No. 03-14-00080-CV

In the Third Court of Appeals

Austin, Texas

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 postsubmission 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.

ACCEPTED

03-14-00080-CV

6045739

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/13/2015 4:37:24 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/13/2015 4:37:24 PM JEFFREY D. KYLE Clerk
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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 premisesliability 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.
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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
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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
1250 Capital of Texas Highway South | Three Cielo Center, Suite 601 | Austin, TX 78746 | 512.439.3230

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:

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 landownerinvitee, 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 premisesliability 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.