                                                                                  ACCEPTED
                                                                              02-14-00401-CV
                                                                  SECOND COURT OF APPEALS
                                                                        FORT WORTH, TEXAS
                                                                          9/4/2015 2:34:47 PM
                                                                               DEBRA SPISAK
                                                                                       CLERK

                                    ORAL ARGUMENT REQUESTED

                    NO. 02-14-00401-CV           FILED IN
                                          2nd COURT OF APPEALS
                                            FORT WORTH, TEXAS
                                          9/4/2015 2:34:47 PM
                IN THE COURT OF APPEALS        DEBRA SPISAK
         FOR   THE SECOND DISTRICT OF TEXAS       Clerk


               CIMCO REFRIGERATION, INC.,
                        Appellant

                              vs.

           BARTUSH-SCHNITZIUS FOODS CO.,
                     Appellee

On Appeal from the 16th Judicial District, Denton County, Texas
                 Cause No. 2011-11002-16
         The Honorable Sherry Shipman, Presiding


             APPELLEE’S SURREPLY BRIEF


                         Kevin J. Allen
                         Texas Bar No. 00786973
                         kallen@jonesallen.com
                         Lindy D. Jones
                         Texas Bar No. 10925500
                         ljones@jonesallen.com
                         Laura L. Worsham
                         Texas Bar No. 22008050
                         lworsham@jonesallen.com
                         JONES, ALLEN & FUQUAY, LLP
                         8828 Greenville Ave.
                         Dallas, TX 75243
                         Telephone (214) 343-7400
                         Fax (214) 343-7455

                         ATTORNEYS FOR APPELLEE

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                                               ORAL ARGUMENT REQUESTED


                               NO. 02-14-00401-CV


                        IN THE COURT OF APPEALS
                   FOR THE SECOND DISTRICT OF TEXAS


                          CIMCO REFRIGERATION, INC.,
                                   Appellant

                                         vs.

                        BARTUSH-SCHNITZIUS FOODS CO.,
                                  Appellee

                         APPELLEE’S SURREPLY BRIEF


      COMES NOW BARTUSH-SCHNITZIUS FOODS CO. (“Bartush”, “Defendant” or

“Appellee”) and submits this Surreply pursuant to Rule 1(c) of the Local Rules for

the Second Court of Appeals, Fort Worth, Texas and in support of such would show

the Court as follows.

      Despite a four and one-half day jury trial and a voluminous record, Cimco

Refrigeration, Inc. (“Cimco”, “Plaintiff”, or “Appellant”) continues to argue there is

no evidence that Cimco was told that Barush required the refrigerated rooms to

maintain a temperature of 35˚ after installation nor was there any evidence that there

was an Agreement for 35˚. The record is replete with evidence of such agreement



                                          2
as shown by, among other things, the following handwritten notes made by Cimco’s

own employee prior to the installation of the system. 1




       In addition to the other evidence cited in Bartush’s Appellee’s Brief, this

handwritten note is evidence of an Agreement to maintain 35˚ prior to installation,

and supports the jury’s findings that Cimco breached the Agreement first.




1
 Only the relevant portion of Exhibit 1 has been included with emphasis added and inserts
supplied.


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      Although Cimco’s President Danny Rose testified as to a higher temperature

requirement, the jury, as the finder of fact and the sole judge of credibility of the

witnesses, chose not to believe Mr. Rose’s testimony, and chose to believe the

testimony of the other Cimco employee, Michael Winslow, his notes, and the other

evidence adduced at trial.

      Amazingly, Cimco still argues the evidence shows that the Cimco equipment

did in fact meet the 35˚ temperature requirement. In making this argument, Cimco

ignores over 1,095 days of temperature records which demonstrate the Cimco

equipment failed to maintain the required 35˚.         Such evidence conclusively

established that once the Cimco system was installed it could not maintain a

temperature of 35˚. Exhibit 32 below serves as additional evidence that the Cimco

system did in fact not work and shows the extreme frost/ice buildup that prevented

the system from working.




                                         4
                                     PRAYER

       WHEREFORE, PREMISES CONSIDERED,                    Appellee,       BARTUSH-

SCHNITZIUS FOODS CO. respectfully prays that this Court affirm the trial court’s

judgment in its entirety, and for such other and further relief to which Appellee may

be justly entitled.

                                             Respectfully submitted,

                                             JONES, ALLEN & FUQUAY, L.L.P.
                                             8828 Greenville Avenue
                                             Dallas, Texas 75243
                                             (214) 343-7400 (Telephone)
                                             (214) 343-7455 (Facsimile)

                                             By: /s/ Kevin J. Allen
                                                Kevin J. Allen
                                                State Bar No. 00786973
                                                Lindy D. Jones
                                                Bar No. 10925500
                                                Laura L. Worsham
                                                State Bar No. 22008050

                                             ATTORNEYS FOR APPELLEE




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                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Appellee’s
Surreply Brief has been served upon the following via this Court’s ECF electronic
noticing system and via certified mail, return receipt requested, this 4th day of
September 2015:

Patricia Hair                                Blake A. Bailey
PHELPS DUNBAR LLP                            PHELPS DUNBAR LLP
500 Dallas Street, Suite 1300                115 Grand Avenue, Suite 222
Houston, TX 77002                            Southlake, TX 76092


                                         /s/ Kevin J. Allen
                                              Kevin J. Allen
                                              Lindy D. Jones




                      CERTIFICATE OF COMPLIANCE

       I certify that this document complies with the typeface requirements of Tex.
R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller
than 14-point for text and 12-point for footnotes. Additionally, and in reliance upon
the word count function of the work processing software utilized to produce this
document, I further certify that this document also complies with the work-count
limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains 717 words,
excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

      Certified this 4th day of September, 2015.

                                                 /s/ Kevin J. Allen
                                               Kevin J. Allen
                                               Lindy D. Jones




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