Craig Zgabay and Tammy Zgabay v. NBRC Property Owners Association

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ACCEPTED 03-14-00660-CV 4175773 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/17/2015 1:09:19 PM JEFFREY D. KYLE CLERK No. 03-14-00660-CV FILED IN 3rd COURT OF APPEALS In The Court of Appeals For the Third AUSTIN, TEXAS 2/17/2015 1:09:19 PM District of Texas at Austin JEFFREY D. KYLE Clerk CRAIG ZGABAY AND TAMMY ZGABAY, Appellants, v. NBRC PROPERTY OWNERS ASSOCIATION, Appellee. On Appeal from the 433rd District Court of Comal County, Texas Trial Court Cause No. C2014-0501C Appellants' Motion For Leave to File Amended Reply J. Patrick Sutton SBOT 24058143 1706 W. 10th Street Austin Texas 78703 Tel. (512) 417-5903 Fax. (512) 355-4155 jpatricksutton@jpatricksuttonlaw.com Counsel for Appellants February 17, 2015 BACKGROUND The Zgabays' filed a Reply Brief on February 4, 2015. That brief referred to draft restrictive covenants that the Appellee disseminated and published on the World Wide Web after the Zgabays filed their opening brief. Appellee objected to those references and demanded that they be deleted by amendment. The Zgabays instead filed an Amended Reply Brief that asked the Court take judicial notice of the Appellee's publication and dissemination of the draft restrictive covenants. Appellee has filed a motion to strike the references, and the Zgabays have filed a detailed response thereto. The Zgabays deadline to file their reply brief is February 24, 2015. The Court has set this case for oral argument on March 25, 2015. ARGUMENT The Zgabays' Amended Reply differs from their Reply in expressly asking the Court to take judicial notice of the material to which Appellee objected. The Zgabays ask that the Amended Reply be allowed because it was filed long before the filing deadline of 1 February 24, 2015, and because it makes express a request relating to material published by the HOA in January, 2015, after the Zgabays filed their opening brief. Should the Court grant Appellee's motion to strike, then the Court would presumably also order the Zgabays to file a reply brief that deletes references to the material on the HOA's website. Should the Court deny Appellee's motion to strike, the Court would presumably grant this motion and also take judicial notice of Appellee's published statements. CONCLUSION AND PRAYER The Court should grant this motion for leave to file the amended reply already submitted; deny Appellee's motion to strike; and judicially notice the fact of the HOA's publication on the World Wide Web of draft amendments to the restrictive covenants that specify precisely what duration of lease constitutes a prohibited short-term rental. 2 Respectfully submitted, /s/ JPS J. Patrick Sutton Texas Bar No. 24058143 1706 W. 10th Street Austin Texas 78703 Tel. (512) 417-5903 Fax. (512) 355-4155 jpatricksutton@ jpatricksuttonlaw.com Attorney for Appellants CERTIFICATE OF CONFERENCE I certify that I conferred with Wade C. Crosnoe, counsel for Appellee, regarding this motion, and that he stated his clients are opposed to this motion since the brief proposed to be submitted contains statements to which Appellee has filed a motion to strike. /s/ J. Patrick Sutton Attorney for Plaintiffs-Appellants 3 CERTIFICATE OF SERVICE I certify that on February 17, 2015, a true and correct copy of this motion was served by efiling and email on: Wade C. Crosnoe Brian Hensley Thompson, Coe, Cousins & Irons, L.L.P. 701 Brazos, Suite 1500 Austin, Texas 78701 Ph (512) 708-8200 Fax (512) 708-8777 WCrosnoe@thompsoncoe.com BHensley@thompsoncoe.com Tom Newton Allen Stein & Durbin, P.C. 6243 IH-10 West, 7th Floor San Antonio, Texas 78201 TNewton@ASDH.com /s/ J. Patrick Sutton Attorney for Plaintiffs-Appellants 4