ACCEPTED 03-13-00800-CV 6763320 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/2/2015 1:01:39 PM JEFFREY D. KYLE CLERK NO.03-13-00800-CV
IN THE COURT OF APPEALS FOR THE FILED IN 3rd COURT OF APPEALS THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN AUSTIN, TEXAS 9/2/2015 1:01:39 PM JEFFREY D. KYLE MARINA VILLAGE LAKEWAY PARTNERS,LTD., Clerk
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
APPELLEE'S MOTION TO DISMISS APPEAL
MARK L. HAWKINS State Bar No. 00790843 mhawkins@abaustin.com ANDREW F. YORK State Bar No. 24066318 ayork@abaustin.com ARMBRUST & BROWN,PLLC 100 Congress Avenue, Suite 1300 Austin, Texas 78701 (512)435-2300 — telephone (512)435-2360 — facsimile
Counselfor Appellee TO THE HONORABLE COURT OF APPEALS:
Appellee Lakeway Marina Village Condominium Association (the
"Association") files this Motion to Dismiss Appeal as Moot, and respectfully
shows the Court as follows.
Following a judgment for unpaid property taxes and a foreclosure auction
conducted by Travis County, Appellant Marina Village Lakeway Partners, Ltd.
("MV Lakeway") no longer owns the unbuilt units that are the subject of this
appeal. See Exhibit A, Tax Sale Constable's Deed: As a result of the Constable's
Deed, Travis County—and not Appellant—is now the record owner of the unbuilt
units, and Appellant no longer owns any units or other real property in the
condominium regime.
Texas Property Code Section 82.104(d) provides in pertinent part:
(d) On foreclosure, tax sale, judicial sale, sale by a trustee under a deed of trust, or sale under Bankruptcy Code or receivership proceedings of all units and other real property in a condominium owned by a declarant:
(1) the declarant ceases to have any special declarant rights;2
A certified copy of the Constable's Deed is attached as Exhibit A. The deed was executed by Carlos B. Lopez, Constable, on August 11, 2015, and recorded in the Official Public Records of Travis County, Texas, on August 13, 2015, as Instrument Number 2015129230. 2 A copy of this provision is attached as Exhibit B.
2 Thus, Appellant's special declarant rights have ceased to exist3 as a matter of law
for this additional reason, regardless of the merits of the arguments Appellant
presented in its briefing and argument.
Similarly, Appellant's arguments arising from its former status as "Owner of
100% of the remaining 30 units"4 are moot, and should not be considered by the
Court. (See, e.g., Section II(A)(3) of Appellant's Brief entitled "As the fee-simple
owner of the unbuilt units, Marina Village's 'improvement' rights authorize it to
construct the units in free-standing buildings.").
Thus, this appeal is moot, and should be dismissed. In re Kellogg Brown &
Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) ("A case becomes moot if a
controversy ceases to exist between the parties at any stage of the legal
proceedings, including the appeal."); Pinnacle Gas Treating, Inc. v. Read, 104
S.W.3d 544, 545 (Tex. 2003)("Subject to some exceptions, a case becomes moot
when a court's actions cannot affect the rights ofthe parties.").
WHEREFORE, Appellee Lakeway Marina Village Condominium
Association prays that this appeal be dismissed as moot, or alternatively, that the
Court disregard any arguments arising from (a) Appellant's argument that it
3 This appeal arises from a final judgment ordering that "Plaintiffs special declarant rights — including the right to complete the improvements comprising the Unbuilt Units — have expired, and such special declarant rights may be restored only by an amendment to the Declaration approved by 100% of the votes in Lakeway Marina Village Condominium Association." CR 267-68. "Special declarant rights" include the right to "complete improvements indicated on v.lats and plans filed with the declaration." Tex. Prop. Code § 82.003(a)(22)(A). See Appellant's Brief at xi.
3 continues to have enforceable special declarant rights, or (b) Appellant's former
status as owner of the unbuilt units.
Respectfully submitted,
ARMBRUST & BROWN,PLLC
/s/ Andrew F. York
MARK L. HAWKINS State Bar No. 00790843 mhawkins@abaustin.com ANDREW F. YORK State Bar No. 24066318 ayork@abaustin.corn ARMBRUST & BROWN,PLLC 100 Congress Avenue, Suite 1300 Austin, Texas 78701 (512)435-2300 — telephone (512)435-2360 — facsimile
Counselfor Appellee
4 CERTIFICATE OF CONFERENCE
I hereby certify that counsel for Appellee conferred with counsel for Appellant, Eric Taube, on September 2, 2015, who stated that Appellant opposes the motion.
/s/ Andrew F. York Andrew F. York
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been sent by U. S. Mail and electronic filing to the following on this 2nd day of September, 2015:
Eric J. Taube Hohmann, Taube & Summers, L.L.P. 100 Congress Ave., 18th Floor Austin, Texas 78701 erict@l)hts-law.com
5 EXHIBIT A 1 1E1 1 1 1 1 1 1 1 1 1 1 1 11111 I I{ I TRV
7 PGS 2015129230
Constable's Deed STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TRAVIS
Cause Number: D-1-GV-13-000599
WHEREAS, by virtue of a certain Order of Sale issued by the clerk of the 419TH District Court of Travis County, Texas in Cause Number D-1-GV-13-000599 styled TRAVIS COUNTY, ET. AL. v. MV LAKEWAY PARTNERS, LTD. on a certain Judgment and Decree of Sale rendered in said court; I, Carlos B. Lopez, Constable for Travis County, Texas, did on May 29, 2015, at 2:00 p.m., in obedience to said Order of Sale, seize and levy upon all estate, right, title, claim and interest which the Defendant had on the date of said Judgment in and to the premises hereinafter described; and on the first Tuesday of July, 2015, the same being on the 7th between the hours of 10:00 a.m. and 4:00 p.m., as prescribed by law, did sell said premises at public auction in the County of Travis, at the west side of the Courthouse thereof, in the City of Austin, Texas, having first given public notice of the time and place of said sale by an advertisement in the English language, published once a week for three consecutive weeks preceding such sale, the first publication appearing not less than twenty days immediately preceding the day of the sale, beginning on June 12, 2015, in The Austin Chronicle, a newspaper published in the County of Travis, stating therein the authority by virtue of which such sale was to be made, the time of levy, the time and place of sale, and a description of the property that was to be sold, together with other information required by law, and by mailing copies of such notice to all defendants as required by law; and
WHEREAS, at said sale, there being no bid offered for the sum of $118,534.25, the adjudged fair value of the said property or the amount of the taxes, interest, penalties and costs, said premises hereinafter described were bid off to Travis County, Trustee, in trust for the use and benefit of itself and Lake Travis Independent School District, Travis County Healthcare District d/b/a Central Health, City of Lakeway, Lakeway MUD and Travis County Emergency Services District No. 6.
NOW,THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
That in consideration of the premises in said Judgment and Order of Sale, I, Carlos B. Lopez, Constable of Travis County, Texas, do grant, sell, and convey unto Travis County, Trustee, in trust for the use and benefit of itself and Lake Travis Independent School District, Travis County Healthcare District d/b/a Central Health, City of Lakeway, Lakeway MUD and Travis County Emergency Services District No. 6, and their assigns, all the estate, right, title, interest, and claim which the said defendant(s) had on the date said Judgment was rendered or at any time afterwards, in and to the premises described in said Order of Sale, and further described as follows to-wit: AUG 3 1 2015 334093-1 I, Dana DeBeauvoir, County Clerk, Travis County, Texas, do hereby certify that this Is a true and correct copy as same appea record in my office. Witness my hand and sea co on Dana nty Clerk OY D ACHAD. Constable's Deed Cause Number D-1-GV-13-000599 August, 2015
Billing Number: 824262 Legal Description: Unit 510, Building 5, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 of the deed records of Travis County, Texas
Billing Number: 824263 Legal Description: Unit 512, Building 5, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 of the deed records of Travis County, Texas
Billing Number: 824264 Legal Description: Unit 514, Building 5, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824265 Legal Description: Unit 516, Building 5, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824266 Legal Description: Unit 518, Building 5, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824267 Legal Description: Unit 521, Building 5, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas AUG 31 2015 334093 1 I, Dana DeBeauvoir, County Clerk, Travis County, Texas, do hereby certify th this is a true and correct copy as same ait,,,,tor...,,. , of record in my office. Witness my hand an y '' (- on Dan 1.1...„, unty Clerk Py Poputrl ACHADO Billing Number: 824268 Legal Description: Unit 523, Building 5, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824269 Legal Description: Unit 525, Building 5, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824270 Legal Description: Unit 527, Building 5, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824271 Legal Description: Unit 529, Building 5, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824272 Legal Description: Unit 610, Building 6, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824273 Legal Description: Unit 612, Building 6, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
AUG 31 2015 334093-1 Dana DeBeauvoir, County Clerk, Travis County, Texas, do hereby certify that this is a true and correct copy as same appears of ord In my office. Witness my hand and seal of Dana Do Clark ay DQPIrtY; CHAD Billing Number: 824274 Legal Description: Unit 614, Building 6, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824275 Legal Description: Unit 616, Building 6, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824276 Legal Description: Unit 618, Building 6, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824277 Legal Description: Unit 621, Building 6, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824278 Legal Description: Unit 623, Building 6, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824279 Legal Description: Unit 625, Building 6, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
AUG 3 1 2015 334093-1 I, Dana DeBeauvoir, County Cie*, Travis CbUnty, Texas, do hereby certify that this la a true an comect copy as same appears of re E4 rd ih my Ana. Witness my hand and seal of 012 Dana DeBea By Denutyl Billing Number: 824280 Legal Description: Unit 627, Building 6, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824281 Legal Description: Unit 629, Building 6, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824282 Legal Description: Unit 710, Building 7, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824283 Legal Description: Unit 712, Building 7, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824284 Legal Description: Unit 714, Building 7, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824285 Legal Description: Unit 716, Building 7, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
AUG 3 1 2015 33,1U93 I, Dana DeBeauvoir, County Clerk, Travis County, Texas, do hereby certify that this is a true and correct copy as same appears f record In my office. Witness my hand and sealf,e on Dana De nty Clerk By Dep
0,1,1 54 A ti„, Billing Number: 824286 Legal Description: Unit 718, Building 7, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824287 Legal Description: Unit 721, Building 7, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number; 824288 Legal Description: Unit 723, Building 7, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824289 Legal Description: Unit 725, Building 7, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824290 Legal Description: Unit 727, Building 7, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
Billing Number: 824291 Legal Description: Unit 729, Building 7, Marina Village at Lakeway Condominium, Condo Decl. 2007196934 amended in Doc. No. 2007210849, 2007214312 and 2008030538, said property being a portion of that tract as desc. in Doc. No. 2006166885 Of the deed records of Travis County, Texas
AUG 31 2015 334093-1 I, Dana DeBeauvoir, County Clerk, Texas, do hereby cortify that this Travis County, correct copy as same appears •f Is=cord a true and In my office. Witness my hand and seal on TO HAVE AND TO HOLD the above described property unto said, Travis County, Trustee, in trust for the use and benefit of itself and Lake Travis Independent School District, Travis County Healthcare District d/b/a Central Health, City of Lakeway, Lakeway MUD and Travis County Emergency Services District No. 6, and his or her assigns forever as fully and absolutely as I, Constable as aforesaid, can convey by virtue of said Judgment and said Order of Sale, subject to the Defendant's right to redeem the same in the manner prescribed by law.
IN TESTIMONY WHEREOF I hereunto set my hand this August it , 2015.
THE STATE OF TEXAS COUNTY OF TRAVIS
BEFORE ME, the undersigned authority, on this day personally appeared Carlos B. Lopez, Constable of Travis County, Texas, known to me to be the person and official whose name is subscribed to the foregoing instrument, and acknowledged that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this August 11 7 , 2015.
AO7N CINDA KORTAN MY COMMISSION EXPIRES Notary Public •••• January31,2019
Return to: Travis County Attorney's Office; Attn: Tax P.O. Box 1748, Austin, Texas 78767
FILED AND RECORDED OFFICIAL PUBLIC RECORDS
Aug 13, 2015 09:33 AM AUG 31 2015 FEE: $0.00 2015129230 334093-1 Dana DeBeauvoir, County Clerk I, Dana DeBeauvoir, County Clerk, Travis Coulq, Travis County TEXAS Texas, do hereby certify that thisi rue sett correct copy as same appea Or In my office. Witness my hand and seal:001 Dana Deb Clark By Deputy: )" a. fy EXHIBIT B § 82.104. Transfer of Special Declarant Rights, TX PROPERTY § 82.104
Vernon's Texas Statutes and Codes Annotated Property Code (Refs & Annos) Title 7. Condominiums Chapter 82. Uniform Condominium Act(Refs & Annos) Subchapter C. Condominium Management
V.T.C.A., Property Code § 82.104
§ 82.104. Transfer of Special Declarant Rights
Currentness
(a) Special declarant rights created or reserved under this chapter may not be transferred except by an instrument evidencing the transfer recorded in each county in which any portion of the condominium is located. The instrument is not effective unless executed by the transferee.
(b)On transfer of any special declarant right, a transferor is not relieved of an obligation or liability arising before the transfer. A transferor is not liable for an act or omission or a breach of an obligation arising from the exercise of a special declarant right by a successor declarant who is not an affiliate of the transferor.
(c)Unless otherwise provided by a mortgage instrument or deed oftrust, in case offoreclosure of a mortgage,tax sale,judicial sale, sale by a trustee under a deed of trust, or sale under Bankruptcy Code or receivership proceedings, of a unit owned by a declarant or of real property in a condominium subject to development rights, a person acquiring title to all the real property being foreclosed or sold may request to succeed to all special declarant rights or only to rights reserved by the declaration to maintain models, offices, and signs. The judgment or instrument conveying title may provide for transfer of only the special declarant rights requested.
(d)On foreclosure, tax sale,judicial sale, sale by a trustee under a deed oftrust, or sale under Bankruptcy Code or receivership proceedings of all units and other real property in a condominium owned by a declarant:
(1)the declarant ceases to have any special declarant rights; and
(2) the period of declarant control terminates unless the judgment or instrument conveying title provides for transfer of all special declarant rights held by that declarant to a successor declarant.
(e) The liabilities and obligations of a person who succeeds to special declarant rights are as follows:
(1)a successor to a special declarant right who is an affiliate of a declarant is subject to all obligations and liabilities imposed on the transferor by this chapter or by the declaration;
(2)a successor to a special declarant right, other than a successor described by Subdivision(3)or (4), who is not an affiliate of a declarant, is subject to all obligations and liabilities imposed on the transferor by this chapter or by the declaration;
WestlawNext ( 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 82.104. Transfer of Special Declarant Rights, TX PROPERTY § 82.104
(3) a successor to only a right reserved by the declaration to maintain models, offices, and signs, who is not an affiliate of a declarant, may not exercise any other special declarant right, and is not subject to any liability or obligation as a declarant, except the obligation to provide a condominium information statement and any liability arising as a result; and
(4) a successor to all special declarant rights held by the successor's transferor who is not an affiliate of that declarant and who succeeded to those rights pursuant to a deed in lieu of foreclosure or a judgment or instrument conveying title to units under Subsection (c) may declare the person's intention in a recorded instrument to hold those rights solely for transfer to another person; thereafter, until all special declarant rights are transferred to a person acquiring title to any unit owned by the successor, or until an instrument permitting exercise ofall those rights is recorded, the successor may not exercise any of those rights other than any right held by the successor's transferor to control the board as provided by Section 82303(c)for the duration ofthe period ofdeclarant control, and an attempt to exercise those rights is void; so long as a successor declarant may not exercise special declarant rights under this subdivision, the successor is not subject to any liability or obligation as a declarant other than liability for acts and omissions under Section 82.103(a).
(f) This section does not subject a successor to a special declarant right to any claims against or other obligations of a transferor declarant, other than claims and obligations arising under this chapter or the declaration.
Credits Added by Acts 1993, 73rd Leg., ch. 244,§ 1, eff. Jan, 1, 1994.
V. T. C. A., Property Code § 82.104, TX PROPERTY § 82.104 Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document 2015 Thomson Reuters. No claim to original U.S. Government Works.
WestlawNext02015 Thomson Reuters. No claim to original U.S. Government Works. 2