ACCEPTED 03-14-00131-CV 5902417 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/1/2015 2:33:02 PM JEFFREY D. KYLE CLERK

NO. 03-14-00131-CV FILED IN THIRD COURT OF APPEALS 3rd COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 7/1/2015 2:33:02 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 __________________________________________________________________ UNOPPOSED MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF OF APPELLEES JOE ALLBAUGH AND DIANE ALLBAUGH __________________________________________________________________

Suzanne C. Radcliff Gregory S. Hudson Texas Bar No. 24014420 State Bar No. 00790929 COZEN O’CONNOR COZEN O’CONNOR 1717 Main Street, Suite 3400 One Houston Center Dallas, TX 75201 1221 McKinney Street, Suite 2900 Telephone: (214) 462-3000 Houston, Texas 77010 Facsimile: (214) 462-3299 Telephone: (832) 214-3900 Email: [email protected] Facsimile: (832) 214-3905 Email: [email protected]

ATTORNEYS FOR APPELLEES

LEGAL\23347471\1 UNOPPOSED MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF OF APPELLEES JOE AND DIANE ALLBAUGH

TO THE HONORABLE THIRD COURT OF APPEALS: Appellees Joe and Diane Allbaugh [hereinafter “Appellees”] hereby file this unopposed motion requesting this Court grant leave to file a supplemental responsive 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.

On June 5, 2015, Appellant filed its motion for leave to file a supplemental brief based on a recent decision by the Texas Supreme Court in Gharda USA, Inc. v. Control Solutions, Inc., No. 12-0987 (Tex. May 8, 2015). The motion for leave was granted on June 5, 2015.

Appellees now seek leave to file a supplemental brief addressing the points raised in Appellant’s brief and the Gharda case.

Prayer WHEREFORE, PREMISES CONSIDERED, Appellees Joe and Diane Allbaugh pray that this motion be granted and that they be granted leave to file a supplemental brief, and for all other and further relief to which they are justly entitled.

LEGAL\23347471\1 Respectfully submitted, COZEN O’CONNOR BY: /s/ Suzanne C. Radcliff Suzanne C. Radcliff Texas Bar No. 24014420 1717 Main Street, Suite 3400 Dallas, TX 75201 Telephone: (214) 462-3000 Facsimile: (214) 462-3299 Email: [email protected] - And – Gregory S. Hudson Texas Bar No. 00790929 COZEN O’CONNOR One Houston Center 1221 McKinney Street Suite 2900 Houston, Texas 77010 Telephone: (832) 214-3900 Facsimile: (832) 214-3905 Email: [email protected] ATTORNEYS FOR APPELLEES

CERTIFICATE OF CONFERENCE On June 30, 2015 he undersigned attorney for Appellees conferred with Erin Westendorf, counsel for Appellant, who advised they are unopposed to the filing of this Motion.

By: /s/ Suzanne C. Radcliff SUZANNE C. RADCLIFF LEGAL\23347471\1 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of this document was served on the parties via Electronic Court Filing on this 30th day of June, 2015.

David E. Chamberlain Tim Poteet Erin Westendorf-Boyd Chamberlain McHaney Congress Avenue, 21st Floor Austin, Texas 78701 Telephone: (512) 474-9124 Facsimile: (512) 474-8582 Emails: [email protected] [email protected] ewestendorf@chmc-law. com Attorneys for Defendant Zbranek Custom Homes, Ltd.

By: /s/ Suzanne C. Radcliff Texas State Bar No. 24014420

LEGAL\23347471\1