                                                                                             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
