Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 5/1/2015 4:09:57 PM JEFFREY D. KYLE Clerk No. 03-14-00706-CV THIRD COURT OF APPEALS 5/1/2015 4:09:57 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-14-00706-CV *1 ACCEPTED [5125236] CLERK __________________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS __________________________________________________________________
E NTERGY T EXAS , I NC ., Appellant, v.
P UBLIC U TILITY C OMMISSION OF T EXAS , ET AL ., Appellees.
__________________________________________________________________
Appealed from the 345th Judicial District Court of Travis County, Texas
The Honorable Amy Clark Meachum, Judge Presiding Trial Court Cause No. D-1-GN-13-002623 __________________________________________________________________
STATE AGENCIES’ MOTION TO STRIKE PORTIONS OF APPELLANT’S REPLY BRIEF __________________________________________________________________
TO THE HONORABLE THIRD COURT OF APPEALS:
Pursuant to Texas Rules of Appellate Procedure § 10.1 and § 38.1(f), Appellee
State of Texas Agencies and Institutions of Higher Education (State Agencies) files
this Motion to Strike Portions of Appellant’s Reply Brief, and in support thereof
shows as follows:
State Agencies move to have Appendices A and B to Appellant’s Reply Brief
stricken because they are outside the appellate record and impermissibly lack
specific citations. State Agencies further move to have a certain document, which is
not designated as an appendix but is appended to Appellant’s Reply Brief as part of
“AR and PUC material,” stricken for the same reasons. Specifically, the excerpt of
the Direct Testimony of Susan Goodfriend from Public Utility Commission (PUC)
Docket No. 28840 (Goodfriend testimony) cannot be considered by this Court and
should be stricken.
I. Introduction
Appellant, Entergy Texas, Inc. (ETI or Entergy) filed an initial brief and a
reply brief in this appeal that, combined, include over 1500 pages of documentation
purporting to support its arguments. Some of these documents are listed as
appendices while others are simply attached to the briefs without such designation.
Appendices A and B to Appellant’s Reply Brief contain the direct testimony
of the same expert witness in PUC Docket Nos. 34800 and 37744, respectively - two
dockets that are not a part of this appeal or part of the administrative record before
this Court. Appellant’s Reply Brief also includes 857 pages of additional material
following identified appendices, denoted only in the bookmarks of the electronic
version of the reply brief under the heading “AR & PUC Materials.” This material
contains, among other items, an excerpt from the Direct Testimony of expert witness
Susan Goodfriend from PUC Docket No. 28840 (a docket also not connected to this
appeal).
Within its reply brief, Entergy cites to its appendices on pages 17 and 18, and
to the Goodfriend testimony on pages 25-26, to support certain assertions. These
three documents (Appendix A, Appendix B, and the Goodfriend testimony,
collectively referred to as “challenged testimonies”) and portions of Entergy’s reply
brief that rely on them are the subject of this Motion.
Under Texas Rule of Appellate Procedure § 38.9(b), if the court determines
that a case has not been properly presented, or that law and authorities have not been
properly cited in the briefs, it may make any order necessary for satisfactory
submission of the case. For the reasons set out below, the challenged testimonies and
assertions relying thereon are not properly before this Court and cannot be
considered. An order striking the challenged testimonies and related portions of
Appellant’s Reply Brief is proper.
II. The challenged testimonies are outside the administrative record.
This court is necessarily limited as to what evidence it can consider in an
appeal of a district court decision. The Supreme Court of Texas established in Sabine
Offshore Service, Inc. v. The City of Port Arthur [1] that the appellate record sets those
limits. In Sabine , the Supreme Court reversed a decision by the Court of Civil
Appeals because the decision was based on an affidavit that had not been presented
in the trial court, and therefore was not a part of the appellate record. The Court
*4 stated, “Affidavits outside the record cannot be considered by the Court of Civil
Appeals for any purpose other than determining its own jurisdiction.” [2] This holding
has been affirmed and expanded since, [3] and case law still confirms that an appellate
court may only consider the record presented to it. [4]
Attaching a document as an appendix does not modify these limitations. A
court cannot consider evidence cited in a brief and attached as an appendix if that
evidence is not formally included in the appellate record. [5] Instead, such evidence
should be excluded from the court’s consideration altogether. “Material outside the
record that is improperly included in or attached to a party’s brief may be stricken.” [6]
Pursuant to Texas Rule of Appellate Procedure § 34, the appellate record in
this matter was properly filed upon appeal to this Court. In compliance with Texas
Rule of Appellate Procedure § 36, included in the appellate record was the
administrative record of the PUC proceeding underlying the district court decision.
No party objected that the administrative record was at all incomplete.
Nonetheless, Entergy cites to and appends testimony that is not a part of the
appellate record in its reply brief. Appellant cites to expert witnesses’ testimony
*5 from Docket Nos. 34800, 37744, and 28840. Regardless of the purpose or content
of these documents, the fact that they were not included in the administrative record
renders them improper for consideration by this Court. As such, the documents
should be stricken, as should portions of Appellant’s Reply Brief that rely on those
documents. Specifically, at pages 17 and 18, the entirety of the content in the bullet
points referencing Docket Nos. 34800 [7] and 37744 [8] should be stricken and
disregarded by this Court. Similarly, at pages 25 and 26, the excerpt relying on the
Goodfriend testimony [9] should also be stricken.
III. Appellant’s citations do not contain specific information required
for the parties or the court to utilize the challenged testimonies.
Lastly, Appellant’s references to the testimony offered in the appendices
include no specific citation to exactly what the testimony allegedly shows and where
it can be found. Instead, on pages 17-18 of Appellant’s Reply Brief, Entergy
references each testimony without qualification. Appellant simply points to the
entirety of the two testimonies, a total of roughly fifty pages. As the Supreme Court
of Texas has found, it “has never been considered part of an appellate court’s duties
in conducting judicial review” to “search the record for evidence itself.” [10] More
recently, the Dallas Court of Appeals has recognized this tenet still stands,
*6 explaining that it is not the duty of a Court of Appeals to wade through a voluminous
record to verify an appellant’s claim. [11] “A general reference to a voluminous record
that does not direct the [] court and parties to the evidence on which [appellant] relies
is insufficient.” [12] Entergy’s citations to the challenged testimonies are similarly
insufficient.
Appellant has offered these pieces of testimony among countless pages of
other documentation, without providing a simple citation as to where to find the
evidence purportedly verifying its assertions. This is an improper manner of bringing
evidence before the court, and therefore, the appendices should be stricken.
IV. Prayer
WHEREFORE, PREMISES CONSIDERED, State Agencies pray that this
Court strike from the record:
1) Appendix A of Appellant’s Reply Brief;
2) Appendix B of Appellant’s Reply Brief;
3) Two paragraphs on pages 17 and 18 of Appellant’s Reply Brief that
reference Docket No. 34800 and Docket No. 37744; 4) Excerpt of Direct Testimony of Susan Goodfriend, Docket 28840,
appended to Appellant’s Reply Brief but not labeled as an appendix; and *7 5) The portion of Appellant’s Reply Brief that relies on the excerpt of Direct
Testimony of Susan Goodfriend, pages 25-26.
State Agencies also pray for any further relief to which they may be entitled.
Dated: May 1, 2015
Respectfully submitted, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation DAVID A. TALBOT, JR.
Chief, Administrative Law Division /s/ Sara R. Hammond Katherine H. Farrell State Bar No. 24032396 Sara R. Hammond State Bar No. 24081003 Assistant Attorneys General O FFICE OF THE T EXAS A TTORNEY G ENERAL Administrative Law Division P.O. Box 12548 Austin, Texas 78711 Telephone: (512) 475-4173 Facsimile: (512) 320-0167 E-mail: katherine.farrell@texasattorneygeneral.gov sara.hammond@texasattorneygeneral.gov Counsel for Appellee State Agencies *8 CERTIFICATE OF CONFERENCE I certify that I contacted counsel for all parties of record and asked whether
they would oppose this motion. Counsel for Texas Industrial Energy Consumers
takes no position on the motion; Public Utility Commission of Texas and Office of
Public Utility Counsel do not oppose the motion. Counsel for Entergy Texas, Inc.
opposes the motion.
/s/ Sara R. Hammond Sara R. Hammond Assistant Attorney General CERTIFICATE OF SERVICE I certify that a true and correct copy of State Agencies Motion to Strike
Portions of Appellant’s Reply Brief was transmitted by electronic filing on the 1st
day of May, to the parties of record as listed below: *9 John F. Williams
ENTERGY TEXAS, INC.,
Marnie A. McCormick Appellant D UGGINS W REN M ANN & R OMERO , LLP
One American Center 600 Congress Suite 1900 Austin, Texas 78767 Telephone: (512) 744-9300 Facsimile: (512) 744-9399 jwilliams@dwmrlaw.com mmccormick@dwmrlaw.com OFFICE OF PUBLIC Ross Henderson
UTILITY COUNSEL, Assistant Public Counsel
O FFICE O F P UBLIC U TILITY C OUNSEL Appellee 1701 N. Congress Avenue
Suite 9-180 P.O. Box 12397 Austin, Texas 78711-2397 Telephone: (512) 936-7500 Facsimile: (512) 936-7525 or 936-7520 ross.henderson@opuc.texas.gov PUBLIC UTILITY Elizabeth Sterling
COMMISSION Assistant Attorney General
OF TEXAS, O FFICE OF THE A TTORNEY G ENERAL
Environmental Protection Division Appellee P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548 Telephone: (512) 475-4152 Facsimile: (512) 320-0911 Elizabeth.Sterling@texasattorneygeneral.gov *10 Rex D. Van Middlesworth TEXAS INDUSTRIAL
ENERGY CONSUMERS, Benjamin Hallmark
T HOMPSON K NIGHT , LLP Appellee 98 San Jacinto Blvd, Ste. 1900
Austin, Texas 78701 Telephone: (512) 469.6100 Facsimile: (512) 469.6180 rex.vanm@tklaw.com benjamin.hallmark@tklaw.com /s/ Sara R. Hammond Sara R. Hammond Assistant Attorney General
[1] 595 S.W.2d 840 (Tex. 1979).
[2] Id . at 841.
[3] Perry v. Kroger Stores, Store No. 119 , 741 S.W.2d 533, 534 (Tex. App.—Dallas 1987, no writ) (“The attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal and, thus, the documents cannot be considered.”).
[4] In re: M.S. , 115 S.W.3d 534, 546 (Tex. 2003) (“this Court—or any appellate court—may only consider the record presented to it”).
[5] Cantu v. Horany , 195 S.W.3d 867, 870 (Tex. App.—Dallas 2006, no pet.)
[6] Carlisle v. Philip Morris, Inc. , 805 S.W.2d 498, 501 (Tex. App.—Austin 1991, writ denied).
[7] From “In Docket No. 34800, ETI’s …” through “… on Remand);” on page 17-18.
[8] From “In Docket No. 37744, ETI …” through “Hartzell, PhD);” on page 18.
[9] From “Dr. Goodfriend’s Testimony was 117 …” through “it concerned the quality-of-service issue.”
[10] Fredonia State Bank v. Gen. Am. Life Ins. Co. , 881 S.W.2d 279, 283 (Tex. 1994)
[11] Hall v. Douglas , 380 S.W.3d 860, 868 (Tex. App—Dallas 2012, no pet.) (citing Fredonia State Bank c. Gen. Am. Life Ins. Co. , 881 S.W.2d 279, 283 (Tex. 1994)).
[12] Aguilar v. Trujillo , 162 S.W.3d 839, 855 (Tex. App.—El Paso 2005, pet. denied).