DeHart v. Unifirst Corp.

Full title: JOEY P. DeHART D/B/A AMERICAN TRENCH, Appellant v. UNIFIRST CORPORATION…

Court: Court of Appeals of Texas, Eighth District, El Paso

Date published: Jul 10, 2003

No. 08-03-00137-CV (Tex. App. Jul. 10, 2003)

Opinion

No. 08-03-00137-CV.

July 10, 2003.

Appeal from the 394th District Court of Brewster County, Texas, (TC#2000-10-B7603-CV).

Joey DeHart P.O. Box 209 Alpine, TX 79831, attorney for appellant.

Hon. Colbert N. Coldwell Guevara, Rebe, Bauman, Coldwell Reedmen, L.L.P. 4171 N. Mesa, Ste. B-201 El Paso, TX 79902, attorney for appellee.

Before Panel No. 1: LARSEN, McCLURE, and CHEW, JJ.

MEMORANDUM OPINION ON MOTION TO WITHDRAW APPEAL

SUSAN LARSEN, Justice.

Unifirst Corporation sued Joey P. DeHart, doing business as American Trench, for breach of contract. The trial court granted a summary judgment in favor of Unifirst for $4,422.66, plus interest and attorney's fees in the amount of $750. DeHart filed a pro se notice of appeal. DeHart has now filed a "Motion to Withdraw Appeal," stating that he has filed a petition for bankruptcy and "[t]herefore, this appeal is no longer necessary as the judgment is part of the bankruptcy estate."

Rule 8.2 of the Texas Rules of Appellate Procedure provides that "[a] bankruptcy suspends the appeal and all periods in these rules from the date when the bankruptcy petition is filed until the appellate court reinstates or severs the appeal in accordance with federal law." Pursuant to this rule, if a bankruptcy petition has been filed, we cannot act on DeHart's motion to withdraw the appeal.

DeHart's proper course of action is to file in this Court a notice of bankruptcy in compliance with Rule 8.1 of the Texas Rules of Appellate Procedure. The notice must include the bankrupt party's name, the court in which the bankruptcy proceeding is pending, the bankruptcy proceeding's style and case number, the date when the bankruptcy petition was filed, and an authenticated copy of the pages of the bankruptcy petition that show when the petition was filed. See Tex.R.App.P. 8.1. Upon receipt of the notice, this appeal will be abated until we receive a motion to reinstate showing that the automatic stay has been lifted or that we are otherwise authorized by federal law or the bankruptcy court to reinstate the appeal. See Tex.R.App.P. 8.3(a).