Kenneth Lobell v. Capital Transport, LLC

Opinion

ACCEPTED

03-13-00855-CV

8124884

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/7/2015 4:45:02 PM

JEFFREY D. KYLE

CLERK

No. 03-13-00855-CV FILED IN 3rd COURT OF APPEALS

AUSTIN, TEXAS

In the Court of Appeals 12/7/2015 4:45:02 PM

For the Third Judicial District JEFFREY D. KYLE Clerk

Sitting at Austin, Texas Kenneth Lobell

Appellant

v.

Capital Transport, LLC

Appellee

Appealed from the 146th District Court Bell County, Texas

Response to Motion to Supplement Record

Greg White

State Bar No. 21329050

400 Austin Ave., Ste. 103 Waco, Texas 76701

254.307.0097 (voice)

866.521.5569 (fax)

greg.white@texapplaw.com

Attorneys for Appellee

No. 03-13-00855-CV

Kenneth Lobell

Appellant

v.

Capital Transport, LLC

Appellee

Response to Motion to Supplement Record To the Honorable Court of Appeals: Comes now, Capital Transport, LLC, the Appellee in the above case and files this Response to the Appellant’s Motion to Supplement the Record, and shows as follows: 1. This is an appeal from a ruling on a special appearance. 2. The Notice of Appeal was filed in the District Court on December 27, 2013. The Brief for the Appellant was considered filed on May 6, 2014.

3. Appellee’s Brief was filed on June 23, 2014. 4. The Case was submitted on oral argument in Belton, Texas on October 22, 2015. The case is ready for disposition.

5. Long after the Briefs were filed, and even after the case was argued, the Appellant seeks to add a significant amount of material to the record. This

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is unfair, first, because it comes so late. Even if the material were relevant to the issues on appeal, the Court should not start all over with the addition of new material.

6. The supplementation is also improper. None of the material that the Appellant seeks to add to the record was submitted to the Trial Court for consideration. This Court should not consider alleged error on matters never presented to the Trial Court.

7. The supplementation seeks primarily a delay in disposition. If the Court were to consider additional material, surely it would ask both parties to assist with comments or argument from the new material. Knowing that the material is over 240 long, it is apparent that a short letter brief will not be sufficient to allow appropriate analysis and argument. The length of the material alone portends a new briefing schedule and equal opportunity to show how this new material changes the arguments already either made and considered or does not. It’s just more work, for the wrong reason and at the wrong time.

8. Without casting blame in any direction, Appellee simply wonders why this material suddenly became so important. If it was case dispositive, surely it would have been important to the Trial Court, or at the time that Briefing was originally submitted. Appellee submits that this is not material that could, or should change the outcome of this case.

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Wherefore, premises considered, Appellant respectfully requests that the Court deny the Motion to Supplement the Record.

Respectfully submitted,

/s/ Greg White

Greg White

State Bar No. 21329050

P.O. Box 2186

Waco, Texas 76703

254.307.0097 (voice)

866.521.5569 (fax)

greg.white@texapplaw.com

Attorneys for Appellees

Certificate of Service

I hereby certify that a true and correct copy of the foregoing was sent to the person(s) named below, at the address shown by placing the same in a properly addressed envelope, postage pre-paid, and mailing the document by first class mail, via Electronic Filing (and by other means stated below) on December 7, 2015.

Matthew Pepper Compass Bank Building 25211 Grogans Mill Road, Suite 450 The Woodlands, TX 77380

____/s/ Greg White

Greg White