Namken Construction, Inc. and Brandon Namken v. Jeffrey Anderson and Cynthia Anderson ( 2015 )

ACCEPTED
03-15-00224-CV
5712167
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/17/2015 1:10:10 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00224-CV
______________________________________________________________________________
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE
6/17/2015 1:10:10 PM
COURT OF APPEALS JEFFREY D. KYLE
Clerk
FOR THE
THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
AT AUSTIN, TEXAS
_____________________________________________________________________________
NAMKEN CONSTRUCTION, INC. AND BRANDON NAMKEN,
Appellants
v.
JEFFREY ANDERSON AND CYNTHIA ANDERSON,
Appellees
From the 428th District Court
of Hays County, Texas
Cause No. 14-1456
_____________________________________________________________________________
APPELLANTS’ MOTION TO DISMISS FOR MOOTNESS
TO THE HONORABLE COURT OF APPEALS:
Appellants, Namken Construction, Inc. and Brandon Namken, respectfully ask the Court
to dismiss the appeal.
A. INTRODUCTION
1. Appellants are Namken Construction, Inc. and Brandon Namken; Appellees are Jeffrey
Anderson and Cynthia Anderson.
2. The 428th District Court of Hays County, Texas, signed a Default Judgment in the
underlying case, Jeffrey Anderson and Cynthia Andeson v. Namken Construction, Inc. and
Brandon Namken, cause number 14-1456, on November 5, 2014, in favor of appellees and
against appellants.
3. The Notice of Court Order notifying Appellants that a Judgment was entered against them
in the amount of $360,191.00 plus costs of court on November 5, 2014, was returned to sender
and never delivered. Appellants received actual notice of the default judgment signed on
November 5, 2014, in favor of Appellees on January 7, 2015.
4. Appellants filed a timely Motion to Extend Postjudgment Deadlines and a Motion to Set
Aside Default Judgment and Alternative Motion for New Trial on February 5, 2015.
5. Appellants were diligent in trying to have the above motions timely set for hearing.
However, due to Appellees’ initial objections to Appellants requested setting dates, scheduling
conflicts with the district court’s calendar, and scheduling conflicts due to both parties counsel’s
preferential jury trials during the month of March, Appellants were unable to have the motions
set for hearing until April 13, 2015, after the Motion for New Trial had been overruled by
operation of law but while the trial court still retained plenary power.
6. The deadline to file the notice of appeal was April 7, 2015.
7. Appellants filed the notice of appeal in the trial court on April 15, 2015, within 15 days
after the deadline. See Tex. R. App. P. 26.3.
8. Appellants requested and were granted an additional 9 days to file the notice, extending
the time until April 16, 2015.
9. The trial court signed an order granting Namken Construction, Inc. and Brandon
Namken’s Motion to Set Aside Default Judgment and Alternative Motion for New Trial on April
20, 2015, and true and correct copy of which is attached hereto as Exhibit A.
10. The trial court signed an order granting Namken Construction, Inc. and Brandon
Namken’s Motion to Extend Postjudgment Deadlines on May 18, 2015, and true and correct
copy of which is attached hereto as Exhibit B.
B. ARGUMENT & AUTHORITIES
11. The Court has the authority to dismiss an appeal if there is no longer an issue in
controversy. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 154 (Tex. 2012); Tex. A&M
Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 291 (Tex. 2011).
12. The Court has the authority to dismiss this appeal for lack of jurisdiction because the
issues on appeal are no longer in controversy since the trial court granted Appellants a new trial.
See FDIC v. Nueces Cnty., 886 S.W.2d 766, 767 (Tex. 1994).
13. The controversy between the parties ended when the trial court granted the
Defendants/Appellants’ Motion to Extend Postjudgment Deadlines and ordered a new trial.
Because this action disposed of all issues forming the basis of this appeal, the appeal should be
dismissed.
14. The Court should not decide the issues presented by this appeal because the appeal is
moot, and the Court is not authorized to issue advisory opinions. See Heckman, 369 S.W.3d at
147; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).
C. PRAYER
15. Therefore, Appellants respectfully asks the Court to grant this motion and dismiss the
appeal.
Respectfully submitted,
BURLESON LLP
Weston Centre
112 East Pecan Street, Suite 700
San Antonio, Texas 78205
Telephone: (210) 870-2620
Facsimile: (210) 870-2626
By:___/s/ Rebecca C. Bergeron___
MARCELLA A. DELLA CASA
State Bar No. 24009862
Email: mdellacasa@burlesonllp.com
REBECCA C. BERGERON
State Bar No. 24075353
Email: rbergeron@burlesonllp.com
ATTORNEYS FOR APPELLANTS
NAMKEN CONSTRUCTION, INC. AND
BRANDON NAMKEN
CERTIFICATE OF CONFERENCE
As required by Texas Rule of Appellate Procedure 10.1(a)(5), I hereby certify that I have
conferred with Mr. David Junkin, counsel of record for Appellee, by email and facsimile
concerning the relief sought in this motion, and he is unopposed to Appellant’s Motion to
Dismiss.
___/s/ Rebecca C. Bergeron___
REBECCA C. BERGERON
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was served via
electronic submission on June 17, 2015, to the following counsel of record:
Mr. David Junkin
Law Offices of David Junkin
15401 RR12, Suite 105
P.O. Box 2910
Wimberley, Texas 78676
___/s/ Rebecca C. Bergeron___
REBECCA C. BERGERON