ACCEPTED 12-14-00288-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 12/31/2015 1:41:00 PM Pam Estes CLERK

No. 12-14-00288-CV _____________________________________

In the Twelfth Court of Appeals Tyler, Texas 12/31/2015 _____________________________________ J. MARK SWINNEA, Appellant, v. ERI CONSULTING ENGINEERS, INC. AND LARRY G. SNODGRASS, Appellees. _____________________________________ On Appeal from the 114th Judicial District Court Smith County, Texas

MOTION FOR LEAVE TO FILE A SUPPLEMENTAL POST-ARGUMENT LETTER BRIEF

TO THE HONORABLE COURT OF APPEALS: The Appellees, ERI Consulting Engineers, Inc., and Larry Snodgrass, move the court under Rule 38.7 of the TEXAS RULES OF APPELLATE PROCEDURE for leave to file a supplemental post-argument letter brief to supply authorities that were the subject of the Court’s questions during oral argument.

The grounds for the motion are: 1. During oral submission of this case, the Court asked a number of questions about the existence of further authorities discussing whether disgorged sums can be treated as punitive damages for purpose of the “proportionality” element in a U.S. Constitution “due process” analysis, which was virtually the only subject Swinnea argued.

2. Following the argument, the Court’s inquiries prompted Appellees to research nationwide on the subject and also to research other Texas cases before and after Burrow v. Arce and the Texas Supreme Court’s opinion in this case for additional authority to answer the Court’s questions. Appellees have collected the relevant product of that research in two charts attached to the post-argument supplemental letter brief tendered with this motion.

Appellees move the Court to grant leave to file the supplemental post- argument letter brief in aid of the Court’s questions to counsel at oral argument.

Respectfully submitted, LOCKE LORD LLP By: /s/ Mike A. Hatchell Mike A. Hatchell State Bar No. 09219000 [email protected] Congress Avenue, Suite 2200 Austin, Texas 78701 512-305-4700 (Telephone) 512-305-4800 (Facsimile) Deborah Race State Bar No. 16448700 [email protected] IRELAND, CARROLL & KELLEY, P.C.

6101 South Broadway, Suite 500 Tyler, Texas 75703 903-561-1600 Telephone 903-581-1071 Facsimile COUNSEL FOR APPELLEES CERTIFICATE OF CONFERENCE I hereby certify that Greg Smith, counsel for Appellant, indicated to Deborah Race via phone conversation on December 30, 2015, that he opposes the motion.

/s/ Mike A. Hatchell Mike A. Hatchell

CERTIFICATE OF SERVICE I certify that on December 31, 2015, a true and correct copy of the foregoing was e-served via EFileTx.gov upon the following counsel of record: Gregory D. Smith Michael E. Gazette Nolan Smith [email protected] [email protected] LAW OFFICE OF MICHAEL E. GAZETTE [email protected] 100 E. Ferguson, Suite 1000 RAMEY & FLOCK, P.C. Tyler, Texas 75702 E. Ferguson, Suite 500 Tyler, Texas 75702 Counsel for Appellant

/s/ Mike Hatchell Mike Hatchell