Case Information

*0 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/21/2015 7:54:45 PM JEFFREY D. KYLE Clerk No. 03-13-00286-CV THIRD COURT OF APPEALS 8/21/2015 7:54:45 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-13-00286-CV *1 ACCEPTED ^[6610835] CLERK In the Third Court of Appeals Austin, Texas R ICHARD P ATRICK F AGERBERG , Appellant V .

S TEVE M ADDEN , L TD ., SXSW, I NC ., AND W3 E VENT S PECIALISTS , I NC .,

Appellees A PPEAL F ROM C AUSE N O . D-1-GN-13-000933 261 ST D ISTRICT C OURT OF T RAVIS C OUNTY , T EXAS H ON . S UZANNE C OVINGTON P RESIDING 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

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:

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.

*5 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, S MITH L AW G ROUP 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 *6 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 *7 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

C HAMBERLAIN , H RDLICKA , W HITE , W ILLIAMS & A UGHTRY

1200 Smith Street, Suite 1400

Houston, Texas 77002-4496

Counsel for Appellee Steve Madden, Ltd.

Peter D. Kennedy

G RAVES , D OUGHERTY , H EARON & M OODY , P.C.

401 Congress Avenue, Suite 2200

Austin, Texas 78701

Counsel for Appellee SXSW, Inc.

John T. Dailey

A LLEN , S TEIN & D URBIN , 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

[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”).