Kenneth Lobell v. Capital Transport, LLC ( 2015 )

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