                                                                                  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)




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           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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