                                                                                               ACCEPTED
                                                                                           03-13-00286-CV
                                                                                                   6610835
                                                                                THIRD COURT OF APPEALS
August 25, 2015                                                                            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”).


                                               4
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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