Kirk Koether and Vicki Koether v. Amber Novasad-White, Individually and D/B/A/ Nova Tech Foundation Repair, and John Novosad, Individually and D/B/A Nova Tech Foundation Repair ( 2015 )

ACCEPTED
03-15-00046-CV
4827101
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/9/2015 1:44:20 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00046-CV
FILED IN
IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS
FOR THE STATE OF TEXAS AUSTIN, TEXAS
AT AUSTIN, TEXAS 4/9/2015 1:44:20 PM
JEFFREY D. KYLE
Clerk
KIRK AND VICKI KOETHER,
APPELLANT
V.
AMBER NOVOSAD-WHITE, INDIVIDUALLY AND D/B/A NOVA
TECH FOUNDATION REPAIR, AND JOHN NOVOSAD
INDIVIDUALLY AND D/B/A NOVA TECH FOUNDATION REPAIR,
APPELLEES
On Appeal from Cause No. 15,280
st
21 Judicial District Court, Lee County, Texas
The Honorable Judge Reva L. Towslee Corbett presiding
KIRK AND VICKI KOETHER’S MOTION TO EXTEND TIME TO
FILE APPELLANTS’ BRIEF
APPELLANTS’ MOTION
Appellants ask the court to extend the time for Appellants to file
Appellants’ Brief.
A. Introduction and Facts
1. Appellants are Kirk and Vicki Koether; Defendants/Appellees are
Amber Novosad-White, Individually and D/B/A Nova Tech Foundation
Repair, and John Novosad Individually and D/B/A Nova Tech Foundation
Repair.
2. Appellants filed suit on October 13, 2013 in connection with their
purchase of real property located at 1105 County Road A in Lexington, Texas
78947 and legally described as BLUE PROPERTIES SECTION A, LOT 40,
ACRES 10.0 (hereinafter “the Property”). The Property has numerous
significant defects.
3. Appellants filed suit against Appellees Amber Novosad-White and
John Novosad individually and d/b/a Nova Tech Foundation Repair for
negligence, triggering RCLA procedures, and expressly plead the discovery
rule in connection to their claims.
4. Prior to the time the Motion for Summary Judgment was filed by
Appellees Amber Novosad-White and John Novosad individually and d/b/a
Nova Tech Foundation Repair, Appellants filed their First Amended Petition
to clarify their claims as to the interplay among the negligence claim and the
RCLA statute.
5. Although oral objections were made by counsel for Appellees at the
time of the oral hearing (an oral hearing did not actually occur, however,
objections were allowed to be heard by counsel for Appellees on the
scheduled hearing date), no ruling was made in connection with the
objections and counsel for Appellants was not allowed time to cure any
alleged defects that formed the basis of the Appellees’ objections. On
December 18, 2014, the court signed a judgment granting Appellees’ Motion
for Summary Judgment. On the 17th day of January, 2015, Appellants filed a
Notice of Appeal from the order granting Appellees’ Motion for Summary
Judgment.
6. Appellees filed a Motion to Sever Appellants’ claims against them on
January 19, 2015, during the court’s plenary power over the judgment. See
Tex. R. Civ. P. 306a(5). Appellants attach an affidavit to this motion and
incorporate it herein as Exhibit A to establish facts not apparent from the
record. The Order on Appellees’ Motion to Sever, which was signed on
March 10, 2015, is attached hereto and incorporate herein as Exhibit B. A
request to include this order and a copy of the Court’s docket sheet as a
supplement to the appellate record has been made but has not yet been
received by this Court.
C. Argument & Authorities
7. Appellants appeal the order of the 21st Judicial District Court of Lee
County, Texas granting the Traditional Motion for Summary Judgment of
Amber Novasad-White, individually and d/b/a/ Nova Tech Foundation Repair
and John Novosad individually and d/b/a Nova Tech Foundation Repair that
was signed December 18, 2014.
8. Dominic Audino, as counsel for Appellants, filed a Notice of Appeal as
to this Order on the 17th day of January, 2015 and served said Notice of
Appeal on all relevant parties pursuant to Tex. R. Civ. P. 21, Tex. R. Civ. P.
21a and Tex. R. App. P. 25.1(e) on that same date.
9. On or about the 19th day of January, 2015, Amber Novasad-White,
individually and d/b/a/ Nova Tech Foundation Repair and John Novosad
individually and d/b/a Nova Tech Foundation Repair filed a Motion to Sever
and on March 10, 2015 the 21st Judicial District Court of Lee County, Texas
signed the order granting the Motion to Sever, thereby severing Appellants’
claims against the Appellees from those of remaining defendants. A final
judgment on the merits in this action (the December 18, 2014 order for
Summary Judgment in favor of Appellees) has been effected as a result,
thereby making it final and subject to appeal. See, e.g. Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex.2001). A request to supplement the
appellate record has been made but has not yet been completed. The
undersigned counsel is preparing to file Appellants’ Brief at the earliest,
within thirty days after the record was supplemented with the order of
severance making the appeal final and subject to appeal and believed this
complied with Tex. R. App. P. 38.6(a). The attached affidavit of the
undersigned attorney is included in support this request.
D. Conclusion and Prayer
10. Appellants ask the Court to extend the time to file Appellants’ Brief
as Appellants believed that the thirty-day deadline to file Appellants’ Brief
identified in Tex. R. App. P. 38.6(a) begins to run from the time the record
was supplemented with the March 10, 2015 Severance Order, at which time
the MSJ Order (forming the basis of this appeal) becomes final and subject to
appeal.
11. For these reasons, Appellants ask the court to allow Appellants an
additional thirty days to prepare Appellants’ brief as the case has only
recently become final and subject to appeal after the lower court signed the
attached motion for severance of Appellants’ claims against Appellees and
the appellate record has not yet been supplemented with this order of
severance (attached hereto as Exhibit B), though a request for
supplementation has been served on the trial court. Appellants do not believe
that Appellees are significantly injured by the failure to file the Appellants’
Brief at this time as the order on Appellee’s Motion For Summary Judgment
has NOT been Final and Subject to Appeal for Thirty days as of the date of
this Motion.
/S/ Dominic Audino
Dominic Audino - SBN 24025861
The Law Office of Dominic Audino
One Arboretum Plaza
9442 N. Capital of Texas Highway,
Ste. 500
Austin, Texas 78759
(512) 343-3638 Voice
(512) 252-2850 Facsimile
d.audino@attorneyaudino.com
ATTORNEY FOR APPELLANTS
CERTIFICATE OF CONFERENCE
I certify that on April 6, 2015, I, as counsel for Appellants attempted to
confer with counsel for Appellees Amber Novosad-White, Individually and
D/B/A Nova Tech Foundation Repair, and John Novosad Individually and
D/B/A Nova Tech Foundation Repair in order to establish whether these
Defendants are opposed to an extension of time for Appellants to file
Appellants’ Brief. Counsel for Appellees is not opposed to the extension.
/S/ Dominic Audino
Dominic Audino
CERTIFICATE OF SERVICE
I certify that on April 6, 2015 a true and correct copy of Appellant’s
Motion to Extend the deadline to file Appellants’ Brief was served to each
person listed below by the method indicated.
/S/ Dominic Audino
Dominic Audino
Via U.S. Mail with Delivery Confirm No. 9114 9999 4431 3101 8902 24
Third Court of Appeals
Attn: Clerk
P.O. Box 12547
Austin, Texas 78711-2547
Via File&ServeXpress & U.S. Mail Delivery Confirm No. 9114 9999
4431 3101 8902 87
J. Chad Gauntt
Gauntt, Earl & Binney, L.L.P.
1400 Woodloch Forest Drive, Suite 575
The Woodlands, Texas 77380
Via U.S. Mail With Delivery Confirm No. 9114 9999 4431 3101 8902 17
Lee County District Clerk
Attn: Clerk
P.O. Box 176
Giddings, TX 78942-0176
NO. 03-15-00046-CV
IN THE THIRD COURT OF APPEALS
FOR THE STATE OF TEXAS
AT AUSTIN, TEXAS
KIRK AND VICKI KOETHER,
APPELLANT
V.
AMBER NOVOSAD-WHITE, INDIVIDUALLY AND D/B/A NOVA TECH
FOUNDATION REPAIR, AND JOHN NOVOSAD INDIVIDUALLY AND D/B/A
NOVA TECH FOUNDATION REPAIR,
APPELLEES
On Appeal from Cause No. 15,280
st
21 Judicial District Court, Lee County, Texas
The Honorable Judge Reva L. Towslee Corbett presiding
ORDER ON APPELLANTS KIRK AND VICKI KOETHER’S MOTION TO
EXTEND TIME TO FILE APPELLANTS’ BRIEF
After considering Appellants’ motion to extend the time for Appellants to
file Appellants’ Brief, the court GRANTS the motion.
Appellants’ Brief shall be filed no later than___________.
SIGNED on _______________, 2015.
_________________________
PRESIDING JUDGE