Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/2/2015 1:01:39 PM JEFFREY D. KYLE Clerk *1 ACCEPTED 03-13-00800-CV 6763320 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/2/2015 1:01:39 PM JEFFREY D. KYLE CLERK NO. -13 -00800 -CV IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN
MARINA VILLAGE LAKEWAY PARTNERS, LTD.,
APPELLANT, v.
LAKEWAY MARINA VILLAGE CONDOMINIU M AS SO CI AT ION ,
APPELLEE.
From The District Court Of 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 00790843 mhawkins@abaustin.com ANDREW F. YORK S ta te B a r N . ayork@abaustin.com ARMBRUST & BROWN, PLLC Co ng re ss Avenue, Suite Austin, Texas (512) 435-2300 — telephone (512) 435-2360 — facsimile Couns el f or A p p l l e e *2 TO THE HONORABLE COURT OF APPEALS:
Appellee Lakeway Marina Village Condominium Association (the
"Association") files this Motion to Dismiss Appeal as Moot, respectfully
shows th e Court as follows.
Following a judgment for unpaid property taxes a foreclosure auction
conducted by Appellant Marina Village Partners, Ltd.
( "M V Lakeway") no longer owns the unbuilt units ar e h u bj e c t o f t hi s
appeal. See Exhibit A, Tax Sale Constable's Deed: As result Constable's
Deed, County—and not Appellant—is now record owner unbuilt
units, Appellant no longer wn s any units or other real property in the
condominium regime.
Texas Property Code Section 82.104(d) provides pertinent part:
(d) On foreclosure, tax sale, judicial sale, sale by a
trustee under deed trust, or sale under Bankruptcy
Code or receivership proceedings all units other
real condominium owned by declarant:
(1) declarant ceases to have any special declarant
rights;
A certified copy Constable's Deed is attached E xh b it A. The deed was
executed by Carlos B. L pe z , Constable, on August 2015, and recorded Official Public
Records Tra vis on August Instrument Number 2 3 0.
[2] A provision is attached Exhibit B.
Thus, Appellant's special declarant rights have ceased to exist matter of law
for this additional reason, regardless the merits of the arguments Appellant
presented its briefing argument.
Similarly, Appellant's arguments arising from its former status "Owner of
100% the remaining 30 units" are moot, should not be considered by the
Court. (See, e.g., Section II(A)(3) Appellant's Brief entitled "As the fee -simple
owner the unbuilt units, Marina Village's 'improvement' ri g ht s authorize i t t o
construct the units free-standing buildings.").
Thus, this appeal i s moot, should be dismissed. In re Kellogg Brown &
Root, Inc., 166 S.W.3d 737 (Tex. 2005) ("A case b ec om es moot if a
controversy ceases to exist between the parties at any stage the legal
proceedings, including the appeal."); Pinnacle Gas Treating, Inc. v. Read,
S.W.3d (Tex. 2003) (" Su bj ec t to some exceptions, case b ec om es moot
when court's actions cannot affect rights the parties.").
WHEREFORE, Appellee La kew ay M ar na V il l ag C nd o m i ni u m
Association prays t ha t appeal be dismissed moot, or alternatively, that the
Court disregard any arguments arising from (a) Appellant's argument that it This appeal arises from final judgment ordering "Plaintiffs special declarant rights
— including t he right to complete improvements comprising Unbuilt Uni ts — have expired, such special declarant rights may be restored nl y by an amendment to he Declaration
approved by 100% votes Marina Village Condominium Association." CR
267-68. "Special declarant rights" include right to "complete improvements indicated on
v.lats plans filed with declaration." Tex. Prop. Code § 82.003(a)(22)(A).
See Appellant's Brief at xi.
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 Counsel for Appellee *5 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
/s/ Andrew F. York Andrew F. York *6 EXHIBIT A *7 111E111111111111111111111111 III{ II TRV [7] PGS Constable's Deed STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TRAVIS
Cause Number: D-1-GV-13-000599
W HE R E AS , by v ir t u e 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, 20 15, at 2:00 p.m., in obedience to said Order of Sale, seize and
le vy u p o n a l l e st a te , r i g ht , ti tle , cla im a nd i nt e r es t w hi c h t h e Def endan t h ad on t h e d a t e 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 : 0 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 ,
publishe d o n c e 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 in The Austin Chronicle, 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 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 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 said or the amount of the taxes, interest, penalties and
costs, said premises hereinafter described were bid off to Travis Trustee, in trust
for use and benefit itself and Lake Travis Independent School District, Travis County
Healthcare District d/b/a Central Health, City Lakeway, MUD and Travis
County Emergency Services Distr ict No. 6.
NOW, THEREFORE, KNOW ALL MEN BY THESE PR ESE NTS :
That consideration premises in said Judgment and Order Sale, I, C ar lo s B.
Lopez, Co nst ab le Travis Texas, do gr an t, sell, and convey unto Travis County,
Tr us tee , trust for use and benefit itself and Lake Travis Independent School
District, County Healthcare District d/b/a Central Health, City Lakeway, Lakeway
MUD County Emergency S er v ic es District their assigns, all the
es tat e, right, title, interest, claim which said defendant(s) had on date said
J u d g m n t was r e n d e re d r a t an y im e af te rwa rds , n a nd t t he pr em is es d e sc r i be d i n
said Order of Sale, further described follows to -wit: AUG 1 I, Dana DeBeauvoir, County Clerk, Travi s County,
334093-1 do hereby certify Is true and correct a m e appea record my office. Witness my hand sea co on
Dana nty Clerk OY D A C HA D .
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. AUG 31
2006166885 Of the deed records of Travis County, Texas I, Dana DeBeauvoir, County Clerk, Travis County,
334093 1 Texas, do hereby certify th this is a true and correct copy as same ait of record in my office. ,,,,t ...,,. , or on Witness my hand an y''(- .1...„, unty Clerk Dan
Py Poputrl ACH ADO *9 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
pr ope rty being a portion of that tract as desc. in Doc. No.
2006166885 Of 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 2008030538, said
property being a portion of that tract as desc. in Doc. No.
2006166885 Of 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 2008030538, said
property being a portion of that tract as desc. in Doc. No.
2006166885 Of deed records Travis County, Texas
Billing Number: 824271
Legal Description: Unit 529, Building 5, Marina Village at
Lakeway Condominium, Condo Decl. 2007196934 amended Doc. No. 2007210849, 2007214312 2008030538, said
property being portion that tract as desc. in Doc. No.
2006166885 Of deed records Travis Texas
Billing Number:
Legal Description: Unit 6 1 0 , Building 6, Marina Village at
Lakeway Condominium, Condo Decl. 2007196934 amended Doc. No. 2007210849, 2007214312 2008030538, said
p r p er t y being portion that tract desc. in Doc. No. 85 O f deed rec ords Cou nty, Texas
Billing Number:
Legal Description: Unit Building 6, Marina Village at Condominium, Condo Decl. amended Doc. 2007214312 said being portion that tract desc. in Doc. No.
2006166885 Of deed records Texas
AUG
31 334093-1 Dana De Be au vo ir , County Clerk, T ra vi s County, do hereby certify is true and correct same appears of ord In my office. W n s m y h a nd an d s ea l f
Dana Do Clark a y D QP I r tY ; C H A D *10 Billing Number: 824274
Legal Description: Unit 614, Building 6, Marina Village at
Lakeway C on d om i n iu m , 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 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 2008030538, said
property being a portion of that tract as desc. in Doc. No.
2 00 6 16 6 8 85 Of 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 2 0 0 80 3 0 5 3 8 , said
property bein g a portion of that tract as desc. in Doc. No.
2006166885 Of deed records of Travis County, Texas
Billing Number: 824277
Legal Description: U n i t 621, Building 6, Marina Villa ge at
Lakeway Condominium, Condo Decl. 2007196934 amended Doc. No. 2007210849, 2 0 0 7 21 4 3 1 2 2 0 0 80 3 0 5 3 8 , said
property being portion that tract as desc. in Doc. No.
2006166885 Of deed records Travis County, Texas
Billing Number: 824278
Legal Description: Unit 623, Building 6, Marina Villa ge at
Lakeway Condominium, Condo Decl. 2007196934 amended Doc. No. 2007210849, 2 0 0 7 21 4 3 1 2 2008030538, said
property being portion that tract desc. in Doc. No. 0 06 1 66885 Of deed records Travis Texas
B ll i n g Number:
Legal Description: Unit Building 6, Marina Village a t Condominium, Condo Decl. 2007196934 amended Do c. 2007214312 said being portion that tr act desc. in Doc. No.
2006166885 Of deed records Texas
AUG
3 1 334093-1 I, Dana DeBeauvoir, County Cie*, CbUnty, do hereby certify la true an comect sa me appears re E4 rd ih my Ana. W it n es m y ha nd a n d se al f
Dana De Be a By D en u yl *11 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.
2 00 6 16 6 88 5 Of deed records of Travis County, Texas
Billing Number: 824281
Legal Description: Unit 629, Building 6, Marina Village at
Lakeway C on d om i n iu m , 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 deed records of Travis County, Texas
Billing Number: 824282
Legal D e s c ri p t i o n : Unit 710, Building 7, Marina Village at
Lakeway Condominium, Condo Decl. 2007196934 amended
in Doc. No. 2007210849, 2007214312 2008030538, said
property being a portion of that tract as desc. in Doc. No.
2006166885 Of deed records Travis County, Texas
Billing Number: 824283
Legal D e s c ri p t i o n : Unit 712, Building 7, Marina Village at
Lakeway Condominium, Condo Decl. 2007196934 amended Doc. No. 2007210849, 2007214312 2008030538, said
property bein g portion that tract as desc. in Doc. No.
2006166885 Of deed records Travis County, Texas
Billing Number:
Legal D e c ri p t i o n : U n i t 714, Building 7, Marina Villa ge at
Lakeway Condominium, Condo Decl. 2007196934 amended Doc. No. 2007210849, 2 0 0 7 21 4 3 1 2 2008030538, said being portion that tract desc. in Doc. No.
20 0616 6885 O f deed r e c o rds T r a v is Texas
B i ll i n g Nu mber :
Legal Description: Unit Building 7, Marina Village at Condominium, Condo Decl. 2007196934 amended Do c. 2007214312 said
p r op r ty being p rt i n that tract desc. in Doc . No. 6885 Of deed records Texas
AUG 3 1 , 1U93 I, Cl Dana DeBeauvoir, County k, er County, do hereby certify is true and correct same appears f record In my office. Witness my hand seal f,e on Dana De nty Clerk By Dep 0,1 , 1 A „, *12 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 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 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 D o c . No. 2007210849, 2007214312 2008030538, said
property being a portion of that tract as desc. in Doc. No.
2006166885 Of deed records Travis County, Texas
Billing Number: 824289
Legal Description: Unit 725, Building 7, Marina Village at
Lakeway Condominium, Condo Decl. 2007196934 amended D c . No. 2007210849, 2007214312 2008030538, said
property being portion that tract as desc. in Doc. No.
2006166885 Of deed records Travis County, Texas
B l li n g Number:
Legal Description: Unit 727, Building 7, Marina Village at Condominium, Condo Decl. 2007196934 amended D c . No. 2007210849, 2007214312 2008030538, said
property being portion that tract desc. in Doc. No.
2006166885 Of deed records Travis Texas
Billing Number:
Legal Description: Unit Building Marina Village at
L ak w ay Condominium, Condo Decl. 2007196934 amended Doc. 08 4 9 , 2007214312 said being portion that tract desc. in Doc. No.
2006166885 Of deed records Texas
AUG
31 I, Dana DeBeauvoir, County Clerk, County, 334093-1 d o hereby cortify Is ru e and correct same appears •f =cord In my office. Wi tne ss my hand ea l on
TO HAVE AND TO HOLD the above described unto said, Travis Trustee, trust for the use and benefit itself and Lake Travis Independent School District, Travis
County Healthcare District d/b/a Central Health, City Lakeway, MUD and
Travis County Emergency Services District and his or her assigns forever as fully absolutely I, Constable aforesaid, can convey by virtue said Judgment and
said Order S al , subject to Defendant's right to redeem the same the manner
prescribed by la w.
IN TESTIMONY WHEREOF I hereunto set my hand this August it , 2015.
THE STATE OF TEXAS
COUNTY OF TRAVIS
BEFORE ME, undersigned authority, on this day personally appeared Carlos B.
Lopez , Constable Travis Texas, known to me to be person official
whose name is subscribed to f r eg n g instrument, and acknowledged that he
executed same for purposes consideration therein expressed in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE August , 2015. AO7N CINDA KORTAN MY COMMISSION EXPIRES
Notary Public •••• January31,2019
Return to: Count y Attorney's Offic e; Attn: Tax
P.O. Box Aus tin, Texas 78767
FILED AND RECORDED OFFICIAL PUBLIC RECORDS
A U G 5 Aug 2015 09:33 AM
FEE: $ 0. Dana De Bea uvo ir, County Clerk
334093-1 I, Dana DeBeauvoir, County Clerk, T ra vi Coulq, do hereby certify thisi rue sett County TEXAS correct same appea O r In my office. Wi tnes s m y hand seal :
Dana Deb Clark fy ) a . " B y D ep u ty : *14 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 of trust, in case of foreclosure 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 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; 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.
§ 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 of all 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 823 03(c) for
the duration of the period of declarant 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 2015 Thomson Reuters. No claim to original U.S. Government Works.
End of Document
WestlawNext 0 2015 Thomson Reuters. No claim to original U.S. Government Works.