Chris Peterson, Robert Turner, Scott Reichardt and Pamela Reichardt v. Overlook at Lake Austin, L.P.
Opinion
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”).
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.
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).
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:
…
(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
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).
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Chris Peterson, Robert Turner, Scott Reichardt and Pamela Reichardt v. Overlook at Lake Austin, L.P. (Chris Peterson, Robert Turner, Scott Reichardt and Pamela Reichardt v. Overlook at Lake Austin, L.P.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.