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

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) 1 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. 2 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 3 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 4