                                                                          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



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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.




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                              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




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                  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




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