Zbranek Custom Homes, Ltd. v. Joe Allbaugh, Diane Allbaugh, and Rutilio Albarran Construction, Inc. D/B/A El Paso Framing

Opinion

ACCEPTED

03-14-00131-CV

5531118

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/3/2015 2:50:40 PM

JEFFREY D. KYLE

CLERK

NO. 03-14-00131-CV

THIRD COURT OF APPEALS FILED IN 3rd COURT OF APPEALS

AUSTIN, TEXAS AUSTIN, TEXAS 6/3/2015 2:50:40 PM

ZBRANEK CUSTOM HOMES, LTD. JEFFREY D. KYLE Clerk

Appellant

v.

JOE ALLBAUGH AND DIANE ALLBAUGH

Appellees

Appealed from the 419TH Judicial District Court of Travis County, Texas

__________________________________________________________________

APPELLANT’S OPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION BRIEF

__________________________________________________________________

Tim Poteet State Bar No. 16170300 David E. Chamberlain State Bar No. 04059800 Erin Westendorf-Boyd State Bar No. 24042142 CHAMBERLAIN ♦ McHANEY 301 Congress Avenue, 21st Floor Austin, Texas 78701 (512) 474-9124 (512) 474-8582 (Facsimile)

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APPELLANT’S OPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

Appellant Zbranek Custom Homes, LLC [hereinafter “Appellant”] hereby files this

opposed motion requesting this Court grant leave to file a post-submission brief, and in

support thereof shows the Court as follows:

Timeline of Appeal

Appellant’s Brief was filed September 8, 2014. Appellee’s Response Brief was

filed October 24, 2014. Appellant’s Reply Brief was filed November 13, 2014. The case

was submitted on oral argument on January 28, 2015.

Relief Requested

Appellant seeks leave to file a supplemental brief in light of a recent decision by the

Texas Supreme Court in Gharda USA, Inc. v. Control Solutions, Inc., No. 12-0987 (Tex.

May 8, 2015). At the time Appellee filed its Reply Brief, the Gharda case was under

review. The Gharda opinion bears directly on one of Appellant’s points of error in the

appeal, namely, sufficiency of evidence on causation and expert witness testimony. As

explained in the post-submission brief, the Allbaughs’ expert testimony on causation was

not reliable, in the same manner that the experts’ testimony on causation in Gharda was

not reliable. Appellant seeks leave to analyze the Gharda case and its application to the

facts of the subject appeal, in order to provide this Court with thorough briefing in aid of

the Court’s adjudication of this dispute.

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Prayer

WHEREFORE, PREMISES CONSIDERED, Appellant Zbranek Custom

Homes, LLC prays that this motion be granted and that it be granted leave to file its post-

submission brief, and for all other and further relief to which it is justly entitled.

Respectfully submitted,

CHAMBERLAIN ♦ McHANEY 301 Congress Avenue, 21st Floor Austin, Texas 78701 (512) 474-9124 (512) 474-8582 (fax) tpoteet@chamberlainmchaney.com dchamberlain@chamberlainmchaney.com ewestendorf@chamberlainmchaney.com

By: /s/ Tim Poteet

TIM POTEET State Bar No. 16170300 DAVID E. CHAMBERLAIN State Bar No. 04059800 ERIN WESTENDORF-BOYD State Bar No. 24042142

ATTORNEYS FOR APPELLANT

CERTIFICATE OF CONFERENCE

The undersigned attorney for Appellant attempted to confer with counsel for Appellees on May 29, 2015. On June 1, 2015, Suzanne C. Radcliff, attorney for Appellees, informed Appellant that Appellees are opposed to this motion for leave to file post- submission brief.

By: /s/ Erin Westendorf-Boyd ERIN WESTENDORF-BOYD State Bar No. 24042142

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CERTIFICATE OF SERVICE

I hereby certify by my signature below that a true and correct copy of the foregoing has been forwarded to counsel of record as indicated via Electronic Court Filing, this 3rd day of June, 2015:

Suzanne C. Radcliff Cozen O’Connor 1717 Main Street, Suite 3400 Dallas, Texas 75201-7335 scradcliff@cozen.com

By: /s/ Tim Poteet

TIM POTEET State Bar No. 16170300