                                                                                          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.
                                               1
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

                                          2
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

                                         3
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.




                                           4
                                  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

                                       5
                            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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