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

• Court: Court of Appeals of Texas
• Decided: April 9, 2015
• Docket: 03-15-00046-CV
• Status: Published

Opinion

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

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