                                                                                         ACCEPTED
                                                                                     03-16-00557-CV
                                                                                           13916141
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                               11/21/2016 5:58:02 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK

                       NO. 03-16-00557-CV
                                                              FILED IN
                                                       3rd COURT OF APPEALS
 IN THE COURT OF APPEALS - THIRD                DISTRICT OF     TEXAS
                                                            AUSTIN,  TEXAS
                              Austin, Texas            11/21/2016 5:58:02 PM
                                                           JEFFREY D. KYLE
                                                                Clerk

        CHRIS PETERSON, ROBERT TURNER,
  SCOTT REICHARDT and PAMELA REICHARDT, Appellants
                                                                 FILED IN
                                                          3rd COURT OF APPEALS
                                    v.                         AUSTIN, TEXAS
                                                          11/21/2016 5:58:02 PM
                                                              JEFFREY D. KYLE
        OVERLOOK AT LAKE AUSTIN, L.P.,                    Appellee Clerk

         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 BRIEF, SUBJECT TO
   MOTION TO DISMISS FOR LACK OF JURISDICTION




                                         Carl J. Wilkerson
                                         State Bar No. 21478400
                                         cwilkerson@brstexas.com
                                         Bush Rudnicki Shelton, P.C.
                                         200 N. Mesquite St., Suite 200
                                         Arlington, Texas 76011
                                         Telephone: (817) 274-5992
                                         Facsimile: (817) 261-1671

                                         Attorneys for Appellee
                                         Overlook at Lake Austin, L.P.


ORAL ARGUMENT REQUESTED
               IDENTITY OF APPELLEE AND COUNSEL

Appellee:             Overlook at Lake Austin, L.P.

Appellee’s counsel:   James Rudnicki (trial court)
                      State Bar No. 24006148
                      james@brstexas.com
                      Bush Rudnicki Shelton, P.C.
                      2508 Ashley Worth Blvd., Suite 200
                      Austin, Texas 78738
                      Telephone: (512) 263-8408
                      Facsimile: (512) 263-2562

                      Carl J. Wilkerson (trial court; appeal)
                      State Bar No. 21478400
                      cwilkerson@brstexas.com
                      Bush Rudnicki Shelton, P.C.
                      200 N. Mesquite St., Suite 200
                      Arlington, Texas 76011
                      Telephone: (817) 274-5992
                      Facsimile: (817) 261-1671

                      Leonard W. Woods (trial court)
                      State Bar No. 21958050
                      lwoods@dwmrlaw.com
                      Duggins Wren Mann & Romero, LLP
                      600 Congress Ave., Suite 1900
                      P.O. Box 1149
                      Austin, Texas 78767-1149
                      Telephone: (512) 744-9300
                      Facsimile: (512) 744-9399




                                      ii
                               TABLE OF CONTENTS

Identity of Appellee and Counsel.....................................................ii

Table of Contents.........................................................................iii

Index of Authorities......................................................................iv

Statement of the Case..............................................................…….1

Appellee’s Issues …………………………………………………………..3

Statement of Facts.........................................................................4

Argument...…………………………………………………………………10

Prayer..............................................................……………………………………28

Certificate of Compliance…………………………………………………………29

Certificate of Service………………………………………………………………30




                                              iii
                              INDEX OF AUTHORITIES

Texas Supreme Court

In re Lipsky, 460 S.W.3d 579 (Tex. 2015)……………………………………….10,11

Mead v. Johnson Group, Inc., 615 S.W.2d 685 (Tex. 1981)…………………………17

Texas Court of Appeals

Allan v. Nerseova, 2010 Tex. App. LEXIS 718 (Tex. App. – Dallas 2010, no pet.)..12

Cooper v. Steen, 318 S.W.2d 750 (Tex. App. – Dallas 1958, no writ)………………17

Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318
(Tex. App. – Fort Worth 1998, pet. denied)…………………………………....16,17

Fleming & Assoc., L.L.P. v. Kirklin, 479 S.W.3d 458
(Tex. App. – Houston [14th Dist.] 2015, pet. denied) (per curiam)……………26,27

Paulsen v. Yarrell, 455 S.W.3d 192
(Tex. App. – Houston [1st Dist.] 2014, no pet.)………………………………..26,27

Pelt v. State Board of Ins., 802 S.W.2d 822 (Tex. App. – Austin 1990, no writ)…..25

RRR Farms v. American Horse Protection Ass’n, Inc., 957 S.W.2d 121
(Tex. App. – Houston [14th Dist.] 1997, pet. denied)……………………………...17

Scott v. Sebree, 986 S.W.2d 364 (Tex. App. – Austin 1999, no pet.)……………….11

Serafine v. Blunt, 466 S.W.3d 352
(Tex. App. – Austin 2015, no pet.)...................................10,11,17,18,19,20,22,23,24

Ski Masters of Texas, L.L.C. v. Heinemeyer, 269 S.W.3d 662
(Tex. App. – San Antonio 2008, no pet.)………………………………………….12

Sloat v. Rathbun, 2015 WL 6830927, 2015 Tex. App. LEXIS 11537
(Tex. App. – Austin 2015, pet. dism’d)………………………………………...10,11


                                              iv
Trane US, Inc. v. Sublett, 2016 Tex. App. LEXIS 10723
(Tex. App. – Amarillo 2016, n.p.h.) (per curiam)…………………………..26,27,28

Texas Statutes

TEX. CIV. PRAC. & REM. CODE §§27.001-27.011……………………………….1
TEX. CIV. PRAC. & REM. CODE §27.002…………………………………..22,24
TEX. CIV. PRAC. & REM. CODE §27.003………………………………………27
TEX. CIV. PRAC. & REM. CODE §27.006…………………………………...22,24
TEX. CIV. PRAC. & REM. CODE §27.009………………………………..25,26,27
TEX. CIV. PRAC. & REM. CODE §27.008(b)……………………………...........28
TEX. CIV. PRAC. & REM. CODE §51.014(a)(12).…………………………........28

Tex. Prop. Code § 82.051……………………………………………………..11




                                 v
                  APPELLEE’S STATEMENT OF THE CASE

Nature of the case:     Appellee Overlook at Lake Austin, L.P. (“Overlook”)
                        submitted requests to local governmental entities Travis
                        County and the City of Austin, Texas to permit
                        Overlook’s construction and sale of townhomes on its
                        land near Lake Austin Marina. Appellant Chris Peterson
                        (“Mr. Peterson”) and Appellants Robert Turner, Scott
                        Reichardt and Pamela Reichardt (collectively
                        “Intervenor Appellants”), are nearby property owners
                        who sued “The Zoning & Platting Commission of the
                        City of Austin, Texas” and the “Travis County
                        Commissioners Court” to restrain their action on
                        Overlook’s requests and for other relief. Appellants,
                        except Robert Turner, also sued Overlook to restrain it
                        from commencing construction or site development
                        work and for other relief. Appellant Chris Peterson
                        subsequently sued and obtained a Temporary
                        Restraining Order against the City of Austin.

                        In response to Appellants’ original petitions, Overlook
                        filed counterclaims: against Mr. Peterson for breach of
                        contract and conspiracy; against Appellant Robert
                        Turner (“Mr. Turner”) for tortious interference with
                        contract and conspiracy; and against Appellants Scott
                        Reichardt and Pamela Reichardt (the “Reichardts”) for
                        tortious interference with contract. Appellants filed
                        motions to dismiss Overlook’s counterclaims under
                        Tex. Civ. Prac. & Rem. Code §§ 27.001-27.011,
                        known as the Texas Citizens Participation Act
                        (hereinafter “TCPA”). Appellants appealed the trial
                        court’s interlocutory order on their motions to dismiss.

Interlocutory order     The Hon. Orlinda Naranjo
signed by:

Trial Court:            201st Judicial District Court, Travis County, Texas


                                      1
Interlocutory disposition The trial court, Judge Naranjo presiding, heard Mr.
by Trial Court:           Peterson’s request for temporary injunction on July 18,
                          2016. 2 RR; 4RR. 1 The trial court, Judge Naranjo
                          presiding, heard Appellants’ motions to dismiss on July
                          21, 2016. 3 RR. On August 9, 2016, Judge Naranjo
                          signed an interlocutory order entitled 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, that:

                              • Granted the motions to dismiss of Mr. Peterson and
                                Mr. Turner as to Overlook’s conspiracy claims;
                              • Dismissed Overlook’s conspiracy claims with
                                prejudice;
                              • Denied the motions to dismiss of Intervenor
                                Appellants as to Overlook’s tortious interference
                                with contract claims.
                              • Ordered the parties to submit evidence of their fees
                                and costs by affidavit and counter-affidavits within
                                14 days of the date of the Order or set a hearing on
                                the limited issue of attorney’s fees;
                              • Denied all relief not expressly granted.

                              (“Order”) CR 2355-2357.2


1
  The four-volume Reporter’s Record, filed September 6, 2016, is hereinafter referenced as
“RR”. Exhibits from the July 18 hearing on Mr. Peterson’s requested temporary injunction (2
RR) are contained within Volume 4 of the Reporter’s Record. Such exhibits consist of Mr.
Peterson’s Exhibits 1-20 (hereinafter designated as 4 RR PX[#]) and Overlook’s Exhibit 1
(hereinafter designated as 4 RR DX1).
2
  The Clerk’s Record, Volume 1 of 1, filed September 19, 2016, hereinafter referenced as “CR”.

                                              2
                             APPELLEE’S ISSUES

1. The Order properly denied Chris Peterson’s motion to dismiss Overlook’s
   breach of contract claim. [responding to Chris Peterson’s Issues II and III]

   a.   Overlook’s existing contractual agreement with Mr. Peterson
   b.   Overlook’s performance and Mr. Peterson’s breaches
   c.   Overlook’s lost sales caused by Mr. Peterson’s breaches
   d.   Mr. Peterson’s lawsuit for relief against non-existent and immune local
        governmental entities, at the time of Overlook’s counterclaim, was “sham”
        petitioning that overcame TCPA § 27.005(b)’s foundational requirement
        and removed the cloak of constitutional privilege.

2. The Order properly denied the Intervenor Appellants’ motion to dismiss
   Overlook’s tortious interference with contract claim. [responding to the
   Reichardts’ Point of Error 1. II. and to Robert Turner’s Point of Error 2]

3. This Court lacks jurisdiction to review the trial court’s interlocutory rulings on
   requested attorney’s fees, costs, and sanctions. [responding to Chris Peterson’s
   Issue IV and to Reichardts’/Turner’s Point of Error 3]




                                          3
                           STATEMENT OF FACTS

      Lake Austin Condominiums, L.P. owned two adjacent tracts of land totaling

approximately 3.094 acres (“Lots 87A and 87B”) near Lake Austin Marina in

Austin, Travis County, Texas. CR 577; 4 RR PX 3, 15, 18. Lake Austin

Condominiums, L.P. recorded its Restrictive Covenant Regarding Unified

Development and Maintenance of Drainage Facilities which indicated the intent to

consider, for purposes of site plan review, modification, or approval by the City of

Austin, Lots 87A and 87B as a “unified development/single site” (hereinafter

“Unified Development Agreement” or “UDA”). 4 RR PX 3. By a 2007 written

and recorded Declaration of Covenants, Conditions and Restrictions for Las

Colinas at Lake Austin Condominiums (“Declaration”), Declarant Lake Austin

Condominiums, L.P. created Las Colinas at Lake Austin Condominiums (“Las

Colinas Condos”) consisting of eight residential condominium units and common

elements within a designated 0.807 acre portion along the southern portions of Lots

87A and 87B. CR 576-577, 613-686; 4 RR PX 15. Declarant Lake Austin

Condominiums, L.P. did not “partition” nor replat that 0.807 acre portion as a

new tract separate from Lots 87A and 87B.

      In the Declaration, Declarant Lake Austin Condominiums, L.P. reserved

certain rights to the Declarant, including rights regarding development of the


                                         4
northern portions of Lots 87A and 87B, identified as “Additional Phases”:

                    ARTICLE VIII. ADDITIONAL PHASES

      8.1 RESERVATION OF RIGHT OF MERGER AND
      ANNEXATION AND RESERVATION OF EASEMENTS TO
      DECLARANT
              …
              (b) Declarant reserves the right, at any time and from time to
      time, without requesting or receiving the assents of any Owner or any
      Mortgagee, to resubdivide, amend the subdivision plat covering the
      Property, modify, alter, or otherwise change the legal or other status
      or configuration of the Additional Phases, or the Property to grant
      easements and to otherwise take such action as may be deemed
      necessary by the Declarant to satisfactorily expand the Project. Each
      Owner by taking title to a Unit expressly waives the right to object to
      any action by Declarant to rezone, replat or otherwise alter the
      entitlement status of the Additional Phases. Declarant may also plat,
      resubdivide or rezone the Property on any portion thereof or the land
      comprising the Additional Phases as necessary to entitle the
      Additional Phases in order for it or any portion thereof to be owned,
      held and/or developed separate and apart from the Project. Declarant
      expressly reserves an easement over, across and through the Common
      Elements for the purpose of ingress and egress to and from, and to
      facilitate in any manner required by Declarant the construction and
      sale of the Additional Units to be annexed. Declarant also expressly
      reserves, for the benefit of all present and future Owners of all or any
      portion of the Additional Phases, an easement over, across and
      through the Common Elements, including without limitation, the
      Property, for the purpose of ingress and egress, extension of utilities or
      any other purpose necessary to use and develop the Additional Phases
      as a project separate and apart from the Project, such as a different
      condominium project or a single-family subdivision, if so desired by
      such Owners or the Declarant. Each Owner hereby appoints Declarant
      as its attorney-in-fact for the purpose of effecting the provisions of this
      Section 8.1 and the power hereby granted to the Declarant shall be,
      and is, a power coupled with an interest and is irrevocable.


                                           5
CR 648-649, 681-686. The Declaration also reserved the right of the Declarant to

designate “one or more Successor Declarants for all purposes and all of the

Property…. [and] a Successor Declarant … may designate further Successor

Declarants.” CR 663. The Declaration states Declarant’s intent for the

“Declaration to be perpetual.” CR 657.

      Overlook acquired the “Additional Phases” land, i.e. northern portions of

Lots 87A and 87B consisting of approximately 2.288 acres, from Lake Austin

Condominiums, L.P.’s successor in title Graham Mortgage Corporation by

October 7, 2014 Special Warranty Deed with Vendor’s Lien. CR 2308-2315.

Overlook succeeded Lake Austin Condominiums, L.P. as Declarant of the

Declaration by a series of Designations of Successor Declarants beginning with:

Declarant Lake Austin Condominiums, L.P.’s Designation of Successor Declarant;

the Successor Declarant GMC Lake Austin, Inc.’s Designation of Second

Successor Declarant; and Second Successor Declarant Graham Mortgage

Corporation’s Designation of Third Successor Declarant. CR 2308, 2316-2326.

      Overlook seeks to develop and build a new condominium on Overlook’s

“Additional Phases” land, in accord with the UDA and with Overlook’s Declarant

rights reserved by the Declaration. CR 2308. Since acquiring that land, Overlook

has been submitting documents, including a Resubdivision of Lots 87A-87B plat, to


                                         6
Travis County and the City of Austin to obtain their approvals for Overlook’s

development and construction of this condominium to be called “Overlook at Lake

Austin.” CR 2308. Overlook expected to obtain such approvals and begin

construction of new condominium units by November 2015. CR 2308. Overlook

entered into contracts with individuals and families for construction and

conveyance of 10 condominium units. CR 2308, 2327-2351. Overlook entered into a

$1.3 million New Residence Construction Contract with Lance and Erin Ramsey,

including their deposit of $55,000 earnest money, and agreed to complete their

condominium unit within 14 months of beginning foundation work. CR 2327-2338.

Overlook entered into a $1.2 million New Residence Construction Contract with

John and Caroline Byrne, including their deposit of $60,000 earnest money, and

agreed to complete their condominium unit within 14 months of beginning

foundation work. CR 2340-2350.

      In August 2015, Mr. Peterson, a Las Colinas Condos unit owner, objected to

the City of Austin’s consideration and approval of Overlook’s proposed

development and construction on Overlook’s real property. CR 2309; 4 RR PX4.

The Zoning and Platting Commission of the City of Austin (“ZAP”) approved

Overlook’s submitted Resubdivision of Lots 87A-87B plat. CR 2309. The Travis

County Commissioners Court (“Commissioners Court”) scheduled a November


                                       7
17, 2016 public hearing to consider Overlook’s submitted Resubdivision of Lots

87A-87B plat and public comments thereon. CR 700.

       On November 16, 2016, Mr. Peterson filed the underlying suit for

Temporary Restraining Order and Temporary Injunction against: ZAP;

Commissioners Court; and Overlook. CR 36. Despite Mr. Peterson’s concern over

governmental immunity, he specifically requested an immediate temporary

restraining order against Commissioners Court and an injunction directing ZAP to

rescind its approval of Overlook’s Resubdivision of Lots 87A-87B plat to “prevent

this three pronged attack.” CR 38, 157. Appellants all claim an agreement, in court

during the November 16 temporary restraining order hearing, between Mr.

Peterson and Travis County that the Commissioners Court would take no further

action to approve Overlook’s subdivision Application until a final decision on the

merits of this case is issued. 3

       That same day, Robert Turner, Scott Reichardt and Pamela Reichardt filed

their Petition in Intervention in the underlying suit, similarly requesting: writ of

mandamus against ZAP to rescind its approval of Overlook’s Resubdivision of Lots




3
  Brief for Appellant Christopher Peterson, at 9; Brief of Appellants Robert Turner, Scott
Reichardt, and Pamela Reichardt, at x. Neither the Clerk’s Record nor the Reporter’s Record
shows such agreement. Overlook does not dispute that the Commissioners Court has since
declined to consider Overlook’s submitted plat. CR 2309.

                                            8
87A-87B plat; and writ of mandamus against Commissioners Court to defer its

consideration of Overlook’s Resubdivision of Lots 87A-87B plat. CR 11-35.

      The Commissioners Court and ZAP responded to Appellant’s claims in the

underlying suit by asserting sovereign immunity, official immunity, governmental

immunity and failure to provide pre-suit notices of their claims as required by law.

CR 163-169, 170-173, 183-187. Mr. Peterson followed by suing the City of Austin,

elected officials (Travis County Judge, County Commissioners) and ZAP officials.

CR 415-542. Mr. Turner and the Reichardts followed suit against ZAP officials. CR

386-414. Overlook responded to Appellants’ claims in their original petitions by

asserting: claims against Mr. Peterson for breach of contract and conspiracy;

claims against Mr. Turner for tortious interference with contract and conspiracy;

and claims against the Reichardts for tortious interference with contract. CR 276-

385. Without Commissioners Court and further ZAP approvals, delayed by the

actions of Mr. Peterson, Mr. Turner, and the Reichardts, Overlook’s development

and construction of the Overlook at Lake Austin Condominiums was delayed. CR

2309. The Ramseys terminated the $1.3 million contract for their condominium

unit and Overlook released their $55,000 earnest money. CR 31. The Byrnes

terminated the $1.2 million contract for their condominium unit and Overlook

released their $60,000 earnest money. CR 2351.


                                         9
                                   ARGUMENT

   Standard of Review

      When reviewing a trial court’s order on a TCPA motion to dismiss, this

Court exercises de novo review of the trial court’s determination whether the

nonmovant has presented clear and specific evidence establishing a prima facie case

for each essential element of the challenged claims. See Serafine v. Blunt, 466

S.W.3d 352, 358 (Tex. App. – Austin 2015, no pet.). A prima facie standard

generally requires only the minimum quantum of evidence necessary to support a

rational inference that the allegation of fact is true. Id. The term “clear and specific

evidence” refers to the quality of evidence required to satisfy the nonmovant’s

minimal factual burden. Id.

      “Clear and specific evidence” is not limited to direct evidence and includes

circumstantial evidence. See In re Lipsky, 460 S.W.3d 579, 588-589 (Tex. 2015)

(“Circumstantial evidence may be used to prove one’s case-in-chief or to defeat a

motion for directed verdict, and so it would be odd to deny its use here to defeat a

preliminary motion to dismiss under the TCPA.”). “Clear and specific evidence”

includes the pleadings, affidavits, or other evidence. See Sloat v. Rathbun, 2015 WL

6830927, 2015 Tex. App. LEXIS 11537, *7 (Tex. App. – Austin 2015, pet. dism’d).




                                           10
The pleadings, affidavits, or other evidence are viewed in the light most favorable

to the non-movant and prevailing party in the trial court. See id. at *8.

      Here, this Court should view the pleadings, affidavits, or other evidence in

the light most favorable to Overlook and determine whether Overlook marshaled

the minimum quantity of “clear and specific evidence”, including circumstantial

evidence, necessary to support a rational inference establishing each essential

element of: Overlook’s breach of contract claim against Peterson; and Overlook’s

tortious interference with contract claim against the Reichardts and against Turner.

See Lipsky at 588-589; Serafine at 358; Sloat at *7-*8.

1. The Order properly denied Chris Peterson’s motion to dismiss Overlook’s
   breach of contract claim. [responding to Chris Peterson’s Issues II and III]

      The essential elements of a breach of contract claim are: a valid contract

existed, plaintiff performed, defendant breached, and that plaintiff suffered

resulting damages. Scott v. Sebree, 986 S.W.2d 364, 372 (Tex. App. – Austin 1999,

no pet.).

   a. Overlook’s existing contractual agreement with Mr. Peterson

      Mr. Peterson owns a condominium unit within the Las Colinas at Lake

Austin Condominiums within a condominium regime created by the Declaration of

Covenants, Conditions and Restrictions for Las Colinas at Lake Austin

Condominiums (“Declaration”). See Tex. Prop. Code § 82.051. CR 576, 613-

                                           11
686; 2 RR 68-69; 4 RR (Plaintiff’s Exhibits 1, 2). By accepting a deed to a

condominium unit, the unit owner accepts the terms, conditions, and restrictions in

the declaration. Allan v. Nerseova, 2010 Tex. App. LEXIS 718, *8 (Tex. App. –

Dallas 2010, no pet.). Restrictions in a condominium declaration form a contract

between the parties. Id. See also Ski Masters of Texas, L.L.C. v. Heinemeyer, 269

S.W.3d 662, 668 (Tex. App. – San Antonio 2008, no pet.) (restrictive covenant is a

contractual agreement between the seller and the purchaser of real property,

enforceable by those in direct privity of estate with the contracting parties).

      Overlook’s privity of estate with Lake Austin Condominiums, L.P., the

original owner and Declarant of Las Colinas at Lake Austin Condominiums is

shown by the Affidavit of James G. Moore, accompanying warranty deeds and

series of designations of Successor Declarants. CR 577, 619, 2308-2326. Overlook,

as successor Declarant, and Mr. Peterson, as a Unit Owner, are parties to these

restrictions and contractual agreements within the Declaration:

      2.9   USE AND OCCUPANCY RESTRICTIONS
            …
            (c) Use Restrictions. Without limiting the generality of the
      foregoing provisions of this Section 2.9, use of the Project by the Unit
      Owners shall be subject to the terms and conditions set forth in the
      Community Policies and the following restrictions:

                  (1) Declarant Rights. In order that Declarant may
      develop and sell the Project, no Unit Owner nor the Association shall
      do anything to interfere with special Declarant rights contained in

                                          12
Appendix A or any other rights reserved by Declarant as set forth
herein.
…

8.1 RESERVATION OF RIGHT OF MERGER AND
ANNEXATION AND RESERVATION OF EASEMENTS TO
DECLARANT
        …
        (b) Declarant reserves the right, at any time and from time to
time, without requesting or receiving the assents of any Owner or any
Mortgagee, to resubdivide, amend the subdivision plat covering the
Property, modify, alter, or otherwise change the legal or other status
or configuration of the Additional Phases, or the Property to grant
easements and to otherwise take such action as may be deemed
necessary by the Declarant to satisfactorily expand the Project. Each
Owner by taking title to a Unit expressly waives the right to object to
any action by Declarant to rezone, replat or otherwise alter the
entitlement status of the Additional Phases. Declarant may also plat,
resubdivide or rezone the Property on any portion thereof or the land
comprising the Additional Phases as necessary to entitle the
Additional Phases in order for it or any portion thereof to be owned,
held and/or developed separate and apart from the Project. Declarant
expressly reserves an easement over, across and through the Common
Elements for the purpose of ingress and egress to and from, and to
facilitate in any manner required by Declarant the construction and
sale of the Additional Units to be annexed. Declarant also expressly
reserves, for the benefit of all present and future Owners of all or any
portion of the Additional Phases, an easement over, across and
through the Common Elements, including without limitation, the
Property, for the purpose of ingress and egress, extension of utilities or
any other purpose necessary to use and develop the Additional Phases
as a project separate and apart from the Project, such as a different
condominium project or a single-family subdivision, if so desired by
such Owners or the Declarant. Each Owner hereby appoints Declarant
as its attorney-in-fact for the purpose of effecting the provisions of this
Section 8.1 and the power hereby granted to the Declarant shall be,
and is, a power coupled with an interest and is irrevocable.


                                    13
CR 278-279, 298-299, 322-323, 624-625, 648-649.

   b. Overlook’s performance and Mr. Peterson’s breaches

      When Overlook performed its reserved rights to resubdivide and amend the

subdivision plat covering the Property, at any time and without any requirement for

a unit owner’s assent, Mr. Peterson first interfered by raising his lack of consent. 4

RR PX4. Instead of appearing before the Commissioners Court’s public hearing

process to provide his comments on their consideration of Overlook’s

Resubdivision of Lots 87A-87B plat, Mr. Peterson interfered with Overlook’s

reserved rights by suing Commissioners Court and ZAP for wrongful injunctive

relief to restrain their consideration. Mr. Peterson interfered with Overlook’s

reserved rights by restraining Commissioners Court, by agreement, “to take no

further action to approve the subdivision application.” Mr. Peterson interfered

with Overlook’s reserved rights by suing the City of Austin and its official Rodney

Gonzales for and obtaining a wrongful Temporary Restraining Order to restrain

their processing of Overlook’s submitted Site Plan Application. CR 2002-2137,

2139-2143. Mr. Peterson interfered with Overlook’s reserved rights by obtaining

the City of Austin’s agreement that “the City will not approve or release the Site

Plan Revision.” CR 2352-2354.




                                          14
      Mr. Peterson’s continued interference shows multiple breaches of his

contractual agreement with Declarant Overlook, created by the Declaration, that he

would not do “anything to interfere with … any other rights reserved by

[Overlook] as set forth herein” including its rights: to resubdivide; to amend the

Property’s subdivision plat; to modify/alter/change the legal or other status of the

Additional Phases; to plat, resubdivide or rezone the Property on any portion

thereof; to plat, resubdivide or rezone the Additional Phases as necessary to entitle

that land or any portion for separate ownership, holding or development. Mr.

Peterson’s Original Petition breached his express waiver of his right to object to

any action by Overlook to rezone, replat or otherwise alter the entitlement status of

the Additional Phases. Mr. Peterson’s sworn statement “None of the defendants in

this case are my agents or attorneys in fact” breached his appointment of Overlook

as his attorney-in-fact. CR 156.

   c. Overlook’s lost sales caused by Mr. Peterson’s breaches

      Overlook paid over $1.6 million for the “Additional Phases” land. CR 2311-

2315. Overlook intended to develop, build and convey additional condominium

units on that land, and commence construction by November 2015. CR 2308.

Overlook obtained a Contract of Sale with Mr. and Mrs. Ramsey in which they

agreed to pay $1.3 million for a unit to be completed by January 2017, within 14


                                         15
months of beginning construction. CR 2327-2335. The Ramseys deposited $55,000

earnest money. CR 2337. Overlook obtained a Contract of Sale with Mr. and Mrs.

Byrne in which they agreed to pay $1.2 million for a unit to be completed by

January 2017, within 14 months of beginning construction. CR 2340-2346. The

Byrnes deposited $60,000 earnest money. CR 2348. Overlook could not commence

construction in November 2015 and cannot commence construction while: the

Commissioners Court declines to take further action to approve Overlook’s

subdivision application under its agreement with Mr. Peterson; and the City of

Austin will not approve or release Overlook’s Site Plan Revision under its

agreement with Mr. Peterson. CR 2352-2354. The Ramseys and the Byrnes

terminated their contracts for condominium units and received their earnest money

back. CR 2338, 2351.

      By halting local governmental processes to consider and approve Overlook’s

planned development, Peterson halted Overlook’s commencement of construction

in November 2015. Without such consideration and approval, Overlook could not

build condominium units promised to be completed by January 2017 for the

Ramseys and the Byrnes. As a result, the Ramseys and the Byrnes terminated their

Contracts of Sale with Overlook totaling $2.5 million. Lost sales are recognized

reasonably foreseeable damages. See Duncan Land & Exploration, Inc. v. Littlepage,


                                        16
984 S.W.2d 318, 333 (Tex. App. – Fort Worth 1998, pet. denied) (slander of title);

Cooper v. Steen, 318 S.W.2d 750, 756 (Tex. App. – Dallas 1958, no writ) (intentional

invasion of property rights). In an action for breach of contract, actual damages may

be recovered when the loss is the natural, probable and foreseeable consequences of

the defendant’s conduct. Mead v. Johnson Group, Inc., 615 S.W.2d 685, 687 (Tex.

1981).

   d. Mr. Peterson’s lawsuit for relief against non-existent and immune local
      governmental entities, at the time of Overlook’s counterclaim, was
      “sham” petitioning that overcame TCPA § 27.005(b)’s foundational
      requirement and removed the cloak of constitutional privilege.

         Mr. Peterson’s asserted First Amendment claims, whether offered to prove

the statutory foundation to file a TCPA motion to dismiss or to prove the

affirmative defense of absolute privilege to Overlook’s claims, does not overcome

the “sham” exception or “sham” petitioning concept. See RRR Farms v. American

Horse Protection Ass’n, Inc., 957 S.W.2d 121, 128 (Tex. App. – Houston [14th Dist.]

1997, pet. denied) (sham exception to privilege provided by the Noerr-Pennington

doctrine); See Serafine v. Blunt, 466 S.W.3d 352, 364-395 (Tex. App. – Austin 2015,

no pet.) (Pemberton, J., concurring) (district court’s order denying TCPA motion

could be affirmed on an implied finding or conclusion that the challenged lawsuit is

not protected as the exercise of the right to petition because it is a sham).


                                           17
       Overlook did not expressly use the word “sham” in the trial court. Overlook

asserts that its trial court arguments and explanation regarding “petition activity in

bad faith and for a wrongful purpose” raised the “sham” issue:

           Plaintiff has conducted allegedly protected free speech and petition
       activity in bad faith and for a wrongful purpose. Plaintiff’s requests for
       injunctions and use of this court’s Temporary Restraining Order
       issued June 17, 2016 against immune governmental entities show a
       malicious use of the court, without subject matter jurisdiction to
       enjoin governmental entities and public officials, to frustrate
       Overlook’s development of its real property. Plaintiff’s breach of
       contract and bad faith conduct is the basis for Overlook’s claims.

       [and]

           Intervenors have conducted their allegedly protected free speech
       and petition activity in bad faith and for a wrongful purpose.
       Intervenors’ requests for injunctions against immune governmental
       entities show a malicious use of the court, without subject matter
       jurisdiction to enjoin governmental entities and public officials, to
       frustrate Overlook’s development of its real property. Intervenors’
       bad faith conduct is the basis for Overlook’s claims.

CR 2282, 2295. These arguments follow the basis for “sham” petitioning, i.e.

those situations in which persons use the governmental process – as opposed to the

outcome of the process – to harass, increase costs for, or otherwise harm a rival as

an end in itself. See Serafine, at 366.

       When Mr. Peterson first filed suit on November 16, 2015 against ZAP,

Commissioners Court, and Overlook, he pursued prior restraint injunctive relief

against Commissioners Court only. Brief of Appellant Christopher Peterson, at 9;

                                           18
CR 36 (Plaintiff’s Original Petition and Application for Temporary Restraining

Order and Temporary Injunction); CR 158-161 (proposed TRO against

Commissioners Court only). That same day, Mr. Peterson used the Temporary

Restraining Order (“TRO”) process, as opposed to an outcome of the process, to

obtain his desired result, specifically the “Travis County Commissioners Court

agree[ment] to take no further action to approve [Overlook’s] subdivision

Application until a final decision on the merits of this case is issued.” Brief of

Appellant Christopher Peterson, at 9. That harmed Overlook as an end in itself. 4

          In the context of litigation, “sham” petitioning requires a two-part analysis:

(1) the lawsuit must be objectively baseless, i.e. no reasonable litigant could

realistically expect success on the merits; and (2) only in the event the challenged

litigation is objectively meritless, the court determines whether the baseless lawsuit

conceals an attempt to harm a rival directly through the process itself as opposed to

the outcome. See id.

          On March 1, 2016, Overlook filed its counterclaims made the basis of Mr.

Peterson’s TCPA Motion to Dismiss. CR 276-385. Mr. Peterson’s suit only named

ZAP, Commissioners Court, and Overlook. At that time, ZAP and the

Commissioners Court each possessed multiple valid defenses to suit, including but


4
    See supra p. 16 herein.

                                            19
not limited to: sovereign/official/derivative/governmental immunity from suit;

Commissioners Court is not a legal entity capable of being sued; and ZAP, a

department of the City of Austin, is not a justiciable entity. CR 163-169 (Travis

County Commissioners Court’s Original Answer and Verified Denial), CR 170-173

(Defendant The Zoning and Platting Commission of the City of Austin’s Original

Answer and Special Exceptions). 5 Contrary to Mr. Peterson’s jurisdictional

allegations, ZAP and Commissioners Court were not “political subdivisions or

entities of this state” and the trial court completely lacked subject matter

jurisdiction to grant his requested relief against ZAP and Commissioners Court.

CR 37. At that time, Mr. Peterson’s lawsuit against ZAP and Commissioners Court

was objectively baseless in the sense that no reasonable litigant could realistically

expect success on the merits. See id.

      Mr. Peterson’s Original Petition against Overlook was not objectively

baseless, since Overlook is a valid legal entity without sovereign/governmental

immunity. But Mr. Peterson did not pursue injunctive relief against Overlook,

despite his subjectively breathless portrayal of Overlook as the evil mastermind:

           8.  Overlook itself has pushed and prodded by whatever
      means at its disposal to not only persuade ZAP and the

5
  Overlook wholly adopts herein the asserted defenses, arguments and authorities contained
within Commissioners Court’s original answer and ZAP’s original answer to show that Mr.
Peterson’s Original Petition against Commissioners Court and ZAP was objectively baseless.

                                            20
      Commissioners Court to turn a blind eye to the unfolding injustice,
      but is itself double-timing its pursuit of approval to expedite the
      trampling of Plaintiff’s valuable property rights by, among other
      things, unlawfully hi-jacking long expired special declarant rights of a
      now defunct past developer and administratively converting Plaintiffs’
      (and others’) valuable property rights all as part of Overlook’s ill-fated
      and dogged pursuit of self-interest without any regard to the rights of
      others along the way.

CR 38. He avoided an outcome based squarely on the parties’ Declaration rights.

Rather, he used his objectively baseless claims against the governmental entities

and the TRO process to harm Overlook by barring its use of the Commissioners

Court’s process for evaluating Overlook’s proposed development. Overlook’s

claims asserted March 1, 2016 against Mr. Peterson are based on that conduct,

which also breached his contractual agreements in the Declaration: “Plaintiff and

Intervenors have sought to use the court system for delay by causing confusion.”

CR 277.

      In June, Mr. Peterson again used his objectively baseless claims against a

governmental entity and the TRO process to harm Overlook. CR 2138. Again,

despite lack of jurisdiction over an immune governmental entity, he requested and

obtained a wrongful TRO against the City of Austin enjoining it from “accepting,

releasing or approving any site plan application … that includes or in any way

affects any portion of … Lots 87A and 87B.” CR 2142. Again, he did not pursue

requested injunctive relief against Overlook, but used speculative and conclusory

                                          21
opinion testimony from Pamela Madere (counsel for Intervenor Appellants) to

allege his “imminent” harm and halt the City of Austin’s process for evaluating

Overlook’s proposed development. CR 2146, 2148-2150, 2190.

      Mr. Peterson’s “sham” petitioning, as of Overlook’s filing of its March 1,

2016 counterclaims, is shown by: (1) his claims against Commissioners Court and

ZAP were objectively baseless, i.e. no reasonable litigant could realistically expect

success on the merits; and (2) he used his baseless claims and the TRO process

against Commissioners Court and ZAP, and this TCPA process, to harm Overlook.

See Serafine, at 365-366, 370-371 (party’s TCPA motion to dismiss is potentially

subject to an opposing party’s TCPA motion to dismiss the first TCPA motion).

Mr. Peterson’s “sham” petitioning overcame his claim that Overlook’s

counterclaim for breach of contract was based on, relates to, or is in response to his

constitutional exercise of his rights of free speech, petition, or association. TCPA §§

27.002; 27.006(b). See Serafine, at 380-383. His motion to dismiss was improper

and the trial court’s Order properly denied his motion to dismiss Overlook’s

counterclaim for breach of contract. Likewise, his “sham” petitioning defeated his

defense of absolute privilege against Overlook’s counterclaim for breach of

contract.




                                          22
2. The Order properly denied the Intervenor Appellants’ motion to dismiss
   Overlook’s tortious interference with contract claim. [responding to the
   Reichardts’ Point of Error 1. II. and to Robert Turner’s Point of Error 2]

      Intervenor Appellants also sued ZAP, Commissioners Court, and Overlook

by filing their Petition in Intervention on November 16, 2016. CR 11. Intervenor

Appellants’ Petition in Intervention requested mandamus relief against ZAP “to

rescind its approval of [Overlook’s] subdivision plat” and prior restraint

mandamus relief against Commissioners Court “to defer consideration of

[Overlook’s] re-subdivision plat.” CR 17-18. At that time, ZAP and the

Commissioners Court each possessed multiple valid defenses to Intervenors’ suit,

including but not limited to: sovereign/official/derivative/governmental immunity

from suit; Commissioners Court is not a legal entity capable of being sued; and

ZAP, a department of the City of Austin, is not a justiciable entity. CR 163-169

(Travis County Commissioners Court’s Original Answer and Verified Denial), CR

183-187 (Defendant The Zoning and Platting Commission of the City of Austin’s

Original Answer and Special Exceptions to Intervenors Robert Turner, Scott and

Pamela Reichardt’s Petition in Intervention). 6 Contrary to Intervenor Appellants’

allegation, Commissioners Court is not “a political subdivision of Travis County.”


6
  Overlook wholly adopts herein the asserted defenses, arguments and authorities contained
within Commissioners Court’s original answer and ZAP’s original answer to show that
Intervenor Appellants’ Petition in Intervention against Commissioners Court and ZAP was
objectively baseless. See Serafine, at 366.

                                            23
CR 12. They alleged no basis for the trial court’s jurisdiction over ZAP and

Commissioners Court. CR 11-19. At that time, the trial court completely lacked

subject matter jurisdiction to grant their requested relief against ZAP and

Commissioners Court. At that time, Intervenor Appellants’ Petition in

Intervention against ZAP and Commissioners Court was objectively baseless in the

sense that no reasonable litigant could realistically expect success on the merits. See

Serafine, at 366.

       Overlook’s claims asserted March 1, 2016 against Intervenor Appellants are

based on their “sham” petitioning. “Plaintiff and Intervenors have sought to use

the court system for delay by causing confusion.” CR 277. Since then, Intervenor

Appellants’ failure to directly pursue their originally requested relief against

anyone, while instead pursuing relief against Overlook only under the TCPA,

indicates Intervenors’ purpose only of harming Overlook through the collateral

effects of the litigation process. See Serafine, at 383.

       Intervenor Appellants’ “sham” petitioning, as of Overlook’s filing of its

March 1, 2016 counterclaims, overcomes their claim that Overlook’s counterclaims

are based on, relates to, or is in response to their constitutional exercise of their

rights of free speech, petition, or association. TCPA §§ 27.002; 27.006(b). See

Serafine, at 380-383. Their TCPA motion to dismiss was improper and the trial


                                            24
court’s Order properly denied Intervenor Appellants’ motion to dismiss

Overlook’s counterclaim for their tortious interference with contract.

3. This Court lacks jurisdiction to review the trial court’s interlocutory
   rulings on requested attorney’s fees, costs, and sanctions. [responding to
   Chris Peterson’s Issue IV and to Reichardts’/Turner’s Point of Error 3]

        A necessary prerequisite to invoking the jurisdiction of the court of appeals is

that, in the absence of a statute to the contrary, the appeal must be from a final,

appealable judgment. Pelt v. State Board of Ins., 802 S.W.2d 822, 826 (Tex. App. –

Austin 1990, no writ). “Thus, we have no jurisdiction over an appeal from a trial

court’s interlocutory ruling unless such order is specifically made appealable by

statute.” Id. Here, the trial court’s Order contains interlocutory express rulings

that:

                IT IS FURTHER ORDERED, ADJUDGED, AND DECREED
        that, in accordance with Texas Civil Practice and Remedies Code
        Section 27.009(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 hearing on the limited issue
        of attorney’s fees. Movants shall be awarded such other and further
        relief to which they may be justly entitled, at law or in equity.

CR 2355-2356. In their Briefs, Appellants asserted the trial court’s error in: failing

to award attorney’s fees and costs of court under TCPA § 27.009. Peterson Brief,

at 44-46; Intervenors’ Brief, at 34-35. Mr. Peterson also asserted the trial court’s


                                           25
error in failing to award sanctions against Overlook under TPCA § 27.009.

Peterson Brief, at 44-46. This Court lacks jurisdiction over an appeal from these

interlocutory rulings. See Paulsen v. Yarrell, 455 S.W.3d 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 submittal of a request for attorney’s fees and

sanctions).

      In Paulsen, defendant Ellen Yarrell filed a TCPA motion to dismiss plaintiff

James Paulsen’s claims for defamation and tortious interference. Paulsen, at 194.

Paulsen’s filed his own TCPA motion to dismiss Yarrell’s motion to dismiss. Id.

The trial court denied Yarrell’s TCPA motion, granted Paulsen’s TCPA motion,

and denied Paulsen’s request for attorney’s fees and court costs under the TCPA.

Id. at 195. Paulsen appealed the trial court’s order denying his attorney’s fees


                                          26
ancillary to granting his motion to dismiss filed under TCPA § 27.003. Id. The

First Court of Appeals declined to exercise jurisdiction over Paulsen’s

interlocutory appeal, holding that “the aspect of Paulsen’s motion that was denied

– the request for attorney’s fees – was a distinct interlocutory ruling that did not

deny the ‘motion to dismiss filed under Section 27.003,’ but instead it denied a

request for fees as authorized by a separate provision, Section 27.009.” Id. at 196.

      In Fleming, the trial court granted movants’ TCPA motion to dismiss by one

order (including a handwritten notation “Attorneys’ fees & sanctions will be

considered at a later date”) and denied movants’ request for attorneys’ fees and

sanctions by a subsequent separate order. See Fleming, at 460. Upon appeal of both

orders, the Fourteenth Court of Appeals declined to exercise jurisdiction. Id. at

460-461 (no statute explicitly provides for an interlocutory appeal of an order that

grants a TCPA motion).

        Most recently, in Trane US, the Seventh Court of Appeals declined to

exercise jurisdiction over an appeal of a trial court’s order that granted movants’

TCPA motion to dismiss, without resolving movants’ request for attorney’s fees

and sanctions. The trial court signed an order that granted movants’ TCPA motion

to dismiss and directed movants’ counsel to submit a request for attorney’s fees

and sanctions under the TCPA’s section 27.009(a). Trane US, at *1-*2. Movants


                                          27
filed their request and, while those issues remained pending in the trial court,

movants appealed the trial court’s order. Id. On appeal, that Court of Appeals said:

“In light of section 51.014(a)(12), section 27.008(b) cannot be read to authorize an

interlocutory appeal by either party of an order granting dismissal under section

27.003.” Id. at *4.

      Here, since the Order granted Appellants’ motions to dismiss, albeit in part,

no statute authorizes Appellants’ interlocutory appeal of the trial court’s resolution

of Appellants’ requests for attorney’s fees and sanctions. Just as its sister courts

that considered similar appeals, the Court lacks jurisdiction to review Appellants’

requests for attorney’s fees and sanctions.

                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellee Overlook at Lake

Austin, L.P., subject to its MOTION TO DISMISS FOR LACK OF

JURISDICTION, prays that this Court: affirm the trial court’s August 9, 2016

Order; decline review of Appellants’ requests for attorney’s fees and sanctions for

lack of jurisdiction; award Appellee its costs on appeal; and award Appellee such

other relief to which it may be justly entitled.




                                           28
                                    Respectfully submitted,

                                    Bush Rudnicki Shelton, P.C.


                                    By: /s/ Carl J. Wilkerson
                                          Carl J. Wilkerson
                                          State Bar No. 21478400
                                    4025 Woodland Park Blvd., Suite 190
                                    Arlington, Texas 76013
                                    Telephone: (817) 274-5992
                                    Facsimile: (817) 261-1671
                                    Email:       cwilkerson@brstexas.com

                                    Attorneys for Appellee
                                    Overlook at Lake Austin, L.P.

                     CERTIFICATE OF COMPLIANCE

      I certify that this document was produced on a computer using Microsoft
Word 2007 and contains 6,384 words, as determined by the computer software’s
word-count function, excluding the sections of the document listed in Texas Rule
of Appellate Procedure 9.4(i)(1).

                                            /s/ Carl J. Wilkerson
                                            Carl J. Wilkerson




                                       29
                      CERTIFICATE OF SERVICE

      I certify that a copy of APPELLEE’S BRIEF, SUBJECT TO 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




                                     30
