Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/29/2015 10:37:52 AM JEFFREY D. KYLE Clerk NO. 03-15-00763-CV THIRD COURT OF APPEALS 12/29/2015 10:37:52 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00763-CV *1 ACCEPTED ^[8388101] CLERK TWIN CREEKS GOLF GROUP, L.P. § IN THE THIRD DISTRICT

Appellant §

v. § COURT OF APPEALS

SUNSET RIDGE OWNERS §

ASSOCIATION, INC. §

Appellee, § AUSTIN, TEXAS

APPELLANT’S, TWIN CREEKS GOLF GROUP, MOTION TO DISMISS

FOR LACK OF JURISDICTION TO THE HONORABLE JUDGE OF SAID COURT:

Appellant, Twin Creeks Golf Group, L.P., asks the Court to dismiss this ap- peal, and remand this case to the trial court.

INTRODUCTION 1. Appellant is Twin Creeks Golf Group, L.P., (“TCGG”). Appellee is the Sunset Ridge Owners Association, Inc.

2. The 98 th District Court for Travis County, Texas signed the Order on Plaintiff’s Traditional Motion for Partial Summary Judgment on November 2, 2015

(the “Order”) in the underlying case, Sunset Ridge Owners Association, Inc. v.

Twin Creeks Property, Ltd., Twin Creeks Operating Company, L.P., and Twin

Creeks Golf Group, L.P. , Cause No. D-1-GN-15-002549, in favor of Appellee and

against TCGG. The Order was not final and appealable at that time because it did

not dispose of all parties and did not dispose of all causes of action. Appellee takes

the position that the Order became final and appealable upon the filing of Plain-

tiff’s Second Amended Original Petition for Declaratory Judgment on November

4, 2015. But Plaintiff’s Second Amended Original Petition for Declaratory Judg-

ment named two other defendants, Twin Creeks Property, Ltd., and Twin Creeks

Golf Group, L.P., who were not the subject of the Order and who have not been

subsequently disposed of. Therefore, the Order does not dispose of all parties.

TCGG filed its Notice of Appeal to protect its rights to appeal, given the Appel-

lee’s position, but expressly did not waive its right to contest the finality and ap-

pealability of the Order.

FACTUAL BACKGROUND 3. In Appellee’s Amended Original Petition for Declaratory Judgment, Plaintiff named three defendants: 1) Twin Creeks Property, Ltd., 2) Twin Creeks

Operating Company, L.P., and 3) TCGG. (CR 25). Against each of the three de-

fendants, Plaintiff asserted two causes of action: 1) monopoly; and 2) declaratory

judgment. (CR 28). That same day, August 19, 2105, Appellee filed its Plaintiff’s

Traditional Motion for Partial Summary Judgment (“Plaintiff’s Motion”) against

only one of the parties, TCGG. (CR 31). Plaintiff’s Motion also only addressed

one of its causes of action, declaratory judgment. (CR 31-36). On September 28,

2015, Appellee filed a notice of nonsuit, without prejudice to refiling, as to two

parties, Twin Creeks Property, Ltd., and Twin Creeks Operating Company, L.P.

(CR 251-252). On November 2, 2015 the trial court signed the Order granting

Plaintiff’s motion and disposing of only one cause of action (declaratory judgment)

as to TCGG. (CR 253-254). The Order did not dispose of the cause of action for

monopoly. (CR 253-254). The Order does not contain any language that it dispos-

es of all parties and claims and does not contain any language that it is a final ap-

pealable order. (CR 253-254).

4. On November 4, 2015, Appellee filed its Plaintiff’s Second Amended Original Petition for Declaratory Judgment (“Second Amended Petition”). (CR

256). In its Second Amended Petition, Plaintiff renamed Twin Creeks Property,

Ltd., and Twin Creeks Operating Company, L.P. as defendants. ^[1] (CR 256-259).

The Second amended Petition only contained one cause of action, declaratory

judgment. (CR 259). On November 17, 2015, TCGG filed a plea in abatement.

(CR 261 – 292). When counsel for TCGG contacted counsel for Appellee about

setting a hearing on TCGG’s Plea in Abatement, Counsel for Appellee informed

counsel for TCGG that it was Appellee’s position that the Order had become a fi-

nal appealable judgment upon Appellee’s filing of its Second Amended Petition. ^[2]

*4 On subsequent communications between counsel, Appellee continued to maintain

the Order had become a final appealable judgment upon Appellee’s filing of its

Second Amended Petition. ^[3] Unable to persuade Appellee to change its position, on

December 4, 2015, TCGG filed its Notice of Appeal. (CR 293-294).

ARGUMENT AND AUTHORITIES 5. Generally, a court of appeals only has jurisdiction to hear appeals of a fi- nal judgment of a district court or of certain specified interlocutory orders. T EX .

C IV . P RAC . & R EM . C ODE §§ 51.012 and 51.014(a). A judgment is final if it dis-

poses of all parties and all claims. Lehmann v. Har-Con Corp. , 39 S.W.3d 191,

192-193, 195, 200 (Tex. 2001). At no time has the Order at issue in this case dis-

posed of all parties and causes of action. The Order does not contain any language

that it disposes of all parties and claims and does not contain any language that it is

a final appealable order. (CR 253-254). At the time the Order was signed, it did

not dispose of the cause of action for monopoly against TCGG, and was, therefore,

an interlocutory order. (CR 253-254). Upon filing of Appellee’s Second Amended

Petition, the cause of action for monopoly was eliminated, but two new defendants

were named. (CR 256-259). If Appellee had not named the two new parties, the

Order may have disposed of all issues and parties upon filing of the Second

Amended Petition. But because it named new parties who were not disposed of in

*5 the Order, the Order did not become final upon filing of the Second Amended Peti-

tion. Lehmann , 39 S.W.3d at 200; See Crites v. Collins, 284 S.W.3d 839, 840-841

(Tex. 2009). Therefore, the Order did not become final upon filing of the Second

Amended Petition, but remained an interlocutory order.

6. Appeal of an interlocutory order granting declaratory judgment is not among the types of interlocutory orders that a court of appeals has jurisdiction to

hear. T C IV P RAC . & R EM . C ODE § 51.014(a).

7. Because the Order is not final and is not an interlocutory order of a type that a court of appeals has jurisdiction to hear, this Court lacks jurisdiction to hear

an appeal of the Order. This Court should dismiss this appeal and remand this case

to the trial court.

PRAYER 8. For these reasons, TCGG asks the Court to grant this motion, dismiss this appeal for lack of jurisdiction, remand this case to the trial court, and grant TCGG

all other relief to which it may be entitled.

Respectfully submitted, SNEED, VINE & PERRY, P.C. 900 Congress Avenue Suite 300

Austin, Texas 78701 512-476-6955 (Telephone) 512-476-1825 (Facsimile) By: __/s/_Allen Halbrook__________ Allen Halbrook State Bar No. 08721300 ahalbrook@sneedvine.com ATTORNEYS FOR APPELLANT, TWIN CREEKS GOLF GROUP. L.P.

CERTIFICATE OF CONFERENCE I certify that I have conferred with Noel L. Stout by telephone on December 22, 2015, about the merits of Appellant’s, Twin Creeks Golf Group, L.P., Motion

to Dismiss for Lack of Jurisdiction. Appellee, Sunset Ridge Owners Association,

Inc., is opposed to the motion.

______/s/ Allen Halbrook_____________ Allen Halbrook

CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing document has been served by e-mail and by certified mail, return receipt requested, as set out

below on this 29 th day of December, 2015.

Noel L. Stout

Almanza, Blackburn & Dickie, LLP

2301 S. Capital of Texas Highway, Building H

Austin, Texas 78746

nstout@abdlawfirm.com.

____/s/_Allen Halbrook___________ Allen Halbrook

[1] Both Twin Creeks Property, Ltd., and Twin Creeks Operating Company are named in the cap- tion of the Second Amended Petition, in the introductory paragraph, and in the paragraphs nam- ing the parties. (CR 256). Twin Creeks Property, Ltd., is also named in paragraph 4.2. (CR 257). In the prayer, Appellee asks for judgment against the “Defendants.” (CR 259).

[2] The facts in this sentence are within the personal knowledge of the attorney signing this mo- tion. T R. A PP P. 10.2.

[3] The facts in this sentence are within the personal knowledge of the attorney signing this mo- tion. T R. A PP P. 10.2