Raymond Espinosa v. Aaron's Rents, Inc.

Opinion

ACCEPTED 01-14-00843-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 5/12/2015 3:52:22 PM CHRISTOPHER PRINE CLERK

CASE NO. 01-14-00843-CV

FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS FOR HOUSTON, TEXAS THE FIRST DISTRICT OF TEXAS 5/12/2015 3:52:22 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk

RAYMOND ESPINOSA,

Appellant,

v.

AARON’S RENTS, INC., AARON’S INC., AARON’S SALES & LEASE OWNERSHIP, and NICOLE LEE,

Appellees.

On Appeal from the District Court of Harris County, Texas, 129th Judicial District Cause Number 2010-70720

MOTION TO STRIKE

Pursuant to Tex. R. App. P. 9.4(k), 38.1, and 38.9(a), Appellees Aaron’s

Rents, Inc., Aaron’s, Inc., Aaron’s Sales & Lease Ownership, and Nicole Lee

(“Appellees”) move to strike the Affidavit of Jimmie Norris and the Affidavit of

Jared Ynigez, attached as Exhibits A and B, respectively, to Appellant’s Reply

Brief because these affidavits are not part of the record and Appellant did not make

a motion to supplement the record in this case. Tex. R. App. P. 38.1(i) provides that the appellant’s brief must contain

“appropriate citations . . . to the record” of the trial court. Appellant’s Reply brief

cites to Affidavits of Jimmie Norris and Jared Ynigez that were not included in the

trial court’s record and were prepared after Appellees filed their brief in this

appeal. Specifically, the Affidavit of Jimmie Norris is dated May 4, 2015 and the

Affidavit of Jared Ynigez is dated May 1, 2015. (See Appellant’s Reply, Exhibits

A and B.) Appellant’s reliance on these affidavits is therefore improper.

Accordingly, Appellees respectfully request that the Court strike the Affidavits of

Jimmie Norris and Jared Ynigez from Appellant’s Reply and decline to consider

these Affidavits. See Tex. R. App. P. 9.4(k), 38.9(a); Till v. Thomas, 10 S.W.3d

730, 733 (Tex. App.—Hou. [1st Dist.] 1999, no pet.) (“This Court must hear and

determine a case on the record as filed, and may not consider documents attached

as exhibits to briefs.”).

Respectfully submitted,

JACKSON LEWIS P.C.

/s/ Dion Y. Kohler Virginia Mixon Swindell Texas Bar No. 00794711 Wedge International Tower 1415 Louisiana, Suite 3325 Houston, TX 77002-7332 (713) 650-0404 (Telephone) (713) 650-0405 (Facsimile) swindelv@jacksonlewis.com 2 Dion Y. Kohler Georgia Bar No. 427715, admitted pro hac vice 1155 Peachtree Street, Suite 1000 Atlanta, Georgia 30309-3600 (404) 525-8200 (Telephone) (404) 525-1173 (Facsimile) kohlerd@jacksonlewis.com

ATTORNEYS FOR APPELLEES

3 CERTIFICATE OF SERVICE

I certify that on May 12, 2015, I served a copy of this document, Motion to Strike, on the parties listed below by electronic service and that the electronic transmission was reported as complete. My email address is KohlerD@jacksonlewis.com.

Robert Teir Robert Teir, PLLC 845 FM 517 W, Suite 200 Dickinson, Texas 77539 (832) 365-1191 [Telephone] (832) 550-2700 [Facsimile]

/s/ Dion Y. Kohler Dion Y. Kohler

4816-2366-5699, v. 2