ACCEPTED
03-14-00660-CV
4109468
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/11/2015 1:46:39 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00660-CV
FILED IN
3rd COURT OF APPEALS
IN THE AUSTIN, TEXAS
THIRD DISTRICT COURT OF APPEALS 2/11/2015 1:46:39 PM
AT AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
CRAIG ZGABAY AND TAMMY ZGABAY,
Appellants
v.
NBRC PROPERTY OWNERS ASSOCIATION,
Appellee
Appeal from the 433rd Judicial District Court,
Comal County, Texas, Cause No. C2014-0501C
APPELLEE’S MOTION TO STRIKE PORTIONS OF
APPELLANTS’ REPLY BRIEF AND AMENDED REPLY BRIEF
Wade C. Crosnoe Tom L. Newton, Jr.
State Bar No. 00783903 State Bar No. 14982300
Brian D. Hensley Allen, Stein & Durbin, P.C.
State Bar No. 24036759 6243 IH-10 West, 7th Floor
Thompson, Coe, Cousins & Irons, LLP P. O. Box 101507
701 Brazos, Suite 1500 San Antonio, Texas 78201
Austin, Texas 78701 Telephone: (210) 734-7488
Telephone: (512) 708-8200 Facsimile: (210) 738-8036
Facsimile: (512) 708-8777 E-mail: tnewton@asdh.com
E-mail: wcrosnoe@thompsoncoe.com
Counsel for Appellee NBRC Property Owners Association
Appellee NBRC Property Owners Association (“the Association”) files this
Motion to Strike the portions of Appellants’ Reply Brief and Amended Reply Brief
that refer to evidence outside the appellate record, and would respectfully show:
I. Introduction
This appeal involves the interpretation of restrictive covenants in a
Declaration of Covenants, Restrictions and Conditions that was adopted and
recorded in 1999 (CR 67-87; Apx. 21). The Association filed its Appellee’s Brief
on February 3, 2015. Less than twenty-four hours later, Appellants Craig and
Tammy Zgabay filed their Reply Brief. That Reply Brief contains several
references to recent proposed amendments to the Declaration (Reply Brief at pp. 2,
3, 9-10), and also provides a website link to the proposed amendments (Reply
Brief at p. 3 n.1).
After reviewing the Reply Brief, the Association’s counsel wrote an email to
the Zgabays’ counsel. The email noted that the Reply Brief referred to evidence
outside the appellate record, cited cases holding that such references are improper
and should not be considered on appeal, and asked if the Zgabays’ counsel would
amend the Reply Brief to delete those references. The Zgabays’ counsel declined
that invitation, however, and instead “doubled down” on references to matters
outside the appellate record. Specifically, he filed an Amended Reply Brief asking
1
“CR” refers to the Clerk’s Record. “Apx.” refers to the Appendix to Appellee’s Brief filed on
February 3, 2015.
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the Court to take judicial notice that the Association recently published on its
website proposed amendments to the Declaration, including some that involve
restrictive covenants at issue in this appeal (Amended Reply Brief at pp. 3-4; see
also pp. 10). The amended brief also supplies links to the Association’s website
and proposed amendments (Amended Reply Brief at pp. 3-4 n.1, 3).
II. Argument
It is well-settled that an appellate court may not consider evidence outside
the appellate record. See Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 501
(Tex. App.—Austin 1991, writ denied) (citing Sabine Offshore Serv., Inc. v. City of
Port Arthur, 595 S.W.2d 840 (Tex. 1979)). This Court has stricken or declined to
consider parties’ attempts to introduce evidence that is not part of the appellate
record, as well as references in briefs to such evidence. See Carlisle, 805 S.W.2d
at 501 (granting appellees’ motion to strike the portions of the appellants’ brief that
cited and quoted scientific and medical books, pamphlets, and journals that were
not in the record); Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl.
Quality, 307 S.W.3d 505, 523 n.11 (Tex. App.—Austin 2010, no pet.) (stating that
“we may not consider” an affidavit presented for the first time on appeal).
The Zgabays’ Reply Brief and Amended Reply Brief undeniably refer to
matters outside the appellate record. Those briefs provide internet links rather than
record cites to support their assertions about proposed amendments to the
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Declaration. Moreover, as the Zgabays themselves note, the proposed amendments
were published “in January, 2015” (Amended Reply Brief at p. 3). This was
several months after the trial court’s summary judgment order (CR 127-29; Apx.
1), and even after the Zgabays filed their opening appellate brief. The briefs’
references to evidence outside the record should be stricken. See Carlisle, 805
S.W.2d at 501.
The Zgabays cannot circumvent the prohibition on nonrecord evidence by
the artifice of asking the Court to take judicial notice of such evidence. This Court
is properly reluctant to take judicial notice of evidence that was not presented to
the trial court. See Hendee v. Dewhurst, 228 S.W.3d 354, 377-78 (Tex. App.—
Austin 2007, pet. denied) (citing, e.g., Tran v. Fiorenza, 934 S.W.2d 740, 742-43
(Tex. App.—Houston [1st Dist.] 1996, no writ), and declining to take judicial
notice of new jurisdictional evidence presented on appeal).
Judicial notice would be particularly inappropriate in this case. A moment’s
reflection confirms that the proposed January 2015 amendments are in no way
relevant to this Court’s review of the district court’s September 2014 summary
judgment order and injunction. Appellate review of an injunction enforcing a
restrictive covenant is necessarily based on the covenant and circumstances as they
existed at the time of the injunction. See Wein v. Jenkins, No. 03-04-00568-CV,
2005 WL 2170354, at *2-3 (Tex. App.—Austin Sept. 9, 2005, no pet.) (holding
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that the district court did not abuse its discretion in enforcing a restrictive covenant
where there was no dispute that the appellant was violating the injunction at the
time it was issued). This is true regardless of the possibility that the restrictive
covenant could be amended in the future. Id. The proposed amendments to the
restrictive covenants are irrelevant to the question of whether the district judge
properly construed the covenants that were before him at the time of his ruling.
III. Conclusion and Prayer
The Zgabays’ Reply Brief and Amended Reply Brief repeatedly refer to
evidence outside the record. Such references to nonrecord evidence are improper
and cannot be cured by requesting judicial notice of facts that were not before the
district court when it ruled and are not relevant to this Court’s review of that
ruling. Accordingly, the Association respectfully requests that the Court grant this
motion and strike the references to evidence outside the record in Appellants’
Reply Brief and Amended Reply Brief. The Association also requests all other
relief to which it is justly entitled.
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Respectfully submitted,
THOMPSON, COE, COUSINS & IRONS,
L.L.P.
By: /s/ Wade Crosnoe
Wade C. Crosnoe
State Bar No. 00783903
Brian D. Hensley
State Bar No. 24036759
701 Brazos, Suite 1500
Austin, Texas 78701
Telephone: (512) 703-5078
Facsimile: (512) 708-8777
E-Mail: wcrosnoe@thompsoncoe.com
bhensley@thompsoncoe.com
Tom L. Newton, Jr.
State Bar No. 14982300
Allen, Stein & Durbin, P.C.
6243 IH-10 West, 7th Floor
P. O. Box 101507
San Antonio, Texas 78201
Telephone: (210) 734-7488
Facsimile: (210) 738-8036
E-Mail: tnewton@asdh.com
Counsel for Appellee NBRC Property Owners
Association
CERTIFICATE OF CONFERENCE
I certify that I conferred with J. Patrick Sutton, counsel for Appellants,
regarding this motion, and that he stated his clients are opposed to this motion.
/s/ Wade Crosnoe
Wade Crosnoe
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of this motion was served via electronic
service or by email, to the following counsel on February 11, 2015:
J. Patrick Sutton
1706 W. 10th Street
Austin, Texas 78703
E-Mail: jpatricksutton@jpatricksuttonlaw.com
Counsel for Appellants
/s/ Wade Crosnoe
Wade Crosnoe
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