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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 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

kallen@jonesallen.com

Lindy D. Jones

Texas Bar No. 10925500

ljones@jonesallen.com 

Laura L. Worsham

Texas Bar No. 22008050

lworsham@jonesallen.com

JONES, ALLEN & FUQUAY, 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

CLERK

 FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 9/4/2015 2:34:47 PM DEBRA SPISAK Clerk
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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
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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.

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

supplied.
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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.
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PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellee, BARTUSHSCHNITZIUS 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
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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

PHELPS DUNBAR LLP

500 Dallas Street, Suite 1300

Houston, TX 77002

Blake A. Bailey

PHELPS DUNBAR 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 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