Dana Dutschmann and Kevin Bierwirth v. Federal National Mortgage Association

Opinion

ACCEPTED 03-14-00561-CV 4002057 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/3/2015 1:49:40 PM JEFFREY D. KYLE CLERK No. 03-14-00561-CV ______________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS OF TEXAS AUSTIN, TEXAS THIRD DISTRICT, AUSTIN 2/3/2015 1:49:40 PM ______________________________________________________ JEFFREY D. KYLE Clerk

DANA DUTSCHMANN and KEVIN BIERWIRTH,

Appellants, vs.

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.

______________________________________________________

On Appeal from the County Court at Law No. 2 Travis County, Texas Trial Court Cause No. C-1-CV-15-006351 ______________________________________________________

APPELLEE’S OBJECTION TO APPELLANT KEVIN BIERWIRTH’S MOTION TO EXTEND TIME FOR FILING APPELLANT’S BRIEF

To the Honorable Court of Appeals:

A. Introduction and Procedural Status

1. This is an appeal from a forcible detainer action in the County Court

at Law No. 2, Travis County, Texas. Appellants filed their respective Notices of

Appeal on September 5, 4014.

2. On November 6, 2014, Appellee filed a Motion to Dismiss this appeal

on the grounds that Appellants had failed to pay the filing fees associated with the

appeal.

3. Almost five months have elapsed since Appellants filed their Notices

of Appeal, and Appellants have still not paid the required filing fees. Appellee’s

Motion to Dismiss remains pending before this Court.

4. Appellants’ Briefs were due before this Court on January 20, 2015.

To date, neither Appellant Kevin Bierwirth nor Appellant Dana Dutschmann has

filed their respective briefs.

5. On January 30, 2015, acting pro se, Appellant Kevin Bierwirth

(“Bierwirth”) filed his Motion to Extend Time for Filing Appellant’s Brief.

Bierwirth’s Motion does not address the filing of Appellant Dutschmann’s brief.

B. Objection to Motion to Extend Time

6. Appellee objects to Bierwirth’s request for additional time to file his

brief, and respectfully requests that the Court deny the requested relief.

7. This Court is aware of Bierwirth’s history of foreclosure and forcible-

detainer litigation. See, e.g., Bierwirth v. BAC Home Loans Servicing, L.P., 2012

Tex. App. LEXIS 7506, n. 1 (Tex.App. – Austin 2012, pet. denied)(listing some of

Bierwirth’s similar litigation in this Court and other courts). A review of the

procedural histories of Bierwirth’s other cases reveals that delays and requests for

additional time are the rule, rather than the exception.

8. In his Motion, Bierwirth makes no attempt to explain the timing of his

request for the additional reporter’s record. Bierwirth states that he requires a

transcript from a hearing regarding his petition for writ of reentry in the lower

court. The hearing on Bierwirth’s petition for writ of reentry was held before the

County Court at Law No. 2 in Travis County on September 17, 2014—almost two

weeks after Bierwirth filed his Notice of Appeal with this Court.

9. Bierwirth should have known at the time of the hearing or

immediately thereafter that his appeal would require the preparation of an

additional reporter’s record. Yet, there is no indication that Bierwirth attempted to

obtain the additional reporter’s record in the four months since the hearing.

Rather, 10 days after his brief was due, he has requested that this Court grant

additional time to secure the additional reporter’s record.

10. This appeal is also hindering Appellee’s ability to sell the subject

property. Because of the pending appeal, Appellee is unable to obtain a title

insurance policy with respect to the subject property. Allowing Bierwirth to

prolong this already lengthy proceeding will further delay Appellee’s disposition

of the subject property.

C. Prayer

11. For these reasons, Appellee Federal National Mortgage Association

respectfully requests that the Court deny Appellant Kevin Bierwirth’s Motion to

Extend Time for Filing Appellant’s Brief.

Respectfully submitted,

By: /s/ Douglas G. Dent Brian P. Casey State Bar No. 00793476 Douglas G. Dent State Bar No. 24078062 6836 Bee Caves, Bldg. 3, Suite 303 Austin, Texas 78746 Tel.: 512-617-6409 Fax: 888-530-9616 bcasey@caseylawtx.com ddent@caseylawtx.com

Certificate of Service

Pursuant to Tex. R. App. P. 9.5, I hereby certify that on February 3, 2015, I served the foregoing document via regular mail on the following persons:

Kevin Bierwirth 13276 Research Blvd., #204 Austin, Texas 78750

Dana Dutschmann 3305 Spaniel Drive Austin, Texas 78759

/s/ Douglas G. Dent Douglas G. Dent

Certificate of Compliance

Pursuant to Tex. R. App. P. 9.4(i)(3), I certify that this document contains 661 words.