Namken Construction, Inc. and Brandon Namken v. Jeffrey Anderson and Cynthia Anderson

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