                                                                                   ACCEPTED
                                                                               03-13-00800-CV
                                                                                       6889620
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                          9/11/2015 4:19:29 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                          NO. 03-13-00800-CV
            _____________________________________________ 
                                                           FILED IN
                       IN THE COURT OF APPEALS      3rd COURT   OF APPEALS
                                                        AUSTIN, TEXAS
                   THIRD JUDICIAL DISTRICT OF TEXAS 9/11/2015 4:19:29 PM
                               AT AUSTIN              JEFFREY D. KYLE
          ________________________________________________  Clerk


       MARINA VILLAGE LAKEWAY PARTNERS, LTD.,
                                Appellant

                                    v.

        LAKEWAY MARINA VILLAGE CONDOMINIUM
                   ASSOCIATION,
                                Appellee
                                     
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT,
     CAUSE NO. D-1-GN-13-002241, THE HONORABLE TIM SULAK PRESIDING
                                       

           APPELLANT’S RESPONSE TO APPELLEE’S
                MOTION TO DISMISS APPEAL
                                      




                                  Eric J. Taube
                                  State Bar No. 19679350
                                  etaube@taubesummers.com
                                  TAUBE SUMMERS HARRISON
                                  TAYLOR MEINZER BROWN, LLP
                                  100 Congress Avenue, Suite 1800
                                  Austin, Texas 78701
                                  (512) 472-5997
                                  (512) 472-5248 (fax)

                                  ATTORNEY FOR APPELLANT
TO THE HONORABLE THIRD COURT OF APPEALS:

      Marina Village Lakeway Partners, Ltd. (“Appellant”) files this its Response

to the Motion to Dismiss Appeal filed by Lakeway Marina Village Condominium

Association (“Appellee”) and would respectfully show as follows:

      This appeal was filed with this Court on December 2, 2013 from a summary

judgment issued by the 353rd Judicial District Court of Travis County.           This

judgment effectively held that Appellant’s right to construct any improvements on

30 units of a condominium project that it owned were eviscerated because Special

Declarant Rights had expired by operation of time. The result of that ruling by the

trial court rendered these substantial property rights economically worthless.

      Briefing was completed in July of 2014, and oral argument was conducted

before Justice Rose, Justice Goodwin and Justice Jones almost one year ago, on

September 24, 2014. The parties have been awaiting the ruling from this Court.

      In the interim, and because the property at issue was rendered completely

valueless as a result of the summary judgment ruling from the trial court which is

the subject of this appeal, tax liens on the very same property were unpaid and

foreclosed upon by Travis County on July 7, 2015.           Travis County was the

purchaser of the property at the tax sale.




                                             1 
      Appellee asserts that due to the foreclosure, the appeal was rendered moot.

Such allegation is not correct. First, pursuant to Section 34.21 of the Texas Tax

Code, Appellant, as the “owner of the real property sold at a tax sale” has the right

to redeem the property “not later than the 180th day following the date on which the

purchaser's or taxing unit's deed is filed for record.” Tex. Tax Code §34.21(e).

The very earliest the redemption right could expire is February 9, 2016. As a

consequence, Appellant maintains a clear economic interest in the property, and

should this honorable Court reverse the trial court’s decision which rendered the

property interest worthless before that date, there is both an economic incentive

and economic viability to redeem the property from the foreclosure sale by the

taxing authority pursuant to the statutory privilege to do so.

      Appellee’s alternative argument that as a result of the tax sale, that Special

Declarant rights are lost also misses the mark, and is, in fact, the essence of the

appeal before this Court. Appellant has argued in this appeal that the loss of

Special Declarant Rights has nothing to do with its ability to construct

improvements on the property pursuant to the Texas Uniform Condominium Act.

(See Appellant’s Reply Brief at pages 3-8 and Appellant’s initial Brief, pages 11-

17). In essence, as it relates to this issue, Appellant’s Motion to Dismiss is nothing

more than a regurgitation of the arguments that they have already made on appeal

that are pending before this Court, have been fully briefed and argued. Appellant

                                          2 
will not reargue this point for the purpose of this response, but urges the Court to

review prior briefing on why the expiration of the Special Declarant Rights does

not prohibit construction of improvements.

      While Appellant will not suggest to this Court that Appellee has attempted

to “run out the clock” in order to attempt to preclude this Court from undertaking

an examination of the merits of this appeal that has been pending for just under a

year, it would indeed be an injustice for the Court not to render a decision on the

merits of this appeal due to the economic consequences of the trial court’s initial

determination, which Appellant obviously disagrees with, and the burden of this

Court’s substantial docket. In such event, the adage “Justice delayed is justice

denied” would be actual and not theoretical.

      For the foregoing reasons, Appellant requests that this Court deny

Appellant’s Motion to Dismiss and render its opinion overturning the summary

judgment of the trial court.




                                         3 
                                        Respectfully submitted,

                                        TAUBE SUMMERS HARRISON
                                        TAYLOR MEINZER BROWN, LLP


                                        By: /s/ Eric J. Taube
                                           Eric J. Taube
                                           State Bar No. 19679350
                                           etaube@taubesummers.com
                                           100 Congress Avenue, Suite 1800
                                           Austin, Texas 78701
                                           (512) 472-5997
                                           (512) 472-5248 (FAX)

                                        ATTORNEY FOR APPELLANTS



                         CERTIFICATE OF SERVICE

         I certify that a true and correct copy of this Appellant’s Response to
  Appellee’s Motion to Dismiss Appeal was filed electronically and served on all
  counsel below via e-mail in compliance with Tex. R. App. P. 9.5(b) and L.R.3 on
  the 11th day of September, 2015.

        Mark Hawkins
        mhawkins@abaustin.com 
        Andrew York 
        ayork@abaustin.com
        ARMBRUST & BROWN, PLLC
        100 Congress Ave., Suite 1300
        Austin, Texas 78701


                                        /s/ Eric J. Taube
                                        Eric J. Taube

                                          4 
