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
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
Kenneth Lobell v. Capital Transport, LLC
Combined Opinion