The opinion
ACCEPTED
03-13-00800-CV
6889620
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/11/2015 4:19:29 PM
JEFFREY D. KYLE
CLERK
NO. 03-13-00800-CV
_____________________________________________
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
THIRD JUDICIAL DISTRICT OF TEXAS 9/11/2015 4:19:29 PM
AT AUSTIN JEFFREY D. KYLE
________________________________________________ Clerk
MARINA VILLAGE LAKEWAY PARTNERS, LTD.,
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
APPELLANT’S RESPONSE TO APPELLEE’S
MOTION TO DISMISS APPEAL
Eric J. Taube
State Bar No. 19679350
etaube@taubesummers.com
TAUBE SUMMERS HARRISON
TAYLOR MEINZER BROWN, LLP
100 Congress Avenue, Suite 1800
Austin, Texas 78701
(512) 472-5997
(512) 472-5248 (fax)
ATTORNEY FOR APPELLANT
TO THE HONORABLE THIRD COURT OF APPEALS:
Marina Village Lakeway Partners, Ltd. (“Appellant”) files this its Response
to the Motion to Dismiss Appeal filed by Lakeway Marina Village Condominium
Association (“Appellee”) and would respectfully show as follows:
This appeal was filed with this Court on December 2, 2013 from a summary
judgment issued by the 353rd Judicial District Court of Travis County. This
judgment effectively held that Appellant’s right to construct any improvements on
30 units of a condominium project that it owned were eviscerated because Special
Declarant Rights had expired by operation of time. The result of that ruling by the
trial court rendered these substantial property rights economically worthless.
Briefing was completed in July of 2014, and oral argument was conducted
before Justice Rose, Justice Goodwin and Justice Jones almost one year ago, on
September 24, 2014. The parties have been awaiting the ruling from this Court.
In the interim, and because the property at issue was rendered completely
valueless as a result of the summary judgment ruling from the trial court which is
the subject of this appeal, tax liens on the very same property were unpaid and
foreclosed upon by Travis County on July 7, 2015. Travis County was the
purchaser of the property at the tax sale.
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Appellee asserts that due to the foreclosure, the appeal was rendered moot.
Such allegation is not correct. First, pursuant to Section 34.21 of the Texas Tax
Code, Appellant, as the “owner of the real property sold at a tax sale” has the right
to redeem the property “not later than the 180th day following the date on which the
purchaser's or taxing unit's deed is filed for record.” Tex. Tax Code §34.21(e).
The very earliest the redemption right could expire is February 9, 2016. As a
consequence, Appellant maintains a clear economic interest in the property, and
should this honorable Court reverse the trial court’s decision which rendered the
property interest worthless before that date, there is both an economic incentive
and economic viability to redeem the property from the foreclosure sale by the
taxing authority pursuant to the statutory privilege to do so.
Appellee’s alternative argument that as a result of the tax sale, that Special
Declarant rights are lost also misses the mark, and is, in fact, the essence of the
appeal before this Court. Appellant has argued in this appeal that the loss of
Special Declarant Rights has nothing to do with its ability to construct
improvements on the property pursuant to the Texas Uniform Condominium Act.
(See Appellant’s Reply Brief at pages 3-8 and Appellant’s initial Brief, pages 11-
17). In essence, as it relates to this issue, Appellant’s Motion to Dismiss is nothing
more than a regurgitation of the arguments that they have already made on appeal
that are pending before this Court, have been fully briefed and argued. Appellant
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will not reargue this point for the purpose of this response, but urges the Court to
review prior briefing on why the expiration of the Special Declarant Rights does
not prohibit construction of improvements.
While Appellant will not suggest to this Court that Appellee has attempted
to “run out the clock” in order to attempt to preclude this Court from undertaking
an examination of the merits of this appeal that has been pending for just under a
year, it would indeed be an injustice for the Court not to render a decision on the
merits of this appeal due to the economic consequences of the trial court’s initial
determination, which Appellant obviously disagrees with, and the burden of this
Court’s substantial docket. In such event, the adage “Justice delayed is justice
denied” would be actual and not theoretical.
For the foregoing reasons, Appellant requests that this Court deny
Appellant’s Motion to Dismiss and render its opinion overturning the summary
judgment of the trial court.
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Respectfully submitted,
TAUBE SUMMERS HARRISON
TAYLOR MEINZER BROWN, LLP
By: /s/ Eric J. Taube
Eric J. Taube
State Bar No. 19679350
etaube@taubesummers.com
100 Congress Avenue, Suite 1800
Austin, Texas 78701
(512) 472-5997
(512) 472-5248 (FAX)
ATTORNEY FOR APPELLANTS
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Appellant’s Response to
Appellee’s Motion to Dismiss Appeal was filed electronically and served on all
counsel below via e-mail in compliance with Tex. R. App. P. 9.5(b) and L.R.3 on
the 11th day of September, 2015.
Mark Hawkins
mhawkins@abaustin.com
Andrew York
ayork@abaustin.com
ARMBRUST & BROWN, PLLC
100 Congress Ave., Suite 1300
Austin, Texas 78701
/s/ Eric J. Taube
Eric J. Taube
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