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 [email protected] Lindy D. Jones Texas Bar No. 10925500 [email protected] Laura L. Worsham Texas Bar No. 22008050 [email protected] JONES, ALLEN & FUQUAY, LLP 8828 Greenville Ave. Dallas, TX 75243 Telephone (214) 343-7400 Fax (214) 343-7455 ATTORNEYS FOR APPELLEE 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

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.

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

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.

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

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 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