                                                                                               ACCEPTED
                                                                                           03-14-00080-CV
                                                                                                   7142454
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
October 19, 2015                                                                     9/29/2015 11:36:26 AM
                                                                                         JEFFREY D. KYLE
                                                                                                    CLERK
                                  NO. 03-14-00080-CV
                        ______________________________________
                                                                   RECEIVED IN
                                                             3rd COURT OF APPEALS
                              IN THE COURT OF APPEALS             AUSTIN, TEXAS
                               THIRD JUDICIAL DISTRICT       9/29/2015 11:36:26 AM
                                    AUSTIN, TEXAS                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.
                        ______________________________________

                       On Appeal from the 126th Judicial District Court
                                  of Travis County, Texas
                            Trial Court No. D-1-GN-12-001971
                       ______________________________________

                     APPELLANT’S MOTION FOR REHEARING
                  AND MOTION FOR EN BANC RECONSIDERATION
                      ______________________________________

      TO THE HONORABLE THIRD COURT OF APPEALS:

            Appellant, Gattis Electric, Inc., pursuant to Texas Rules of Appellate

      Procedure 47.1, 49.1 and 10.5(b), respectfully requests this Court to rehear this

      case, or grant en banc reconsideration, for several important reasons.
A.     Summary.

       What is the nature of the duty owed by a subcontractor to a downstream

subcontractor? This Court says the duty is one of ordinary negligence, equivalent

to the duty that would apply between an employer and its employee. The Court

also suggests that for a plaintiff to recover in negligence from an upstream

subcontractor, he does not have to secure a jury finding that the subcontractor

controlled the means and methods of the plaintiff’s injury-producing work. The

Court is incorrect on both counts. Indeed, the Court’s opinion fails to discuss the

control issue at all.

       Here, Appellant Gattis was an electrical subcontractor on a remodeling job.

The plaintiff, Appellee Lawhon, worked for Kosich, a subcontractor of Gattis.

Lawhon was injured when he attempted to move a lighted “exit” sign (at the fire

marshal’s request) without first cutting electrical power to the sign.    Lawhon

submitted Gattis’s conduct to the jury as an ordinary negligence question. Further,

he did not submit a jury issue on whether Gattis controlled the injury-producing

work, even though control was heavily disputed by Gattis (and the jury expressly

found that another party controlled the work).

       Contrary to the Court’s decision, the duty owed by a subcontractor in

Gattis’s position is not the ordinary negligence duty sometimes applicable in the

employment context. Lawhon was not Gattis’s employee, and the Court should



                                         2
not treat him like one. Not once did Lawhon argue—in the district court or this

Court—that he was anything other than an independent contractor. And, assuming

it was ever appropriate to charge the jury with an ordinary negligence question

under the present facts, it remained the plaintiff’s burden to prove that the

subcontractor controlled the plaintiff’s injury-producing work.     We know this

because, among other reasons, the subcontractor’s duty of care is necessarily

linked to, and commensurate with, the control it retains or exercises over a

plaintiff’s work. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783

(Tex. 2001). Lawhon did not prove that Gattis controlled the injury-producing

work. The Court should take a second look at this case and reverse the judgment.

B.    Lawhon was Gattis’s independent contractor, not an employee. The
      Court erred in failing to apply independent contractor law to this case.

      The Court refused to apply Texas’ long established body of independent

contractor law because Gattis was “not the property owner or the general

contractor.”   (Op. at 10).   In the Court’s view, the duties applicable in the

independent contractor area apply only to those who occupy positions of “property

owner” or “general contractor.”       (Op. at 10).      Gattis was the electrical

subcontractor and, thus, the Court said, owed a general duty of ordinary care. In so

holding, the Court ignored the fundamental nature of the relationship between the

plaintiff and defendant, which is one of independent contractor. The moniker used

to describe Gattis, whether “general contractor” or “subcontractor,” is not

                                         3
determinative. What is important is the position Lawhon occupied in relation to

Gattis, which, here, is plainly a contractor—not an employment—relationship.

      Lawhon was one of four workers supplied on a per job, contractor basis by

another party, Kosich. (3 RR 90-92). During trial, all parties understood that

Lawhon was an independent contractor. Lawhon never argued in the district court

that he was Gattis’s employee (the record establishes he was not). (3 RR 90-92,

150-51, 162, 198). Lawhon never offered sufficient evidence to establish an

employer relationship with Gattis. Lawhon did not offer evidence that he was paid

like an employee of Gattis.1 And Lawhon did not submit a question asking the jury

to decide whether Lawhon was Gattis’s employee. Texas Pattern Jury Charges

(General Negligence) 10.1 (2012).     This case does not involve an employee

relationship.

      Setting aside for the moment the distinction between premises defect and

negligent activity cases, the Texas Supreme Court long ago confirmed that when

the relationship between the parties is one of independent contractor, the duty

owed goes only so far as the control retained or exercised. Lee Lewis, 70 S.W.3d

at 783; Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985).         Those




1
      In fact, as shown by the W-2’s Lawhon introduced, his employer during
      2011 and 2012 was Jennings Electric Company, not Gattis. (Pl. Exs. 45H
      and 45J). The accident in question occurred in April 2012.


                                       4
decisions are based on Section 414 of the Restatement (Second) of Torts, which

the court adopted in Redinger. That section states:

             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).

      As is facially apparent from its language, section 414’s applicability is not

limited only to “premises owners” or “general contractors.” Rather, it applies

expressly to “one who entrusts work to an independent contractor.” Id. (emphasis

added). That is exactly what Gattis did with Kosich and Lawhon—it “entrust[ed]

work to an independent contractor.” Thus, the correct framework for the duty

Gattis owed is based on independent contractor law, as discussed in Appellant’s

briefing, irrespective of Gattis’s status as a “subcontractor.” Accordingly, the

premises defect/negligent activity distinction is applicable to this case and the

Court errs in rejecting it. No independent negligence duty existed as a matter of

law. Because this is a premises defect case and Lawhon failed to submit it as one,

Gattis is entitled to a reversal and rendition of judgment.

C.    Lawhon did not prove control by Gattis, which is fatal to recovery.

      Moreover, any duty Gattis owed is limited to whether Gattis exercised

control with reasonable care. Lee Lewis, 70 S.W.3d at 783; Redinger, 689 S.W.2d



                                           5
at 418. The issue of control as between Lawhon and Gattis was a question that

should have been, and was required to be, resolved by the jury. Lee Lewis, 70

S.W.3d at 783; Clayton W. Williams, Jr. v. Olivo, 952 S.W.2d 523, 528-29 (Tex.

1997); Mata v. Brooks Petroleum Co., No. 12-02-00075-CV, 2003 WL 1922851,

at *3 (Tex. App.—Tyler 2003, pet. denied) (degree of control exercised is fact

question for jury). However, Lawhon did not submit a control question as to

Gattis, and the evidence of control was most definitely disputed. Having failed to

secure a jury finding, Lawhon waived the issue unless the proof conclusively

established control. TEX. R. CIV. P. 279.

      Lawhon did not conclusively prove control as to Gattis, and did not

conclusively prove Gattis failed to exercise any control with reasonable care. A

“control” finding requires evidence that Gattis directed the “means, methods, and

details” of Lawhon’s work on the sign, to a degree more than “a general right to

order the work to start or stop, to inspect its progress or to receive reports, to make

suggestions or recommendations.” Shell Oil Co. v. Khan, 138 S.W.3d 288, 295

(Tex. 2004); Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Shell

Chem. Co. v. Lamb, 493 S.W.2d 742, 746-47 (Tex. 1973); Davis v. Fairfield Dev.,

Inc., No. 03-00-00223-CV, 2001 WL 660681, at *2 (Tex. App.—Austin 2001, pet.

denied). Also important, it is the “injury-producing” work in question that Lawhon

was obligated to prove Gattis controlled. See Bright, 89 S.W.3d at 606. That is,



                                            6
Lawhon must have conclusively proven that Gattis controlled the means, methods,

and details of Lawhon’s work to move the exit sign on the day in question.

      Lawhon did not present evidence, much less conclusive evidence, on this

point, and the Court erroneously overlooked the resulting and significant

evidentiary vacuum. The Court stated merely that Gattis was “responsible for the

electrical work” on the job, and for “supervising Lawhon.” (Op. at 10). Be that as

it may, a general right to supervise does not come close to showing that a person

controlled the “details, means, and methods” of a subcontractor’s work. See Koch

Ref. Co. v. Chapa, 11 S.W.3d 153, 156 (Tex. 1999). While Kosich’s owner,

Darrin Petru, testified that Gattis could have fired Lawhon, that fact is not

probative of whether Gattis controlled the “details, means, and methods” of

Lawhon’s work. Moreover, the Court does not acknowledge that Petru could

have fired Lawhon too. (3 RR 210). The Court also failed to analyze (or

mention) other substantial evidence favoring Gattis. For example, Petru was the

“main boss” of Lawhon and the three other workers provided by Kosich. (3 RR

151). And James Baldwin, one of the Kosich workers, specifically said that Gattis

did not direct their work. (3 RR 190-91). There was no evidence that Gattis paid

Lawhon as though he were its employee, and Lawhon conclusively proved he was

employed by a third party. (Pl. Exs. 45H and 45J). Finally, Lawhon never argued

once during closing that Gattis controlled the injury-producing work, and the jury



                                        7
expressly found Burt-Watts controlled the work. (CR 222-23).

      The Court incorrectly evaluated the evidence as though it was examining a

non-existent control finding for legal sufficiency. (Op. at 10). But the applicable

standard is not one of legal sufficiency. Because Lawhon did not submit a required

control question as to Gattis, he must demonstrate on appeal that the evidence

conclusively proved that Gattis controlled the injury-producing work. TEX. R. CIV.

P. 279. Even if the control issue was but one required element of an independent

ground of recovery, and further assuming a general negligence question includes

other correct elements of the claim, the Court cannot affirm the judgment absent

finding factually sufficient evidence to support a control “finding.” Id. (emphasis

added).

      The record fails either test, even though Lawhon argued only one of them on

appeal—he contended, at most, that the evidence conclusively established control

by Gattis.2 Most certainly, Lawhon did not conclusively prove control, and this

Court does not hold otherwise.       Nor does the evidence rise to the factually

sufficient level, given the facts outlined above (and in the briefing) coupled with

2
      In his brief to this Court, Lawhon never argued that factually sufficient
      evidence of control existed. Any factual sufficiency argument is therefore
      waived. Dunaway v. Dunaway, No. 14-06-01042-CV, 2007 WL 3342020,
      at *9 (Tex. App.—Houston [14th Dist.] November 13, 2007, no pet.) (mem.
      op.) (appellee waived argument due to inadequate briefing). Gattis, in
      contrast, attacked the factual sufficiency of the evidence in its opening brief.
      (Appellant’s Br. at 25).


                                          8
unassailable Texas law that a general right of “supervision” is not enough (not

even for legal sufficiency purposes) to establish control over an independent

contractor’s injury-producing work. The Court does not even conduct a factual

sufficiency analysis, and any implied finding of control by Gattis cannot survive a

factual sufficiency challenge on this record. The Court never analyzed the control

issue, and simply appears to conclude that Lawhon was Gattis’s employee, as

reflected by the Court’s reliance on standards applicable to the employer/employee

relationship—a construct that does not apply here. (Op. at 10, 13) (citing Austin v.

Kroger Texas, L.P., No. 14-0216, 2015 WL 3641066 (Tex. June 12, 2015), and

OSHA regulations applicable to “employers”). The Court may not examine the

evidence of control, and affirm the judgment, under an ordinary legal sufficiency

test.3 As the record does not establish control by Gattis over Lawhon’s work,

under the appropriate standard, the Court must reverse the judgment.




3
      Nor do circumstances exist in the present case that are comparable to those
      driving the result in Austin.


                                         9
                                     PRAYER

      For the above reasons, Appellant Gattis Electric, Inc. respectfully requests

this Court to grant this motion for rehearing, or grant en banc reconsideration,

sustain Appellant’s points of error, reverse the judgment and render a take nothing

judgment in its favor. Appellant further requests any and all further relief to which

it may be justly entitled.

                                       Respectfully submitted,

                                       CHAMBERLAIN, HRDLICKA, WHITE,
                                       WILLIAMS & AUGHTRY


                                       By:/s/ Kevin D. Jewell
                                              Kevin D. Jewell
                                              Texas Bar No. 00787769
                                              1200 Smith Street, Suite 1400
                                              Houston, Texas 77002
                                              Telephone: (713) 658-1818
                                              Facsimile: (713) 658-2553

                                       ATTORNEYS FOR APPELLANT
                                       GATTIS ELECTRIC, INC.

                       CERTIFICATE OF COMPLIANCE

       The undersigned certifies that this Motion complies with the type-volume
limitation of TEX. R. APP. P. 9.4 because this motion contains 2,000 words,
excluding the parts of the brief exempted by Rule 9.4.


                                       /s/ Kevin D. Jewell
                                       Kevin D. Jewell




                                         10
                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Appellant’s
Motion for Rehearing and Motion for En Banc Reconsideration has been provided
to counsel listed below in the manner indicated on this 25th day of September,
2015.

      Via electronic service
      D. Todd Smith
      Smith Law Group, P.C.
      1250 Capital of Texas Highway South
      Three Cielo Center, Suite 601
      Austin, Texas 78746

      Via electronic service
      Henry Moore
      Jayme Bomben
      316 W. 12th St., Suite 318
      Austin, Texas 78701

      Via electronic service
      Sally S. Metcalfe
      Metcalfe Law, P.L.L.C.
      901 South Mopac Expressway
      Plaza One, Suite 300
      Austin, Texas 78746

                                    /s/ Kevin D. Jewell
                                    Kevin D. Jewell




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