1 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

On Appeal from the 16 th 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

J ONES

, A LLEN & F U QUAY

, LLP

8828 Greenville Ave.

Dallas, TX 75243

Telephone (214) 343

- 7400

Fax (214) 343

- 7455

ATTORNEYS FOR APPELLEE ACCEPTED

02-14-00401-CV

SECOND COURT OF APPEALS

FORT WORTH, TEXAS

9/4/2015 2:34:47 PM

DEBRA SPISAK

CLERK2 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 B ARTUSH

- S CHNITZIUS F OODS C O

. (“Bartush”, “Defendant” or

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

th e 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 “Appellan t”) 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 replet e with evidence of such agreement3 as shown by, among o ther 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 n ote is evidence of an A greement to maintain 35 ̊ prior to installation

,

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

1 Only the relevant portion of Exhibit 1 has be en included with emphasis added and inserts

supplied.4 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

equipmen t failed to maintain the required 35 ̊. Such evidence conclusively

established th at 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.5 PRAYER

WHEREFORE, PREMISES CONSIDERED , Appellee, B ARTUSH

S CHNITZIUS F OODS C O

. 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.

Res pectfully 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. 0 0786973

L indy D. Jones

Bar No. 10925500

Laura L. Worsham

State Bar No. 22008050

ATTORNEYS FOR APPELLEE6 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 4 th day of

September 2015 :

Patricia Hair

P HELPS D UNBAR LLP

500 Dallas Street, Suite 1300

Houston, TX 77002 Blake A. Bailey

P HELPS D UNBAR LLP

115 Grand Avenue, Suite 222

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 wor d 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 pa rts exempted by Tex. R. App. P. 9.4(i)(1).

Certified this 4 th day of September , 2015

.

/s/ Kevin J. Allen

Kevin J. Allen

Lindy D. Jones