                                                                                          ACCEPTED
                                                                                      03-14-00463-CV
                                                                                              5061156
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                4/28/2015 11:42:37 AM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                           Cause No. 03-14-00463-CV

DON & CAROL TITEL                        §               IN THE FILED IN
                                                           3rd COURT OF APPEALS
Appellants                                                      AUSTIN, TEXAS
                                         §               THIRD    COURT
                                                           4/28/2015 11:42:37OF
                                                                              AM
v.                                                             JEFFREY D. KYLE
                                         §               APPEALS,Clerk
MORRIS & LISA MELCHOR,
Appellees                                §               TEXAS


                   Appealed from the County Court at Law #2,
                               Travis County, Texas
                           Cause #C1-CV-14-004232
           The Honorable David Phillips and Eric Shepperd Presiding




                   APPELLANTS’ REPLY BRIEF


PAUL C. VELTE IV
Counsel for Appellant
State Bar # 20541700
109 E. Hopkins St., Ste. 204
San Marcos, TX 78666
512-353-2299
Fax: 476-9504
Email: velte@ptexans.com

Request for Oral Argument: Oral Argument is Requested.




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                             Parties & Counsel

Appellants: Don Titel and Carol Titel

Counsel for Appellant:
Paul C. Velte IV – 109 E. Hopkins St., Suite 204, San Marcos, TX 78666



Appellees: Morris Melchor and Lisa Melchor

Trial Counsel for Appellee:
Jay Lea, 8310 Capital of Texas Highway, North, Suite 490, Austin, Texas 78731

On appeal: Same.




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                                         TABLE OF CONTENTS
PARTIES & COUNSEL ........................................................................................II

TABLE OF CONTENTS .....................................................................................III

INDEX OF AUTHORITIES ................................................................................IV

ISSUES PRESENTED ............................................................................................5
       Does a duty exist from among land owners to avoid foreseeable risks of
       wildfire?.............................................................................................................5
STATEMENT OF FACTS .....................................................................................5

REBUTTAL ARGUMENT & AUTHORITIES ...................................................6
   Existence of Duty ..................................................................................................7
PRAYER...................................................................................................................9

APPENDIX.............................................................................................................11




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                                   INDEX OF AUTHORITIES

CASES
Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539 (Tex. 1998)................................................8
Quiktrip corp. v. Goodwin, 449 S.W.3d 665 (Tex.App.-Ft. Worth 2014). .....................................7
Trammell Crow v. Gutierrez, 267 S.W.3d 9, 12 (Tex. 2008)..........................................................8




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TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:


                                    Issues Presented


Does a duty exist from among land owners to avoid foreseeable risks of wildfire?

                              Statement of Facts
    Appellants dispute a few of the statements contained in Appellees’ brief, as
follows:
Page 1: “[I]t is undisputed that Jeremy Melchor was given full control of the
Property.” If this means to say that Appellees had no control, this is disputed.
That Appellees retained title and a position to assert control at any time is
undisputed, and this made Jeremy (and his wife and girlfriends) their licensees. To
give any more authority than that, made Jeremy and his girlfriend their agents.
    As set forth in Appellants’ first brief, Appellees insured the property, paid some
of the bills, controlled some of the improvements, and stored restaurant equipment
there. They made it clear that their son Jeremy was ‘out’ if he failed to manage the
place to their liking.1 Clearly, Jeremy lived there at their pleasure. Appellees
could have exercised control to regulate all use of the property. They instead left
most or all decisions up to their agents. As outlined in Appellant’s first brief, there
is more than a scintilla of evidence that Appellees knew of the presence of many
children at their residence and of their activities.

                   Rebuttal Argument & Authorities
    Appellees arguments analyze this case in terms of ‘lack of duty,’ ‘parent and
child,’ ‘negligent entrustment,’ and even ‘landlord and tenant.’ No contention was
1 Morris Melchor Depo. 47:20 - 48:6 (see CR 525 at 553-54). Note that Ms. Lisa Melchor
testified she agreed with everything her husband had testified to in his deposition other than
perhaps some dates and ages of children. Lisa Melchor Depo. 4:9 – 20 (CR 505 at 506).

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made that Appellees have liability as parents or for negligent entrustment of land.
There is also clearly no a landlord/tenant relationship. Appellees insurance
policies make it clear they insured the Pickett Lane property as “occupied by
immediate family,” not as tenants. No other persons had any interest in the land,
not even a leasehold interest. Jeremy was a licensee with only as much authority
as Appellees granted to him. Therefore, his authority was theirs, and as their agent
in charge of the property and the people invited upon it, his negligence is theirs.
There is enough evidence of agency to raise a fact question of vicarious liability
for the negligence of the adults they left in charge of their residence. This alone is
grounds to reverse this summary judgment.
    Appellees seem to confuse the separate basis of liability for ‘control of
children’ (which is certainly being asserted in the suit below against the parents)
with the separate grounds asserted against Appellees: Their general negligence in
creating the situation in the first instance, and their vicarious liability for the
negligence of their agents in control of their property in the second instance. No
cause of action is asserted against the grandparents for the acts of their
grandchildren, either vicariously or for failing to control said grandchildren.
    What is asserted is that they were obligated to control the risky activities of all
persons invited upon their premises so as not to menace their neighbors. That
some of those persons were children just makes the risks of failing to exercise
control even greater. Appellees and their agents in control of the property and
invitees had a duty, not just to their invitees, as many cases hold, but to their
neighbors, to take precautions for obvious risks.2
    If the Court believes “negligent entrustment” is the proper label to apply to the
negligence action Appellants have plead in this case, then Appellants respectfully

2Compare the situation where the Melchors allowed invitees to shoot guns in a negligent fashion
causing bullets to traverse property lines.

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request the Court to recognize such a cause of action. If that duty is couched in
terms of ‘negligent entrustment’ instead of general negligence, so be it. However,
Appellants did not plead a negligent entrustment theory. Instead, Appellants
pleaded a case of general negligence on the part of the land owner’s agents for
whom the principals are liable. There is more than a scintilla of evidence in the
summary judgment record of agency. The main question for the Court is the
existence of a duty by the owners’ agents to the owners’ neighbors.


Existence of Duty
      Appellees argue “no duty.” Appellants submit that the burn ban in effect on the
day of this fire supplies enough of a duty. The policy reasons for such bans are
obvious: They are there to protect ones neighbors from wildfire.
      If no duty to one’s neighbors exists then this case makes a good example of
why there should be. The existence of duty is a question of law that can only be
found by this court.3 Can one avoid liability simply by being totally derelict in his
management of his invitees? Should they escape liability simply because they
chose to keep hands off? Appellees’ argument in a nutshell answers ‘yes.’
      If a visiting child had been injured by this fire, would there be any question as
to duty? Should this case turn on who was injured by the negligence of Appellee’s
agents? There are many cases stating there is a duty to one’s invitees.4 By logical
extension, if one owes a duty to ones invitees, they ought to owe a similar duty to
their neighbors. Why should liability for the same acts and deeds terminate at the
property line?
      Why should neighbors be afforded less protection than those invited upon
Appellees land? Are not neighbors also reasonably to expect that the law protects

3   Quiktrip corp. v. Goodwin, 449 S.W.3d 665, 670 (Tex.App.-Ft. Worth 2014).
4   See e.g., Trammell Crow v. Gutierrez, 267 S.W.3d 9, 12 (Tex. 2008).

                                               7
them from perils caused by neighbors? Plaintiffs urge this court to find a minimal
duty, one limited to the setting of fires that can traverse property lines.

       In determining whether a duty should be recognized, we consider
       "several interrelated factors, including the risk, foreseeability, and
       likelihood of injury weighed against the social utility of the actor's
       conduct, the magnitude of the burden of guarding against the injury,
       and the consequences of placing the burden on the defendant."5

    In this case the risk is great. The foreseeability is too. The children who caused

this fire could have died or worse, suffered terribly. Foreseeability: Who doubts

that children left unsupervised in ignitable surroundings might cause a fire? Most

everyone knows children in general will be tempted to play with fire, especially

when not being supervised.

    The burden of guarding against the injury is small: Keep children under

supervision (most people do as a habit), keep them on your own property, do not

let them wander in combustible environments, do not leave cigarette lighters lying

around, but if you choose not to do these things, at least teach the kids about the

risk of wildfire in such environs. The consequences of placing this burden on

defendants is minimal. They are merely the same consequence promoted by

statutory burn bans: Don’t start open fires during a drought.

    If anything, the abhorrent conduct of the Defendant left in charge of the
Appellee’s residence shows the need for it. It would be good public policy. No


5Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539, 544 (Tex. 1998)(quoting Greater
Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

                                            8
good public policy is served by denying such a duty. It would promote better
relations between neighbors, and deter the sorts of abuses suffered by Appellees’
neighbors in this case, especially Mr. & Mrs. Rodriguez. Appellees directly
benefited from their son’s malicious abuse of the Rodriguez property, who sold
their property at a loss to Appellees because Mr. Rodriguez felt he had little choice
but to do so. Indeed, the ‘final straw’ for Rodriguez was the same fire that
destroyed Plaintiffs’ property.
      Rodriguez’s deposition details a horror story of the neighbor from hell.6 Few
would want a neighbor like Appellees’ son Jeremy or his children in close
proximity. Lack of adult supervision of, and trespassing by, the Melchor children
was a concern of the entire neighborhood. Appellants to this day remain in fear of
Jeremy Melchor (quite reasonably in light of what they have learned of the way he
manages the property adjacent to theirs). They fear that if this court takes no
action, his parents the Appellees, will continue to grant him carte blanche to
imperil them once again. Appellants ask that some duty be imposed upon
landowners not to imperil their neighbors.

                                             Prayer
      The summary judgment proofs are sufficient to warrant a trial on the merits,
and therefore, no summary judgment should have been granted. Appellants pray
the judgment of the trial court be reversed and the cause remanded for a trial.

                                                  Respectfully Submitted,




                                                  Paul C. Velte IV
                                                  ATTORNEY FOR APPELLANTS

6   See generally, Jose Rodriguez Depo. from p. 14 et seq. (CR 321).

                                                 9
                                           Bar #20541700
                                           109 E. Hopkins St., Ste. 204
                                           San Marcos, TX 78666
                                           512-353-2299 Fax 512-476-9504
                                           Email: velte@ptexans.com

                           CERTIFICATE OF SERVICE

      I hereby certify that a copy of this document was served upon Jay Lea at the
time of e-filing by e-service on April 28, 2015.




                                           Paul C. Velte IV

                           CERTIFICATE OF LENGTH

      I hereby certify that the length of this brief is 1652 words total.




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