NO. 03-15-00046-CV

IN THE THIRD COURT OF APPEALS 

FOR THE STATE OF TEXAS 

AT AUSTIN, TEXAS 

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 

21st 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 

ACCEPTED

03-15-00046-CV

4827101

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/9/2015 1:44:20 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/9/2015 1:44:20 PM JEFFREY D. KYLE Clerk
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 

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 

21st 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