' personnel determined where Brown's
camera should be set-up and OnSlot personnel gave Brown directions. Just prior
to the accident, Brown was instructed by OnSlot to get a shot that required moving
the camera equipment over uneven terrain. It was during this process of moving
the camera, not operating the camera, that the equipment tipped and fell into the
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crowd. Fagerberg presented no evidence that W3 was even aware that the camera
equipment was being moved, much less controlled its being moved. Mr. Garrett,
Stubbs' general manager, testified that Stubbs did not hire W3 based on any
expertise or experience with camera equipment or its operation, that W3 was not
involved in setting up or operating the equipment and that W3 had no role in
supervising Brown or the people who were assisting him. According to Mr.
Garrett, W3 was hired only to insure crowd safety and "monitoring the crowd
inside the venue ... " Again, no rehearing of that issue is necessary or appropriate.
CONCLUSION AND PRAYER
Appellee, W3 Event Specialists, Inc., respectfully requests that the Court
deny Appellant's Motion, and grant Appellee all other and further relief to which it
may be entitled.
Respectfully submitted,
ALLEN STEIN & DURBIN, P.C.
6243 IH-10 West, Suite 700
San Antonio, Texas 78201
(210) 734-7488- phone
(210) 738-8036- fax
·daile asdh.com
/
Counsel for Appellee, W3 Event
Specialists, Inc.
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Certificate of Compliance
Relying on the word count function in the word processing software used to
produce this document, I certify that this response contains 892 words (excluding
any caption, identity of parties and counsel, statement regarding oral argument.
Table of contents, index of authorities, statement of the case, statement of issues
presented, statement of jurisdiction, statement of procedural history, signature,
proof of service, certification, certificate of compliance, and appendix) This
computer-generated document created in Microsoft Word, using 14-point Times
New Roman typeface for all text.
Certificate of Service
On August 31, 2015, in compliance with Texas Rules of Appellate Procedure, I
served this document on the following counsel of records by e-mail and/or mail to:
Mr. D. Todd Smith
SMITH LAW GROUP, P.C.
1250 Capital of Texas Highway South
Three Cielo Center, Suite 601
Austin, Texas 78746
Counsel for Appellant
J~
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