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

Appellee

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

Response to Motion to Supplement the Record – Page 2 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.

Response to Motion to Supplement the Record – Page 3 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

Response to Motion to Supplement the Record – Page 4