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.
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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
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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.
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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
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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.
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Dana Dutschmann and Kevin Bierwirth v. Federal National Mortgage Association
Combined Opinion