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