Chris Peterson, Robert Turner, Scott Reichardt and Pamela Reichardt v. Overlook at Lake Austin, L.P.
03-16-00557-CV
| Tex. App. | Nov 21, 2016Background
- Overlook at Lake Austin, L.P. (Overlook) acquired ~2.288 acres reserved as “Additional Phases” under a recorded condominium Declaration that expressly reserved declarant development rights (resubdivide, replat, rezone) and made declarant successor designations perpetual.
- Overlook contracted to build and sell condominium units and submitted resubdivision and site-plan documents to the City of Austin and Travis County; two buyers (Ramseys, Byrnes) paid earnest money under multimillion-dollar purchase contracts.
- Neighbor Chris Peterson and intervenors Robert Turner and Scott & Pamela Reichardt sued Zoning & Platting Commission (ZAP), Travis County Commissioners Court, and Overlook seeking injunctive/mandamus relief to block Overlook’s approvals; defendants invoked governmental immunity and related jurisdictional defenses.
- Overlook filed counterclaims against Peterson (breach of contract, conspiracy) and against Turner and the Reichardts (tortious interference with contract; Turner also conspiracy). Overlook alleged petitioning was used to delay and harm its development and caused lost sales.
- Appellants moved to dismiss Overlook’s counterclaims under the Texas Citizens Participation Act (TCPA). The trial court granted in part and denied in part: it dismissed Overlook’s conspiracy claims (with prejudice) as to Peterson and Turner, but denied dismissal of Overlook’s breach of contract claim against Peterson and tortious-interference claims against the intervenors; the court reserved consideration of attorney’s fees and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Overlook stated a prima facie breach of contract against Peterson under the TCPA | Overlook: Declaration creates contractual privity; Peterson breached express declarant-related covenants by suing to stop governmental consideration, causing lost sales and damages | Peterson: His suit and petitioning are protected by the TCPA (First Amendment petition/speech) and thus Overlook’s claim must be dismissed | Trial court denied dismissal — Overlook presented clear and specific evidence (including circumstantial) of contract, breach, and damages; court found Peterson’s petitioning could be a “sham” that removes TCPA protection |
| Whether Overlook stated tortious-interference claims against Turner and the Reichardts under the TCPA | Overlook: Intervenors filed objectively baseless petitions against immune/non-justiciable governmental entities and used litigation to delay Overlook’s approvals, causing interference and damages | Intervenors: Their petitioning is protected activity under the TCPA and requires dismissal of Overlook’s claims | Trial court denied dismissal — Overlook showed prima facie circumstantial evidence that intervenors’ actions were objectively baseless and used for wrongful delay (sham petitioning) |
| Whether the trial court properly dismissed Overlook’s conspiracy claims | Overlook alleged conspiracy supporting related claims | Appellants argued TCPA dismissal appropriate for conspiracy claims | Trial court granted motions as to conspiracy claims and dismissed them with prejudice |
| Whether this Court may review interlocutory rulings on attorney’s fees, costs, and sanctions under TCPA | Overlook: Appellate review of fee/sanction rulings is improper because interlocutory and not separately appealable | Appellants: sought appellate review contending trial-court error in fee/sanctions rulings | Appellee argued (and court urged) the appeals court lacks jurisdiction over interlocutory fee/sanction determinations; appellate review of those issues is improper absent statutory authorization |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (clarifies TCPA evidentiary standard and allows circumstantial evidence to defeat TCPA motion)
- Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015) (discusses sham-petitioning exception and TCPA interaction with petitioning privilege)
- Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318 (Tex. App.—Fort Worth 1998) (damages recoverable when loss is foreseeable consequence of defendant’s conduct)
- Mead v. Johnson Group, Inc., 615 S.W.2d 685 (Tex. 1981) (contract damages recoverable when natural, probable, and foreseeable)
- Scott v. Sebree, 986 S.W.2d 364 (Tex. App.—Austin 1999) (elements of breach of contract)
- Paulsen v. Yarrell, 455 S.W.3d 192 (Tex. App.—Houston [1st Dist.] 2014) (appellate courts lack jurisdiction over interlocutory TCPA fee rulings)
- Fleming & Associates, L.L.P. v. Kirklin, 479 S.W.3d 458 (Tex. App.—Houston [14th Dist.] 2015) (same; dismissal of appeal for want of jurisdiction re: reserved fee issues)