ACCEPTED
03-16-00557-CV
13893837
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/21/2016 9:21:47 AM
JEFFREY D. KYLE
CLERK
NO. 03-16-00557-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
11/21/2016 9:21:47 AM
THIRD DISTRICT OF TEXAS JEFFREY D. KYLE
Clerk
CHRIS PETERSON, ROBERT TURNER,
SCOTT REICHARDT and PAMELA REICHARDT, Appellants
v.
OVERLOOK AT LAKE AUSTIN, L.P., Appellee
Accelerated Appeal from the 201st Judicial District Court
Travis County, Texas
Hon. Orlinda Naranjo, Presiding
Trial Court Cause No. D-1-GN-15-005194
APPELLEE’S MOTION TO DISMISS
FOR LACK OF JURISDICTION
TO THE HONORABLE COURT OF APPEALS:
Appellee Overlook at Lake Austin, L.P. asks the Court to dismiss this appeal.
1. Appellants are: Christopher Peterson; Robert Turner; and
Scott and Pamela Reichardt. The Turner and Reichardt Appellants are
collectively referenced as “Intervenor Appellants”). Appellee is
Overlook at Lake Austin, L.P. (“Overlook”).
APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION PAGE 1
2. The 201 s t Judicial District Court of Travis County, Texas is
the trial court for the case underlying this appeal, No. D-1-GN-15-
005194, Chris Peterson v. The Zoning & Platting Commission of the City
of Austin, Texas, et al. The Hon. Orlinda Naranjo signed the August 9,
2016 interlocutory order on appeal pursuant to Chapter 27 of the
Texas Civil Practice & Remedies Code. Tex. Civ. Prac. & Rem.
Code §§ 27.001-27.011 (“Texas Citizens Participation Act” or
“TCPA”). 1
3. The Court has the authority under Texas Rule of Appellate Procedure
42.3(a) to dismiss an appeal for lack of jurisdiction.
4. In his Brief, Appellant Christopher Peterson presumed the Court’s
appellate jurisdiction. In their Brief, the Intervenor Appellants stated that the
Court has jurisdiction over this appeal under sections 27.008 and 51.014(a)(12) of
the Texas Civil Practice & Remedies Code. 2
5. The Court should dismiss this appeal. Interlocutory orders may be
appealed only if permitted by statute. See Jack B. Anglin Co., Inc. v. Tipps, 842
1
A copy of Judge Naranjo’s ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF CHRIS PETERSON AND INTERVENORS ROBERT TURNER, SCOTT
REICHARDT, AND PAMELA REICHARDT’S MOTIONS TO DISMISS CLAIMS OF
DEFENDANT OVERLOOK AT LAKE AUSTIN, L.P. PURSUANT TO CHAPTER 27 OF
THE TEXAS CIVIL PRACTICE & REMEDIES CODE (“Order”) is attached hereto and
incorporated herein as Exhibit A. CR 2355-2357.
2
Brief of Appellants Robert Turner, Scott Reichardt, and Pamela Reichardt, at xii.
APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION PAGE 2
S.W.2d 266, 272 (Tex. 1992). No statute authorizes appeal of the interlocutory
Order made the basis of this appeal because the Order: granted part of the relief
sought; denied part of the relief sought; and reserved part of the relief sought for
further consideration. Ex. A. Appellate review of an interlocutory order under the
TCPA requires an order that, in toto, “denies a motion to dismiss under Section
27.003.” See, e.g., Horton v. Martin, 2015 Tex. App. LEXIS 6003 (Tex. App. –
Dallas 2015) (mem. op.) (dismissing appeal for want of jurisdiction of interlocutory
order that granted TCPA motion to dismiss); Paulsen v. Yarrell, 455 S.W.3 192
(Tex. App. – Houston [1st Dist.] 2014, no pet.) (dismissing appeal for want of
jurisdiction of interlocutory order that granted TCPA motion to dismiss and denied
request for attorney’s fees); Fleming & Assoc., L.L.P. v. Kirklin, 479 S.W.3d 458
(Tex. App. – Houston [14th Dist.] 2015, pet. denied) (per curiam) (dismissing
appeal for want of jurisdiction of interlocutory orders that granted TCPA motions
to dismiss and reserved determination of attorney’s fees and sanctions); Trane US,
Inc. v. Sublett, 2016 Tex. App. LEXIS 10723 (Tex. App. – Amarillo 2016, n.p.h.)
(per curiam) (dismissing appeal for want of jurisdiction of interlocutory order that
granted TCPA motion to dismiss and directed movant to submit request for
attorney’s fees and sanctions).
APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION PAGE 3
B. ARGUMENT & AUTHORITIES
6. Statutes granting interlocutory appeals are strictly applied because
they are a narrow exception to the general rule that interlocutory orders are not
immediately appealable. See CMH Homes v. Perez, 340 S.W.3d 444, 447-448 (Tex.
2011). In Texas DOT v. City of Sunset Valley, the Court recognized that Tex. Civ.
Prac. & Rem. Code § 51.014 is a “narrow exception” statute authorizing
interlocutory appeals and said that “we must give it a strict construction.” Texas
DOT v. City of Sunset Valley, 8 S.W.3d 727, 730 (Tex. App. – Austin 1999, no pet.).
7. The primary rule of statutory interpretation is that a court must look
to the intent of the legislature and must construe the statute so as to give effect to
that intent. City of Austin v. L.S. Ranch, 970 S.W.2d 750, 752 (Tex. App. – Austin
1998, no pet.). When determining legislative intent, courts look to the language of
the statute, legislative history, the nature and object to be obtained, and the
consequences that follow alternate constructions. Id. If possible, the Court discerns
legislative intent from the plain meaning of the words of the statute. Id.
8. Tex. Civ. Prac. & Rem. Code § 51.014 provides the following
applicable provisions:
(a) A person may appeal from an interlocutory order of a district court,
county court at law, statutory probate court, or county court that:
…
APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION PAGE 4
(9) denies all or part of the relief sought by a motion under
Section 74.351(b), except that an appeal may not be taken
from an order granting an extension under Section 74.351;
…
(12) denies a motion to dismiss under Section 27.003;
…
(b) An interlocutory appeal under Subsection (a) … stays the
commencement of a trial in the trial court pending resolution of the
appeal. An interlocutory appeal under Subsection (a)(3), (5), (8), or
(12) also stays all other proceedings in the trial court pending
resolution of that appeal.
9. From the plain meaning of the words of this statute, the legislature
intended to only confer appellate jurisdiction over an interlocutory order that, in
toto, “denies a motion to dismiss under Section 27.003.” By its excluded words,
the legislature chose not to confer appellate jurisdiction over an interlocutory order
that denies all or part of the relief sought by a motion to dismiss under 27.003.
Compare Tex. Civ. Prac. & Rem. Code § 51.014(a)(9) with Tex. Civ.
Prac. & Rem. Code § 51.014(a)(12). Every word excluded from a statute must
be presumed to have been excluded for a purpose. City of Austin v. Quick, 930
S.W.2d 678, 687, (Tex. App. – Austin 1996), aff’d, 7 S.W.3d 109 (1999). When the
Legislature has carefully employed a term in one section of a statute, and has
excluded it in another, it should not be implied where excluded. Id.
10. This construction comports with the TCPA’s purpose to protect
citizens from retaliatory lawsuits, and to identify and summarily dispose of lawsuits
APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION PAGE 5
designed only to chill First Amendment rights. See In re Lipsky, 460 S.W.3d 579,
586, 589 (Tex. 2015) (emphasis added); accord Serafine v. Blunt, 466 S.W.3d 352,
357 (Tex. App. – Austin 2015, no pet.) (TCPA provides mechanism for early
dismissal of suits based on a party’s exercise of the right of free speech, the right to
petition, or the right of association). Summary and early disposition of a lawsuit fits
with the purposes of the interlocutory appeal statute, Tex. Civ. Prac. & Rem.
Code § 51.014, i.e. increase efficiency of the judicial process, and save the time
and expense of a full trial of a lawsuit on the merits. See Rusk State Hosp. v. Black,
392 S.W.3d 88, 96 (Tex. 2012); Grant v. Wood, 916 S.W.2d 42, 46 (Tex. App. –
Houston 1995).
11. Here, the Order on appeal did not deny Appellants’ TCPA motions to
dismiss in toto. The Order did not dismiss Overlook’s lawsuit. The Order: granted
part of the relief sought; denied part of the relief sought; and reserved part of the
relief sought for further consideration. Ex. A. The Order shows that the trial court
heard and ruled on Appellants’ TCPA motions to dismiss on August 9, 2016,
within 30 days of the July 21, 2016 hearing. See Tex. Civ. Prac. & Rem.
Code § 27.005(a). The trial court’s timely ruling eliminated the necessity to
consider that Appellants’ TCPA motions to dismiss “have been denied by
operation of law.” See Tex. Civ. Prac. & Rem. Code § 27.008(a).
APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION PAGE 6
12. The Order on appeal is not a final judgment. The Order on appeal is
not an interlocutory order that “denies a motion to dismiss under Section 27.003”
authorized for immediate appeal under Tex. Civ. Prac. & Rem. Code §
51.014. No other statute authorizes immediate appeal of the Order. The Court
lacks jurisdiction to review the Order and the Court should dismiss this appeal.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee prays that
this Court grant this motion and dismiss the appeal.
Respectfully submitted,
BUSH RUDNICKI SHELTON, P.C.
/s/ Carl J. Wilkerson
Carl J. Wilkerson
State Bar No. 21478400
cwilkerson@brstexas.com
200 N. Mesquite St., Suite 200
Arlington, Texas 76011
Telephone: (817) 274-5992
Fax: (817) 261-1671
ATTORNEYS FOR APPELLEE
OVERLOOK AT LAKE AUSTIN, L.P.
APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION PAGE 7
CERTIFICATE OF CONFERENCE
I certify that I conferred with Appellant Christopher Peterson’s counsel Neal
Meinzer regarding his position on APPELLEE’S MOTION TO DISMISS FOR
LACK OF JURISDICTION by November 18 emails. Mr. Meinzer said he was
opposed.
I certify that I conferred with Pamela Madere, counsel for Appellants Robert
Turner, Scott Reichardt, and Pamela Reichardt regarding her position on
APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION by by
November 18 emails. Ms. Madere said she was opposed.
Certified to on Nov. 21, 2016.
/s/ Carl J. Wilkerson
Carl J. Wilkerson
APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION PAGE 8
CERTIFICATE OF SERVICE
I certify that a copy of APPELLEE’S MOTION TO DISMISS FOR
LACK OF JURISDICTION was served on the following parties through
their counsel of record by electronic delivery on November 21, 2016:
Neal Meinzer Pamela Madere
Neal.Meinzer@wallerlaw.com pmadere@coatsrose.com
Andrew Vickers Christopher Bradford
Andrew.Vickers@wallerlaw.com cbradford@coatsrose.com
Waller Lansden Dortch & Davis, LLP Coats|Rose
100 Congress Ave., Suite 1800 901 South MoPac Expressway
Austin, Texas 78701 Building 1, Suite 500
Telephone: (512) 685-6400 Austin, Texas 78746
Facsimile: (512) 685-6417 Telephone: (512) 469-7987
Facsimile: (512) 469-9408
ATTORNEYS FOR APPELLANT
CHRISTOPHER PETERSON ATTORNEYS FOR APPELLANTS
ROBERT TURNER, SCOTT
REICHARDT, AND PAMELA
REICHARDT
/s/ Carl J. Wilkerson
Carl J. Wilkerson
APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION PAGE 9
CAUSE NO. D-I-GN-1S-00S194
D-1-GN-15-005194
CHRIS PETERSON § IN THE DISTRICT COURT OF
§
Plaintiff §
Filed in The District Court
§ of Travis County, Texas
v. §
THE ZONING & PLATTING
COMMISSION OF THE CITY OF
AUSTIN, TEXAS, TRAVIS COUNTY
§
§
§
§
At A~:~~2016
A~ . ~~2016
Velva L. Price,
p,1
P.1
Pric:e, District (!Ierk
i!lerk
COMMISSIONERS COURT, and §
OVERLOOK AT LAKE AUSTIN, LP. § TRAVIS COUNTY, TEXAS
§
Defendants. §
§
v. §
§
ST. TROPEZ HOMEOWNERS' §
ASSOCIATION, INC., ROBERT §
TURNER, SCOTT REICHARDT, §
and PAMELA REICHARDT, §
§
Intervenors § 201"
201'' JUDICIAL DISTRICT
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF CHRIS PETERSON AND
INTERVENORS ROBERT TURNER, SCOTT REICHARDT, AND PAMELA REICHARDT'S
MOTIONS TO DISMISS CLAIMS OF DEFENDANT OVERLOOK AT LAKE AUSTIN, L.P.
PURSUANT TO CHAPTER 27 OF THE TEXAS CIVIL PRACTICE & REMEDIES CODE
On July 21.
21, 2016, the Court heard Plaintiff/Counter-Defendant Chris Peterson and Intervenors
Robert Turner, Scott Reichardt, and Pamela Reichardt's (collectively "Movants") Motions to Dismiss
Claims of Defendant/Counter-Plaintiff Overlook at Lake Austin, L.P. (hereafter "Overlook") under
Chapter 27 of the Texas Civil Practice and Remedies Code.
The parties appeared through their attorneys of record. After careful consideration of the
Motions, the affidavits, the pleadings, applicable case law, and the arguments of counsel, the Court finds
that the Motions should be GRANTED IN PART, and DENIED IN PART.
Therefore, it is ORDERED, ADJUDGED, AND DECREED as follows:
I.
1. The Motions are GRANTED as to Overlook's claims for conspiracy against Movants.
2. The Motions are DENIED as to Overlook's claims for tortious interference against Movants.
IIIIIIIIIIIIIIIIIIIIIIIIIII~IIUII~IIIIIIIIIUIIIII
004727387
Exhibit A - APPELLEE'S MOTION TO DISMISS 2355
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Overlook's claims for
conspiracy against Movants are hereby DISMISSED with prejudice. Overlook shall take nothing from
these claims.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, in accordance with Texas
Civil Practice and Remedies Code Section 27.009(
27.009(1),
1), Movants are entitled to recover their attorneys' fees
and costs in bringing their Motions to Dismiss as to Overlook's claims for conspiracy. The parties are
ordered to submit evidence of their fees and costs by affidavit and counter-affidavit within 14 days of the
date of this Order, or set the case for a hearing on the limited issue of attorneys' fees. Movants shall be
awarded such other and further releiefto which they may be justly entitled, at law or in equity.
All relief not expressly granted is DENIED.
SIGNED on this the ~_
____g___ day of August, 2016.
Exhibit A - APPELLEE'S MOTION TO DISMISS 2356
Chris Peterson, Robert Turner, Scott Reichardt and Pamela Reichardt v. Overlook at Lake Austin, L.P.
Combined Opinion