                                                                                      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.




                                          2
         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


                                          3
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


                                         4
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.

                                          5
                           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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