                                                                                           ACCEPTED
                                                                                       03-14-00080-CV
                                                                                               6045739
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                  7/13/2015 4:37:24 PM
                                                                                     JEFFREY D. KYLE

                           No. 03-14-00080-CV
                                                                                                CLERK




                    In the Third Court of Appeals 3rd COURT
                                                         FILED IN
                                                              OF APPEALS
                                                      AUSTIN, TEXAS
                            Austin, Texas         7/13/2015 4:37:24 PM
                                                                 JEFFREY D. KYLE
                                                                      Clerk


                            GATTIS ELECTRIC, INC.,
                                  Appellant

                                        V.

           THERESA MARIE MANN, INDIVIDUALLY AND AS GUARDIAN
              OF THE PERSON AND ESTATE OF JAMES LAWHON,
                               Appellee



                 APPEAL FROM CAUSE NO. D-1-GN-12-001971
              125TH JUDICIAL DISTRICT OF TRAVIS COUNTY, TEXAS
                         HON. TIM SULAK PRESIDING


           MOTION FOR LEAVE TO FILE POST-SUBMISSION
             LETTER OF SUPPLEMENTAL AUTHORITY


TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellee Theresa Marie Mann, Individually and as Guardian of the Person

and Estate of James Lawhon, files this motion seeking leave to file a post-

submission letter of supplemental authority. Appellee respectfully shows:

      1.    This case was submitted without argument on July 2, 2015 before a

panel consisting of Chief Justice Rose and Justices Goodwin and Bourland.
      2.     A party’s brief may be amended or supplemented whenever justice

requires and on whatever reasonable terms the appellate court may prescribe. TEX.

R. APP. P. 38.7. Unless specifically requested, this Court’s practice is to require

that post-submission briefs—including letters of supplemental authority—be

accompanied by a motion for leave.

      3.     Appellee desires to file the letter attached as Exhibit A for the Court’s

consideration in deciding this appeal. The letter addresses a Texas Supreme Court

opinion issued since appellant filed its reply brief and shortly before submission.

This decision impacts a threshold issue before the Court—whether the duty owed

by one who is not an owner or occupier of land is measured according to premises-

liability law or general negligence principles.

      4.     Granting this motion would not prejudice appellant. Appellee’s brief

was well under the word-count limit, and appellee will have an opportunity to

respond to the letter if it so chooses.

                          CONCLUSION AND PRAYER

      Appellee respectfully requests that the Court grant this motion, file the letter

attached as Exhibit A, and consider the letter in rendering its decision. Appellee

requests all other appropriate relief to which she is entitled.




                                           2
                                      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

                                      Counsel for Appellee

                     CERTIFICATE OF CONFERENCE

      I certify that I attempted to confer with appellant’s lead counsel, Kevin

Jewell, about this motion by sending an email to him at 11:52 a.m. and then

placing a telephone call to his office at approximately 4:00 p.m. on this date. Mr.

Jewell has apparently been tied up in court and unable to respond to the email. He

was not available to speak by telephone when I called.

                                            /s/ D. Todd Smith
                                            D. Todd Smith




                                        3
                         CERTIFICATE OF SERVICE

      On July 13, 2015, in compliance with Texas Rule of Appellate Procedure

9.5, I served this document by e-service to:

      Kevin D. Jewell
      CHAMBERLAIN, HRDLICKA, WHITE,
       WILLIAMS & AUGHTRY
      1200 Smith Street, Suite 1400
      Houston, Texas 77002
      Lead Appellate Counsel for Appellant
      Gattis Electric, Inc.

                                               /s/ D. Todd Smith
                                               D. Todd Smith




                                          4
D. Todd Smith
todd@appealsplus.com
Board Certified—Civil Appellate Law
Texas Board of Legal Specialization


                                               July 13, 2015

Jeffrey D. Kyle, Clerk
THIRD COURT OF APPEALS
Price Daniel, Sr. Building
209 W. 14th St., Room 101
Austin, Texas 78701

        Re:      No. 03-14-00080-CV in the Third Court of Appeals; Gattis Electric, Inc.
                 v. Theresa Marie Mann, Individually, and as Guardian of the Person and
                 Estate of James Lawhon
                 Letter of Supplemental Authority

Dear Mr. Kyle:

      Appellee Theresa Marie Mann, Individually and as Guardian of the Person and
Estate of James Lawhon, submits this letter of supplemental authority supporting certain
arguments made in Appellees’ Brief. See TEX. R. APP. P. 38.7.

       In its reply brief, Appellant Gattis Electric, Inc. brushes aside the argument that
Lawhon properly submitted a general negligence theory—rather than a premises-liability
theory—because Gattis was not the owner or occupier of the premises on which Lawhon
was injured. Compare Appellants’ Reply Br. at 2 (“Lawhon says his claim against Gattis
is not a ‘premises defect’ claim because Gattis was not the property owner. That is
irrelevant to the proper characterization of his claim.”), with Appellees’ Br. at 16-21
(citing authority recognizing that nature of duty depends on whether defendant enjoys
status as owner, occupier, or legal equivalent). The Texas Supreme Court’s recent
decision in Austin v. Kroger Texas, L.P., ___ S.W.3d ___, No. 14-0216, 2015 WL
3641066 (Tex. June 12, 2015), squarely supports Lawhon’s position.

      In Austin, the Supreme Court addressed for the first time the interaction between
premises-liability claims and general negligence duties, there in the context of an
employer-employee relationship:




     1250 Capital of Texas Highway South | Three Cielo Center, Suite 601 | Austin, TX 78746 | 512.439.3230

                                                    Exhibit A
Re: No. 03-14-00080-CV
July 13, 2015
Page 2

             When an injury arises from a premises condition, it is often the case
      that any resulting claim sounds exclusively in premises liability, but that is
      not necessarily the case. An injury can have more than one proximate
      cause. The fact that Austin alleged that a condition of the premises
      proximately caused his injury does not preclude his allegation that Kroger’s
      negligent failure to provide the Spill Magic system also caused his injury. If
      the only relationship between Austin and Kroger were that of landowner-
      invitee, the alleged facts could only give rise to a premises-liability
      claim. . . .

Austin, 2015 WL 3641066, at *15 (emphasis added) (citations and footnote omitted)
(citing Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010); Lee Lewis Constr.,
Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001)). The Court further stated:

      Only an employer that has control over the premises where the employee is
      injured has a premises-liability duty to the employee, but the duty to
      provide necessary and safe instrumentalities applies to employers generally.
      If we were to adopt the rule Kroger advocates, employees injured on their
      employers’ premises by the employer’s failure to provide necessary and safe
      equipment would have to try their claims under a premises-liability theory of
      recovery, while employees injured on premises not owned by their
      employers would have to prosecute the same breach of duty under a
      general negligence theory of recovery—two different claims with different
      elements of proof. We see no reason why employees injured by a breach of
      the same duty should have to prove different elements to recover.

Id. (emphasis added) (citations omitted).

      The Austin decision thus confirms that one must be an owner, occupier, or legal
equivalent (such as a general contractor) to owe a duty under premises-liability law. If the
defendant lacks that status—as is the case here—general negligence duties apply.

      Even if Gattis somehow stood in the shoes of the premises owner, Austin also
dispels Gattis’s claim that “[c]ourts have clearly settled” in its favor “whether [p]remises
defect claims and negligent activity claims are independent.” Appellant’s Reply Br. at 3.
Without even citing the cases on which Gattis relies to support its view, the Supreme
Re: No. 03-14-00080-CV
July 13, 2015
Page 3

Court expressly reserved “whether a single injury could give rise to both a premises-
liability claim and a negligent activity claim if both the condition of the premises and the
contemporary activities of the premises owner proximately cause the injury.” 2015 WL
3641066, at *15 n.22.

      It is undisputed that Gattis did not own or occupy the premises in question. As
Austin confirms, Gattis could not benefit from premises-liability law, and Lawhon
properly submitted this case under a general negligence charge.

                                          Respectfully submitted,



                                          D. Todd Smith
                                          SBOT #00797451
                                          Counsel for Appellees

DTS/slk

                                  Certificate of Service

      By my signature above, I certify that a copy of this letter was sent to the following
counsel of record through the electronic filing system on July 13, 2015:

      Kevin D. Jewell
      CHAMBERLAIN, HRDLICKA, WHITE,
       WILLIAMS & AUGHTRY
      1200 Smith Street, Suite 1400
      Houston, Texas 77002
      Lead Appellate Counsel for Appellant
      Gattis Electric, Inc.
