Opinion
No. 01-98-01362-CV
Opinion issued May 29, 2009.
On Appeal from the County Court at Law No. 3, Brazoria County, Texas, Trial Court Cause No. 21249B.
Panel consists of Chief Justice RADACK and Justices TAFT and SHARP.
MEMORANDUM OPINION
The Court abated this appeal in February 2003 upon a suggestion of bankruptcy. On March 25, 2009, the Clerk of this Court notified the parties that it had learned that the bankruptcy proceeding for which this appeal was abated had been closed in September 2006. By that same notice, the Clerk notified the parties that unless, within 20 days of the date of that notice, a party to this appeal filed a motion to retain the appeal, the appeal would be reinstated and dismissed for want of prosecution on April 14, 2009. See TEX. R. APP. P. 42.3(b).
On April 2, 2009, in response to the Clerk's March 25 notice, appellant's counsel, Mr. Simon H. Hughes, filed a letter advising the Court as follows: "I have not yet been able to locate [appellant] in order to determine whether he now intends to pursue the appeal. As soon as I have located [appellant], I will contact the Court." On May 11, 2009, after not having heard from Mr. Hughes for over 30 days, the Court ordered it would reinstate and dismiss the appeal for want of prosecution unless, by May 21, 2009, appellant (1) advised the Court in writing whether he wished to pursue this appeal and (2) filed a motion to retain the case on the Court's active docket.
On May 15, 2009, appellant's counsel filed a letter (dated April 16, 2009) with the Clerk of the Court, reciting in pertinent part:
[Appellant, Mr. Keyser] filed for bankruptcy protection in 2002. That case, a Chapter 13 proceeding, was subsequently dismissed on August 10, 2005.
Mr. Keyser against filed [for] bankruptcy protection on October 14, 2005. That case, a Chapter 7 proceeding, was properly concluded on November 16, 2006 with a discharge of the debtor.
The claims against Mr. Keyser, the subject of the pending appeal, have been dismissed by reason of the aforementioned bankruptcy proceeding. Should you have any questions regarding this matter, please call.
Appellant has not moved to retain the case on the court's active docket, as required by our May 11 order for the case to be retained. Additionally, counsel has represented that the claims against appellant that were the subject of this appeal were discharged in bankruptcy. Accordingly, the court lifts the abatement, reinstates the case on its active docket, and dismisses the appeal. See TEX. R. APP. P. 42.3. Any pending motions are overruled as moot.