Elizabeth Hubbell v. Mystic Shores Property Owners Association ( 2017 )

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
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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
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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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