APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION PAGE 1 

NO. 03-16-00557-CV 

IN THE COURT OF APPEALS

THIRD DISTRICT OF TEXAS

 

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”). 

ACCEPTED

03-16-00557-CV

13893837

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/21/2016 9:21:47 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/21/2016 9:21:47 AM JEFFREY D. KYLE Clerk
APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION PAGE 2

2. The 201st 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 3

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 4

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 5

(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 6

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 7

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 8

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 9

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

Neal.Meinzer@wallerlaw.com

Andrew Vickers

Andrew.Vickers@wallerlaw.com

Waller Lansden Dortch & Davis, LLP

100 Congress Ave., Suite 1800

Austin, Texas 78701

Telephone: (512) 685-6400

Facsimile: (512) 685-6417

ATTORNEYS FOR APPELLANT

CHRISTOPHER PETERSON

Pamela Madere

pmadere@coatsrose.com

Christopher Bradford

cbradford@coatsrose.com

Coats|Rose

901 South MoPac Expressway

Building 1, Suite 500

Austin, Texas 78746

Telephone: (512) 469-7987

Facsimile: (512) 469-9408

ATTORNEYS FOR APPELLANTS

ROBERT TURNER, SCOTT 

REICHARDT, AND PAMELA 

REICHARDT

/s/ Carl J. Wilkerson

Carl J. Wilkerson
2355

CAUSE NO. D-1-GN-15-005194 

CHRIS PETERSON 

Plaintiff 

v. 

THE ZONING & PLATTING 

COMMISSION OF THE CITY OF 

AUSTIN, TEXAS, TRAVIS COUNTY 

COMMISSIONERS COURT, and 

OVERLOOK AT LAKE AUSTIN, LP. 

Defendants. 

v. 

ST. TROPEZ HOMEOWNERS' 

ASSOCIATION, INC., ROBERT 

TURNER, SCOTT REICHARDT, 

and PAMELA REICHARDT, 

Intervenors 

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IN THE DISTRICT COURT OF 

Filed in The District Court 

of Travis County, Texas 

At A~ .. ~~2016 P.1 

Velva L. Pric:e, District i!lerk 

TRAVIS COUNTY, TEXAS 

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, 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. 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 

CAUSE NO. D-I-GN-1S-00S194 

CHRIS PETERSON 

Plaintiff 

v. 

THE ZONING & PLATTING 

COMMISSION OF THE CITY OF 

AUSTIN, TEXAS, TRAVIS COUNTY 

COMMISSIONERS COURT, and 

OVERLOOK AT LAKE AUSTIN, LP. 

Defendants. 

v. 

ST. TROPEZ HOMEOWNERS' 

ASSOCIATION, INC., ROBERT 

TURNER, SCOTT REICHARDT, 

and PAMELA REICHARDT, 

Intervenors 

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IN THE DISTRICT COURT OF 

Filed in The District Court 

of Travis County, Texas 

At A~:~~2016 p,1 

Velva L. Price, District (!Ierk 

TRAVIS COUNTY, TEXAS 

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. 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: 

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
2356

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( 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. 

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(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 ~_ day of August, 2016. 

Exhibit A - APPELLEE'S MOTION TO DISMISS