                                                                        ACCEPTED
                                                                    03-16-00736-CV
                                                                          14538393
                                                         THIRD COURT OF APPEALS
                                                                    AUSTIN, TEXAS
                                                                1/3/2017 3:54:44 PM
                                                                  JEFFREY D. KYLE
                                                                             CLERK
                 No. 03-16-00736-CV

                                                   FILED IN
                                            3rd COURT OF APPEALS
In The Court of Appeals For the Third       District        of
                                                AUSTIN, TEXAS
                 Texas at Austin            1/3/2017 3:54:44 PM
                                              JEFFREY D. KYLE
                                                    Clerk


               ELIZABETH HUBBELL,
                                        Appellant,
                          v.
 MYSTIC SHORES PROPERTY OWNERS ASSOCIATION,
                                         Appellee.



           On Appeal from the 433rd District
             Court of Comal County, Texas
          Trial Court Cause No. C2010-1667D



            REPLY BRIEF OF APPELLANT



                   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 Appellant
                               TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................... ii

  I. THE HOA CANNOT SUBMIT EVIDENCE ON APPEAL ................ 1

  II. THE SOLE AFFIDAVIT IN THE RECORD IS DISPOSITIVE ....... 3

CERTIFICATE OF SERVICE ................................................................. 6

CERTIFICATE OF COMPLIANCE ........................................................ 6




                             INDEX OF AUTHORITIES

 CASES

Averitt v. Bruton Paint & Floor Co., 773 S.W.2d 574 (Tex. App. -

  Dallas 1989, no writ) ............................................................................. 3

E.T. v. Texas Dep't of Family & Protective Servs., No. 03-15-

  00274-CV, 2015 WL 5781248 (Tex. App. - Austin 2015, no pet.) .. 3

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80 (Tex. 1992) ....... 3

Strackbein v. Prewitt, 671 S.W.2d 37 (Tex. 1984) ............................... 4


 	


 	




                                                  ii
   I. THE HOA CANNOT SUBMIT EVIDENCE ON APPEAL

     The HOA makes allegations in its appeal brief that it

neglected to support with any evidence at the trial court hearing

on Hubbell’s motions. The HOA even recites the allegations of the

lawsuit as though they were proven, Brief of Appellee at 8-11.

Dislodging the default wherein those allegations were deemed

proven is the function of this appeal; they cannot be assumed true.

     The HOA’s brief makes other unsubstantiated allegations

besides:
     • “While the suit was pending, the Association worked with
       Hubbell and Stevenson to resolve the issues, ultimately
       without success.” Brief of Appellee at 5 (emphasis added).
     • “The Association amended its lawsuit in 2012 due to the
       Defendants enclosing their garage without Architectural
       Control Committee approval in violation of the restrictive
       covenants governing the subdivision.” Brief of Appellee at
       11 (emphasis added).
     • “The     Association    continued     communications and
       settlement negotiations with Hubbell after the amended
       petition was filed.” Brief of Appellee at 11.
     • “The Association filed an expedited foreclosure proceeding
       against Hubbell and Stevenson based on their failure to
       pay specific assessments owed by them due to their failure
       to comply with the restrictive covenants.” Brief of Appellee
       at 12 (emphasis added).



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     • “Hubbell clearly understood the need to file an answer in
       the foreclosure action, but intentionally and consciously
       indifferently chose not to file an answer in the current
       lawsuit.” Brief of Appellee at 16.
     • “The restrictive covenants that govern the subdivision
       require a homeowner to obtain Architectural Control
       Committee     (hereinafter"    ACC")     approval before
       commencing any construction of or alterations to
       improvements on a lot.” Brief of Appellee at 17.
     • “The subdivision has been suffering irreparable harm
       during this timeframe because of Hubbell's breach of the
       restrictive covenants.” Brief of Appellee at 18.

     The Court cannot accord any weight to factual assertions

offered for the first time in a brief on appeal, nor accept any legal

conclusions that would flow therefrom. These are the matters that

Hubbell seeks to contest on the merits at a new trial, not matters

for introduction at appeal of the denial of a motion for new trial.

Suffice it to say, for the narrow purposes of this appeal, that

Hubbell intends to rebut the HOA’s factual assertions if she is

granted a new trial.

     As Hubbell showed in her opening brief, the only evidence in

the record is Hubbell’s own affidavit testifying to the Craddock

factors. The only issue on appeal is whether her evidence satisfies

Craddock,   not   whether    the   HOA’s   underlying   claims   are

meritorious. The HOA never attempted to submit controverting


                                   2
evidence on the motion for new trial and cannot do so at this late

date.

                    II. THE SOLE AFFIDAVIT IN THE
                         RECORD IS DISPOSITIVE
        If   an   affidavit   supporting   a   motion   for   new   trial   is

uncontroverted, it must be taken as true. Holt Atherton Indus.,

Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992); see also Averitt v.

Bruton Paint & Floor Co., 773 S.W.2d 574, 576 (Tex. App. - Dallas

1989, no writ). A trial court abuses its discretion by not granting a

new trial when all three elements of the Craddock test are met.

Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992). If,

however, a movant’s affidavit is merely a conclusory recitation of

the Craddock factors, that would not constitute proof. See E.T. v.

Texas Dep't of Family & Protective Servs., No. 03-15-00274-CV,

2015 WL 5781248, at *5 (Tex. App. - Austin 2015, no pet.).

        The HOA contends that Hubbell’s affidavit is “inadequate,”

but it pointedly does not contend that it is merely conclusory. To

the contrary, the HOA relies on facts established by her affidavit.

Brief of Appellee at 5 (This case has been pending for more than

six years while the Association and Hubbell engaged in settlement


                                      3
negotiations); 11 (“The Association continued communications and

settlement negotiations with Hubbell . . . .); CR98-99 (Hubbell

affid. ¶¶ 5-7) (to the same effect). The HOA suggests that the trial

court should have weighed that affidavit evidence. There was

nothing to weigh the affidavit against. The only evidence before

the trial court was Hubbell’s, so the only issue is whether her

affidavit is merely conclusory in testifying to the Craddock factors.

If not, it is dispositive by virtue of not being controverted. See

Strackbein   v.   Prewitt,   671   S.W.2d   37,   38-39   (Tex.   1984)

(uncontroverted affidavits were not conclusory and therefore were

dispositive on Craddock factors).

     Hubbell’s affidavit (CR100) is patently not conclusory for the

reasons set out in her opening brief (Brief of Appellant at 7-10)

and it is also consistent with the other evidence in the record

showing the years of HOA delay (Brief of Appellant at 1). She

offers a real and detailed explanation why she did not file an

answer. Whether it is an exhaustive, model answer is not the

question before the Court. In addition, the timeline that both her

testimony and the undisputed record show demonstrates years of



                                    4
HOA dithering and neglect of its own case. Brief of Appellant at 1-

3. The HOA has never offered evidence explaining those years of

delay. Nor has the HOA offered even token proof that it suffered

harm – its appeal brief makes the very sort of conclusory assertion

that the cases reject. Brief of Appellee at 18. The HOA attacks

Hubbell’s affidavit on its substance now, but it is too late for that;

that should occur at a new trial on the merits.

     On the state of the record, therefore, Hubbell’s affidavit,

being both more than conclusory and bolstered by other evidence,

satisfies her burden for the granting of a new trial.

                              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 Appellant




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                  CERTIFICATE OF SERVICE
      I certify that on January 3, 2017, a true and correct copy of
this brief was served by efiling on:

 Tom L. Newton, Jr.
 Allen Stein & Durbin, P.C.
 6243 IH-10 West, 7th Floor
 San Antonio, Texas 78201

                                /s/ J. Patrick Sutton
                                Attorney for Appellant


               CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R.
App. P. 9.4(e) because it has been prepared in Century Schoolbook
14-point for text and 12-point for footnotes. Spacing is expanded by
.6 point for clarity. This document also complies with the word-
count limitations of Tex. R. App. P. 9.4(i), if applicable, because it
contains 932 words, excluding any parts exempted by Tex. R. App.
P. 9.4(i)(1).

                                /s/ J. Patrick Sutton
                                Attorney for Appellant




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