                                                                                                   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
