                                                                                ACCEPTED
                                                                           04-14-00097-CV
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                     1/16/2015 10:33:16 AM
                                                                             KEITH HOTTLE
                                                                                    CLERK

                  Case No. 04-14-00097-CV

            IN THE COURT OF APPEALS           FILED IN
                                       4th COURT OF APPEALS
        FOURTH COURT OF APPEALS DISTRICTSAN ANTONIO, TEXAS
               SAN ANTONIO, TEXAS     01/16/2015 10:33:16 AM
                                                     KEITH E. HOTTLE
                                                          Clerk

   LUIS ALFREDO ROSA AND MYRNA LIZZET ROSA,
                   Appellants

                             v.

              MESTENA OPERATING, LLC,
                      Appellee


Appealed from the 79th District Court of Brooks County, Texas
    The Honorable Richard C. Terrell, Judge Presiding


       APPELLANTS’ MOTION FOR REHEARING


                     LAW OFFICES OF
                     DAVID MCQUADE LEIBOWITZ, P.C.
                     David McQuade Leibowitz
                     SBN: 12179800
                     david@leibowitzlaw.com
                     Jacob Samuel Leibowitz
                     SBN: 24066930
                     jacob@leibowitzlaw.com
                     One Riverwalk Place
                     700 N. St. Mary’s Street, Suite 1750
                     San Antonio, Texas 78205
                     T/210.225.8787;F/210.225.2567

                     Attorneys for Appellants
                            TABLE OF CONTENTS

Table of Contents…………………….…………………………………………….ii

Index of Authorities…………………………….…………………………………iii

Issues Presented for Rehearing ….…………………………………………………v

Introduction……………. …………………………………………………………..1

Argument…………………………………………………………………………...4

    I.   Contrary to the Court’s holding, the plain language of chapter 95 requires
         that there be a contractual relationship between the property owner and a
         contractor for improvements to the property owner’s property before the
         property owner can avail itself of the protections afforded it by section
         95.003…………………………………………………………………….4

   II.   Contrary to the Court’s holding, the common law underlying chapter 95
         also requires that there be a contractual relationship between the property
         owner and a contractor for improvements to the property owner’s
         property before the property owner can avail itself of the protections
         afforded it under section 414 of the Restatement (Second) of
         Torts………………………………..…………………………………...13

  III.   The legislative history underlying chapter 95 supports the Rosas’ “plain
         language” analysis of that chapter and was not offered as a substitute for
         that analysis……………………………………………………………..15

  IV.    The Court should consider all arguments that might assist it in properly
         construing chapter 95…………………………………………..……….16

Conclusion………………………………………………………………………...18

Certificate of Compliance…………………………………………………………19

Certificate of Service……………………………………………………………...20




                                         ii
                        INDEX OF AUTHORITIES

CASES                                                                 PAGE

Carpenter v. First Texas Bancorp,
     No. 03-12-00004-CV, 2014 WL 2568494
     (Tex. App. – Austin, June 5, 2014, no pet.) (mem. op.)………………8, 9, 10

City of Marshall v. City of Uncertain,
       206 S.W.3d 97 (Tex. 2006)………………………………………………….6

Evanstad v. State,
     178 Ariz. 578, 875 P.2d 811(App. 1993)………….……………………….18

Fisher v. Lee and Chang Partnership,
      16 S.W.3d 198 (Tex. App. – Houston [1st Dist.] 2000, pet. denied)……….16

Monsanto Co. v. Cornerstones Mun. Util. Dist.,
     865 S.W.2d 937 (Tex. 1993)……….………..……………………………5, 6

PCTV Gold, Inc. v. SpeedNet, LLC,
     508 F.3d 1137 (8th Cir. 2007)………….……..…………………………….16

Redinger v. Living, Inc.,
     689 S.W.2d 415 (Tex. 1989)……………………………………………….14

Rosa v. Mestena Operating, LLC,
      No. 04-14-00097-CV, 2014 WL 7183476
      (Tex. App. – San Antonio, December 17, 2014)
      ……………………………………………………...1, 3, 7, 11, 13, 14, 15, 16

STATUTES

TEX. CIV. PRAC. & REM. CODE chp. 95………………………………………passim

TEX. CIV. PRAC. & REM. CODE §95.002…………………………………...4, 5, 6, 10

TEX. CIV. PRAC. & REM. CODE §95.003………………………………...v, 4, 5, 6, 10

TEX. CIV. PRAC. & REM. CODE §95.003(1)…………………………………1, 10, 11

                                     iii
RULES

TEX. R. APP. P. 9.4(i)……………………………………………………………...19

TEX. R. APP. P. 9.4 (i)(1)…………………………………………………………..19

OTHER AUTHORITIES

Black’s Law Dictionary (9th ed. 2009)……………………………………………...6

RESTATEMENT (SECOND) OF TORTS §414 (1965)……………………….v, 13, 14, 15

Webster’s Ninth New Collegiate Dictionary (1989)………………………………..6




                               iv
                   ISSUES PRESENTED FOR REHEARING

      1. Did the Court err in holding, on the basis of chapter 95’s plain language,
that Mestena was entitled to the protections afforded property owners under that
chapter, even though the improvements to the real property in this case were made
to someone else’s property, not Mestena’s; even though the injury giving rise to
the lawsuit occurred on someone else’s property, not Mestena’s; and even though
Mestena did not have a contract with anyone for improvements to its own real
property?

       2. Did the Court err in holding, on the basis of chapter 95’s plain language,
that the chapter does not require a contractual relationship between the property
owner and a contractor for improvements to the property owner’s real property
before the property owner can avail itself of the protections afforded it by section
95.003 in a lawsuit brought against the property owner by the contractor, its
subcontractors, or their employees?

       3. Under a “plain language” analysis, does the reoccurrence of the words
“contractor,” “subcontractor,” “employee of a contractor or subcontractor,”
“independent contractor,” and “property owner” throughout chapter 95 have any
significance with regard to the statute’s applicability?

        4. Under a “plain language” analysis, does the limitation on property owner
liability vis-à-vis a “contractor,” a “subcontractor,” and an “employee of a
contractor or subcontractor,” rather than other categories of persons, have any
significance with regard to the statute’s applicability?

      5. Did the Court err in holding that the common law underlying chapter 95
did not require that there be a contractual relationship between the property owner
and a contractor for improvements to the property owner’s property before the
property owner can avail itself of the protections afforded it under section 414 of
the Restatement (Second) of Torts?

      6. Did the Court err in refusing to consider the legislative history of chapter
95, based on comments made by the bill’s sponsor, when that history supports the
Rosas’ “plain language” analysis?

      7. Did the Court err in refusing to consider all arguments that might assist it
in properly construing chapter 95, even though one of those arguments may not
have been included in the Rosas’ summary judgment response?
                                          v
                                     INTRODUCTION

       In its opinion, this Court upheld the trial court’s summary judgment in favor

of Mestena on the grounds that chapter 95 applied to this case as a matter of law,

and that the Rosas failed to introduce any summary judgment evidence on the issue

of control, as required by subsection 95.003(1) of the chapter. Rosa v. Mestena

Operating, LLC, No. 04-14-00097-CV, 2014 WL 7183476, *5 (Tex. App. – San

Antonio, December 17, 2014). Luis Rosa, as the Court recalls, was electrocuted

while repairing electrical poles pursuant to a contract between Rosa’s employer,

Quality Pole Inspection & Maintenance Co., and AEP Texas Central Company. 1

AEP owned the electrical pole that Rosa was working on at the time of the accident

and the utility easement on which the pole was located. The utility easement, in

turn, was located on property owned by Esteban Garcia.

       Mestena, on the other hand, was an operator of oil and gas wells and held the

mineral lease to the Garcia property along with its accompanying surface

easement. Mestena used its surface easement to install a pump jack at the Garcia

12 well. Next to the pump jack was a utility pole that Mestena owned, and on that

pole, a utility box containing electrical equipment to power the pump jack. The

utility pole was located 1,400 feet from the pole Rosa was working on at the time

1
 Record references to all factual statements appearing herein are set out in the Appellants’ Brief
and Reply Brief. Appellants have restated the pertinent facts to aid the Court in its
understanding of the points for rehearing.
of the accident and connected to it by wires. Mestena obtained the electricity it

used to power its pump jack from AEP and was responsible for the care and

maintenance of all equipment installed and operated by it in connection with its use

of the surface easement. Rosas alleged that Mestena was responsible for the

accident because it failed to timely replace a lightning arrester located in the utility

box next to the pump jack. The lightning arrester operated as a type of surge

protector and served to direct the electrical surge from a lightning strike into the

ground. With the lightning arrester blown as a result of a lightning strike, the

electrical surge from a subsequent lightning strike had nowhere to go but back to

the AEP pole, leaving the wires there energized at the time Rosa arrived to work

on it.

         As one can see, Mestena did not own or control the property where the

accident occurred. AEP owned and/or controlled that property. Mestena did not

have a contractual relationship with AEP, Quality Pole, Rosa, or anyone for that

matter for repairs to property owned or controlled by it. The repairs were directed

toward AEP’s property pursuant to a contract between Quality Pole and AEP, and

the accident occurred there in connection with those repairs. Despite having no

relationship to the property where the accident occurred (other than alleged

responsibility for the dangerous condition existing there), or the work performed

on that property, Mestena argued that Chapter 95 applied to this case. As a result,


                                           2
according to Mestena, the Rosas would have to demonstrate that Mestena had

control over the operative details of Rosa’s work at the time of the accident – even

though the work was occurring on someone else’s property pursuant to a contract

to which Mestena was a stranger -- and that it had actual knowledge of the

dangerous condition existing at the workplace at the time of the accident -- even

though the workplace was situated on someone else’s property -- before it could be

held liable for Rosa’s injuries.

      This Court agreed with Mestena, basing its agreement upon the following

conclusions: (i) the plain language of chapter 95 does not require that property

owners like Mestena have a contractual relationship with a contractor for

improvements to the property owner’s property in order for the property owner to

be afforded the chapter’s protection in any lawsuit brought by the contractor, its

subcontractors, or their employees; (ii) the common law underlying chapter 95

supports this “plain language” interpretation; (iii) the Court is not permitted to

consider the legislative history underlying chapter 95 when attempting to construe

it; and (iv) the Court cannot consider one of the Rosas’ arguments in construing

chapter 95 because the Rosas failed to present that argument to the trial court in

their summary judgment response. 2014 WL 7183476, at *4, *5. In considering

these conclusions, one should keep in mind, as Mestena’s own counsel

acknowledged during oral argument, that this case is one of first impression.


                                         3
Given that chapter 95 became effective on September 1, 1996, with extensive

litigation occurring under it, that fact in itself should have raised a red flag as to the

applicability of chapter 95 to this case.

                                    ARGUMENT

I.     Contrary to the Court’s holding, the plain language of chapter 95
       requires that there be a contractual relationship between the property
       owner and a contractor for improvements to the property owner’s
       property before the property owner can avail itself of the protections
       afforded it by section 95.003.

       In rejecting the Rosas’ argument that chapter 95 applicability is premised on

a contractual relationship between the property owner and a contractor for

improvements to the property owner’s property, the Court considered the statutory

language of section 95.002 (titled “Applicability”) and section 95.003 (titled

“Liability for Acts of Independent Contractors”) and concluded as follows:

       Nothing in the express language of chapter [sic] 95.002 indicates that
       property owners like Mestena, who did not have a contractual
       relationship with a contractor, are excluded from the protection
       afforded by the statute….Like section 95.003, section 95.002 makes
       no mention of a contractual relationship between the property owner
       and a contractor.

Id. at *4.

       But is that correct? Section 95.002 identifies the categories of persons to

whom the chapter applies (i.e., property owners, contractors, and subcontractors)

and the types of claims to which the chapter applies (i.e., claims for personal

injury, death, or property damage arising from the condition or use of an
                                            4
improvement to real property where the contractor or subcontractor constructs,

repairs, renovates, or modifies the improvement). Like section 95.002, section

95.003 also identifies categories of persons. It identifies the categories of persons

to whom a property owner would not be liable unless certain conditions were met

(i.e., contractors, subcontractors, and employees of contractors or subcontractors

who construct, repair, renovate, or modify an improvement to real property). In

attempting to ascertain the legislative intent underlying the chapter, as based on the

chapter’s plain language, one has to ask why does the statute address these

categories of persons and not others, and why does the statute limit property owner

liability vis-à-vis these categories of persons rather than others (e.g., dinner

guests). Or for that matter, why is chapter 95 titled “Property Owner’s Liability

for Acts of Independent Contractors and Amounts of Recovery”? In other words,

why does the phrase “property owner” occur in conjunction with the words

“contractor,” “subcontractor,” “employee of a contractor or subcontractor,” and

“independent contractor” throughout the chapter?

      The Court never addressed these questions, even though they are as much a

part of a “plain language” analysis as is reviewing two sections of chapter 95 to see

whether they contain the word “contract.” Since the words “contractor” and

“subcontractor” are not defined in the chapter, the Court must apply their ordinary

meaning when attempting to ascertain legislative intent from the plain language of


                                          5
the two sections. Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937,

939 (Tex. 1993). According to one dictionary, a “contractor” is “one that contracts

or is party to a contract” or “one that contracts to perform work or provide supplies

on a large scale.” Webster’s Ninth New Collegiate Dictionary 284 (1989). Black’s

Law Dictionary defines a “contractor” as “a party to a contract,” or more

specifically, as “one who contracts to do work or provide supplies for another.”

Black’s Law Dictionary (9th ed. 2009).         Similarly, a “subcontractor” is “an

individual or business firm contracting to perform part or all of another’s contract.”

Webster’s Ninth New Collegiate Dictionary 1173 (1989).           It is “[o]ne who is

awarded a portion of an existing contract by a contractor, esp. a general

contractor.” Black’s Law Dictionary (9th ed. 2009).

      Although the word “contract” does not expressly appear in sections 95.002

and 95.003, as the Court noted, it nevertheless forms an integral part of those two

sections by virtue of the reoccurrence of the words “contractor” and

“subcontractor” and their usage in conjunction with the phrase “property owner.”

Ascertaining legislative intent on the basis of a statute’s plain meaning requires

one to presume that every word of the statute has been included for a reason, and

that effect be given to every sentence, clause, and word of the statute so that no

part of it is rendered superfluous. City of Marshall v. City of Uncertain, 206

S.W.3d 97, 105 (Tex. 2006). If contractors contract, and if subcontractors perform


                                          6
a portion of the work required under a contractor’s existing contract, as their

definitions indicate, might the statutory limitation on property owner liability vis-à-

vis contractors and subcontractors presuppose the existence of a contract between

the property owner and a contractor for work on the property owner’s property?

      Although the Court ultimately answered the question in the negative, it

initially arrived at the opposite conclusion. At the outset of its discussion on

chapter 95, the Court stated the following: “Chapter 95 enunciates a general rule of

non-liability for property owners when a contractor or subcontractor or an

employee of a contractor or subcontractor is injured on the property owner’s

property while performing repairs or construction.” 2014 WL 7183476, at *2.

(emphasis added). As a preliminary matter, it should be noted that Rosa was not

injured on Mestena’s property; he was injured on AEP’s property. Therefore, on

the basis of the above statement, chapter 95 would not apply to this case.

      Further, if the chapter applies when “a contractor or subcontractor or an

employee of a contractor or subcontractor is injured on the property owner’s

property while performing repairs or construction,” it follows that the repairs or

construction in question also took place on the property owner’s property. After

all, how could the injury have occurred there if the repairs or construction did not

take place there as well? And, if the repairs or construction took place on the

property owner’s property, it also follows that the work could have only taken


                                          7
place on the property owner’s property pursuant to a contract with the property

owner. After all, work cannot take place on a property owner’s property without

the property owner’s knowledge and without a contract defining the scope of the

work. Without consulting the owner and entering into some type of agreement, the

contractor and its subcontractors would not know what to do, nor would they get

paid. And, if they did not consult the owner prior to initiating work on the

property owner’s property, then the contractor and subcontractors would be

trespassers and precluded from doing any work there. In sum, by acknowledging

that chapter 95 applies when a contractor, subcontractor, or an employee of a

contractor or subcontractor is injured on the property owner’s property, it follows

that the work resulting in the injury took place on the property owner’s property

pursuant to a contract between the property owner and a contractor.

       In a recent opinion, the Third Court of Appeals addressed this issue.

Carpenter v. First Texas Bancorp, No. 03-12-00004-CV, 2014 WL 2568494 (Tex.

App. – Austin, June 5, 2014, no pet.) (mem. op.). There, the bank asked the

claimant to help it by meeting with the bank’s insurance adjuster to point out hail

damage to the bank’s roof. Id. at *1. The claimant did that and, while descending

the ladder provided by the bank, injured himself. Id. at *1. The claimant sued the

bank for negligence and premises liability.     Id. at *1.   The bank moved for

summary judgment under chapter 95, and the trial court granted it. Id. at *1.


                                         8
      On appeal, the court of appeals held that the chapter did not apply to the

case, and that the trial court had erred in granting the summary judgment. Id. at

*3.   The court based its decision on the fact that the claimant was not a

“contractor” at the time of the accident as contemplated by the statute. Id. at *2.

Since chapter 95 did not define the word “contractor,” the court relied on its

ordinary meaning, noting that the word “ ‘contractor’ requires that there be an

actual contract under which one party (the contractor) has agreed to perform a

specific kind of work or task and be compensated therefor by another party.” Id. at

*1. It went on to note that the bank had failed to identify any summary-judgment

evidence conclusively establishing that the claimant was a “contractor” under

chapter 95 because “[t]here was no summary-judgment evidence of a written

contract between the parties for any repair work to be performed by [the

claimant].” Id. at *2 (emphasis added). The claimant had previously worked for

the bank as its roofing contractor and assumed that he would be doing the repair

work once matters were resolved with the insurance company. Id. at *2. Despite

expectations, however, the fact persisted that at the time of the accident the parties

had not agreed on the nature of the repairs, on whether the claimant would be the

one doing those repairs, and what his compensation would be. Id. at *2. “[A]bsent

facts supporting the presence of a contract between the parties,” therefore, the

claimant could not be a “contractor” under the statute. Id. at *2.


                                          9
      Here, there was no contract between Mestena and Quality Pole, AEP, or

anyone for the work Rosa performed on the electrical pole at the time of his

accident. Since there was no summary-judgment evidence supporting the presence

of a contract between the parties, as required in Carpenter, Rosa could not have

been “an employee of a contractor or subcontractor” under sections 95.002 and

95.003 at the time of the accident. In sum, if the Court were to consider the words

appearing in chapter 95, and not limit its analysis to those words not appearing, it

will find that the plain meaning of the words that do appear do not support the

chapter’s application to this case.

      As to subsection 95.003(1), that subsection requires, as a precondition to

property owner liability, that the property owner exercise or retain some control

over the manner in which the work was performed, other than the right to order the

work to start or stop, or to inspect progress, or to receive reports. TEX. CIV. PRAC.

& REM. CODE §95.003(1).         The Rosas argued that the plain language of the

subsection also contemplated a contractual relationship between the property

owner and a contractor, either actual or implied, for improvements to the property

owner’s property, and that in the absence of such a relationship, where the

improvements were being made to someone else’s property, the subsection did not

apply. In response, the Court noted that control sufficient to establish liability

under subsection 95.003(1) can be proven either by evidence of an agreement that


                                         10
explicitly assigns the property owner a right of control or by evidence that the

property owner actually exercised control over the manner in which the

independent contractor’s work was performed. 2014 WL 7183476, at *4. Since

control sufficient to establish liability under subsection 95.003(1) could be shown

through actual control, the Court rejected the Rosas’ argument. Id.

      In reaching this conclusion, the Court’s “plain language” analysis again

focused more on words not appearing in the subsection to the exclusion of those

words actually appearing there. Subsection 95.003(1) specifically exempts three

types of control from serving as a basis for property owner liability. These three

types of control can only exist by virtue of a contractual relationship between the

property owner and a contractor. Under the statute, these three types of control

have been removed from the list of possible rights arising under a contract between

a property owner and a contractor and exempted from serving as a basis for

liability. They have been determined by the Legislature not to exhibit such a

degree of control over the work as to charge the property owner with liability for

failure to provide a safe workplace.

      When the work giving rise to the injury takes place on someone else’s

property pursuant to a contract to which the property owner is not a party, as

occurred here, the property owner would not have any basis on which to order the

work to start or stop, or any basis on which to inspect the work, or any basis on


                                         11
which to receive reports regarding the work. As a result, there would be no reason

for exempting these powers from serving as a basis for statutory liability since the

property owner would never possess them anyway. The statutory language would

be rendered superfluous, in contravention of the general rules of statutory

construction. It is only when the property owner is in a contractual relationship

with a contractor for improvements to the property owner’s property that the

property owner might possess these contractual rights, thereby necessitating the

statutory language exempting them as a basis for liability. The Court’s opinion

simply ignores this language.

       Additionally, the fact that actual control can serve as a basis for property

owner liability does not discredit the Rosas’ argument. What the Court fails to

note is that the exercise of actual control does not arise in a vacuum but

presupposes a contractual relationship between the property owner and a contractor

for improvements to the property owner’s property. If there were no contract, and

the improvements were being made to someone else’s property, the property owner

is not going to concern itself with how the work is progressing and therefore is not

going to exercise control over that work. In this case, the work took place on

AEP’s property pursuant to a contract between AEP and Quality Pole. Mestena

had no reason to concern itself with that work and therefore never attempted to

exercise actual control over it.


                                         12
      Further, Mestena had no basis for exercising actual control. The work was

on someone else’s property and did not involve Mestena. Had Mestena attempted

to exercise actual control over the work, it would have been sued for tortious

interference with a contract.     It is only when actual control is more than a

theoretical possibility and can arise by virtue of work on the property’s owner’s

property pursuant to a contract between the property owner and a contractor that

actual control can serve as a basis for property owner liability. When the work

occurs on someone else’s property, and the prospect of the property owner

exercising actual control over that work is virtually nonexistent, as in this case, the

absence of actual control (or rather the absence of any possibility of exercising

actual control) does not exonerate the property owner from liability under chapter

95. Rather, it shows that chapter 95 was not intended to apply to that particular

situation, and that the property owner’s liability should be adjudicated under the

traditional, common-law rules of premises liability.

II.   Contrary to the Court’s holding, the common law underlying chapter
      95 also requires that there be a contractual relationship between the
      property owner and a contractor for improvements to the property
      owner’s property before the property owner can avail itself of the
      protections afforded it under section 414 of the Restatement (Second) of
      Torts.

      The Court rejected the Rosas’ contention that the common law underlying

chapter 95 also contemplated a contractual relationship between the property

owner and a contractor for improvements to the property owner’s property. 2014
                                          13
WL 7183476, at *5. In reaching that conclusion, the Court noted that in Redinger

v. Living, Inc., 689 S.W.2d 415 (Tex. 1989), the Supreme Court adopted section

414 of the Restatement (Second) of Torts as the common-law rule in Texas. Id.

The Court then noted that chapter 95 codified Redinger on the issue of control but

that it required actual, rather than constructive, knowledge of the dangerous

condition. Id. With these preliminary observations out of the way, the Court

abruptly concluded its discussion, saying that the common law did not support the

Rosas’ contention. Id.

      Unfortunately, the Court failed to explain how it arrived at that conclusion,

and the Rosas invite it to do so. Until then, a quick review of section 414 is in

order. Section 414 is contained in chapter 15 of the Restatement (Second) of

Torts, which is titled “Liability of an Employer of an Independent Contractor.”

Section 414 is titled “Negligence in Exercising Control Retained by Employer” and

reads as follows:

      One who entrusts work to an independent contractor, but who retains
      the control of any part of the work, is subject to liability for physical
      harm to others, for whose safety the employer owes a duty to exercise
      reasonable care, which is caused by his failure to exercise his control
      with reasonable care.

Restatement (Second) of Torts §414 (1965) (emphasis added).




                                         14
       Comment (a) of the section consistently refers to the party “who entrusts

work to an independent contractor” as the “employer of an independent

contractor.” Comment (c) of the section concludes as follows:

       In order for the rule stated in this Section to apply, the employer must
       have retained at least some degree of control over the manner in
       which the work is done. It is not enough that he has merely a general
       right to order the work stopped or resumed, to inspect its progress or
       to receive reports, to make suggestions or recommendations which
       need not necessarily be followed, or to prescribe alterations and
       deviations. Such a general right is usually reserved to employers, but
       it does not mean that the contractor is controlled as to his methods of
       work, or as to operative detail. There must be such a retention of a
       right of supervision that the contractor is not entirely free to do the
       work in his own way.

Id. at comment c (emphasis added).

       One cannot entrust work to an independent contractor in the absence of a

contractual relationship. One does not employ an independent contractor in the

absence of a contractual relationship.     Section 414 and its comments clearly

support the Rosas’ interpretation of chapter 95.

III.   The legislative history underlying chapter 95 supports the Rosas’ “plain
       language” analysis of that chapter and was not offered as a substitute
       for that analysis.

       The Court did not consider the legislative history underlying the enactment

of chapter 95, saying that it was not permitted to do so since chapter 95 was not

ambiguous. 2014 WL 783476, at *5. The Court also said that even if it could

consider legislative history, the comments of one legislator, albeit the bill’s


                                         15
sponsor, did not constitute evidence of the Legislature’s collective intent when it

enacted the bill. Id.

       In response, it should be noted that the Rosas relied on legislative history not

as a substitute for a “plain language” analysis of chapter 95 but as supportive of

that analysis. This is precisely what the court did in Fisher v. Lee and Chang

Partnership, 16 S.W.3d 198 (Tex. App. – Houston [1st Dist.] 2000, pet. denied),

when it relied on the same legislative history to arrive at the currently accepted

holding that chapter 95 applies even when the defective condition causing the

employee’s injury was not the object of the contractor’s work.

IV. The Court should consider all arguments that might assist it in properly
construing chapter 95.

       Finally, the Rosas argued that chapter 95 did not apply to this case because

the real property to which the improvements were made was not the same real

property that qualified Mestena to be a “property owner.” The Court refused to

consider this argument, saying that the Rosas had failed to present it to the trial

court in their summary judgment response and therefore had waived it on appeal.

2014 WL 7183476, at *5.

       Although an appellate court will not ordinarily consider an argument raised

for the first time on appeal, it will address an argument if the issue is encompassed

in the party’s more general argument, and no new evidence is presented on appeal.

PCTV Gold, Inc. v. SpeedNet, LLC, 508 F.3d 1137, 1144 n.5 (8th Cir. 2007). Here,
                                          16
the Rosas timely presented the more general argument in their summary judgment

response (i.e., that although Mestena was a “property owner” under chapter 95, the

chapter did not apply because Mestena did not contract with anyone to repair,

renovate, or modify an improvement to real property owned by it). CR 204.

Encompassed within that argument was the secondary argument that the Court

refused to consider (i.e., that under the rules of statutory construction, the “real

property” that qualified Mestena to be a “property owner” must be the same “real

property” to which the improvements were made). The secondary argument was a

legal argument, and did not require the introduction of new evidence. It was raised

in the Appellants’ Brief, and Mestena had ample opportunity to respond to it in its

own brief. Mestena never raised the issue of waiver in its brief, presumably

because it considered the secondary argument encompassed within the more

general argument. If Mestena needed more time to respond to the secondary

argument, it could have requested that. It did not.

      More importantly, this case centers on the issue of statutory construction.

The Court’s ruling on that issue will affect not only the parties to this lawsuit but

all other similarly situated parties throughout the Fourth Appellate District and

beyond. One would assume that the Court would welcome all the assistance it

could get to help it construe the statute properly, even if that assistance was first

offered on appeal. After all, the Court would not want to settle upon an improper


                                         17
construction of chapter 95 simply because it refused to consider the one argument

that would have allowed it to arrive at a proper construction. As one court of

appeals stated, “[W]hen we are considering the interpretation and application of

statutes, we do not believe we can be limited to the arguments made by the parties

if that would cause us to reach an incorrect result.” Evanstad v. State, 178 Ariz.

578, 582, 875 P.2d 811, 815 (App. 1993). Accordingly, the Court should consider

all arguments that might assist it in properly construing chapter 95.

                                  CONCLUSION

      The Court should grant rehearing, vacate its opinion and judgment, and

reverse the summary judgment below.

                                 Respectfully submitted,

                                 Law Offices of David McQuade Leibowitz, P.C.
                                 One Riverwalk Place
                                 700 N. St. Mary’s Street, Suite 1750
                                 San Antonio, Texas 78205
                                 Telephone: (210) 225-8787
                                 Facsimile: (210) 225-2567
                                 E-mail: david@leibowitzlaw.com


                                 /s/ David McQuade Leibowitz
                                 DAVID MCQUADE LEIBOWITZ
                                 SBN: 12179800
                                 JACOB SAMUEL LEIBOWITZ
                                 SBN: 24066930

                                 ATTORNEYS FOR APPELLANTS



                                         18
                      CERTIFICATE OF COMPLIANCE

      Pursuant to Tex. R. App. P. 9.4(i), the undersigned hereby certifies that this

brief contains 4,471 words, excluding those parts of the brief specifically exempted

by Tex. R. App. P. 9.4(i)(1), as indicated by the word count of the computer

program used to prepare the brief.


                                      /s/ David McQuade Leibowitz
                                      DAVID MCQUADE LEIBOWITZ




                                         19
                        CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of this

document was served via e-service and/or facsimile transmission and/or certified

mail, return receipt requested, to the following persons on this the 16 th day of

January 2015:

      Ms. Jacqueline M. Stroh
      jackie@strohappellate.com
      THE LAW OFFICES OF JACQUELINE M. STROH, P.C.
      10101 Reunion Place, Suite 600
      San Antonio, Texas 78216

      Mr. Mike Mills
      mkmills@atlashall.com
      Ms. Susan Sullivan
      ssullivan@atlashall.com
      ATLAS, HALL & RODRIGUEZ, L.L.P.
      818 W. Pecan
      McAllen, Texas 78501

      Attorneys for Appellee
      Mestena Operating, L.L.C.




                                            /s/ David McQuade Leibowitz
                                            DAVID MCQUADE LEIBOWITZ




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