                                                                                           ACCEPTED
                                                                                       03-15-00763-CV
                                                                                               8409054
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                 12/30/2015 1:15:00 PM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK
                              NO. 03-15-00763-CV

TWIN CREEKS GOLF GROUP, L.P., §                   IN THE THIRD DISTRICT
                                                               FILED IN
                                                           3rd COURT OF APPEALS
    Appellant                 §                                 AUSTIN, TEXAS
                              §                            12/30/2015 1:15:00 PM
V.                            §                        COURT OF   APPEALS
                                                               JEFFREY  D. KYLE
                              §                                     Clerk
SUNSET RIDGE OWNERS           §
ASSOCIATION, INC.,            §
    Appellee.                 §                              AUSTIN, TEXAS


          APPELLEE’S RESPONSE TO APPELLANT’S MOTION
              TO DISMISS FOR LACK OF JURISDICTION

TO THE HONORABLE JUDGE OF SAID COURT:

      COMES NOW, Sunset Ridge Owners Association, Inc. (referred to herein

as “Appellee”) and files this Response to Appellant’s Motion to Dismiss for Lack

of Jurisdiction, and in support thereof, would show the Court as follows:

                      ARGUMENT AND AUTHORITIES

1.    The basis for Appellant’s Motion to Dismiss for Lack of Jurisdiction (the

“Motion”) is Appellant’s contention that the Order on Plaintiff’s Traditional

Motion for Partial Summary Judgment (CR253-254), in the underlying case, is not

final and appealable because Appellee inadvertently included reference to Twin

Creeks Property, Ltd. and Twin Creeks Operating Company, L.P. in Plaintiff’s

Second Amended Original Petition (the “Second Amended Petition”) (CR 256-

259) when it was filed. However, neither Twin Creeks Property, Ltd. nor Twin
Creeks Operating Company, L.P. filed an answer or made an appearance in the

underlying case (either before or after Appellee filed the Second Amended

Petition) and Appellee previously dismissed those parties (CR 251-252).

Additionally, Appellee did not request citations for service of process on Twin

Creeks Property, Ltd. and Twin Creeks Operating Company, L.P. after it filed its

Second Amended Petition and never intended to do so. 1                       Accordingly, any

reference to those parties in the Second Amended Petition was purely a clerical

error.2

2.        The general rule is that a judgment is final and appealable only when it

disposes of all parties. However, Texas Courts have also held that,

          …there are a substantial number of cases holding that such [general
          rule] has no application where the judgment complained of disposed
          of all named parties except those who have not been served and filed
          no answer. In these cases the judgment was ‘final’ for purposes of
          appeal and case stood as if there had been a discontinuance as to the
          parties not served.

Gumpp v. Philadelphia Life Ins. Co., 562 S.W.2d 885, 889 (Tex. Civ. App. — San

Antonio 1978, no writ); Liberty Mutual Ins. Co. v. City of Fort Worth, 517 S.W.2d

646, 647 (Tex. Civ. App. — Fort Worth 1975, no writ); American Trendex Corp. v.

Ultradyne Corp., 490 S.W.2d 205, 206 (Tex. Civ. App. — Austin, 1973, writ ref’d


1
  The facts in this sentence are within the personal knowledge of the attorney signing this
motion. TEX. R. APP. P. 10.2.
2
  The facts in this sentence are within the personal knowledge of the attorney signing this
motion. TEX. R. APP. P. 10.2.


                                                2
n.r.e.); Hoover v. Baker, 507 S.W.2d 299, 302 (Texas Civ. App. — 1974, writ ref.

n.r.e.). In American Trendex Corp. v. Ultradyne Corp., the appellee raised the

same issue that Appellant raises in its Motion. American Trendex Corp., 490

S.W.2d at 206. In that case, the appellee claimed that appellant’s judgment was

interlocutory because the “judgment did not mention, or dispose of, the issues

between appellee and one defendant…” See id. However, the Court of Appeals

overruled appellee’s motion because the defendant was not served with process

and did not file an answer in the case. See id. The Court stated that “the case

stands as if there had been a discontinuance as to [that defendant], and the

judgment is to be regarded as final for the purpose of appeal.” See id.

3.    The same holds true in our case. Neither Twin Creeks Property, Ltd. nor

Twin Creeks Operating Company, L.P. was served with the Second Amended

Petition and neither filed an answer or made an appearance. Therefore, the case

stands as if there had been a discontinuance as to Twin Creeks Property, Ltd. and

Twin Creeks Operating Company, L.P. and the Order should be regarded as final

for the purpose of appeal.     Accordingly, this Court should deny Appellant’s

Motion.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Sunset Ridge Owners

Association, Inc. prays the Court deny Twin Creek Golf Group, L.P.’s Motion to



                                         3
Dismiss For Lack of Jurisdiction and grant it such other and further relief to which

it may be justly entitled.

                                Respectfully submitted,

                                /s/Noel L. Stout
                                ______________________________
                                Noel L. Stout
                                nstout@abdlawfirm.com
                                State Bar No. 24033245
                                ALMANZA, BLACKBURN & DICKIE, LLP
                                2301 S. Capital of Texas Hwy., Bldg. H
                                Austin, Texas 78746
                                (512) 474-9486
                                (512) 478-7151 Fax

                                ATTORNEYS FOR APPELLEE




                                         4
                        CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing
document has been sent via email and certified mail, return receipt requested as
listed below on this the 30th day of December, 2015.

      Allen Halbrook
      Sneed, Vine & Perry, P.C.
      900 Congress Avenue
      Suite 300
      Austin, TX 78701
      (512) 476-1825 – Fax
      ahalbrook@sneedvine.com

                                    /s/Noel L. Stout
                                    _________________________________
                                    Noel L. Stout




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